public duty doctrine in West Virginia

2017The public duty doctrine is "restricted to “liability for non-discretionary (or ‘ministerial’ or ‘operational’) functions[.]” [Parkulo v. West Virginia Bd. of Prob. & Parole, 199 W.Va. 161, 174 , 483 S.E.2d 507, 520 (1996) (quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991))].

2017The public duty doctrine is "restricted to “liability for non-discretionary (or ‘ministerial’ or ‘operational’) functions[.]” [Parkulo v. West Virginia Bd. of Prob. & Parole, 199 W.Va. 161, 174 , 483 S.E.2d 507, 520 (1996) (quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991))].

2017For example, under the public duty doctrine, “the duty to fight fires or to provide police' protection runs to' all citizens and is to protect the safety and well-being of the public at large[.]” [Wolfe v. City of Wheeling, 182 W.Va. 253, 256 , 387 S.E.2d 307, 310 (1989) ].

2017For example, under the public duty doctrine, “the duty to fight fires or to provide police' protection runs to' all citizens and is to protect the safety and well-being of the public at large[.]” [Wolfe v. City of Wheeling, 182 W.Va. 253, 256 , 387 S.E.2d 307, 310 (1989) ].

2017Safety, 198 W.Va. 609, 614 , 482 S.E.2d 226, 231 (1996); see Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991) ("The public duty doctrine is that a local governmental entity's liability for non-discretionaiy ... functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead only the breach of a duty owed to the particular person injured is actionable.”); see also Holsten v. Massey, 200 W.Va. 775, 782 , 490 S.E.2d 864, 871 (1997) (explaining that public duty doctrine "is not based upon immunity from existing liabilit

2017Safety, 198 W.Va. 609, 614 , 482 S.E.2d 226, 231 (1996); see Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991) ("The public duty doctrine is that a local governmental entity's liability for non-discretionaiy ... functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead only the breach of a duty owed to the particular person injured is actionable.”); see also Holsten v. Massey, 200 W.Va. 775, 782 , 490 S.E.2d 864, 871 (1997) (explaining that public duty doctrine "is not based upon immunity from existing liabilit

2017The public duty doctrine is "restricted to “liability for non-discretionary (or ‘ministerial’ or ‘operational’) functions[.]” [Parkulo v. West Virginia Bd. of Prob. & Parole, 199 W.Va. 161, 174 , 483 S.E.2d 507, 520 (1996) (quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991))].

2017The public duty doctrine is "restricted to “liability for non-discretionary (or ‘ministerial’ or ‘operational’) functions[.]” [Parkulo v. West Virginia Bd. of Prob. & Parole, 199 W.Va. 161, 174 , 483 S.E.2d 507, 520 (1996) (quoting Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991))].

2024“Where the public duty doctrine would apply, there is simply no duty and therefore no need to inquire as to the existence of immunity.” Walker v. Meadows, 206 W.

2014Special Relationship Exception to the Public Duty Doctrine The final issue I wish to address involves the majority opinion’s terse treatment of the special relationship exception to the public duty doctrine.3 We have held that, under the public duty doctrine, “a local governmental entity’s liability for nondiscretionary . . . functions may not be predicated upon the breach of a general duty owed to the public as a whole.” Walker v. Meadows, 206 W.

2024Under the public duty doctrine, a “governmental entity is not liable because of its failure to enforce regulatory or penal statutes.” Benson v. Kutsch, 181 W.

2009As the Court has previously recognized "the public duty doctrine is a principle independent of the doctrine of governmental immunity, although in practice it achieves much the same result." Benson v. Kutsch, 181 W.Va. 1, 2 , 380 S.E.2d 36, 37 (1989).

2022But an exception to the public duty doctrine exists where there is a “special relationship” (or a “special duty”) between the governmental entity or political subdivision and a specific individual, Hughes, 238 W.

2017West Virginia State Police v. Hughes, 238 W.Va. 406, 412 , 796 S.E.2d 193, 199 (2017) (footnotes omitted). 7 An exception to the public duty doctrine, which Mrs. Bowden seeks to apply in this case, “arises when a ‘special relationship’ exists between the government entity and a specific individual. ‘The state may be liable where it has taken on a special duty to a specific person beyond that extended to the general public.’ ” Id. (quoting.

