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W.Va. Supreme Court decision on liability in jail suit called ‘troubling’

West Virginia Supreme Court justices should have let a jury decide whether the state Regional Jail Authority is liable in a lawsuit that alleges one of its correctional officers raped a female inmate.

That’s the feeling of multiple national and state organizations that filed a brief in support of a petition asking the high court to reconsider its March decision that the Regional Jail Authority qualifies for immunity. The organizations call the Supreme Court’s decision “wrong, harmful, and devastating” and note its wide-ranging implications.

“This decision marks the first time in this Court’s history the question as to whether or not an employee acted within the scope of his employment was decided as a matter of law, rather than leaving this very fact based decision up to the jury,” wrote Charleston attorney Lonnie Simmons.

Simmons filed the brief on behalf of the state chapter of the American Civil Liberties Union; the National Organization for Women; the state division of the National Association of Social Workers; West Virginia Council of Churches; West Virginia Employment Layers Association; WV Free; and the state Association for Justice.

“The harmful message sent by this Court with this decision is entities may not be held liable for the life-altering and permanent injuries inflicted by one of its agents, contractors, or employees committing a sexual assault, even where the assault occurred in the workplace at a time when the employee was on the job and being paid by the employer and in a situation where the employer had invested in the employee a tremendous amount of power and authority over the person sexually assaulted,” the brief states.

In a 4-1 ruling, the Supreme Court found that the Regional Jail Authority qualifies for immunity in the lawsuit because, if the alleged rapes took place, the correctional officer was not acting within the scope of his employment.

Chief Justice Robin Davis dissented from the opinion, saying her colleagues decided, “In essence, that the Regional Jail does not have a duty to protect female prisoners from being raped by the correctional officers it employs.”

The petition for rehearing was filed Friday by Mike Woelfel. Woelfel took over last month as attorney for an inmate, only identified as “A.B.,” who sued, claiming a correctional officer at the Southern Regional Jail raped her 17 times in 2009.

The jail authority requested to be dropped from the lawsuit, citing qualified immunity. The jail authority said it was not liable for the correctional officer’s actions because the alleged sexual assaults were not within the scope of his duties. Kanawha County Circuit Judge Carrie Webster disagreed and said the jail authority could be named in the lawsuit.

The Supreme Court reversed that ruling.

According to its opinion, the woman failed to show how the jail authority was negligent in hiring and training the correctional officer.

The woman also failed to name specific individuals responsible for hiring and supervising the correctional officer, the court found.

The brief in support of a rehearing states that the Supreme Court’s decision is a “very troubling holding, which has wide-ranging implications beyond the facts of this case.”

The petition and the brief list new reasons and case law not argued in the original case that might not have been previously considered by justices. The filings ask justices to vacate the previous opinion, schedule arguments and issue a new decision in the case.

Reach Kate White


or 304-348-1723.

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