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Posey v City of Buckhannon, West Virginia

Case No. 11-0565 (WV S.Ct., Jan. 27, 2012)

This action is before this Court upon the appeal of petitioners Steven M. Posey and Michelle E. Posey from the order of the Circuit Court of Upshur County, West Virginia, dismissing their complaint, with prejudice, against the respondent, the City of Buckhannon. The complaint alleged negligence against the City resulting in injuries to Steven M. Posey when he fell at the City’s solid waste transfer station. The circuit court dismissed the complaint pursuant to the immunity provisions the West Virginia Governmental Tort Claims and Insurance Reform Act. W.Va. Code, 29-12A-1 [1986], et seq.

The Poseys contend that transfer stations, such as the one conducted by the City of Buckhannon, are not included in the governmental immunity provisions of the Act. Upon careful review, however, and for the reasons set forth herein, this Court finds that contention to be without merit. Accordingly, the order of the circuit court dismissing the complaint is affirmed.

I.



Factual and Procedural Background



The City of Buckhannon owned and operated a Solid Waste Disposal Complex in Upshur County. Although the Complex did not include a refuse dump or sanitary landfill, the City maintained a transfer station at the Complex for the collection of trash and other waste material. Trash and other waste material received at the transfer station were subsequently transported to an out-of-county dump.
 

 

Judge(s): Menis E. Ketchum, II
Jurisdiction: West Virginia Supreme Court
Related Categories: Government / Politics
 
Supreme Court Judge(s)
Brent Benjamin
Robin Davis
Menis Ketchum, II
Thomas McHugh
Margaret Workman

 
Trial Court Judge(s)
Thomas Keadle

 
Appellant Lawyer(s) Appellant Law Firm(s)
Bader Giggenbach Brewer & Giggenbach

 
Appellee Lawyer(s) Appellee Law Firm(s)
Kristen Antolini Shuman McCuskey & Slicer PLLC
Tamara DeFazio Shuman McCuskey & Slicer PLLC

 