2024Va. 765, 769 , 403 S.E.2d 782, 786 (1991), the Supreme Court of Appeals of West Virginia concluded that the appellants’ failure “to introduce specific evidence in opposition to ... [the movant’s] motion for summary judgment undermines their claim that summary judgment was improperly granted.” Here, Mr. Green failed to respond to the motions for summary judgment, failed to introduce, or even allege, specific evidence in opposition to Respondents’ motions for summary judgment, and on appeal, Mr. Green does not assert that the circuit court erred in concluding that his claims were barred by the i

2024Va. 765, 769 , 403 S.E.2d 782, 786 (1991), the Supreme Court of Appeals of West Virginia concluded that the appellants’ failure “to introduce specific evidence in opposition to ... [the movant’s] motion for summary judgment undermines their claim that summary judgment was improperly granted.” Here, Mr. Green failed to respond to the motions for summary judgment, failed to introduce, or even allege, specific evidence in opposition to Respondents’ motion for summary judgment, and on appeal, Mr. Green does not assert that the circuit court erred in concluding that his claims were barred by the im

2014Va. at __ n.10, 746 S.E.2d at 559 -60 n.10; see also Jones v. Wilcox, 476 N.W.2d 473, 476 (Mich. Ct. App. 1991) (“The public duty doctrine is premised on the existence of an element of a cause of action for negligence.

2014All other issues are reviewable only after they are subject to a final order[.] Payne, 231 W.Va. at 568 -69 n. 10, 746 S.E.2d at 559 -60 n. 10; see also Jones v. Wilcox, 190 Mich.App. 564 , 476 N.W.2d 473, 476 (1991) (“The public duty doctrine is premised on the existence of an element of a cause of action for negligence.

2017Safety, 198 W.Va. 609, 614 , 482 S.E.2d 226, 231 (1996); see Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991) ("The public duty doctrine is that a local governmental entity's liability for non-discretionaiy ... functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead only the breach of a duty owed to the particular person injured is actionable.”); see also Holsten v. Massey, 200 W.Va. 775, 782 , 490 S.E.2d 864, 871 (1997) (explaining that public duty doctrine "is not based upon immunity from existing liabilit

2017Safety, 198 W.Va. 609, 614 , 482 S.E.2d 226, 231 (1996); see Randall v. Fairmont City Police Dep’t, 186 W.Va. 336, 346 , 412 S.E.2d 737, 747 (1991) ("The public duty doctrine is that a local governmental entity's liability for non-discretionaiy ... functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead only the breach of a duty owed to the particular person injured is actionable.”); see also Holsten v. Massey, 200 W.Va. 775, 782 , 490 S.E.2d 864, 871 (1997) (explaining that public duty doctrine "is not based upon immunity from existing liabilit

2017The public duty doctrine is not a "doctrine of governmental immunity but one of tort, based on the initial question applicable to any negligence action, that, is, whether the defendant owes the plaintiff any judicially cognizable duty.” Reno v. Chung, 220 Mich.App. 102 , 559 N.W.2d 308, 311 (1996) (Ludington, Judge, dissenting).

2017The public duty doctrine is not a "doctrine of governmental immunity but one of tort, based on the initial question applicable to any negligence action, that, is, whether the defendant owes the plaintiff any judicially cognizable duty.” Reno v. Chung, 220 Mich.App. 102 , 559 N.W.2d 308, 311 (1996) (Ludington, Judge, dissenting).

2014Comm’n., 206 W.

2014Comm'n, 206 W.Va. 8, 14 , 521 S.E.2d 180, 186 (1999).

1997We also explained the basis in terms of statutory construction for the continued applicability of the common law doctrine of public duty in Hol-sten by stating that, " '[o]ne of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law.’ Syl. pt. 2, Smith v. West Virginia State Board of Educ., 170 W.Va. 593 , 295 S.E.2d 680 (1982)." Holsten, 200 W.Va. at 778 , 490 S.E.2d at 867 , syl. pt. 5. .

1997We also explained the basis in terms of statutory construction for the continued applicability of the common law doctrine of public duty in Hol-sten by stating that, " '[o]ne of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law.’ Syl. pt. 2, Smith v. West Virginia State Board of Educ., 170 W.Va. 593 , 295 S.E.2d 680 (1982)." Holsten, 200 W.Va. at 778 , 490 S.E.2d at 867 , syl. pt. 5. .

