Petitioner, the City of Bridgeport, has a volunteer program known as Volunteers in Police Service (“VIPS”). Basically, VIPS cooperates with the police department in providing neighborhood patrols and other community-based services. The city has a written policy governing VIPS, including a statement that all vehicular patrols involving VIPS “will be two person manned unless otherwise directed.” On November 3, 2016, two VIPS volunteers, including Respondent, Michael A. Kraft, were operating a city-owned vehicle. The vehicle left the roadway and collided with a tree, seriously injuring Respondent. Respondent sued the city.
The parties participated in discovery and Petitioner then filed a motion to dismiss, citing the governmental immunity provision in W.Va. Code 29-12A-5(a)(4). Specifically, this code section grants immunity where a claim “results from…[a]doption or failure to adopt a law, including…a written policy.” The trial court denied Petitioner’s motion, concluding that the immunity language cited by Petitioner was inapplicable under the facts of the case. Petitioner then filed a writ of prohibition challenging the court’s immunity ruling.
How broadly will the immunity found in W.Va. Code 29-12A-5(a)(4) be applied? Is a government entity immune where one of its policies applies to the underlying facts, but does not actually form the basis for the claim?
This case appeared on the Rule 19 docket, but the Supreme Court issued a memorandum opinion instead of a full, judge-authored opinion. Despite its limited precedential value, the Court’s opinion still addresses a significant issue--i.e., how broad is the immunity for adopting a “written policy”?
The Supreme Court’s analysis was summed up succinctly:
“While the city is correct that immunity is afforded to it when the claim for liability is based upon its adoption, or failure to adopt, a policy, regulation, or the like, the city is not entitled to immunity when no such claim invoking its rule-making authority has been made against it. Here, Mr. Kraft did not base his lawsuit against the city on its adoption of the VIPS policy that requires vehicular patrols to have two people in the car; in fact, he did not even reference this policy in his complaint.”
Thus, the test to be applied is whether the claim for relief “invoke[s]…the rule making authority” of the governmental entity that has been sued. It is not enough that the rule, regulation or written policy may apply under the facts presented. Instead, the critical question is whether the injured party “base[s] his lawsuit against the [government] entity” on its adoption of the …. policy.”
Here, the claim was a straightforward negligence claim against the driver that had nothing to do with the city’s policy making. Therefore, the Court rejected the city’s immunity argument and, instead, found that the city was subject to liability under W.Va. Code 29-12A-4(c)(1) (which preserves claims for injury, death or loss “caused by the negligent operation of any vehicles by…employees…within the scope of their employment”).
This case represents a common sense approach. The legislature specifically limited liability to situations involving the “adoption or failure to adopt” rules, regulations or policies. As the Supreme Court recognized, this means that immunity only arises where the claim is directly tied to the exercise of rule making or policy making power.