No. 15-0879 -         Brenda Albert v. City of Wheeling
                                                                            FILED
                                                                        October 27, 2016
                                                                             released at 3:00 p.m.
                                                                           RORY L. PERRY, II CLERK

                                                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA



Davis, Justice, dissenting, joined by Justice Workman:

               In this proceeding the circuit court dismissed the plaintiff’s complaint under

Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The circuit court found as a

matter of law that the defendant, City of Wheeling, was absolutely immune from liability “for

all claims arising out of or related in any way to fire protection.” In order to affirm the circuit

court’s erroneous ruling, the majority opinion expressly and implicitly overruled precedents,

and has rewritten the statute that provides limited immunity for losses caused during the

delivery of fire protection. While the majority did not light the torch that caused the tragic

fire that destroyed Ms. Albert’s home, it nevertheless, through its decision herein, has fanned

the flames thus precluding any recovery from Ms. Albert’s devastating loss. Because the

majority has ignored the settled law which governs this case and for the reasons set out

below, I dissent.



               On February 14, 2013, the plaintiff’s home caught fire, and the City’s fire

department responded to the fire. The circuit court found that “[t]he Fire Department hoses

became clogged by rocks in the Fire department’s fire hydrant system.” Due to the rock-

induced clogged hoses, the plaintiff alleged that the City was negligent in the maintenance


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of its fire hydrant system. As a consequence of this negligence, the plaintiff contended that

the fire at her “home could not be contained[,] and the house became a total loss.” These

allegations, as found in the circuit court’s order, have not been disputed. For the narrow

purpose of defeating a motion under Rule 12(b)(6), these facts set out a cause of action. See

John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 606, 245 S.E.2d 157, 159

(1978) (“The plaintiffs’ burden in resisting a motion to dismiss is a relatively light one.”).

Prior to the majority opinion in this case, our law was quite clear in holding that:

                      The trial court, in appraising the sufficiency of a
               complaint on a Rule 12(b)(6) motion, should not dismiss the
               complaint unless it appears beyond doubt that the plaintiff can
               prove no set of facts in support of his claim which would entitle
               him to relief.

Syl. pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977). See also

Collia v. McJunkin, 178 W. Va. 158, 160, 358 S.E.2d 242, 243-44 (1987) (“Motions to

dismiss are generally viewed with disfavor because the complaint is to be construed in the

light most favorable to the plaintiff and its allegations are to be taken as true.”). Under the

liberal rules of pleading, “we have directed that the motion to dismiss for failure to state a

claim should be viewed with disfavor and rarely granted.” Kessel v. Leavitt, 204 W. Va. 95,

119, 511 S.E.2d 720, 744 (1998) (internal quotations and citation omitted). See also Cantley

v. Lincoln Cty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007) (“A trial court

considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint

so as to do substantial justice.”).


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              In order to defeat the plaintiff’s properly pled complaint, the circuit court and

majority opinion determined that the City was entitled to “absolute” immunity under W. Va.

Code § 29-12A-5(a)(5) (1986) (Repl. Vol. 2013). This statute provides that a political

subdivision is immune from tort liability if a claim results from “the failure to provide, or the

method of providing, police, law enforcement or fire protection.” The limited immunity

provided under this statute is simply not applicable to the facts alleged in the plaintiff’s

complaint.



              This Court has historically construed the statutory governmental immunities

in a very limited fashion. Indeed, we have adopted “the general rule of construction in

governmental tort legislation cases favoring liability, not immunity: unless the legislature has

clearly provided for immunity under the circumstances, the general common-law goal of

compensating injured parties for damages caused by negligent acts must prevail.” Randall

v. Fairmont City Police Dep’t, 186 W. Va. 336, 347, 412 S.E.2d 737, 748 (1991). See also

Hose v. Berkeley Cnty. Planning Comm’n, 194 W. Va. 515, 522, 460 S.E.2d 761, 768 (1995)

(same). Here, the plaintiff does not allege that the City failed to provide fire protection nor

does she attack the City’s policy methods for providing fire protection. In her complaint, the

plaintiff set out allegations of negligence in the maintenance of the City’s fire hydrant

system. The negligence claims asserted by the plaintiff are clearly permitted against the City

under W. Va. Code § § 29-12A-4(c)(2) & (3) (1986) (Repl. Vol. 2013), as follows:


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                      (2) Political subdivisions are liable 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.

                      (3) Political subdivisions are liable for injury, death, or
              loss to persons or property caused by their negligent failure to
              keep public roads, highways, streets, avenues, alleys, sidewalks,
              bridges, aqueducts, viaducts, or public grounds within the
              political subdivisions open, in repair, or free from nuisance,
              except that it is a full defense to such liability, when a bridge
              within a municipality is involved, that the municipality does not
              have the responsibility for maintaining or inspecting the bridge.



              In Syllabus point 5 of Smith v. Burdette, 211 W. Va. 477, 566 S.E.2d 614

(2002), we recognized that claims of negligence may defeat the limited immunity granted

under W. Va. Code § 29-12A-5(a)(5):

                      W. Va. Code, 29-12A-5(a)(5) [1986] does not provide
              immunity to a political subdivision for the negligent acts of the
              political subdivisions’ employee performing acts in furtherance
              of a method of providing police, law enforcement or fire
              protection.

