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finding that a county board of education was not entitled to immunity under the Tort Claims Act when the plaintiff's allegations sounded in negligence and complemented the allegations that the board negligently retained an assistant principal once it became aware of his conduct
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No. 20-0171
06-17-2021
C.C. and J.C., as Next Friends of the Minor Child M.C., Plaintiffs Below, Petitioners v. HARRISON COUNTY BOARD OF EDUCATION, Defendant Below, Respondent
Teresa C. Toriseva, Joshua D. Miller, Jacob J. Polverini, TORISEVA LAW, Wheeling, West Virginia, Loree Stark, American Civil Liberties Union of West Virginia, Charleston, West Virginia, Attorneys for the Petitioners. Susan Llewellyn Deniker, Jeffrey M. Cropp, STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, Rodney L. Bean, STEPTOE & JOHNSON PLLC, Morgantown, West Virginia, Attorneys for the Respondent.
Teresa C. Toriseva, Joshua D. Miller, Jacob J. Polverini, TORISEVA LAW, Wheeling, West Virginia, Loree Stark, American Civil Liberties Union of West Virginia, Charleston, West Virginia, Attorneys for the Petitioners.
Susan Llewellyn Deniker, Jeffrey M. Cropp, STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, Rodney L. Bean, STEPTOE & JOHNSON PLLC, Morgantown, West Virginia, Attorneys for the Respondent.
Jenkins, Chief Justice:
The petitioners herein and plaintiffs below, C.C. and J.C. ("the Petitioners"), as next friends of the minor child M.C. ("the child" or "the student"), appeal from the January 27, 2020 order entered by the Circuit Court of Harrison County. By that order, the circuit court granted the motion to dismiss filed by the respondent herein and defendant below, the Harrison County Board of Education ("the Board") and dismissed the Petitioners’ complaint. Before this Court, the Petitioners assign error to the circuit court's rulings and argue that their complaint asserted claims upon which relief could be granted. Upon a review of the parties’ briefs and arguments, the appendix record, and the pertinent authorities, we affirm the circuit court's order dismissing the Petitioners’ claims for negligent hiring and negligent supervision. We further affirm, in part, and reverse, in part, the circuit court's order dismissing the Petitioners’ claim for negligence per se, and we reverse the circuit court's order dismissing the Petitioners’ claim for negligent retention. Finally, we remand this case to the circuit court for further proceedings consistent with this opinion.
Due to the sensitive nature of the facts at issue in this case, initials and titles will be used to refer to the parties and other individuals involved in the underlying events giving rise to the instant appeal. See, e.g. , In re A.M. , 243 W. Va. 593, 595 n.1, 849 S.E.2d 371, 373 n.1 (2020). See also W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving children).
See note 1, supra .
I.
FACTS AND PROCEDURAL HISTORY
The Petitioners are the parents of the minor child in this case, who is a student attending public high school in Harrison County, West Virginia. The student is transgender and identifies as male. Prior to the student's first year of high school, the Petitioners and officials from the public high school the student would be attending met, and the Petitioners informed the school officials of the student's identification as male and intention to use the boys’ restrooms at school.
See supra note 1.
In late November 2018, after the instructional day had ended, the student, who is in the high school band and was preparing for a band trip later that afternoon, checked a boys’ restroom at the school and, upon determining that it was empty, entered it. While the student was in a stall in the restroom, the school's Assistant Principal entered the restroom; demanded the student exit the stall, expose his genitalia, and use a urinal; and blocked the student's exit from the restroom. After the student escaped from the restroom, the Assistant Principal followed the student into the hallway and said, loudly, "You freak me out"; this exchange was overheard by the parent of another band member who consoled the student after this incident. The next day, the Petitioners met with school and Board officials about this encounter and received assurances that the student and the Assistant Principal would not share the same space at school.
See note 1, supra .
The exact timing of this agreement is not apparent from the record, and it appears that at least two such meetings occurred between the Petitioners and school and Board officials that resulted in agreements between the parties. According to the Petitioners’ complaint, one of these agreements provided, in part, that the school and the Board would "[e]nsure an environment exists where [the] Assistant Principal ... [would] have little to no interaction with [the student]."
Following this incident, the Assistant Principal was suspended, but he was later reinstated. Approximately two weeks later, in December 2018, the student was scheduled to perform with the high school band at a basketball game, but stayed in the school's concession stand with his mother, C.C., until performance time because they had observed the Assistant Principal to be in attendance at the game. Despite the "stay away" agreement, the Assistant Principal stayed in close proximity to the concession stand, repeatedly stared at the student, and then escorted the band into the gymnasium for their performance. Thereafter, the Assistant Principal continued to be present in the school cafeteria during the student's lunch period.
Neither the timing nor the duration of the Assistant Principal's suspension is clear from the record.
C.C. had volunteered to work in the school concession stand during this basketball game.
In March 2019, after the bathroom and concession stand incidents had occurred, the Board voted not to renew the Assistant Principal's contract for the following school year; eventually, though, the Board reversed its decision and voted to renew the Assistant Principal's contract. The Petitioners claim that the Assistant Principal's presence in the school cafeteria during the student's lunch period continued throughout the remainder of the school year. They further allege that the student has suffered emotional and physical illnesses, including anxiety, as a result of his interactions with the Assistant Principal but that his extracurricular activities require him to attend school in person rather than being homeschooled. Therefore, the student remains enrolled at the same public high school for which the Board renewed the Assistant Principal's employment contract.
It should be noted that, at the time of these events during the 2018-2019 school year, the current virtual and remote school attendance options that recently have been implemented in response to the COVID-19 global pandemic were not yet in existence.
The Petitioners ultimately filed suit against the Board seeking damages for the student's injuries caused by the Assistant Principal's actions and the Board's response thereto. The Board moved to dismiss the Petitioners’ complaint for failure to state a claim upon which relief could be granted under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, and the circuit court granted its motion. The Petitioners now appeal the circuit court's dismissal of their complaint against the Board to this Court.
The Petitioners did not name the Assistant Principal as a defendant in their complaint.
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure permits a motion to dismiss a complaint based upon the "failure to state a claim upon which relief can be granted."
II.
STANDARD OF REVIEW
On appeal to this Court, the Petitioners assign error to the circuit court's order granting the Board's 12(b)(6) motion to dismiss their complaint for failure to state a claim upon which relief could be granted. "The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint." Cantley v. Lincoln Cty. Comm'n , 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007) (per curiam).
For purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff. The trial court's inquiry will be directed to whether the allegations constitute a statement of a claim under Rule 8(a). A motion to dismiss for failure to state a claim is viewed with disfavor, particularly in actions to recover for personal injuries.
Chapman v. Kane Transfer Co. , 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977).
West Virginia Rule of Civil Procedure 12(b) further directs that a court presented with such a motion may consider only the pleadings when deciding whether to grant a motion to dismiss. See W. Va. R. Civ. P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). In other words, " ‘[w]hether a complaint states a claim upon which relief may be granted is to be determined solely from the provisions of such complaint[.]’ Syl. pt. 3, in part, Barker v. Traders Bank , 152 W. Va. 774, 166 S.E.2d 331 (1969)." Syl. pt. 2, Par Mar v. City of Parkersburg , 183 W. Va. 706, 398 S.E.2d 532 (1990). Accordingly, upon a motion to dismiss, "the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true." Lodge Distrib. Co., Inc. v. Texaco, Inc. , 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978). Thus, "[d]ismissal for failure to state a claim is proper [only] where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Murphy v. Smallridge , 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) (internal quotations and citations omitted). Finally, where, as here, the circuit court, after considering these factors, has dismissed a complaint for failure to state a claim, we accord such decision a plenary review. See Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W. Va. 770, 461 S.E.2d 516 (1995) ("Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. "). Guided by these principles, we proceed to consider the errors assigned by the Petitioners.
III.
DISCUSSION
Before this Court, the Petitioners contend that the circuit court erred by dismissing their complaint, in which they alleged eight claims for relief against the Board: "Count 1: False Imprisonment"; "Count 2: Assault"; "Count 3: Sexual Harassment"; "Count 4: Intentional Infliction of Emotional Distress"; "Count 5: Negligence Per Se"; "Count 6: Negligent Retention[,] Hiring[,] and Supervision"; "Count 7: Punitive Damages – Harrison County Board of Education"; and "Count 8: Injunctive Relief to Prevent [the Assistant Principal] from Interaction with [the Student]." Although the circuit court's order of dismissal applied to the entirety of the Petitioners’ complaint, they do not assign error on appeal to the dismissal of all of the above-described counts set forth in their complaint. Rather, the instant matter requires us to consider only whether the circuit court erred in dismissing the Petitioners’ claims alleging negligence per se (Count 5) and negligent retention, hiring, and supervision (Count 6). We will consider each of these claims in turn.
In their brief to this Court, the Petitioners did not aver that the circuit court had erred by dismissing their claims for punitive damages (Count 7) or injunctive relief (Count 8), so those claims have never been before the Court on appeal. Moreover, during their oral argument, the Petitioners withdrew their assignments of error as to their intentional tort claims of false imprisonment (Count 1), assault (Count 2), sexual harassment (Count 3), and intentional infliction of emotional distress (Count 4). Accordingly, those issues are no longer before us for consideration, nor are the Petitioners’ associated arguments pertaining to the need for further discovery regarding available insurance coverage for those claims or the Petitioners’ allegations that federal law and/or constitutional claims were included in those counts.
A. West Virginia Tort Claims Act
Governing our assessment of the propriety of the circuit court's dismissal of these two negligence claims, as well as the circuit court's decision to dismiss these claims in the first instance, is the West Virginia Governmental Tort Claims and Insurance Reform Act ("Tort Claims Act" or "the Act"), which "limit[s the] liability of political subdivisions and provide[s] immunity to political subdivisions in certain instances[.]" W. Va. Code § 29-12A-1 (eff. 1986). Included within the Act's definitional section is the meaning of "political subdivision," to which the Act applies, and which includes county boards of education, such as the Board in this case. See W. Va. Code § 29-12A-3(c) (eff. 1986).
Among the Tort Claims Act's provisions is the specific grant of immunity to political subdivisions, as well as the recognition that such entities may still be held liable in certain instances. Specifically, West Virginia Code section 29-12A-4 (eff. 1986) provides, in pertinent part:
(b)(1) Except as provided in subsection (c) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function[.]
....
(c) Subject to sections five and six of this article, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this article, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any vehicle by their employees when the employees are engaged within the scope of their employment and authority.
(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.
(4) Political subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used by such political subdivisions, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility.
(5) In addition to the circumstances described in subsection[s] (c)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a provision of this code. Liability shall not be construed to exist under another section of this code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.
W. Va. Code §§ 29-12A-4(b)(1), (c)(1-5). As referenced in West Virginia Code section 29-12A-4(c), West Virginia Code section 29-12A-5 (eff. 1986) further provides, in relevant part, that "[a] political subdivision is immune from liability if a loss or claim results from ... [a]doption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy[.]" W. Va. Code § 29-12A-5(a)(4).
West Virginia Code section 29-12A-4(c) also references West Virginia Code section 29-12A-6, which provides certain limitations to claims filed under the Act, the provisions of which have not been challenged in the case sub judice. See generally W. Va. Code § 29-12A-6 (eff. 1986).
In dismissing the Petitioners’ complaint, the circuit court relied upon this Court's prior decision in Zirkle v. Elkins Road Public Service District , 221 W. Va. 409, 655 S.E.2d 155 (2007) (per curiam), wherein we considered the language of West Virginia Code section 29-12A-4 of the Tort Claims Act and determined that political subdivisions, such as the Board in this case, have immunity from claims alleging intentional acts under the governing statutory language, but that political subdivisions still may be held liable for negligent conduct:
This provision of the Act [ W. Va. Code , 29-12A-4(b)(1) ] suggests that political subdivisions, public service districts included, are not liable for any acts with respect to both governmental and proprietary functions unless the acts complained of come within the specific liability provisions of W. Va. Code , 29-12A-4(c). In creating the general grant of immunity, in W. Va. Code , 29-12A-4(b)(1), the Legislature did not distinguish between intentional or unintentional acts, but instead used the term "any" as an adjective modifying "act or omission." To eliminate doubt regarding whether the Legislature intended to include immunity for intentional acts, we need to consider our holding in Syllabus Point 2 of Thomas v. Firestone Tire & Rubber Co. , 164 W. Va. 763, 266 S.E.2d 905 (1980). In Thomas we held that "[t]he word ‘any,’ when used in a statute, should be construed to mean any." We therefore conclude that claims of intentional and malicious acts are included in the general grant of immunity in W. Va. Code , 29-12A-4(b)(1). Only claims of negligence specified in W. Va. Code, 29-12A-4(c) can survive immunity from liability under the general grant of immunity in W. Va. Code, 29-12A-4(b)(1).
