- Whether a political subdivision, which enters into a joint venture with a private entity to conduct an annual county fair on real property owned by the political subdivision, is immune from vicarious liability for injuries suffered by a non-trespassing entrant caused by the negligent acts of the private entity under the West Virginia Governmental Tort Claims and Insurance Reform Act?
- Whether a political subdivision, which enters into a joint venture with a private entity to conduct an annual county fair on real property owned by the political subdivision, assumes the same legal duty to non-trespassing entrants on the real property as that of the private entity?
- Whether the existence of a joint venture between a political subdivision and a private entity to conduct an annual county fair on real property owned by the political subdivision, voids/abrogates any of the immunities provided by the West Virginia Governmental Tort Claims and Insurance Reform Act?
On August 9, 2013 the plaintiff, Larry Pyles, a paid attendee at the Mason County Fair, sustained serious injuries when he was beaten by three individuals while standing in the midway area of the fair. The Fair is an annual agricultural and entertainment festival hosted by Defendant, Mason County Fair, Inc., on fairgrounds owned by the Mason County Commission but used by the Mason County Fair, Inc., under an April 13, 2006, document captioned:
"AGREEMENT BETWEEN MASON COUNTY COMMISSION AND MASON COUNTY FAIR INC. FOR USE OF MASON COUNTY FAIRGROUNDS".
The plaintiffs filed their original Complaint against the Mason County Fair, Inc. only, alleging that the Mason County Fair owed non-trespassing, admission-paid fair attendees a duty of ordinary care to protect persons like Mr. Pyles from injury inflicted by others present on fair premises. During discovery, the plaintiffs obtained a cost-sharing agreement between the Mason County Commission and the Mason County Fair for use of the publicly-owned fairgrounds. Accordingly, the plaintiffs filed an amended complaint naming the County Commission as a defendant.
Discovery revealed additional elements of a joint venture between the Commission and the Fair. Accordingly, plaintiffs moved to file a second amended complaint to set forth the basis for the Commission’s liability as a joint venture participant with more specificity. The Commission opposed the proposed amendment, arguing that the West Virginia Governmental Tort Claims and Insurance Reform Act, W Va. Code §§29-12A-1, et seq., provides immunity to the Commission from liability as a joint venturer and that it owed no greater duty to the plaintiffs under the circumstances than the general duty owed by any political subdivision to the public at large. In response, the Circuit Court of Mason County certified three questions of law, finding that the case against the Mason County Commission arises upon an issue of law for which there is no clear legal precedent. The Circuit Court answered the Certified Questions set forth above as “Yes” to Question 1 and “No” to Questions 2 and 3.
The plaintiffs argue that the Governmental Tort Claims and Insurance Reform Act does not provide unconditional, blanket immunity from all liability, nor does it set a less stringent standard of care for political subdivisions than it does for governmental or proprietary businesses. They point out that several enumerated governmental functions are delegated by law to county commissions under W. Va. Code § 29-12A-5(a)(1-17) and those functions are immunized from liablity. But the plaintiffs also contend that political subdivisions, like a county commission, may also perform discretionary activities deemed to be in the best interests of its citizens, for which they may be subject to civil liability. The plaintiffs maintain that staging an annual fair constitutes a discretionary activity for which the County Commission is not immune for losses that result from a negligent breach of the County Commission’s duty of ordinary care to its paid patrons.
The plaintiffs further contend that the circuit court’s responses to the certified questions are erroneously premised on the court’s mistaken belief that civil immunity is identity-based instead of action-oriented. The plaintiffs argue that W. Va. Code § 29-12A-5 immunity focuses on the action taken or not taken, as opposed to the identity of the actor. The plaintiffs also point out that the legislature could have immunized county commissions in their operation of county fairs but has not done so. Absent such legislation, there is no basis for a county commission’s immunity from tort liability and the common-law goal of compensating injured parties for damages caused by negligent acts must control under these circumstances.
Finally, the plaintiffs argue that the County Commission can be held liable under the theory of joint venture. The plaintiffs contend that “it is an assumed fact that the fair event during which Mr. Pyles was injured was the product of a joint venture between the County Commission and the Mason County Fair.” The plaintiffs rely upon the joint venture concepts espoused in Armor v. Lantz, 535 S.E.2d 737, 207 W.Va. 672 (2000) in support of their argument for the attachment of liability upon the County Commission.
The County Commission first argues that there is no joint venture between it and the Fair Board simply by virtue of the parties entering into a land use agreement. The Commission argues that the land use agreement merely authorizes the Fair Board to use the fairgrounds for the purpose of conducting the annual fair.
Next, the Commission relies on the statutory immunities set forth in W. Va. Code §§ 29-12A-5 and 29-12A-6, for political subdivisions. It also contend that it did not owe any duty to the plaintiffs or any duty generally to protect patrons from criminal acts committed by others.
Finally, the Commission contends that adoption of the plaintiffs’ rationale would open political subdivisions to potential liablity where the Legislature specifically provided immunity.
This case provides the opportunity for further clarification as to the scope of a political subdivision's immunity, particularly where it is engaged in business activities with a private entity. The identity of the sponsors and manner in which they operated the county fair raises interesting legal questions as to whether immunity is lost where political subdivisions involve themselves in the proprietary activities with the private sector. This decision is likely to have important and potentially far-reaching ramifications across all manner of civil actions--either expanding or constricting political subdivision immunity. Because this is a Rule 20 case, we expect the Supreme Court to provide a new syllabus on these points of law.