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or landfill. there is no dispute on this point. it is therefore clear that the transfer negligence against the city resulting in injuries to steven m. posey when he fell at the city's solid 12a-5(a)(16) [1986], is affirmed. this court, therefore, holds that a transfer station conducted directly by a political immunity provisions provided by w.va. code, 29-12a-5(a)(16) [1986]. the poseys contend that 10 on the site of a dump or landfill[.]" (emphasis in original) provisions the west virginia governmental tort claims and insurance reform act. w.va. code, assistance to individuals depositing refuse at the transfer station and in failing to erect protective negligent operation and maintenance of its sewer system. recognizing the principle that, in actions station "means a structure, or combination of structures, machinery or devices at a place, 4 makes clear: medical expenses exceeded $112,000. it can be seen, accordingly, that the language in calabrese relied on by the poseys is permanent disposal." w.va. code, 22-15-2(17) [2005]. similar definitions of the term landfill "any solid waste facility for the disposal of solid waste on or in the land for the purpose of syl. pt. 2, messer v. huntington anesthesia group, 218 w.va. 4, 620 s.e.2d 144 (2005). station" and "facility" are subject to various other meanings and distinguishing characteristics with affirmed 8 factual and procedural background of west virginia 204 w.va. at 660, 515 s.e.2d at 824. "appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." located "on and operated in connection with" a dump or sanitary landfill, i.e., if the city of immunize a political subdivision from liability arising out of negligently-caused maintained a transfer station at the complex for the collection of trash and other waste material.1 following a hearing, the circuit court on november 30, 2010, granted the city of dumps and sanitary landfills where solid waste is permanently stored. therefore, transfer stations therefore, we hold that w.va. code, 29-12a-5(a)(16) [1986] does not code, 29-12a-5(a)(16) [1986], of the west virginia governmental tort claims and insurance 3. a transfer station conducted directly by a political subdivision, as a temporary modified by the same principle expressed with greater specificity in the second paragraph. the [w]e view the immunity that is created by w.va. code, 29-12a-5(a)(16) [1986] as 1 complaint is de novo." syl. pt. 2, state ex rel. mcgraw v. scott runyan pontiac-buick, 194 w.va. waiver of any immunity it may have pursuant to this article or any defense of the results from: . . . (16) the operation of dumps, sanitary landfills, and facilities where conducted proposition that the west virginia legislature would not have included superfluous provisions manifestly, in addition to associating facilities, landfills and transfer stations together, the 4 5 moreover, attached to the poseys' response to the motion to dismiss was a copy of the city's within the meaning of the immunity provisions provided by w.va. code, 29-12a-5(a)(16) [1986], the limited immunity thus described with regard to the city's sewer system did not, under the facts sewer system, except insofar as the sewers are located on and a part of the operation comment by the circuit court in the current matter is persuasive: "it is both impractical and illogical 3-2.15 [2001], and csr 54-4-2.31 [2001], (providing similar definitions). 3 from liability pursuant to the west virginia governmental tort claims and insurance reform act. [1986], et seq., and to the extent this court's opinion in calabrese v. city of charleston, 204 w.va. appeal from the circuit court of upshur county plaintiffs below, petitioners thereafter, the city filed a motion to dismiss alleging that the city is entitled to immunity conclusion are found in the west virginia code of state rules: see, csr 33-1-2.64 [2010]; csr 54-3- the purchase of liability insurance, or the establishment and maintenance the city of buckhannon owned and operated a solid waste disposal complex in upshur the city of buckhannon. they alleged, inter alia, that the city was negligent in failing to provide with regard to insurance, it is worth noting the following provision of the act found in improvements on the land, structures or other appurtenances or methods used for appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, second paragraph, setting forth the holding in the opinion, speaks only to sewer systems. nothing iii. definition, thereby depriving of significance the distinction between the temporary and permanent of a self-insurance program, by a political subdivision does not constitute a calabrese alleged that their basement was repeatedly flooded because of the city of charleston's relating to sanitary landfills and dumps that are operated by political subdivisions - bona fide dispute as to the foundational or historical facts that underlie the immunity sludge processing facilities, commercial composting facilities and other such the poseys contend that transfer stations, such as the one conducted by the city of complaint, with prejudice, against the respondent, the city of buckhannon. the complaint alleged r. m. v. charlie a. l., 194 w.va. 138, 459 s.e.2d 415 (1995). 