221 W. Va. at 414, 655 S.E.2d at 160 (emphasis added).
Insofar as the two claims at issue on appeal both allege that the Board was negligent, the immunity provisions of the Tort Claims Act do not automatically preclude the Petitioners’ recovery. However, to overcome the Board's motion to dismiss these counts of their complaint, the Petitioners still must establish their entitlement to relief thereon. Within this framework, then, we review the circuit court's rulings.
B. Negligence Per Se
The Petitioners first assign error to the circuit court's dismissal of their claim in Count 5 of their complaint for negligence per se. In their complaint, the Petitioners pled this claim in the alternative, which practice is permitted by our court rules. See W. Va. R. Civ. P. 8(a) ("Relief in the alternative or of several types may be demanded."). Specifically, the Petitioners alleged that the Board had failed to adopt an anti-harassment policy as required by West Virginia Code section 18-2C-3 or that, if the Board had adopted such a policy, its policy was inadequate. See generally W. Va. Code § 18-2C-3(a) (eff. 2011) (directing, in part, that "[e]ach county board shall establish a policy prohibiting harassment, intimidation or bullying" and specifying requisite components thereof). The circuit court found that the Petitioners had failed to state a valid claim in this regard, though, because West Virginia Code section 29-12A-5(a)(4) specifically provides that "[a] political subdivision is immune from liability if a loss or claim results from ... [a]doption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy[.]" We agree with the circuit court's conclusion in this regard.
Here, although the Petitioners pled this count in the alternative, both of these allegations of negligence per se come within the statutory immunity afforded to political subdivisions by the Tort Claims Act. First, the Petitioners allege that the Board was negligent because it failed to adopt the policy that West Virginia Code section 18-2C-3 required it to adopt. However, section 29-12A-5(a)(4) of the Act specifically provides immunity for a political subdivision's "failure to adopt a ... written policy[.]" Alternatively, the Petitioners claim that if the Board adopted the anti-harassment policy it was required to adopt, such policy was inadequate. This claim also is precluded by the Act's grant of immunity to political subdivisions because section 29-12A-5(a)(4) also provides immunity for a political subdivision's "[a]doption ... [of] a ... written policy[.]" Accordingly, because the Petitioners’ allegations of negligence by the Board in this count pertain to its alleged failure to adopt an anti-harassment policy or adoption of an allegedly inadequate anti-harassment policy, both of which come within the ambit of the Act's grant of immunity to political subdivisions, we find that the circuit court did not err by dismissing this portion of Count 5 of the Petitioners’ complaint alleging negligence per se.
However, this is not the end of our inquiry. In addition to the above-described allegations, the Petitioners averred yet a third manner in which the Board should be held liable for negligence per se:
Further, the Defendant [the Board], if it has a policy regarding bullying, harassment[,] and intimidation, violated that policy when [the Assistant Principal] as its agent, employee, and representative committed the acts as aforementioned.
At all times material and relevant herein, [the Assistant Principal] was the assistant principal of [the] High School [the student attended][.]
Defendant Harrison County Board of Education was aware that this incident of harassment, bullying, and intimidation occurred between [the Assistant Principal] and [the student].
Defendant [the Board] was negligent per se in that the actions of its employee [the Assistant Principal] were the exact type of atrocious, inexcusable actions that W. Va. Code § 18-2C-1 et seq. was intended to prevent.
Defendant [the Board] breached its duty by failing to immediately act to address and remedy this situation.
As a direct and proximate result of Defendant HCBE's [the Board's] liability through its employee, agent, and representative [the Assistant Principal], [the student] suffered personal injuries and damages, including but not limited to suffering
and mental anguish, past and future lost enjoyment of life, past and future humiliation, embarrassment, indignity, and shame, economic damages, diminished earning capacity, and future lost wages.
This conduct alleged in support of the Petitioners’ negligence per se claim does not involve either the failure to adopt or the adoption of a policy for which immunity is afforded to the Board. See W. Va. Code § 29-12A-5(a)(4). Rather, these allegations sound in negligence and complement the allegations that the Board negligently retained the Assistant Principal once it became aware of his conduct set forth in Count 6 of the Petitioners’ complaint and discussed infra. Because the Act does not afford immunity for negligence claims, the Petitioners’ claim for negligence per se alleging the Board's violation of its policy is not automatically precluded by the Board's assertion of immunity. See 221 W. Va. at 414, 655 S.E.2d at 160.
Nevertheless, to survive the Board's motion to dismiss, the Petitioners still must state a valid claim upon which relief may be granted. See W. Va. R. Civ. P. 12(b)(6). In addition to asserting a valid claim, though,
"the Court has made equally clear that complaints must minimally place a defendant on notice of the claim against it. West Virginia Rule of Civil Procedure 8(a)(2) requires a ‘short and plain statement of the claim showing that the pleader is entitled to relief[.]’ In that regard, the Court has explained that ‘Rule 8 of the Rules of Civil Procedure requires clarity but not detail.’ State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W. Va. 770, 776, 461 S.E.2d 516, 522 (1995). Moreover, we have observed that ‘[t]he primary purpose of these provisions is rooted in fair notice. Under Rule 8, a complaint must be intelligibly sufficient for a circuit court or an opposing party to understand whether a valid claim is alleged and, if so, what it is.’ Id. (emphasis added)."
Newton v. Morgantown Mach. & Hydraulics of W. Va., Inc. , 242 W. Va. 650, 653, 838 S.E.2d 734, 737 (2019) (quoting Malone v. Potomac Highlands Airport Auth. , 237 W. Va. 235, 240, 786 S.E.2d 594, 599 (2015) ).
Therefore, to assert a valid claim for negligence, the Petitioners were required to aver the elements of a negligence cause of action.
In a negligence suit, a plaintiff is required to show four basic elements: duty, breach, causation, and damages. The plaintiff must prove that the defendant owed the plaintiff some duty of care; that by some act or omission the defendant breached that duty; and that the act or omission proximately caused some injury to the plaintiff that is compensable by damages. When we say that a defendant is "negligent," we are merely saying the defendant owed some duty of care to another yet failed to abide by that duty.
Hersh v. E-T Enters., Ltd. P'ship , 232 W. Va. 305, 310, 752 S.E.2d 336, 341 (2013) (footnotes omitted), superseded by statute on other grounds as stated in Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cty. , 235 W. Va. 283, 773 S.E.2d 627 (2015). Accord Webb v. Brown & Williamson Tobacco Co. , 121 W. Va. 115, 118, 2 S.E.2d 898, 899 (1939) ("In every action for damages resulting from injuries to the plaintiff, alleged to have been inflicted by the negligence of the defendant, it is incumbent upon the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A duty which the defendant owes to him; (2) A negligent breach of that duty; (3) Injuries received thereby, resulting proximately from the breach of that duty."). We further have held that "[t]o recover in an action based on negligence the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains." Syl. pt. 3, Alexander v. Jennings , 150 W. Va. 629, 149 S.E.2d 213 (1966). Moreover, "[n]egligence may also be averred generally." W. Va. R. Civ. P. 9(b). Additionally, "[v]iolation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury." Syl. pt. 1, Anderson v. Moulder , 183 W. Va. 77, 394 S.E.2d 61 (1990). Accord Somerville v. Dellosa , 133 W. Va. 435, 439, 56 S.E.2d 756, 760 (1949) ("It is an established principle in this jurisdiction that the violation of a statute alone is sufficient to make the violator prima facie guilty of negligence." (citations omitted)).
Here, the allegations of negligence per se that the Petitioners set forth in their third iteration of this claim sufficiently state a cause of action for negligence to defeat the Board's motion to dismiss as to Count 5 of the Petitioners’ complaint. In support of their claim of negligence per se, the Petitioners alleged that the Board had a duty to the student to adopt an anti-harassment policy; the Board breached that duty by allowing the Assistant Principal's conduct in relation to the student to continue and that such actions constituted a violation of its duties vis-à-vis its anti-harassment policy; the student suffered injuries; and the Board's actions were the cause of the student's injuries. If accepted as true, these allegations are sufficient to state a claim for negligence per se. See W. Va. R. Civ. P. 8(a), 12(b)(6) ; Lodge Distrib. Co. , 161 W. Va. at 605, 245 S.E.2d at 158. Such averments also place the Board on notice as to the Petitioners’ claim of negligence per se against it. See W. Va. R. Civ. P. 8(a), 9(b). And, the Petitioners’ contentions further present an issue of whether the Board violated West Virginia Code section 18-2C-3(b)(8), which requires the Board's anti-harassment policy to include "[a] strategy for protecting a victim from additional harassment, intimidation or bullying, and from retaliation following a report," in light of the ongoing lunch room contact between the Assistant Principal and the student following the bathroom and concession stand incidents and the parties’ alleged agreement that such interactions would cease. Therefore, we reverse the portion of the circuit court's order that dismissed Count 5 of the Petitioners’ complaint in its entirety and remand for the reinstatement of that part of Count 5 that alleges negligence per se based upon the Board's alleged violation of its anti-harassment policy. We affirm the remainder of the circuit court's dismissal of Count 5 as it pertains to the Petitioners’ contentions that the Board was negligent per se because it either failed to adopt an anti-harassment policy or adopted an inadequate policy because both of these claims come within the Act's grant of immunity to subdivisions. See W. Va. Code § 29-12A-5(a)(4).
C. Negligent Retention, Hiring, and Supervision
The second error assigned by the Petitioners concerns the circuit court's dismissal of Count 6 of the Petitioners’ complaint in which they alleged causes of action for negligent retention, hiring, and supervision. Although the Petitioners intimated at oral argument that these three charges constitute a single claim, we find that each component has its own discrete elements such that three separate claims for relief are alleged in this count, and, therefore, we will consider whether the Petitioners’ complaint sufficiently states a claim for relief as to each such issue.
In Count 6 of their complaint, the Petitioners alleged, in pertinent part, as follows:
Defendant HCBE [the Board] possessed a duty to use reasonable care in the selection and retention of its respective employees.
W. Va. Code § 18-2[C]-1 states that the Legislature finds that a safe and civil environment in school is necessary for students to learn and achieve high academic standards. The Legislature finds that harassment, intimidation or bullying, like other disruptive or violent behavior, is conduct that disrupts both a student's ability to learn and a school's ability to educates [sic ] its students in a safe, nonthreatening environment. The Legislature further finds that students learn by example. The Legislature charges school administrators, faculty, staff and volunteers with demonstrating appropriate behavior, treating others with civility and respect, and refusing to tolerate harassment, intimidation or bullying.
Defendant HCBE [the Board], [sic ] knew or should have known that retaining and renewing the contract of an employee who falsely imprisoned, assaulted, sexually harassed, sexually abused, bullied, and further intimidated a student and minor child could result in harm to the child.
After [the Assistant Principal] committed the November incident, Defendant HCBE [the Board] reversed its earlier vote to allow [the Assistant Principal's] contract to expire and renewed [the Assistant Principal's] contract.
Subsequent to Defendant HCBE's [the Board's] vote to renew his contract, [the Assistant Principal] violated [sic ] an [sic ] would continuously appear during [the student's] lunch period to further intimidate, harass, and bully [the student].
Instead of protecting a student who suffered a traumatic event at the hands of an employee, Defendant HCBE [the Board] tolerated and rewarded [the Assistant Principal] with a new contract and enabled [the Assistant Principal's] ability to intimidate, harass, and bully [the student].