This Court expressly recognized in Smith that

              while a city may not be held liable for failing to install enough
              fire hydrants, based on the city’s policy decision as to the
              number of required hydrants, hypothetically, the same city could
              be held liable if one of the fire hydrants, due to negligent
              maintenance, in some way injured a person [or property].

Smith, 211 W. Va. at 480, 566 S.E.2d at 617. See also Hill v. City of Houston, 991 F. Supp.
847, 853 (S.D. Tex. 1998) (“No sovereign immunity exists to protect Defendant from liability


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for negligent implementation of its fire protection policies.” (footnote omitted); Jenicke v.

City of Forest Hill, 873 S.W.2d 776, 780 (Tex. Ct. App. 1994) (“[A]llegations of negligence

[that] arise from carrying out the normal function of protecting a community from fires . . .

may form the basis of liability for a governmental unit[.]” (citations omitted).



              In order to get around the decision in Smith, the majority opinion overruled that

2002 well-reasoned and well-written decision and rewrote W. Va. Code § 29-12A-5(a)(5),

so as to make that statute provide absolute immunity from any claim involving fire protection

(and police protection). However, in Syllabus point 8 of Randall v. Fairmont City Police

Department, 186 W. Va. 336, 412 S.E.2d 737 (1991) this Court rejected any notion that

W. Va. Code § 29-12A-5(a)(5) granted absolute immunity as follows:

                      W. Va. Code, 29-12A-5(a)(5) [1986], which provides, in
              relevant part, that a political subdivision is immune from tort
              liability for “the failure to provide, or the method of providing,
              police, law enforcement or fire protection[,]” is coextensive with
              the common-law rule not recognizing a cause of action for the
              breach of a general duty to provide, or the method of providing,
              such protection owed to the public as a whole. Lacking a clear
              expression to the contrary, that statute incorporates the
              common-law special duty rule and does not immunize a breach
              of a special duty to provide, or the method of providing, such
              protection to a particular individual.

Unfortunately, under the majority’s ruling, even the special duty cause of action recognized

in Randall has been overruled. See Wolfe v. City of Wheeling, 182 W. Va. 253, 387 S.E.2d
307 (1989) (allowing cause of action to proceed against city because its fire department


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failed to respond to a fire at plaintiffs’ home). Moreover, the majority decision implicitly

overruled Syllabus point 4 of Calabrese v. City of Charleston, 204 W. Va. 650, 515 S.E.2d
814 (1999), where we held:

                       The liability for political subdivisions created in
               W. Va. Code, 29-12A-4(c)(3) [1986] includes liability for injury,
               death, or loss to persons or property caused by a subdivision’s
               negligent failure to keep its sewers and drains open, in repair, or
               free from nuisance.

See also Wheeling Park Comm’n v. Dattoli, 237 W. Va. 275, ___, 787 S.E.2d 546, 553

(2016) (“Thus, it is clear under the statute that a political subdivision is liable under W. Va.

Code § 29-12A-4(c), as a private person would be, for injuries to persons that are

proximately caused by the political subdivisions’ negligence in the performance of functions

enumerated in W. Va. Code § 29-12A-4(c)(2)–(4).”); Syl. pt. 3, in part, Koffler v. City of

Huntington, 196 W. Va. 202, 469 S.E.2d 645 (1996) (“Under W. Va. Code, 29-12A-4(c)(3)

[1986], political subdivisions are liable for injury, death, or loss to persons or property caused

by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks,

bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in

repair, or free from nuisance[.]”); Syl. pt. 7, Clay v. City of St. Albans, 43 W. Va. 539, 27
S.E. 368 (1897) (“If a city or town negligently fails to keep its existing drains and gutters

open and clear of obstructions, and in condition to carry off the water in them, and by reason

thereof land is injured from their overflow, the city or town is liable in damages, provided

the overflow is not due to an unusual or extraordinary storm or rainfall.”).


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              Finally, the majority opinion completely disregards our prior case law that

explained the limitation imposed upon the immunity granted under W. Va. Code

§ 29-12A-5(a)(5). We addressed that limitation on immunity in Syllabus points 3 and 4 of

Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993), as follows:

                      3. The phrase “method of providing police, law
              enforcement or fire protection” contained in W. Va. Code, § 29­
              12A-5(a)(5) refers to the formulation and implementation of
              policy related to how police, law enforcement or fire protection
              is to be provided.

                     4. Resolution of the issue of whether a loss or claim
              occurs as a result of “the method of providing police, law
              enforcement or fire protection” requires determining whether the
              allegedly negligent act resulted from the manner in which a
              formulated policy regarding such protection was implemented.

It is clear that under the decision in Beckley, which the majority opinion has implicitly

overruled, W. Va. Code § 29-12A-5(a)(5) does not provide absolute immunity from losses

occurring from negligently provided fire protection. Under Beckley, the immunity set out in

W. Va. Code § 29-12A-5(a)(5) extends only to negligent acts that resulted from the manner

in which a formulated policy regarding fire protection was implemented. In the case sub

judice, there was no evidence that the City had a policy authorizing the delivery of fire

protection through a fire hydrant system clogged by rocks. Through its inexplicable decision

herein, the majority has effectively absolved the City for its failure to maintain rock-free

water lines, which undoubtedly contributed to the severity of the tragic events in this case.

Hopefully, Ms. Albert will nevertheless rise as a phoenix from the ashes left by the majority’s


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misguided and patently wrong opinion.



             Based upon the foregoing, I dissent. I am authorized to state that Justice

Workman joins me in this dissenting opinion.




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