7 in the supreme court of appeals of west virginia trash and other waste material received at the transfer station were subsequently transported to an county concerning the west virginia solid waste management act and upheld the court's rulings steven m. posey and michelle e. posey, of the west virginia governmental tort claims and insurance reform act, w.va. code, 29-12a-1 buckhannon, are not included in the governmental immunity provisions of the act. upon careful reform act, w.va. code, 29-12a-1 [1986], et seq., and to the extent this court's opinion in i. civil action no. 09-c-123 claims and insurance reform act. since transfer stations only receive solid waste on a temporary basis, they are distinguishable from a civil action is one of law for the court to determine. therefore, unless there is a the poseys assert that transfer stations constitute facilities under that statutory section if they are to read calabrese as applied to the facts underlying plaintiffs' claim in this action, to unnecessarily regulate the costs and coverage of insurance available to political subdivisions for such liability." 6 action." consequently, the circuit court held that the poseys' complaint fell squarely within the w.va. code, 29-12a-1 [1986].2 his injuries included various fractures, a head laceration and a compression of the spine. his the second paragraph setting forth the holding in calabrese was extensively used as in calabrese, preclude the plaintiffs' action. which results from the city's operation of a facility, such as a transfer station, which bader c. giggenbach, esq. tamara j. defazio, esq. syllabus point 6 of the opinion. syllabus points, representing "points adjudicated" by this court, are not facilities within the meaning of w.va. code, 29-12a-5(a)(16) [1986]. on the other hand, a west virginia statutory municipal corporation, facilities not herein specified[.] (emphasis added) 2 location or facility where solid waste is taken from collection vehicles and placed in other only to the extent that its sewers were located on, and a part of the operation of, a dump or landfill. persuasive the city's response filed in this court which states: purview of a political subdivision's immunity from liability as set forth in the act. ketchum, c.j.: upon all of the above, the november 30, 2010, order of the circuit court of upshur county affirmed. 5(a)(16) [1986], which provides: "a political subdivision is immune from liability if a loss or claim storing of solid waste for purposes of immunity considerations. review, however, and for the reasons set forth herein, this court finds that contention to be without station is a landfill-related and dump-related facility that should be immunized. we apply a de novo standard of review." syl. pt. 4, harrison county commission v. harrison claims and insurance reform act from liability to the poseys is purely a question of law and was the motion to dismiss relied specifically on w.va. code, 29-12a- attorney for steven m. posey morgantown, west virginia buckhannon's motion and dismissed the complaint with prejudice. filed: january 27, 2012 _______________ this action is before this court upon the appeal of petitioners steven m. posey and michelle rory l. perry ii, clerk that the city of charleston was entitled to immunity under w.va. code, 29-12a-5(a)(16) [1986], determination, the ultimate questions of statutory or qualified immunity are ripe for and regulations of this state. quite naturally, therefore, our holding in this matter is limited to the v. standard of review of west virginia. transported to a dump or sanitary landfill, constitutes a "facility" within the meaning of the the honorable thomas h. keadle, judge a current definition of the phrase transfer station is found in the west virginia code of 12a-5(a)(16) [1986], was meant by the legislature to include a landfill-related and/or a dump- e. posey from the order of the circuit court of upshur county, west virginia, dismissing their directly by a political subdivision[.]"3 released at 3:00 p.m. supreme court of appeals in november 2009, the poseys filed an action in the circuit court of upshur county against in calabrese addresses immunity in the context of transfer stations.4 w.va. code, 29-12a-16(d) [2003]: subdivision such as the city of buckhannon, as a temporary collection site for solid waste to be submitted january 18, 2012 county. although the complex did not include a refuse dump or sanitary landfill, the city 1. "appellate review of a circuit court's order granting a motion to dismiss a iv. solid waste transfer station permit stating that the permit for the transfer station was issued, in the following conclusion: 2 of a dump or sanitary landfill by the subdivision. solid waste management act, w.va. code, 22-15-1 [1998], et seq.) states in part, transfer buckhannon's transfer station had been physically located on and operated in connection with a ripe for summary disposition at the circuit court level through the motion to dismiss. this court concludes that the circuit court properly determined that the phrase and facilities in w.va. code, 29- summary disposition. involving an interpretation of a statute, we apply a de novo standard of review." syl. pt. 1, chrystal concluded that the phrase and facilities in w.va. code, 29-12a-5(a)(16) [1986], was meant "to according to the west virginia solid waste management act, landfill is defined as management act. the act, in w.va. code, 22-15-2(34) [2005], associates facilities, landfills and concerning immunity in the governmental tort claims and insurance reform act, the circuit court september 2012 term especially relevant in the present matter since the material facts concerning the question ofthe city's processing, recycling or disposing of sold waste, including landfills, transfer syllabus by the court filed january 27, 2012 include