As a direct and proximate result of Defendant HCBE's [the Board's] negligent hiring, retention, and supervision, [the student] suffered personal injuries and damages, including but not limited to suffering and mental anguish, past and future lost enjoyment of life, past and future humiliation, embarrassment, indignity, and shame, economic damages, diminished earning capacity, and future lost wages.
We separately will address the circuit court's rulings as to these three alleged causes of action.
1. Negligent Hiring. The Petitioners contend that Count 6 of their complaint asserts a cause of action for negligent hiring, in essence claiming that the Board was negligent in hiring the Assistant Principal. In assessing this claim, the circuit court observed that
Plaintiffs [the Petitioners] ... fail to allege that HCBOE [the Board] neglected to conduct a reasonable investigation into [the Assistant Principal] prior to his initial employment at [the high school the student attended] which would have made HCBOE [the Board] aware of prior misconduct by [the Assistant Principal]. All of Plaintiffs [sic ] [the Petitioners’] allegations focus on the fact that HCBOE [the Board] "knew or should have known that retaining and renewing the contract of an employee who falsely imprisoned, assaulted, sexually harassed, sexually abused, bullied, and further intimidated a student and minor child could result in harm to the child." These allegations stir from the November 2018 incident, which occurred after [the Assistant Principal] was hired, and therefore the negligent hiring claim must fail as a matter of law.
(Emphasis in original). We agree with the circuit court's dismissal of the Petitioners’ claim in Count 6 of their complaint for negligent hiring.
As noted above, to withstand a motion to dismiss, a complaint must set forth a claim upon which relief can be granted, W. Va. R. Civ. P. 12(b)(6), and provide sufficient notice to the defendant of the nature of the claim alleged, W. Va. R. Civ. P. 8(a). Here, as the circuit court duly noted, the complaint does not allege any facts regarding the Board's initial decision to hire the Assistant Principal or any irregularities attendant to the Assistant Principal's hiring. See Syl. pt. 2, Par Mar , 183 W. Va. 706, 398 S.E.2d 532. Therefore, the complaint fails to allege either facts sufficient to support a cause of action for negligent hiring or provide any notice whatsoever of the averment of this claim apart from the reference thereto in the title of Count 6. See W. Va. R. Civ. P. 8(a) ; Chapman , 160 W. Va. at 538, 236 S.E.2d at 212. Accordingly, the Petitioners have failed to state a claim upon which relief may be granted for negligent hiring, and the circuit court's dismissal of that portion of Count 6 of the Petitioners’ complaint pertaining to their negligent hiring claim is affirmed.
2. Negligent Supervision. The Petitioners next argue that the circuit court erred by dismissing their claim in Count 6 of their complaint for negligent supervision. In this respect, the Petitioners allege that the Board negligently supervised its employee, the Assistant Principal. The circuit court dismissed this claim based upon its analysis that the Petitioners had failed to state a valid claim for negligent supervision because they failed to plead facts sufficient to support such a claim. We agree with this conclusion, also.
In rendering its ruling, the circuit court explained that "[a] negligent supervision claim prevails when the party shows that the employer failed to supervise its employee, and as a result, the employee committed a negligent act and caused injury. Taylor v. Cabell Huntington Hosp., Inc. , 208 W. Va. 128, 134, 538 S.E.2d 719, 725 (2000) [ (per curiam).]" The circuit court further noted that " ‘West Virginia does not recognize a claim for negligent training or supervision without an underlying claim for employee negligence.’ Carroll v. USAA Sav. Bank , CV 3:16-11120, [2017] WL 811491, *1, *3 (S.D. W. Va. Mar. 1, 2017) [.]" (Additional citations omitted). Relying on these authorities, the circuit court then concluded that
Plaintiffs [the Petitioners] fail to allege any conduct whatsoever that is negligent ... all conduct performed by [the Assistant Principal] is intentional.... Plaintiffs’ [the Petitioners’] negligent supervision claim fails because Plaintiffs [the Petitioners] have pleaded no set of facts in support of an underlying negligence claim which would entitle Plaintiffs [the Petitioners] to relief.
The circuit court's analysis finding that the Petitioners have failed to state a claim upon which relief could be granted as to their claim in Count 6 for negligent supervision is correct. Although our body of caselaw concerning negligent supervision is sparse, our current definition of this cause of action requires, as a predicate prerequisite of a negligent supervision claim against an employer, underlying conduct of the supervised employee that also is negligent. See Taylor , 208 W. Va. at 134, 538 S.E.2d at 725. In Taylor , we specifically recognized that "[t]he ... claim of negligent supervision must rest upon a showing that the [employer] failed to properly supervise [its employee] and, as a result, [the employee] committed a negligent act which proximately caused the appellant's injury." Id. This definition of a negligent supervision claim in West Virginia also has been adopted by our federal courts. See, e.g. , Launi v. Hampshire Cty. Prosecuting Attorney's Off. , 480 F.Supp.3d 724 (N.D. W.Va. 2020) (memorandum opinion and order) (" ‘Plaintiffs alleging negligent supervision or training must first make an underlying showing of a negligence claim as to an employee, and then demonstrate that the employee was negligently trained or supervised.’ Taylor v. Cabell Huntington Hosp., Inc. , 208 W. Va. 128[ , 134], 538 S.E.2d 719, 725 (2000) [ (per curiam)]."). Therefore, under this Court's current construction of a negligent supervision cause of action, the circuit court correctly dismissed the Petitioners’ cause of action for negligent supervision in Count 6 of their complaint because all of the allegedly wrongful conduct with which the Petitioners charge the Assistant Principal is intentional—false imprisonment, assault, sexual harassment, and intentional infliction of emotional distress—that, because it is not negligent, cannot form the basis of a negligent supervision claim. Thus, because all of the acts alleged to have been committed by the Assistant Principal were comprised of intentional conduct, the circuit court correctly ruled that the Petitioners had not made the requisite predicate showing of the Assistant Principal's negligence to support a claim of negligent supervision by the Board and that their claim in this regard should be dismissed. See W. Va. R. Civ. P. 12(b)(6).
Accord Poling v. Wise Servs., Inc. , No. 5:19CV238, 2019 WL 6174942, at *6 (N.D. W. Va. Nov. 20, 2019) (memorandum opinion and order) ("Plaintiff[’s] ... amended complaint does not contain sufficient allegations that defendant [employer] failed to properly supervise defendant [employee] and, that as a result, defendant [employee] committed a negligent act which proximately caused the plaintiff's injury." (citation to Taylor omitted)); Casto v. Branch Banking & Tr. Co. , No. CV 3:16-5848, 2018 WL 265586, at *10 (S.D. W. Va. Jan. 2, 2018) (memorandum opinion and order) ("[T]he Plaintiff must identify an underlying negligent act of an employee/agent. See Carroll , 2017 WL 811491, at *3. Only then may a Plaintiff seek to establish that the employer/principal negligently supervised or trained. See Biser , 211 F. Supp. 3d at 856 (citing Taylor v. Cabell Huntington Hosp., Inc. , 208 W.Va. 128, 538 S.E.2d 719, 725 (2000) [ (per curiam)]). A negligent supervision or training claim may not be based upon an underlying intentional act. See Bourne , 998 F. Supp. 2d at 506 (‘When an employer negligently fails to supervise an employee, but such negligence does not result in a negligent act on the part of the employee that harms another, the failure to supervise did not proximately result in damages.’); Heslep v. Ams. for African Adoption , 890 F. Supp. 2d 671, 687 (N.D. W. Va. 2012) (finding allegations of intentional fraud not enough to plead underlying negligence); Selders v. MegaCorp Logistics LLC , No. 2:14-[CV]-60, 2014 WL 12638026, at *1 (N.D. W. Va. Dec. 22, 2014) (dismissing a negligent supervision claim when the underlying acts were intentional)."); Huffman v. Branch Banking & Tr. Co. , No. CV 3:16-8637, 2017 WL 2177351, at *7 (S.D. W. Va. May 17, 2017) (memorandum opinion and order) ("The complaint itself details only a negligence claim for supervision, but this type of action also fails as a matter of law. The Court thoroughly explains in Carroll v. USAA Savings Bank that West Virginia does not recognize a separate claim for negligent supervision or training without having a valid underlying claim for employee negligence. Civ. No. 3:16-11120, 2017 WL 811491, at *3 (S.D. W. Va. Mar. 1, 2017) (citing Taylor v. Cabell Huntington Hosp., Inc. , 208 W.Va. 128, 538 S.E.2d 719, 725 (2000) [ (per curiam)])."); Carroll v. USAA Sav. Bank , No. CV 3:16-11120, 2017 WL 811491, at *3 (S.D. W. Va. Mar. 1, 2017) (memorandum opinion and order) ("West Virginia does not recognize a claim for negligent training or supervision without an underlying claim for employee negligence. See Heslep v. Ams. for African Adoption, Inc. , 890 F. Supp. 2d 671, 687 (N.D. W. Va. 2012) ; Taylor v. Cabell Huntington Hosp., Inc. , [208 W.Va. 128,] 538 S.E.2d 719, 725 (W.Va. 2000) [ (per curiam)]. If a complaint fails to identify an employee's negligent act, the claim for negligent training or supervision should be dismissed as a matter of law. See Taylor , 538 S.E.2d at 725 (‘While the appellant may be able to show that the hospital breached its duty to supervise [the nurse], absent a showing of negligence by [the nurse], the appellant is unable to show that the hospital's negligence proximately caused her injury.’). A plaintiff must ‘first make an underlying showing of a negligence claim as to an employee, and then demonstrate that the employee was negligently trained or supervised.’ Biser v. Mfrs. & Traders Tr. Co. , 211 F.Supp.3d 845, 856 (2016)."); Biser v. Mfrs. & Traders Tr. Co. , 211 F. Supp. 3d 845, 856 (S.D. W. Va. 2016) (memorandum opinion and order) ("Plaintiffs alleging negligent supervision or training must first make an underlying showing of a negligence claim as to an employee, and then demonstrate that the employee was negligently trained or supervised. Taylor v. Cabell Huntington Hosp., Inc. , 208 W. Va. 128[ , 134], 538 S.E.2d 719, 725 (2000) [ (per curiam)]."); Selders v. MegaCorp Logistics, LLC , No. 2:14-CV-60, 2014 WL 12638026, at *1 (N.D. W. Va. Dec. 22, 2014) (order) ("Because the alleged acts in the Amended Complaint were intentional, the plaintiff has not alleged negligence ‘as required to sustain a cause of action for negligent supervision.’ Heslep v. Americans for African Adoption, Inc. , 890 F. Supp. 2d 671, 687 (N.D. W. Va. 2012) (Keeley, J.)."); Bourne v. Mapother & Mapother, P.S.C. , 998 F. Supp. 2d 495, 506 (S.D. W. Va. 2014) (memorandum opinion and order) ("The West Virginia Supreme Court of Appeals has indicated that a claim for negligent supervision requires an independent finding of negligence on the part of a supervised employee.... When an employer negligently fails to supervise an employee, but such negligence does not result in a negligent act on the part of the employee that harms another, the failure to supervise did not proximately result in damages." (citations to Taylor and Heslep omitted)); Brown v. Tethys Bioscience, Inc. , No. CIV.A. 1:10-1245, 2013 WL 65456, at *8 (S.D. W. Va. Jan. 4, 2013) (memorandum opinion and order) ("[A] claim for negligent supervision requires a separate finding of negligence on the part of the employee being supervised." (internal quotations and citations to Taylor and Heslep omitted)); Heslep v. Ams. for African Adoption, Inc. , 890 F. Supp. 2d 671, 687 (N.D. W. Va. 2012) (memorandum opinion and order) ("[A] claim for negligent supervision requires a separate finding of negligence on the part of the employee being supervised. Taylor , 538 S.E.2d at 725."). Cf. Proctor v. King , No. 2:19-CV-00432, 2021 WL 2169515, at *6 (S.D. W. Va. May 27, 2021) (memorandum opinion and order) ("To state a claim for negligent supervision or training under West Virginia law, a plaintiff must show that an employer ‘failed to properly supervise’ an employee and, as a result, the employee ‘proximately caused injury to’ the plaintiff. Woods , 712 F. Supp. 2d at 514 (citing Taylor v. Cabell Huntington Hosp., Inc. , 208 W.Va. 128, 538 S.E.2d 719, 725 (2000) [ (per curiam)])."); Roush v. Schneider Nat'l Carriers, Inc. , No. CV 3:18-1184, 2020 WL 5031998, at *2 (S.D. W. Va. Aug. 25, 2020) (memorandum opinion and order) ("To establish a negligent supervision claim, a plaintiff must show ‘that the employer failed to properly supervise its employees and, as a result, those employees proximately caused injury to another.’ Biser v. Mfrs. and Traders Trust Co. , 211 F. Supp. 3d 845, 856 (S.D. W. Va. 2016) (citing Ferrell v. Santander Consumer USA, Inc. , 859 F. Supp. 2d 812, 817-18 (S.D. W. Va. 2012) )."); Woods v. Town of Danville, W. Va. , 712 F. Supp. 2d 502, 515 (S.D. W. Va. 2010) (memorandum opinion and order) ("Under West Virginia law, negligent supervision claims must rest upon a showing that [the employer] failed to properly supervise [its employee] and, as a result, [the employee] proximately caused injury to the plaintiffs." (citation to Taylor omitted)).
