On February 14, 2013, a fire broke out in Brenda Albert’s home. The Wheeling Fire Department was notified and responded to the scene. While putting out the fire, the fire department’s hoses became clogged by rocks in the fire department’s fire hydrant system. As a result, the fire could not be contained and the house became a total loss. A Raze or Repair Order was issued.
On March 13, 2015, Brenda Albert filed a Complaint against the City of Wheeling. The City of Wheeling then filed a Motion to Dismiss. The trial court recognized that there was no dispute that the City of Wheeling is a political subdivision. It cited West Virginia Code §29-12A-5(5), which provides for statutory immunity for claims arising out of fire protection. The trial court also relied upon Wolfe v. City of Wheeling, 182 W.Va. 253 (1989) to point out that common law immunity for providing fire protection services has long been established under the public duty doctrine.
The trial court also discussed the only exception to this immunity—i.e., the special relationship doctrine. However, the court found that the plaintiff had not claimed a special relationship in the case, and therefore, the special relationship doctrine was not at issue. The trial court ultimately found that both statutory immunity and common law immunity operated to bar the plaintiff’s claims, and therefore, dismissed her claims.
Following the trial court’s dismissal order, Ms. Albert appealed. Ms. Albert argued that the City of Wheeling was liable under West Virginia Code §29-12A-4(c)(2) &(3), due to negligent maintenance, negligent inspection and failure to keep the hydrant “open, in repair or free from nuisance”. Ms. Albert further argued that West Virginia Code §29-12A-5 refers to the decision making or planning process in developing a governmental policy, including how that policy is to be performed; and none of those were pled by her.
The City argued that the Ms. Albert attempted to use artful pleading to circumvent the City’s immunity with regard to fire protection by relying on the language of §29-12A-4(c). However, the City stated that even if this type of pleading were permissible, the very language of that section states that it is subject to the immunities contained in West Virginia Code §29-12A-5. Therefore, Ms. Albert could not overcome the City’s immunity with regard to fire protection. The City also asserted that Ms. Albert’s claim was properly dismissed under the Governmental Insurance Claims and Tort Reform Act and also under well-established public policy of West Virginia.
Whether the trial court erred in finding that both statutory immunity and common law immunity barred the plaintiff from bringing a cause of action against the City involving claims arising out of fire protection?
The Supreme Court began by reviewing the Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”). The Court pointed out that Ms. Albert focused narrowly on two subsections of the Tort Claims Act. In doing so, however, she overlooked that those subsections could not be disassociated from the introductory language that expressly conditions liability on the absence of any provisions of immunity set forth in section five and six of article twenty-nine.
Ms. Albert relied upon subsection 4(c)(2), which authorizes the imposition of liability on a political subdivision “for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.” W.Va. Code § 29-12A-4(c)(2). As additional authority, she cited to subsection 4(c)(3), which provides authority for imposing liability on a political subdivision “for injury, death, or loss to persons or property caused by the negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds . . . open, in repair, or free from nuisance . . . .” W.Va. Code § 29-12A-4(c)(3) (emphasis supplied).
The Court agreed with the City’s analysis and recognized that West Virginia Code § 29-12A 5(a)(5) operates to prevent the imposition of liability under the facts of this case. Section 5(a)(5) provides immunity from liability to political subdivisions for the “failure to provide, or the method of providing, police, law enforcement or fire protection.” Id. Because any potential liability set forth in subsection 4(c)(2) is made expressly subject to the grant of immunity provided in section 5(a)(5), there is no right to seek recovery from a political subdivision for the negligent performance of its employee’s actions performed within the scope of his or her employment and authority when those actions pertain to either the failure to provide fire protection or the method of providing fire protection. Cf. W.Va. Code § 29 12A-4(c)(2) to § 29-12A-5(a)(5). There is similarly no right to recover damages from a political subdivision for the negligent failure to keep a city’s waterworks and fire hydrant system fully operable if the actions at issue are subsumed within the immunity extended to political subdivisions for the failure to provide fire protection or the method of providing fire protection. Cf. W.Va. Code § 29-12A-4(c)(3) to § 29-12A-5(a)(5); see also Jackson v. Belcher, 232 W.Va. 513, 523, 753 S.E.2d 11, 19-21 (2013) (Loughry, J., dissenting) (recognizing significance of statutory immunity and detrimental effects of “render[ing] the immunity plainly articulated by the Legislature wholly without effect”).
The Court then pointed out that in Hose v. Berkley County Planning Commission it had addressed this precise issue of how subsection 4(c)(2) must be read in conjunction with section 5 of the Tort Claims Act. The Court held in syllabus point four of Hose:
Pursuant to W.Va. Code, 29-12A-4(c)(2)  and W.Va. Code, 29-12A-5(a)(9) , a political subdivision is immune from liability if a loss or claim results from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision’s employees while acting within the scope of employment.
194 W.Va. at 517, 460 S.E.2d at 763 (emphasis supplied).
Relying on the Hose rationale, the Court then crafted three new syllabus points making it clear that a city enjoys immunity from any claim involving negligence of any kind in providing or failing to provide fire protection.
Justice Davis dissented, noting that immunities must be interpreted narrowly, not expansively. Citing Smith v. Burdette, 211 W.Va. 477 (2002), she would have limited the immunity under West Virginia Code § 29-12A-5(a)(5) to situations involving policymaking and allocations of resources. Where, however, a plaintiff alleges simple negligence in the way a city operates or maintains its fire protection facilities, there is no immunity from liability. Justice Workman joined this dissent.
This opinion is consistent with expanding the immunity for political subdivisions. Ultimately, however, this limits the right of recovery for the West Virginia consumer who is injured as a result of a political subdivision’s negligence. Historically, the Supreme Court has construed these immunities in a very limited fashion. However, in light of this expansion of immunity, we, as lawyers, must be cautious when evaluating issues involving negligence by political subdivisions.