a landfill-related and/or dump-related facility such as the transfer station at issue in this landfill, constitutes a "facility" within the meaning of the immunity provisions provided by w.va. the poseys appeal to this court from the november 30, 2010, dismissal order. political subdivisions and provide immunity to political subdivisions in certain instances and to collection site for solid waste to be transported to a dump or sanitary landfill, constitutes a "facility" above provision also contemplates both the processing and disposing of solid waste within the and michelle e. posey attorneys for the city of buckhannon 3 discussion on january 4, 2008, steven m. posey was unloading garbage bags and other material at the is logically associated with a dump or sanitary landfill. * * * in this case, the stations, materials recovery facilities, mixed waste processing facilities, sewage motion to dismiss is authorized where the complaint fails to state a claim upon which relief can be section 29-12a-5(a)(16) clearly immunizes a city from liability for a claim or loss 770, 461 s.e.2d 516 (1995). subdivision, as a temporary collection site for solid waste to be transported to a dump or sanitary calabrese v. city of charleston, 204 w.va. 650, 515 s.e.2d 814 (1990), would exclude a transfer _______________ dismissing the complaint, with prejudice, pursuant to the immunity provisions of w.va. code, 29- their assertion from calabrese v. city of charleston, 204 w.va. 650, 515 s.e.2d 814 (1990). barriers along the exposed sides of the open pit. no. 11-0565 county assessor, 222 w.va. 25, 658 s.e.2d 555 (2008). city of buckhannon, west virginia, and associated facilities that are located on and operated in connection with the dump in this action, the issue of the city's immunity under the west virginia governmental tort state ex rel. mcgraw v. scott runyan pontiac-buick, 194 w.va. 770, 461 s.e.2d 516 (1995), holds: immunity in relation to posey's injury are not in dispute. thus, this court held in syllabus point 1 ii. 2.4 [2001]; csr 54-4-2.18 [2001]; and csr 54-5-2.11 [2002]. in so holding, this court acknowledges that the terms "dump," "sanitary landfill," "transfer station as a "facility" under those statutory provisions, the opinion in calabrese is modified. out-of-county dump. part, pursuant to west virginia code, chapter 22, article 15, the west virginia solid waste transfer station when he fell from the tailgate of his pickup truck and slid 18 feet down an open pit. dump or landfill, the city would have had immunity from liability in this action. the poseys derive the ultimate determination of whether qualified or statutory immunity bars regard to permit, operating, environmental impact and other requirements found in the statutes, rules or sanitary landfill. in calabrese, this court answered certified questions from the circuit court of kanawha the passage, in calabrese, in which the language relied on by the poseys is found, sets forth brewer & giggenbach kristen d. antolini, esq. have special significance because they are required under article viii, 4, of the constitution waste transfer station. the circuit court dismissed the complaint pursuant to the immunity of chrystal r. m. v. charlie a. l., 194 w.va. 138, 459 s.e.2d 415 (1995): "where the issue on 2. "where the issue on appeal from the circuit court is clearly a question of law or pursuant to rule 12(b)(6) of the west virginia rules of civil procedure, the filing of a state rules. as csr 33-1-2.133 [2010] (promulgated under the authority of the west virginia the question to be determined is whether a transfer station conducted directly by a political transfer stations together within the definition of solid waste facility. that section provides in part: morgantown, west virginia shuman, mccuskey & slicer w.va. code, 29-12a-1 [1986], et seq. as the act states, its purposes "are to limit liability of 650, 515 s.e.2d 814 (1990), would exclude a transfer station as a "facility" under those statutory "solid waste facility" means any system, facility, land, contiguous land, citing brooks v. city of weirton, 202 w.va. 246, 256, 503 s.e.2d 814, 824 (1998), for the provisions, the opinion in calabrese is modified. merit. accordingly, the order of the circuit court dismissing the complaint is affirmed. defendant below, respondent chief justice ketchum delivered the opinion of the court. political subdivision or its employees. 29-12a-1 [1986], et seq. specificprovisionsofw.va.code,29-12a-5(a)(16)[1986],ofthe west virginia governmental tort restrict the immunity conferred by west virginia code section 29-12a-5(a)(16) to facilities located concerning governmental tort legislation, liability is favored rather than immunity, this court held related facility such as the transfer station conducted by the city of buckhannon. thus, we find that the city of charleston was not entitled to immunity in the underlying action. the plaintiffs in waste material deposited in the transfer station must necessarily be taken to a dump transportation units for movement to another solid waste management facility[.]" see, csr 54- 9 dangerous, injurious, or harmful conditions in or arising out of the subdivision's syllabus point 1 of hutchison v. city of huntington, 198 w.va. 139, 479 s.e.2d 649 (1996), syl. pt. 1, lontz v. tharp, 220 w.va. 282, 647 s.e.2d 718 (2007). the de novo standard is granted. the granting of the motion is subject to de novo review by this court. syllabus point 2 of in that regard, the following


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