Furthermore, as we recognized in the preceding section regarding the Petitioners’ claim for negligent hiring, we also find that the Petitioners’ complaint is factually deficient in stating a claim for negligent supervision because the complaint does not set forth factual allegations to provide notice to the Board that it is stating a claim for negligent supervision. All of the allegations in Count 6 of the Petitioners’ complaint, of which negligent supervision is a part, pertain to the Petitioners’ cause of action for negligent retention, discussed infra , with no averment or explanation as to how the Board allegedly was negligent in supervising the Assistant Principal. Therefore, dismissal of the negligent supervision claim in Count 6 of the Petitioners’ complaint also is warranted because the complaint fails to state a claim upon which relief could be granted, W. Va. R. Civ. P. 12(b)(6) ; Syl. pt. 2, Par Mar , 183 W. Va. 706, 398 S.E.2d 532, and does not provide sufficient notice to the Board of the nature of the negligent supervision claim alleged against it, W. Va. R. Civ. P. 8(a) ; Chapman , 160 W. Va. at 538, 236 S.E.2d at 212. Therefore, we likewise affirm this portion of the circuit court's order dismissing Count 6 of the Petitioners’ complaint as it relates to their claim against the Board for negligent supervision.
3. Negligent Retention. The final claim the Petitioners assert in Count 6 of their complaint alleges that the Board was negligent in retaining the Assistant Principal as its employee. As with the other claims in Count 6, the circuit court also dismissed the negligent retention claim, finding that
Plaintiffs [the Petitioners] ... fail to allege sufficient facts to support a negligent retention claim against the HCBOE [the Board]. Not only have Plaintiffs [the Petitioners] alleged intentional conduct only, Plaintiffs have neglected to show that an injury occurred after [the Assistant Principal] was reinstated. While Plaintiffs [the Petitioners] have clearly stated that [the Assistant Principal] continuously appears during [the student's] lunch period, and that this behavior somehow breaches an agreement allegedly made between C.C. and HCBOE [the Board], Plaintiffs [the Petitioners] fail to allege facts and conduct showing all four (4) requirements in a negligence action: duty, breach, causation, and damages.
(Emphasis in original; footnote omitted). We find this ruling to be erroneous based upon our caselaw governing the negligent retention cause of action and the plain language of the Petitioners’ complaint alleging this claim.
With respect to a claim of negligent retention, we have recognized that, to hold an employer liable for negligent retention, the employer must have been able to foresee "the possible risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit employee." McCormick v. W. Va. Dep't of Pub. Safety , 202 W. Va. 189, 193, 503 S.E.2d 502, 506 (1998) (per curiam) (internal quotations and citation omitted). Thus, the relevant inquiry in a negligent retention analysis is, "Should the employer have reasonably foreseen the risk caused by ... retaining an unfit person?" Id. Liability for negligent retention may be imposed when an injury occurred as a result of an employer's retention of an "unfit employee" and such risk of injury was reasonably foreseeable to the employer. Id.
The circuit court ruled that "Plaintiffs [the Petitioners] ... fail to allege sufficient facts to support a negligent retention claim against the HCBOE [the Board]." Here, the Petitioners alleged that the student suffered injuries as a result of the Assistant Principal's interactions, which will be discussed further, infra. However, the Petitioners also sufficiently alleged the foreseeable nature of the student's injuries based upon the repeated incidences between the Assistant Principal and the student. Once the bathroom encounter had occurred, the Board certainly could have foreseen the possibility of additional confrontations by the Assistant Principal given his professed discomfort around the student, though the exact nature of such future encounters may have been unknowable. See McCormick , 202 W. Va. at 193, 503 S.E.2d at 506. And such possibility indeed became reality as demonstrated by the concession stand incident and the Assistant Principal's perpetual presence in the cafeteria during the student's lunch period. Therefore, upon these allegations in the complaint, we conclude that the Petitioners alleged sufficient facts to establish the foreseeability element of a cause of action for negligent retention. See id.
In dismissing that portion of the Petitioners’ complaint asserting a cause of action for negligent retention, the circuit court additionally found that the Petitioners had not demonstrated that the student sustained injuries and resultant damages after the Board decided to retain the Assistant Principal. However, the Petitioners’ complaint does allege that the student suffered injuries after the Board retained the Assistant Principal as its employee.
In the "Facts" section of their complaint, the Petitioners allege three specific interactions between the Assistant Principal and the student that they claim caused the student's injuries. The first such occurrence, i.e. the bathroom incident, happened in November 2018. Following the recitation of this episode, the complaint avers that, "[i]n the time following the incident, [the student] has suffered from severe anxiety associated with his education and his extracurricular activities," and that "[the Assistant Principal] continued to overtly attempt to intimidate/harass both C.C. and the minor child [the student]." While it appears that the Assistant Principal was suspended after this encounter, the Board retained him as an employee and reinstated him to his position as Assistant Principal, as evidenced by the occurrence of the concession stand episode a few weeks later in December 2018.
Thereafter, the complaint alleges that,
[o]n or about the week of March 20, 2019, the HCBE [the Board] voted not to renew [the Assistant Principal's] contract at the end of the school year.
Soon after, with full knowledge of the afore-described incident, the HCBE reversed itself and voted to renew the contract of [the Assistant Principal].
The Petitioners then further aver that,
[t]hroughout the remainder of the school year, despite an agreement between C.C. and Defendant HCBE [the Board] that [the Assistant Principal] would never intentionally share the same spaces as [the student], [the Assistant Principal] would continuously appear and remain present during [the student's] lunch period.
While these allegations are not specifically restated in Count 6 of the Petitioners’ complaint, the first paragraph of Count 6 states that "Plaintiff [sic ] [the Petitioners] incorporates [sic ] by reference in this count all other material allegations set forth elsewhere in this complaint," which would include the aforementioned factual allegations regarding the duration of the lunch room interactions between the Assistant Principal and the student. Therefore, despite the circuit court's findings to the contrary, the allegations of the complaint, if taken as true and construed in the light most favorable to the Petitioners, aver that the Assistant Principal's interactions with the student continued following his reinstatement after he was suspended, which resulted in the concession stand incident, and also continued after the Board's decision to renew the Assistant Principal's contract given that the Assistant Principal's persistent presence in the school cafeteria during the student's daily lunch period lasted through the remainder of the school year. See Lodge Distrib. Co. , 161 W. Va. at 605, 245 S.E.2d at 158. In addition to the continuance of these interactions, the complaint's allegations detail the various injuries and associated damages the student suffered as a result of these encounters as required by the injury element of a negligent retention cause of action. See McCormick , 202 W. Va. at 193, 503 S.E.2d at 506. Therefore, the Petitioners have stated a valid claim for negligent retention in Count 6 of their complaint upon which relief may be granted. See W. Va. R. Civ. P. 12(b)(6).
Finally, in dismissing the Petitioners’ negligent retention claim, the circuit court found that "Plaintiffs [the Petitioners] fail to allege facts and conduct showing all four (4) requirements in a negligence action: duty, breach, causation, and damages." However, we find that the facts pled in the complaint also establish the elements of a general negligence cause of action based upon negligent retention, despite the circuit court's finding to the contrary. See Hersh , 232 W. Va. at 310, 752 S.E.2d at 341. In Count 6 of the Petitioners’ complaint, in which they include a claim against the Board for negligent retention, the Petitioners claim that the Board had a duty to employ school personnel who "demonstrat[e] appropriate behavior, treat[ ] others with civility and respect, and refus[e] to tolerate harassment, intimidation or bullying." Quoting W. Va. Code § 18-2C-1 (eff. 2001). Further, the Petitioners claim that the Board breached this duty by "vot[ing] to renew [the Assistant Principal's] contract," which allowed the Assistant Principal to "continuously appear during [the student's] lunch period to further intimidate, harass, and bully [the student]." Finally, the Petitioners aver that, "[a]s a direct and proximate result of Defendant HCBE's [the Board's] negligent ... retention ..., [the student] suffered personal injuries and damages," such as "suffering and mental anguish, past and future lost enjoyment of life, past and future humiliation, embarrassment, indignity, and shame[.]" Having set forth allegations in the complaint to establish the elements of a general cause of action for negligence—duty, breach, causation, and damages—the Petitioners have provided sufficient allegations in support of their negligent retention claim to withstand the Board's motion to dismiss and to sufficiently apprise the Board of the nature of their claim for negligent retention. See W. Va. R. Civ. P. 8(a), 12(b)(6) ; Hersh , 232 W. Va. at 310, 752 S.E.2d at 341 ; Syl. pt. 2, Par Mar , 183 W. Va. 706, 398 S.E.2d 532 ; Chapman , 160 W. Va. at 538, 236 S.E.2d at 212.
Accordingly, we conclude that the Petitioners have stated a claim for negligent retention sufficient to survive the Board's motion to dismiss this claim, see W. Va. R. Civ. P. 12(b)(6), and, thus, we reverse the circuit court's order to the extent that it dismissed the Petitioners’ negligent retention claim. We further remand this case for reinstatement of that portion of Count 6 of the Petitioners’ complaint alleging a claim against the Board for negligent retention.
IV.
CONCLUSION
For the foregoing reasons, we affirm, in part, and reverse, in part, the January 27, 2020 order of the Circuit Court of Harrison County and remand this case for further proceedings consistent with this opinion.
Affirmed, in part; Reversed, in part; and Remanded with Instructions.
JUSTICES ARMSTEAD, HUTCHISON, and WOOTON concur, in part, and dissent, in part, and reserve the right to file separate opinions.
Armstead, Justice, concurring in part and dissenting in part:
As stated by the majority, and as confirmed by Petitioners during oral argument in this matter, the Petitioners do not assign error to the dismissal of several counts of their Complaint and have narrowed the focus of their appeal to their claims contained in Counts 5 and 6 of their Complaint. To the extent the majority reverses the circuit court's dismissal of Petitioners’ negligence per se claims contained in Count 5 of the Complaint and reverses the circuit court's dismissal of Petitioners’ negligent retention claims contained in Count 6 of the Complaint, I respectfully dissent.
As an initial matter, I believe that the conduct displayed by the Assistant Principal in this matter was certainly inappropriate. With this fact in mind, I am perplexed that the Petitioners did not name the Assistant Principal as a party in this matter. Certainly, any party may choose to name, or decline to name, any party in civil litigation, and such decisions are certainly within the purview of the respective client and his or her legal counsel. It is not for this Court to second guess those decisions. However, by naming only the Harrison County Board of Education ("Board"), Petitioners must accept that the ability to prove their case against the Board may be governed by different statutory and common law standards.
