The plaintiff, A.B., was a female inmate incarcerated in the Southern Regional Jail. The plaintiff alleged that beginning in October, 2009 she was raped seventeen times by a correctional officer, D.H. Thereafter, the plaintiff brought suit against D.H. and the state’s regional jail authority (“RJA”). Two claims were addressed: first, a claim that the state was liable for D.H.’s wrongdoing and second, a direct claim against RJA alleging that it was negligent in supervising, training and retaining its employee, D.H. RJA moved for summary judgment, citing qualified immunity. The trial court denied summary judgment, and the RJA took an interlocutory appeal of the summary judgment order.
Whether the state's regional jail authority can be held liable for a correctional officer's sexual assault under (1) a claim of respondeat superior, or (2) a claim of negligence for failing to properly supervise and train the officer?
This case clarifies the legal immunity enjoyed by the State of West Virginia and its agencies, officials and employees. In determining whether immunity applies, the trial court must follow a three-step analysis.
First, the court must identify the nature of the governmental acts giving rise to the claim. If these acts are “legislative, judicial, executive or administrative policy making acts,” both the State of West Virginia and the official involved “are absolutely immune.” See Parkulo vs. W.Va. Bd. of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
If the governmental acts giving rise to the claim are, instead, discretionary in nature, the trial court must proceed to the next step. Specifically, the court must determine if the official involved (1) violated a “clearly established right or law,” or (2) engaged in acts that were “otherwise…fraudulent, malicious or oppressive.” If the court answers “no” to these questions, both the State of West Virginia and the official involved are immune.
If the court answers “yes” to these questions, it must proceed to the third and final step. Specifically, the court must determine if the conduct in question came “within the scope of the public official or employee’s duties, authority and/or employment.” If the plaintiff makes this showing, the employee is liable. Furthermore, the State of West Virginia may also be liable under the doctrine of respondeat superior. If the plaintiff fails to make this showing, the employee is still liable, but the State of West Virginia is immune from any liability. See State vs. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).
Justice Workman, joined by three others, conceded that these rulings were more of a clarification than a pronouncement of new law: “[O]ur holdings today in no way represent a seismic shift in this court’s handling of governmental immunities, but rather, reflect a clarification and elaboration on the scope of the state’s immunity vis a vis its officials and employees, as reflected in our precedent and longstanding public policy concerns.”
Applying these rulings, the majority found that D.H. was clearly acting in his own interest and that the rapes “were in no way an ordinary and natural incident of the duties with which he was charged.” Therefore, D.H. was acting outside of the scope of his employment and the State of West Virginia could not be held liable for his wrongful acts.
With regard to the negligence claim, the majority also applied its three-step analysis. First, the majority found that the development of policies regarding training, etc., was discretionary in nature. With regard to step two, the court concluded no “clearly established right or law” was violated by the RJA. The plaintiff had cited two potential sources for such a right. The first of these was the Prison Rape Elimination Act of 2003, 42 U.S.C. §15601 et seq., which contemplated the establishment of “national standards.” However, the majority found that PREA did not, in fact, establish any substantive rights. The plaintiff also cited a series of regulations governing jails. The court rejected this, too, finding that none of the regulations related to the subject of training, supervision or retention.
Justice Davis was the lone dissenter. Fundamentally, she disagreed with the majority’s analysis of the scope of employment issue. In fact, she chided the majority for “fail[ing] to provide any analysis of how to apply the phrase “scope of employment,” and labeled this lack of analysis as “dangerous.”
Citing Heckenlaible vs. Virginia Peninsula Regional Jail Authority, 491 F.Supp.2d 544 (E.D. Va. 2007), Justice Davis would have applied a relatively expansive definition of scope of employment. Heckenlaible was also a rape case arising in a jail setting. Heckenlaible found that an employee was acting within the scope of employment if he “was engaged in a service…that was within the ordinary course of the [employer’s] business.” Because the rape in Heckenlaible occurred while the correctional officer was supervising inmates in the jail’s medical unit and while allegedly conducting a cell search, a jury question was presented.
Furthermore, Justice Davis attacked the majority’s analysis of the negligence claim. If the lack of any regulations gives rise to immunity, then, “under the majority opinion, the regional jail simply has to bury its head in the sand and never promulgate any regulation designed to protect the bodily integrity of female inmates to insure its continued impunity from liability.” This, she concluded, was an absurd result. The court, instead, should have concluded that RJA’s failure to promulgate regulations protecting female inmates from rape amounted to a deliberate indifference to their rights, waiving any immunity.
The new syllabus is consistent with prior case law. This case appears to be more significant for the questions raised by Justice Davis’ dissent. How broadly should “scope of employment” be interpreted for immunity purposes? Furthermore, can the State of West Virginia escape liability by failing to regulate serious issues affecting health, safety and welfare? It remains to be seen if the dissent will promote any future dialogue regarding these two important questions.