1997The following cases and law review support the abandonment of the public duty doctrine: Adams v. State, 555 P.2d 235, 241-42 (Alaska 1976); Leake v. Cain, 720 P.2d 152, 158 (Colo.1986); Hudson v. Town of East Montpelier, 161 Vt. 168 , 638 A.2d 561, 566-68 (1993); Gerald P. Krause, comment, Municipal Liability: The Failure to Provide Adequate Police Protection — The Special Duty Doctrine Should Be Discarded, 1984 Wis. L.Rev. 499 (1984). 9 .

1989In Leake v. Cain, 720 P.2d 152 (Colo. 1986) (en banc), the Supreme Court of Colorado concluded that the public duty defense was equivalent to a form of governmental immunity and should be rejected, but recognized that not every public duty should result in liability.

1997The following cases and law review support the abandonment of the public duty doctrine: Adams v. State, 555 P.2d 235, 241-42 (Alaska 1976); Leake v. Cain, 720 P.2d 152, 158 (Colo.1986); Hudson v. Town of East Montpelier, 161 Vt. 168 , 638 A.2d 561, 566-68 (1993); Gerald P. Krause, comment, Municipal Liability: The Failure to Provide Adequate Police Protection — The Special Duty Doctrine Should Be Discarded, 1984 Wis. L.Rev. 499 (1984). 9 .

1989E.g., Adams v. State, 555 P.2d 235 (Alaska 1976); 7 Ryan v. State, 134 Ariz. 308 , 656 P.2d 597 (1982); Coffey v. City of Milwaukee, 74 Wis.2d 526 , 247 N.W.2d 132 (1976).

2017See Perkins, 55 F.3d at 917.

2017See Amor, 207 W.Va. at 680 , 535 S.E.2d at 745 (" '[T]he mere fact that one party is to receive benefits in consideration of services rendered or for capital contribution does not, as a matter of law, make him a partner or joint ven-turer.’ ”) (citation omitted). 11 .

2017See Amor, 207 W.Va. at 680 , 535 S.E.2d at 745 (" '[T]he mere fact that one party is to receive benefits in consideration of services rendered or for capital contribution does not, as a matter of law, make him a partner or joint ven-turer.’ ”) (citation omitted). 11 .

2014This failure has resulted in an error we have had repeated occasion to mention in our immunity cases which involve the related issue of the “public duty doctrine.” In sum, the “special relationship” or “special duty” doctrine is an exception to the liability defense known as the public duty doctrine; it is 47 neither an immunity concept, nor a stand-alone basis of liability.34 “The special duty exception does not create liability but negates the public duty doctrine, a defense to liability.” Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn. 1998).

2014This failure has resulted in an error we have had repeated occasion to mention in our immunity cases which involve the related issue of the “public duty doctrine.” In sum, the “special relationship” or “special duty” doctrine is an exception to the liability defense known as the public duty doctrine; it is neither an immunity concept, nor a standalone basis of liability. 34 “The special duty exception does not create liability but negates the public duty doctrine, a defense to liability.” Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn.1998).

1997Id. at 398 n. 4. 8 However, the Supreme Court of Tennessee in concluding that the public duty doctrine was necessary and had not been abolished by the enactment of the Tennessee Governmental Tort Liability Act noted that “a clear majority of jurisdictions continue to adhere to the public duty doctrine, despite the passage of statutes modifying or abolishing the doctrine of governmental immunity, concluding that, in both law and policy, the rule is sound and necessary.” Id. at 399 (footnote omitted). 9 We find the Supreme Court of Tennessee’s discussion persuasive and consistent with our discus

1997Id. at 398 n. 4. 8 However, the Supreme Court of Tennessee in concluding that the public duty doctrine was necessary and had not been abolished by the enactment of the Tennessee Governmental Tort Liability Act noted that “a clear majority of jurisdictions continue to adhere to the public duty doctrine, despite the passage of statutes modifying or abolishing the doctrine of governmental immunity, concluding that, in both law and policy, the rule is sound and necessary.” Id. at 399 (footnote omitted). 9 We find the Supreme Court of Tennessee’s discussion persuasive and consistent with our discus