With respect to Count 5, I believe that the majority is correct in finding that the Board is entitled to immunity for Petitioners’ claims that it failed to adopt an anti-harassment policy as required by West Virginia Code section 18-2C-3 or if it had adopted such a policy, its policy was inadequate. Such claims clearly fall within the scope of "failure to adopt a ... written policy" and "[a]doption ... [of] a ... written policy[.]" for which immunity is provided in W. Va. Code § 29-12A-5(a)(4). However, I disagree with the majority's conclusion that the circuit court erred by dismissing Count 5. In reaching such conclusion, the majority finds that certain of Petitioners’ allegations assert negligence claims that are not subject to immunity, namely the allegations that "Defendant [the Board] was negligent per se in that the actions of its employee [the Assistant Principal] were the exact type of atrocious, inexcusable actions that W. Va. Code § 18-2C-1 et seq. was intended to prevent" and "Defendant [the Board] breached its duty by failing to immediately act to address and remedy this situation."
The majority proceeds to state, in its attempt to distinguish these allegations from those it has already deemed subject to the immunity provisions of W. Va. Code § 29-12A-5(a)(4), that "these allegations sound in negligence and complement the allegations that the Board negligently retained the Assistant Principal once it became aware of his conduct set forth in Count 6 of the Petitioners’ complaint."
I believe the majority's conclusion in this regard is wrong for a number of reasons. First, in support of its decision to reinstate this particular claim, the majority correctly notes that the four basic elements of a negligence claim are duty, breach, causation, and damages. However, as the majority proceeds to outline how the Petitioners’ allegations meet these elements, it clearly states that "[i]n support of their claim of negligence per se, the Petitioners alleged the Board had a duty to the student to adopt an anti-harassment policy ..." (Emphasis added). Thus, the duty asserted by the Petitioners, and relied upon by the majority, is the duty to adopt an anti-harassment policy. The allegation that the Board breached this duty to adopt a policy clearly brings this claim under the umbrella of immunity pursuant to the express language of W. Va. Code § 29-12A-5(a)(4). The alleged breach of such duty, which is entitled to immunity, should not result in the reinstatement of this particular claim.
Moreover, the majority alleges that "other conduct" alleged in support of Petitioners’ negligence per se claim does not involve either the failure to adopt or the adoption of a policy. However, such allegations do not warrant reversal of the circuit court's dismissal of the negligence per se claim. As stated above, the majority finds that the Petitioners’ allegations "sound in negligence and complement the allegations that the Board negligently retained the Assistant Principal once it became aware of his conduct set forth in Count 6 of the Petitioners’ complaint." (Emphasis added). This finding appears designed to bootstrap these allegations to the one and only allegation within Count 6, negligent retention, that the majority allows to proceed to trial.
However, I believe the allegations that the Board breached its duty by "failing to act to address and remedy this situation" do not sound in negligent retention, as the majority asserts, but instead allege a negligent supervision claim, similar to that which the majority finds was properly dismissed in Count 6. The Petitioners allege that the Board was negligent per se "in that the actions of its employee" violated its policy and the Board breached a duty to Petitioners by "failing to immediately act to address and remedy this situation." Petitioners assert liability on the part of the Board due to its alleged failure "to act" to address the Assistant Principal's conduct, a responsibility that goes to the core of an employer's supervisory role to take disciplinary or corrective action when the offending conduct occurs. Such allegations do not go to the Board's earlier decision to renew the Assistant Principal's contract which had already taken place.
The majority correctly determined, in regard to the negligent supervision claims asserted by the Respondents in Count 6 that "because all of the acts alleged to have been committed by the Assistant Principal were comprised of intentional conduct, the circuit court correctly ruled that the Petitioners had not made the requisite predicate showing of the Assistant Principal's negligence to support a claim of negligent supervision by the Board and that their claim in this regard should be dismissed." In support of this finding, the majority cites this Court's holding in Taylor v. Cabell Huntington Hosp. Inc., 208 W. Va. 128, 538 S.E.2d 719 (2000) [ (per curiam)] that "[t]he ... claim of negligent supervision must rest upon a showing that the [employer] failed to properly supervise [its employee] and, as a result, [the employee] committed a negligent act which proximately caused the appellant's injury." Id. at 134, 538 S.E.2d at 725. The holding in Taylor seems equally applicable to the Petitioners’ negligence per se claims in Count 5.
Finally, even if the Petitioners’ negligence per se claims could be read to go beyond the scope of allegations that the Board was negligent in either its adoption or failure to adopt a non-harassment and bullying policy, the language pointed to by the majority as evidence that the Petitioners’ negligence per se claim should not be dismissed specifically point to the responsibility's discussed in W. Va. Code § 18-2C-1. Specifically, as discussed by the majority, Petitioners allege that "Defendant was negligent per se in that the actions of its employee Mr. Livengood were the exact type of atrocious, inexcusable actions that W. Va. Code § 18-2C-1 et seq. was intended to prevent." See Complaint ¶ 68.
However, the circuit court correctly held that:
[S]ections 18-2C-1 and 18-2C-3(b) impose merely a responsibility on the HCBOE [Board], but not an express liability. Therefore, because "[l]iability shall not be construed to exist under another section of this code merely because a responsibility is imposed upon a political subdivision," the HCBOE is precluded from liability to Plaintiffs under the code. W. Va. § 29-12A-4(c)(5). Therefore, count five (5) alleging negligence per se is dismissed because the HCBOE cannot be liable to the Plaintiffs under sections 29-12A-5(a)(4) and 29-12A-4(c)(5).
The circuit court did not err in its finding in this regard. Indeed, W. Va. Code § 18-2C-1 does not establish express liability but instead recites "Legislative Findings," stating:
§ 18-2C-1. Legislative findings.
The Legislature finds that a safe and civil environment in school is necessary for students to learn and achieve high academic standards. The Legislature finds that harassment, intimidation or bullying, like other disruptive or violent behavior, is conduct that disrupts both a student's ability to learn and a school's ability to educate its students in a safe, nonthreatening environment.
The Legislature further finds that students learn by example. The Legislature charges school administrators, faculty, staff and volunteers with demonstrating appropriate behavior, treating others with civility and respect, and refusing to tolerate harassment, intimidation or bullying.
W. Va. Code § 18-2C-1. The provisions of W. Va. Code § 18-2C-3(b) list provisions that should be included in an anti-harassment policy. Neither of these statutory provisions create the type of "liability" that must be "expressly imposed" in order to warrant an exemption from the immunity provisions of W. Va. Code § 29-12A-4(c)(5). The clear language of W. Va. Code § 29-12A-4(c)(5) provides:
In addition to the circumstances described in subsection (c)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a provision of this code. Liability shall not be construed to exist under another section of this code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.
W. Va. Code § 29-12A-4(c)(5) (Emphasis added). By merely citing the "responsibilities" imposed by W. Va. Code § 18-2C-1 et seq. , the Petitioners have failed to allege an "expressly imposed" statutory duty that gives rise to liability on the part of the Board. Indeed, the Petitioners acknowledged such requirement in their response to the Board's Motion to Dismiss, when they stated that "[a] litigant may pierce the shield of qualified immunity by showing a government official has violated a clearly established statutory or constitutional right." Accordingly, the Board is immune from liability for the allegations contained in Count 5 pursuant to W. Va. Code § 29-12A-4(c).
Therefore, I believe the Petitioner's negligence per se claim in Count 5 is not only based on the adoption or failure to adopt a policy, which renders the Board immune from such claims pursuant to W. Va. Code § 29-12A-5(a)(4), it further constitutes a reiteration of Petitioners’ negligent supervision claim. Moreover, even if its allegations go beyond a claim for the adoption or failure to adopt a policy, it still only alleges a "responsibility" on the part of the Board, rather than an "expressly imposed" liability. The Board is, therefore immune from liability for the allegations set forth in Count 5. Accordingly, I believe Count 5, too, must be dismissed.
With respect to Count 6, the majority is correct in affirming the dismissal of Petitioners’ claims for negligent hiring and negligent supervision for the reasons set forth in the majority's opinion. However, I further believe that the circuit court was also correct in dismissing Petitioners’ claim for negligent retention.
This Court's decision in McCormick v. W. Va. Dep't of Pub. Safety , 202 W. Va. 189, 503 S.E.2d 502 (1998), as was cited by the circuit court, identifies the relevant burden a plaintiff bears in a negligent retention case. Specifically, McCormick states that:
[T]he inquiry upon which liability for negligent hiring or retention should be determined is: "when the employee was hired or retained, did the employer conduct a reasonable investigation into the employee's background vis a vis the job for which the employee was hired and the possible risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit employee? Should the employer have reasonable foreseen the risk caused by hiring or retaining an unfit person? "
Id. at 193, 503 S.E.2d 502, 506 (1998) (Emphasis added).
At the outset I note that the majority concedes that liability for negligent retention may only be imposed when an injury occurred as a result of an employer's retention of an "unfit employee" and such risk of injury was reasonably foreseeable to the employer. In its analysis of the foreseeability issue, the majority simply states that Respondent could have foreseen the possibility of additional confrontations by the Assistant Principal after the bathroom encounter.
The Complaint states that the restroom incident occurred on November 27, 2018. The concession stand incident is alleged to have occurred on December 6, 2018. Moreover, the record reflects that, following the bathroom incident in November 2018, one or more meetings took place between school system officials and the Respondents. According to the Petitioners’ complaint, following a meeting on January 11, 2019, Superintendent Mark Manchin agreed to "[e]nsure an environment exists" where the Assistant Principal would "have little or no interaction with" the [student]. Finally, the Complaint alleges that the Board voted not to renew the Assistant Principal's contract during the week of March 20, 2019, and "soon after" reversed that decision and renewed his contract. The renewal of the Assistant Principal's contract, which appears to give rise to the Respondent's negligent retention claim, was made subsequent to the January 11, 2019 agreement.
Reviewing the Petitioners’ Complaint, I agree with the circuit court's determination that the Petitioners "have alleged intentional conduct only" on the part of the Assistant Principal" and "fail to allege sufficient facts to support a negligent retention claim against the HCBOE [Board]." In reinstating Petitioners’ negligent retention claim, the majority's reliance upon allegations of the Assistant Principal's presence in the cafeteria of the school at which he is employed is misplaced. As the circuit court correctly held, Petitioners fail to assert any allegation that the Assistant Principal interacted with the student following his retention. The allegation that the Assistant Principal appeared in the lunchroom "to further intimidate, harass and bully M.C.," is conclusory in nature and not supported by any allegation of specific conduct in which he engaged, other than his mere presence, that constituted intimidation, harassment or bullying. In fact, there were no allegations that the Assistant Principal conversed with or had interaction with the student, or that he engaged in the type of conduct that was alleged to have occurred in November and December of 2018, prior to the Board's decision to renew his contract. The broad and conclusory allegations contained in Petitioners’ negligent retention claim fail to state a claim upon which relief may be granted under W. Va. R.Civ.P. 12(b)(6). This is particularly true where, as here, the Assistant Principal's conduct was intentional and the principles of qualified immunity are implicated.
Because the Petitioners’ claims are asserted against the Board, a governmental entity, it is even more crucial that Petitioners’ allegations allege a specific duty on the part of the Board. In R.Q. v. West Virginia Div. of Corrections, No. 13-1223, 2015 WL 1741635 (W. Va. April 10, 2015) (memorandum decision), this Court discussed the "particularized showing" a plaintiff must make to prevail in an action for negligent retention, negligent training and negligent supervision against a governmental entity. In R.Q. , the plaintiff, who was incarcerated in a Division of Corrections ("DOC") facility, alleged sexual misconduct by a correctional officer employed by the DOC. The plaintiff brought claims against the DOC, inter alia, for negligent supervision, negligent training and negligent retention. Citing this Court's previous holding in W.Va. Reg'l Jail and Corr. Facility Auth. v. A.B. , 234 W. Va. 492, 766 S.E.2d 751 (2014), the Court in R.Q . held:
"the broad categories of training, supervision, and employee retention , as characterized by respondent, easily fall within the category of ‘discretionary’ government functions." .... [t]o prove that a clearly established right has been infringed upon, a plaintiff must do more than allege that an abstract right has been violated . Instead, the plaintiff must make a "particularized showing" that a "reasonable official would understand that what he is doing violated that right" or that "in light of preexisting law the unlawfulness" of the action was "apparent." ... Petitioner failed to establish what the DOC did or failed to do that it would have reasonably understood was unlawful with regard to its supervision, retention, and training of D.F. [the corrections officer].
Id. at 4-5. (Internal citations omitted) (Emphasis added). Accordingly, this Court found that R.Q. had failed to establish an actionable claim against the DOC for, among other claims, her claim for negligent retention.
As recently as November 2020, this Court held, in West Virginia Regional Jail and Correctional Facility Authority v. Grove , 244 W. Va. 273, 852 S.E.2d 773 (2020), that "[c]ases implicating immunity ... are subject to a somewhat heightened pleading standard. That is, plaintiffs ‘should supply in their complaints or other supporting materials greater factual specificity and particularity than is usually required.’ " (Internal quotations omitted). The Respondents have simply failed to meet the pleading standard set forth in Rule 12(b) of the West Virginia Rules of Civil Procedure, much less the heightened pleading standard discussed in Grove .
In Hutchison v. City of Huntington , 198 W. Va. 139, 479 S.E.2d 649 (1996), this Court indicated that when a defendant raises the defense of qualified or statutory immunity, the trial court "must insist on heightened pleadings by the plaintiff." Id. at 149, 479 S.E.2d at 660. In such cases, the circuit court should direct that a plaintiff file a "short and plain statement of his complaint" and " may , on its own discretion, insist that the plaintiff file a reply tailored to an answer pleading the defense of statutory or qualified immunity." Id. at 150, 479 S.E.2d at 660. (Emphasis added). Finally, the Hutchison Court found that "if the individual circumstances of the case indicate that the plaintiff has pleaded his or her best case, there is no need to order more detailed pleadings." Id.
Respondents in this matter argue that this Court's holding in Doe v. Logan County Board of Education , 242 W. Va. 45, 829 S.E.2d 45 (2019), supports their argument that the circuit court's dismissal of their Complaint should be reversed. Significantly, the majority in its opinion in this matter does not rely on or address the holding in Doe . Moreover, in oral arguments before this Court in this matter, Petitioners’ counsel expressly stated that, while the Respondents request to conduct additional discovery, the Respondents were not seeking to amend their pleadings.
In the present case, the Board filed a Motion to Dismiss based, inter alia , on its assertion of immunity under the West Virginia Governmental Tort Claims and Insurance Act. ("Tort Claims Act"). The Respondents filed a detailed response to such motion asserting its position that its claims were not barred by immunity under the heading "There are clear limits to immunity provided to political subdivisions by the West Virginia Tort Claims Act. Plaintiffs’ claims against Harrison County Board of Education survive as the acts of its employee were outside the scope of that immunity."
This response would appear to fulfill the requirements set forth in Hutchison that a plaintiff be provided an opportunity to address a defendant's assertion of immunity. Moreover, the record before us does not reflect that Petitioners allege specific error on the part of the circuit court for any alleged failure to provide them the opportunity to amend their pleadings to address the Board's assertion in its Motion to Dismiss that it was immune from Petitioners’ claims pursuant to Tort Claims Act.
But see Brooks v. City of Weirton , 202 W. Va. 246, 257, 503 S.E.2d 814, 825 (1998) (While a litigant may be barred by the Governmental Tort Claims and Insurance Reform Act from suing the political subdivision, the litigant's "naming an employee of a political subdivision as a defendant for purposes of establishing the employee's liability—as opposed to the subdivision's liability—would not be barred, if one of the statutory exceptions to employee immunity in W.Va. Code, 29-12A-5(b) [1986] is present.")
Taylor simply applies the well-established principle that absent tortious conduct on the part of an employee that causes harm to another, a claim of negligent supervision fails for lack of causation. The fact that the employee's conduct in Taylor was negligent, rather than intentional, was in no way dispositive of the case; rather, what was dispositive was the fact that based pm a;; the evidence presented at trial, the jury found the employee not liable. 208 W. Va. at 134, 538 S.E.2d at 725.
Respondents have failed to sufficiently assert specific factual claims that, by retaining the Assistant Principal, the Board breached a duty to prevent injury that was reasonably foreseeable conduct. Accordingly, the circuit court did not err in dismissing their negligent retention claim.
For these reasons, I believe the circuit court was correct in dismissing Petitioners’ Complaint in its entirety. Accordingly, I concur in the majority's opinion insofar as it finds that the Petitioner does not assign error in the circuit court's dismissal of all claims other than those raised in Counts 5 and 6, and that such other Counts are not presently before us. I further concur with the majority's finding affirming the circuit court's dismissal of the negligent hiring and negligent supervision claims asserted in Count 6. I respectfully dissent as to the majority's decision to reverse the circuit court's order dismissing Count 5 of Petitioners’ Complaint, and further dissent as to the majority's decision reversing the circuit court's dismissal of Petitioners’ negligent retention claim in Count 6 and ordering reinstatement of such claims.
Justice Hutchison, concurring, in part, and dissenting, in part:
I concur with the bulk of the majority's opinion. The petitioners pled, in five of the eight counts of their complaint, that the Harrison County Board of Education ("the Board") committed intentional torts. As the majority opinion notes, the Board is statutorily immune for actions alleging intentional torts, so the petitioners effectively pleaded themselves out of a case on these five counts.1 And, to boot, when the petitioners argued their case to this Court, they waived pursuing all but two of the eight counts: Count 5, negligence per se; and Count 6, negligent hiring, supervision, and retention. I concur with the majority opinion's decision to reinstate, in part, Count 5 of the complaint. I also agree with the majority opinion's reasoning that the petitioners may pursue their allegation in Count 6 that the Board negligently retained the school's Assistant Principal. However, the petitioners failed to plead any facts under Count 6 suggesting that the Board was negligent in its decision to hire the Assistant Principal, and while normally such a general claim should be refined or weeded out of a case by way of summary judgment, in this case I agree with the majority opinion that any cause of action for negligent hiring was properly dismissed.
My concern centers on the majority opinion's discussion regarding whether the petitioners alleged an actionable claim for negligent supervision under Count 6. The majority opinion concludes that petitioners’ complaint "is factually deficient in stating a claim for negligent supervision because the complaint does not set forth factual allegations" and, therefore, "does not provide sufficient notice to the Board of the nature of the negligent supervision claim alleged against it[.]" As the complaint is drafted, I am not going to quibble with this conclusion by the majority opinion.
I strenuously dissent, however, to the majority opinion's discussion of the law regarding a negligent supervision claim. Instead of stopping its discussion after applying Rule 12(b)(6) and stating that the petitioners’ complaint factually failed to state a claim, the majority decided to go one step further and prop up its determination with quotes from the circuit court's pronouncement of the law regarding a negligent supervision claim. That discussion of the law is a house of cards destined to fall. Therefore, I warn lawyers not to rely upon the majority's legal discussion because it has little precedential value beyond the unique facts of this case.
First and foremost, the majority opinion cites absolutely no persuasive, controlling West Virginia law to support its discussion of the law of negligent supervision. The majority fails to quote any case from this Court outlining the elements of a cause of action for negligent supervision for an obvious and very important reason: because none exists. In fact, the majority opinion admits that "our body of caselaw concerning negligent supervision is sparse[.]"
Despite this dearth of any real precedent, the majority opinion plows ahead and quotes the circuit court's statement of what it thought the law is. Specifically, the circuit court pronounced that a "negligent supervision claim prevails when the party shows that the employer failed to supervise its employee, and as a result, the employee committed a negligent act and caused injury. " As "authority" for this pronouncement, the circuit court cited a per curiam decision from this Court, Taylor v. Cabell Huntington Hosp., Inc. , 208 W. Va. 128, 538 S.E.2d 719 (2000), and an unpublished opinion from a federal district court that cites Taylor . Per curiam and unpublished federal cases carry almost no persuasive weight. Nevertheless, the majority opinion doubles down on its reliance upon the circuit court's pronouncement and declares that the circuit court's interpretation of Taylor is "our current definition" and "current construction of a negligent supervision cause of action[.]" (Emphasis added).
See Carroll v. USAA Sav. Bank , No. CV 3:16-11120, 2017 WL 811491 (S.D.W. Va. Mar. 1, 2017).
See , e.g. , Goldstein v. Peacemaker Props., LLC , 241 W. Va. 720, 730, 828 S.E.2d 276, 286 (2019).
However, nowhere in Taylor did the Court outline or construe the elements of a negligent supervision cause of action. To the contrary, in Taylor , the Court expressly refused to define that cause of action.
Taylor involved a plaintiff injured in a hospital emergency room. That plaintiff pursued a respondeat superior theory against the hospital alleging that a nurse, as an agent of the hospital, had been negligent. However, the jury concluded that the plaintiff's "injury was not caused by ... [the nurse's] negligence." Id. , 208 W. Va. at 132, 538 S.E.2d at 723. On appeal, the plaintiff argued that she should have been permitted to pursue a claim that the hospital had negligently supervised the nurse. We expressed confusion as to why the plaintiff wanted to pursue a negligent supervision claim when the hospital admitted it would be vicariously liable under the doctrine of respondeat superior if the nurse's negligence had been found to have caused the plaintiff's injury. Id. at 134, 538 S.E.2d at 725. Moreover, we concluded that, "[b]ecause of the verdict in this case" in favor of the nurse, "we need not consider the viability of a negligent supervision claim in cases governed by the doctrine of respondeat superior. " Id. Accordingly, we found "the issue of alleged negligent supervision to be moot." Id.
In this case, the problem with the circuit court's pronouncement, and the majority opinion's problematic adoption of the pronouncement, arises from two stray sentences in dicta in Taylor . After specifically saying we were not going to discuss the substance of a negligent supervision claim, we went on to say that even if the plaintiff in Taylor were permitted to pursue such a claim, she could never prove that the hospital breached any duty to supervise the emergency room nurse because of the absence of "a showing of negligence" by the nurse. The two offending stray sentences provide:
The appellant's claim of negligent supervision must rest upon a showing that the hospital failed to properly supervise Nurse Grim and, as a result, Nurse Grim committed a negligent act which proximately caused the appellant's injury.... While the appellant may be able to show that the hospital breached its duty to supervise Nurse Grim, absent a showing of negligence by Nurse Grim, the appellant is unable to show that the hospital's negligence proximately caused her injury.
Id.
Stated succinctly, nowhere in Taylor did this Court define the elements of a cause of action for negligent supervision. In fact, in that case, the Court specifically avoided establishing the boundaries for such an action. Instead, Taylor contains language cabined by the facts of the case, and those facts plainly involved a negligent employee. Nowhere in Taylor did the Court explain how a negligent supervision claim should apply to employees who are reckless or who act with intent. Further, I have found no case from this Court that definitively explains the elements of such an action. It was, therefore, disingenuous and misleading for the majority opinion to base its conclusion in any way upon the circuit court's reading of dicta in the per curiam opinion in Taylor.
Second, when Taylor was issued as a per curiam opinion in July of 2000, the policy of this Court was to treat "everything in a per curiam opinion beyond the syllabus point [as] merely obiter dicta. " Lieving v. Hadley , 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4 (1992). The Court's policy was to use per curiam opinions to "decide only the specific case before the Court" and, therefore, considered those opinions in the same way the federal appellate courts treated unpublished opinions: as opinions that could not be cited as authority. Id. In those days, this Court also routinely said that a "per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution." Id. When Taylor was being drafted and considered in July of 2000, it was this Court's mantra that "if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion." Id.
However, in October of 2001, this Court abrogated the rule expressed in Lieving in Walker v. Doe , 210 W. Va. 490, 558 S.E.2d 290 (2001). In Walker , we recognized that a per curiam opinion did have some precedential effect because it could be used to show application of a settled principle of law to different facts, or to show that "previously announced principles of law remain valid." Id. at 496, 558 S.E.2d at 296. But the fact remains, when the Court heard oral arguments in Taylor , considered the parties’ briefs, drafted the language used in the Taylor opinion, and finally voted to issue Taylor as a per curiam opinion, the guiding rule in the back of every justice's mind was that there was nothing in Taylor about negligent supervision that was precedential. Everything in Taylor beyond the cited syllabus points was to be considered dicta. Yet, here we are two decades later, and the circuit court and the majority opinion are interpreting two stray sentences in Taylor as the law of the land.
Additionally, the fact that no justice "signed" the opinion and put his or her name on the cover further dictates that there is no new explication of legal principles in the opinion. The rule of this Court is that we "will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution." Syl. pt. 2, Walker v. Doe , 210 W. Va. at 491, 558 S.E.2d at 29. See also , Syl. pt. 1, State v. McKinley , 234 W. Va. 143, 764 S.E.2d 303 (2014) ("Signed opinions containing original syllabus points have the highest precedential value because the Court uses original syllabus points to announce new points of law or to change established patterns of practice by the Court.").
Hence, I repeat my earlier warning: the majority's discussion – founded upon dicta in an opinion that this Court thought would never be cited as authority – has little precedential value beyond the unique facts of this case.
Third, the circuit court in this case also padded its interpretation by citing an unpublished decision by a federal judge. Problematically, the majority opinion also relies upon the unpublished opinion and then cites as support, in a footnote, a handful of other unpublished federal district court cases to bolster the circuit court's faulty conclusion. The majority opinion does so without noting that the federal judges were (1) simply "guessing" about the true status of West Virginia's law on negligent supervision, and (2) did not cite any law beyond the two sentences of dicta in Taylor .
At the same time that the majority opinion cites nine federal district court cases with outcomes similar to the circuit court's pronouncement, it also notes – without comment – four other cases where federal judges interpreted West Virginia's negligent supervision law in a manner directly contrary to the majority's "current" construction of the law. In these cases, the federal courts permitted plaintiffs to pursue negligent supervision claims against employers after employees engaged in an intentional tort. See Proctor v. King , No. 2:19-CV-00432, 2021 WL 2169515, at *1 (S.D.W. Va. May 27, 2021) (permitting plaintiff to pursue negligent supervision claim against a county commission after a county sheriff's deputy used excessive force); Ferrell v. Santander Consumer USA, Inc. , 859 F. Supp. 2d 812, 818 (S.D.W. Va. 2012) (permitting plaintiffs to pursue negligent supervision claim against a debt collector after employees made excessive number of telephone calls to plaintiffs, even after being advised plaintiffs were represented by counsel); Woods v. Town of Danville, W.V. , 712 F. Supp. 2d 502, 514 (S.D.W. Va. 2010) (permitting plaintiff to pursue negligent supervision claim against a municipality after a city police officer used excessive force); Hager v. Robinson , No. CV 2:03-0094, 2005 WL 8159176, at *11 (S.D.W. Va. Feb. 1, 2005) (permitting inmate to pursue negligent supervision claim against jail authority after prison guards sexually abused and harassed inmate).
More importantly, this Court has often said that federal case law "may be persuasive, but it is not binding or controlling" on the courts of this State. Brooks v. Isinghood , 213 W. Va. 675, 682, 584 S.E.2d 531, 538 (2003). While this Court must certainly give deference to federal court interpretations of federal law, that does not mean our interpretation of our State's common law "should amount to nothing more than Pavlovian responses to federal decisional law." Stone v. St. Joseph's Hosp. of Parkersburg , 208 W. Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part).
Fourth, the circuit court, and by extension the majority opinion, seems to say that the current law in West Virginia is that a negligent supervision claim can only be based on the negligent acts of an employee; thus, if the employee engages in an intentional or reckless tort, then the employer is immune. This assessment of the common law claim for negligent supervision is completely wrong. In general, under a theory of respondeat superior , an employer may not be held liable for the intentional or reckless acts of its employee when that employee is acting outside the scope of his or her employment; however, the same is not true when liability is based upon negligent supervision. Under the common-law theory of negligent supervision, the acts and omissions of the employer serve as the basis for liability. Stated differently, if an employer has a duty to appropriately supervise an employee to prevent harm to others, and the employer negligently fails in that duty, then the employer may be liable for the ensuing damages regardless of the nature of the employee's conduct, be it negligent, reckless, or intentional.
To begin, "[i]n a claim for negligent supervision it is the employer's wrongful act rather than the employee's wrongful act that is at issue." Rasgaitis v. Waterstone Fin. Grp., Inc. , 368 Ill.Dec. 814, 985 N.E.2d 621, 637 (Ill. App. 2013). The focus is upon whether the employer owed a duty of care to the plaintiff and breached that duty by allowing an employee to engage in negligent, reckless, or intentional tortious conduct. "Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an employer's direct negligence rather than on vicarious liability." Phillips v. Super Servs. Holdings, LLC , 189 F. Supp. 3d 640, 648 (S.D. Tex. 2016). As I discuss below, case after case across this country, and treatise after treatise, have found that an employee's tortious conduct that causes harm to a plaintiff, whatever the form, can form the basis for an employer's liability for negligent supervision.
At this point, I feel I should remind practitioners of the meaning of a "tort." "The term ‘tort’ embraces all civil wrongs for which damages may be recovered." Barry A. Lindahl, 1 Modern Tort Law: Liability and Litigation § 2:1 (2d ed. 2021). Tortious conduct is not limited to negligent acts alone. A "tort" involves any form of injury or wrong inflicted upon the person or property of another "by either the non-feasance, malfeasance, or misfeasance of the wrong-doer." Gindele v. Corrigan , 129 Ill. 582, 587, 22 N.E. 516, 517 (1889). Clearly then, tortious conduct includes acts that are negligent, reckless, or intentional. In this case, petitioners allege the Assistant Principal's tortious conduct was intentional.
Black's Law Dictionary gives a more expansive definition of the term "tort":
A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another • Tortious conduct is typically one of four types: (1) a culpable or intentional act resulting in harm ; (2) an act involving culpable and unlawful conduct causing unintentional harm; (3) a culpable act of inadvertence involving an unreasonable risk of harm; and (4) a nonculpable act resulting in accidental harm for which, because of the hazards involved, the law imposes strict or absolute liability despite the absence of fault.
(Emphasis added).
The drafters of the Restatement (Second) of Agency stated that a negligent supervision claim against an employer is based solely upon the employer's negligence, without regard to whether the employee's injury-causing acts were negligent, reckless, or intentional. The drafters provided:
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders [or] in failing to make proper regulations; or
(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:
(c) in the supervision of the activity ; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.
Restatement (Second) of Agency § 213 (1957) (emphasis added). When assessing whether an employer was liable for negligent supervision of an activity, the drafters saw the cause of action encompassing negligent, reckless, and intentional torts by employees. The drafters stated that the act of supervision by an employer must weigh the "dangerous quality" of an employee including "his incompetence or unskillfulness" but also "his reckless or vicious disposition[.]" Id. at cmt. d.
Similarly, the drafters of the Restatement (Second) of Torts concluded that liability for negligent supervision arises when the employer permits an employee to act "outside the scope of his employment" and causes injury to another. Remember, for a master to be vicariously liable for the acts of a servant under the doctrine of respondeat superior , the servant must be acting within the scope of his or her duties on behalf of the master. See , e.g. , Roof Serv. of Bridgeport, Inc. v. Trent , 244 W.Va. 482, 854 S.E.2d 302, 306 (2020). The drafters of the Restatement sought to explain circumstances where an employer could be liable when respondeat superior did not apply, and concluded that the common law provides a cause of action for an employer who negligently fails to control an employee who is acting outside the scope of employment:
In Syllabus Point 3 of Musgrove v. Hickory Inn, Inc. , 168 W. Va. 65, 281 S.E.2d 499 (1981), we offered the following rule for respondeat superior :
An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principal or employer may also be held liable.
We offered a different iteration of this rule in Griffith v. George Transfer & Rigging, Inc. , 157 W. Va. 316, 324-25, 201 S.E.2d 281, 287 (1973), where we said:
The universally recognized rule is that an employer is liable to a third person for any injury to his person or his property which results proximately from tortious conduct of an employee acting within the scope of his employment. The negligent or tortious act may be imputed to the employer if the act of the employee was done in accordance with the expressed or implied authority of the employer.
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
Restatement (Second) of Torts § 317 (1965). The gist of this rule is that an employer "is required to police his own premises ... to the extent of using reasonable care to exercise his authority as a master in order to prevent his servant from doing harm to others." Id. cmt b. As the Washington Supreme Court said, "the scope of employment limits the employer's vicarious liability. However, the scope of employment is not a limit on an employer's liability for a breach of its own duty of care." Niece v. Elmview Grp. Home , 131 Wash.2d 39, 929 P.2d 420, 426 (1997). The Washington court went on to say,
This Court cited to Section 317 as support for our holding in Robertson v. LeMaster , 171 W. Va. 607, 611, 301 S.E.2d 563, 567 (1983), where we concluded that an employer could be held liable for sending an employee, who had worked twenty-seven straight hours, driving onto the highway where he struck and injured another motorist. We found that an employer "who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm." Syl. pt. 2, 171 W. Va. at 608, 301 S.E.2d at 564.
Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. This duty gives rise to causes of action for negligent hiring, retention and supervision. Liability under these theories is analytically distinct and separate from vicarious liability. These causes of action are based on the theory that such negligence on the part of the employer is a wrong to the injured party, entirely independent of the liability of the employer under the doctrine of respondeat superior.
Id. (Cleaned up).
If there is any question about whether the drafters of the Restatement believed the tort of negligent supervision applied to intentional acts by an employee, the drafters’ comments removed all doubt. For example, the comments to Section 317 specifically note that the rule is intended to be applied to employees engaging in intentional torts and give the following example of employees committing an intentional tort who, if not disciplined or discharged, would subject an employer to liability for negligent supervision:
Thus a railroad company which knows that the crews of its coal trains are in the habit of throwing coal from the cars as they pass along tracks laid through a city street, to the danger of travelers, is subject to liability if it retains the delinquents in its employment, although it has promulgated rules strictly forbidding such practices.
Restatement (Second) of Torts § 317, cmt. c.
Courts examining the elements of the negligent supervision cause of action have repeatedly concluded that "[a]n employer may be liable for negligent supervision if the employee intentionally harms another[.]" Degenhart v. Knights of Columbus , 309 S.C. 114, 420 S.E.2d 495, 496 (1992). For instance, when a plaintiff alleged that a church's hierarchy negligently failed to supervise and prevent intentional and deliberate sexual molestation by priests, the church-employer faced liability for negligent supervision. Smith v. O'Connell , 986 F. Supp. 73, 81 (D.R.I. 1997) ("Rhode Island law recognizes that an employer may be liable for the misconduct of an employee attributable to the employer's negligent failure to supervise the employee."); Doe v. Bishop of Charleston , 407 S.C. 128, 754 S.E.2d 494, 500 (2014) ("An employer may be liable for negligent supervision when (1) his employee intentionally harms another when he is on the employer's premises, is on premises he is privileged to enter only as employee, or is using the employer's chattel; (2) the employer knows or has reason to know he has the ability to control the employee; and (3) the employer knows or has reason to know of the necessity and opportunity to exercise such control."); Doe v. Apostolic Assembly of Faith in Christ Jesus , 452 F. Supp. 3d 503, 522 (W.D. Tex. 2020) ("An employer who negligently hires, retains, or supervises an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee's negligent or intentional act." (quoting Wrenn v. G.A.T.X. Logistics, Inc. , 73 S.W.3d 489, 495 (Tex. App. 2002) )). Another court found an employer could be liable for negligent supervision for permitting male employees to sexually harass their fellow female employees. Smith v. First Union Nat. Bank , 202 F.3d 234, 249-50 (4th Cir. 2000) ("In North Carolina, a plaintiff must prove two elements to hold an employer liable for negligent supervision or retention: (1) that an incompetent employee committed a tortious act resulting in injury to the plaintiff; and (2) that prior to the act, the employer knew or had reason to know of the employee's incompetency."). Likewise, school systems may be held liable for failing to supervise employees who sexually abuse students. See C.A. v. William S. Hart Union High Sch. Dist. , 53 Cal.4th 861, 138 Cal.Rptr.3d 1, 270 P.3d 699, 704-05 (2012) ("[T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. This principle has been applied in cases of employees’ alleged negligence resulting in injury to a student by another student, injury to a student by a nonstudent, and ... injuries to a student resulting from a teacher's sexual assault.").
Intentional violence by an employee has often subjected an employer to liability for negligent supervision. In one such case, a federal district court in West Virginia considered an action brought against a municipality after a police officer allegedly used excessive force and committed numerous intentional torts against a teenager, including false arrest, assault, battery, and the tort of outrage. The district court found the municipality could be liable for negligent supervision when it allowed the poorly trained police officer to work alone when he had been on the job for only eight days. Woods v. Town of Danville, W.V. , 712 F. Supp. 2d 502, 515 (S.D.W. Va. 2010) ("Under West Virginia law, negligent supervision claims must rest upon a showing that [the employer] failed to properly supervise [the employee] and, as a result, [the employee] proximately caused injury to the plaintiffs."). In another case, an employer was found liable for negligent supervision when a supervisor stood by and allowed one employee to berate, and then batter, a fellow employee. Shanks v. Walker , 116 F. Supp. 2d 311, 314 (D. Conn. 2000) ("A plaintiff may sue for negligent supervision of employees.... Plaintiff must allege that she suffered injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise."). In Kristie's Katering, Inc. v. Ameri , 72 Ark. App. 102, 35 S.W.3d 807, 813 (2000), a jury found the owner of a night club liable for negligent supervision when a customer was intentionally battered by the club's poorly trained, poorly supervised security guards. The Arkansas court concluded,
Employers are subject to direct liability for the negligent hiring, retention, or supervision of their employees when third parties are injured by the tortious acts of such unfit, incompetent, or unsuitable employees. In order to recover, the plaintiff must show that the employer knew, or in the exercise of ordinary care should have known, that its employee's conduct would subject third parties to an unreasonable risk of harm.
This theory is completely separate from the respondeat superior theory of vicarious liability because the cause of action is premised on the wrongful conduct of the employer, such that the employer's negligence was the proximate cause of the plaintiff's injuries.
Some courts offer general outlines of the elements of the negligent supervision cause of action. For instance,
In the District of Columbia, liability under a theory of negligent supervision arises when an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee. To succeed on a claim of negligent supervision, the plaintiff must prove that the employer breached a duty to the plaintiff to use reasonable care in the supervision or retention of an employee which proximately caused harm to plaintiff.
Flythe v. D.C. , 994 F. Supp. 2d 50, 68-69 (D.D.C. 2013), rev'd in part on other grounds, 791 F.3d 13 (D.C. Cir. 2015) (cleaned up). See also , Green v. MOBIS Alabama, LLC , 995 F. Supp. 2d 1285, 1309 (M.D. Ala. 2014) (Under Alabama law, "An employer is liable for negligent supervision if the employer has actual or constructive notice of his employee's incompetency. A plaintiff must show that the employer would have discovered the employee's incompetency through the exercise of proper diligence."); Mandy v. Minnesota Min. & Mfg. , 940 F. Supp. 1463, 1471 (D. Minn. 1996) (Under Minnesota law, the tort of negligent supervision "is directed at an employer's duty to control his or her employee's physical conduct ... even when the employee is acting outside the scope of the employment, in order to prevent intentional or negligent infliction of personal injury.... The duty imposed is unambiguously limited to preventing an employee from inflicting personal injury upon a third person on the master's premises or inflicting bodily harm by use of the employer's chattels."). Other courts have defined negligent supervision using a multi-factor test. For example, the courts of Ohio have found:
The elements of negligent supervision are: 1) an employment relationship, 2) incompetence of the employee, 3) actual or constructive knowledge of the incompetence by the employer, 4) an act or omission by the employee which caused the plaintiff's injuries, and 5) negligent retention of the employee by the employer, which action is the proximate cause of the plaintiff's injuries.
Cook v. Kudlacz , 974 N.E.2d 706, 724 (Ohio 2012). See also , Williams v. Wicomico Cty. Bd. of Educ. , 836 F. Supp. 2d 387, 400 (D. Md. 2011) (discussing a similar five-factor test for "negligent training and supervision" under Maryland law); Estate of Harris v. Papa John's Pizza , 679 N.W.2d 673, 680 (Iowa 2004) ("To prevail on a claim of negligent supervision, the plaintiff must show: (1) the employer knew, or in the exercise of ordinary care should have known, of its employee's unfitness at the time the employee engaged in wrongful or tortious conduct; (2) through the negligent ... supervision of the employee, the employee's incompetence, unfitness, or dangerous characteristics proximately caused injuries to the plaintiff; and (3) there is some employment or agency relationship between the employee and the defendant employer."); Mullen v. Topper's Salon & Health Spa, Inc. , 99 F. Supp. 2d 553, 556 (E.D. Pa. 2000) ("[U]nder Pennsylvania law, an employer may be liable for negligent supervision of an employee where the employer fails to exercise ordinary care to prevent an intentional harm to a third-party which 1) is committed on the employer's premises by an employee acting outside the scope of his employment and 2) is reasonably foreseeable.").
There are a host of treatises that outline a negligent supervision claim, and often lump negligent hiring, supervision, training and/or retention claims into one. See , e.g. , Louis A. Lehr, Jr., "The tort of negligent hiring," 1 Premises Liability 3d § 2:5 (2020 ed.) ; W. Cole Durham and Robert Smith, "Negligent hiring, supervision, and retention," 2 Religious Organizations and the Law § 21:8 (2020); Anne M. Payne, "Personal Liability of Public School Principal for Injury or Damage to Student by School District Employee Under Principal's Supervision," 114 Am. Jur. Trials 349 (2009); Kristine Cordier Karnezis, "Cause of Action for Injury or Death Resulting from Negligent Hiring, Supervision, or Retention of Employee," 25 Causes of Action 2d 99 (2004); Brian H. Alligood, "Proof of Employer Negligence in Hiring and Supervision of Employee with Propensity Toward Workplace Sexual Harassment," 56 Am. Jur. Proof of Facts 3d 1 (2000); Timothy P. Glynn, "The Limited Viability of Negligent Supervision, Retention, Hiring, and Infliction of Emotional Distress Claims in Employment Discrimination Cases in Minnesota," 24 Wm. Mitchell L. Rev. 581 (1998) ; Louis Buddy Yosha, Lance D. Cline, "Negligent Hiring and Retention of An Employee," 29 Am. Jur. Trials 267 (1982); and "Employment of incompetent, inexperienced, or negligent employee as independent ground of negligence toward one other than an employee," 8 A.L.R. 574 (1920).
The rule to take away from these numerous cases and authorities is that a plaintiff pleads a claim upon which relief can be granted when he or she alleges that an employer negligently supervised an employee who engaged in reckless or intentional conduct that harmed the plaintiff. The case law is unanimous that any tortious conduct by an employee can support a negligent supervision claim.
In summary, I find no fault with the majority opinion's assessment that the allegation of negligent supervision in petitioners’ complaint failed to provide any notice to the Board, and that dismissal under Rule 12(b)(6) was warranted. And this is a shame, because if the petitioners had just beefed up their complaint a tad, they probably could have proven that the Board knew, or in the exercise of ordinary care should have known, of the Assistant Principal's propensity to make loathsome comments toward students, and that the Board carelessly breached its responsibility to the petitioners to supervise, control, discipline, or dismiss the Assistant Principal and so allowed his incompetence, unfitness, or dangerous characteristics to proximately cause injuries to the petitioners. I respectfully dissent, however, to the majority opinion's discussion of the "current" law regarding the negligent supervision cause of action. The majority opinion has done a cruel disservice to West Virginia's common law by quoting the faulty interpretations of the law of negligent supervision by the circuit court and the federal courts, and it did so when it was patently unnecessary to the outcome of this case. By repeatedly employing the word "current," the majority suggests that it might address the boundaries of a negligent supervision claim in detail in a future, better-presented case. However, in the meantime, the majority opinion has unintentionally given lawyers additional sentences of needless dicta to quote alongside the dicta from Taylor .
I note, however, that if evidence of negligent supervision is later developed, the West Virginia Rules of Civil Procedure contemplate that the petitioners should be permitted by the circuit court to amend their complaint. Rule 15(b) permits amendments to a complaint at any time, even after the completion of a trial. Rule 15(b) also provides that
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits.
Wooton, Justice, concurring, in part, and dissenting, in part:
I join in Justice Hutchison's separate opinion, concurring, in part, and dissenting, in part, in full. However, I am not as sanguine as he that the majority's decision with respect to the cause of action for negligent supervision "has little precedential value beyond the unique facts of this case." The majority holds — unequivocally and without reference to any facts, unique or otherwise — that intentional misdoing on the part of an employee, even under circumstances where it was foreseeable to the employer, cannot form the basis of a negligent supervision claim. Every circuit court judge in this State will consider this holding to be binding, notwithstanding that, as Justice Hutchison convincingly demonstrates, Taylor v. Cabell Huntington Hospital, Inc. , 208 W. Va. 128, 538 S.E.2d 719 (2000) (per curiam) simply does not establish the principle of law that the majority purports to follow.1 Further, Taylor , being a per curiam opinion, "has no binding or precedential value under the doctrine of stare decisis. " Stanley v. Dep't of Tax & Revenue , 217 W. Va. 65, 71 n.4, 614 S.E.2d 712, 718 n.4 (2005).
I write separately to express my dismay that the majority has taken yet another step toward the imposition of a heightened pleading standard in all civil cases, not just those "where immunities are implicated." W. Va. State Police, Dep't of Mil. Affs. and Pub. Safety v. J.H. , 244 W. Va. 720, 736–37, 856 S.E.2d 679, 695-96 (2021) (citations omitted); Hutchison v. City of Huntington , 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996). Rule 8(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, that "[a] pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks." Based on this language, which clearly establishes West Virginia as a notice pleading state,2 most civil complaints follow a pattern: they set forth a nucleus of operative facts, either known to the pleader or based on information and belief, and then a brief description of the various causes of action which the pleader expects those facts to establish, once supported by proof and together with other facts gleaned during discovery. The complaint in the instant case followed this format, setting forth thirty-eight factual allegations followed by eight causes of action — hardly a skeletal or bare-bones pleading, and more than sufficient to satisfy "the principle that a plaintiff pleading a claim for relief need only give general notice as to the nature of his or her claim." Mountaineer Fire & Rescue Equip., LLC v. City Nat'l Bank of W. Va. , 244 W. Va. 508, 521, 854 S.E.2d 870, 883 (2020). Looking at the complaint as an integrated whole, it takes an unforgiving eye — and the application of a heightened pleading standard — for one to conclude that respondent Harrison County Board of Education was not on fair notice of the petitioners’ claims. See Roth v. DeFeliceCare, Inc. , 226 W. Va. 214, 220 n.4, 700 S.E.2d 183, 189 n.4 (2010) (under West Virginia law, when measuring the sufficiency of a complaint, "all that is required by a plaintiff is ‘fair notice.’ ") (citation omitted).
In this regard, it cannot be emphasized too strongly that a plaintiff filing suit against a governmental unit or other institutional entity is at a distinct disadvantage, having no access to documentation and other evidence in the possession of the defendant that may be essential in proving his or her case. Consistent with what seems to be a growing trend in this Court's jurisprudence, "[t]he majority's opinion ignores this real-life litigation problem and orders that respondent's complaint be dismissed based on his failure to allege facts to which he simply does not have access at the pleading stage of the case." W. Va. State Police, 244 W. Va. at 744, 856 S.E.2d at 703 (Wooton, J., dissenting). Further, although for decades we have applied a liberal standard of review, that a "motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted," John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 245 S.E.2d 157 (1978), the majority seems ready to consign John W. Lodge and its progeny to the dustbin of history. Id. at 606, 245 S.E.2d at 159.
Simply put, a plaintiff should not be required to plead and prove his case within the four corners of the complaint, which seems to be where this Court is slowly heading — slowly, but picking up steam. It should be the rare case indeed where a complaint is so woefully insufficient that a plaintiff is stripped of an opportunity to do discovery and thereby put some meat on the framework of an initial pleading. Our rules are balanced in such a way as to facilitate a just and fair result: notice pleading and liberal discovery to give plaintiff a chance to prove his or her case, motion for summary judgment to give defendant a chance to avert the expense and inconvenience of trial in a case where the proof just isn't there. Here, however, in parsing words and phrases and seizing upon supposed omissions, the majority seems to be intent on "getting to no" via the express train and thus derailing what appears to be a viable claim for negligent supervision. For these reasons, I concur, in part, and respectfully dissent, in part.