Key Points

  • The Supreme Court of Appeals of West Virginia reversed a Logan County Circuit Court order and remanded with directions to grant an Adult Protective Services investigator's and the Department of Human Services' motions to dismiss a wrongful death suit.
  • The court held that the investigator's decisions to close a vulnerable-adult referral without removing the man from his home, and without contacting law enforcement or a court, were discretionary acts protected by qualified immunity.
  • Absent disputed historical facts, qualified immunity is a question of law for the court, so the circuit court erred in leaving it to a jury.
  • Neither the mandatory-reporter misdemeanor statute, W. Va. Code § 9-6-14, nor the caseworker statutory-immunity provision, § 9-6-2(d), creates a clearly established right for a vulnerable adult, and allegations of willful and wanton misconduct do not satisfy the 'fraudulent, malicious, or oppressive' standard.
  • The court also found the complaint failed the heightened pleading standard for immunity cases and did not allege how the investigator's conduct proximately caused the death.

West Virginia's highest court on Wednesday ordered the dismissal of a wrongful death suit against an Adult Protective Services investigator and the state Department of Human Services, holding that the investigator's decision to close a neglect referral without removing a vulnerable adult from his home was a judgment call protected by qualified immunity.

The Supreme Court of Appeals of West Virginia reversed a Logan County Circuit Court order that had sent the case toward a jury. Justice Wooton, who delivered the opinion of the court, directed the trial judge to grant the motions to dismiss filed by investigator Tim Secrist and the department. "We agree with Petitioners and find that they are entitled to qualified immunity," Justice Wooton wrote.

The decision treats the central choices in an Adult Protective Services case, including whether to remove an adult from a home, whether to close a referral and whether to alert prosecutors or a court, as discretionary acts that cannot ground a negligence claim. It also holds that alleging "willful and wanton misconduct," the phrase that strips caseworkers of a separate statutory immunity, does not by itself defeat the qualified immunity defense.

Under West Virginia law, qualified immunity bars claims of mere negligence against a state agency and its officers for their discretionary judgments. A plaintiff can overcome it only by showing that the official violated clearly established law that a reasonable person would have known, or acted in a way that was "fraudulent, malicious, or oppressive."

The suit was filed by Tammy Watkins, administratrix of the estate of her brother, William McKinsey May. The complaint described Mr. May as a vulnerable adult who needed help with hygiene, meals and medication and who lived in a Logan County house with another sister, Candus May, and her boyfriend, Charles Adkins. Ms. Watkins was the person who contacted the agency, according to the opinion.

Mr. Secrist first visited the house in April 2020, a week after the referral arrived. He found lights running on a generator because electrical service had not been installed, a broken refrigerator, heavy clutter and a bathroom sink as the only source of water. He told Candus May that he would return and that if the problems were not fixed he would begin the process of removing her brother.

On a second visit in May, Mr. Secrist saw that some clutter had been cleared and that a generator-powered mini-refrigerator with food had been added. His report said he "sees no reason at this time to begin the process of removing [Mr. May] from this home." On a third visit he found the house "still a wreck" and electrical service still not installed. Candus May later promised to call when it was connected, but according to the complaint, Mr. Secrist "closed the referral and did not open an APS case" on June 30, 2020, without hearing back.

Mr. May died on Aug. 14, 2020, at age 62, in a hospice in Charleston. His death certificate listed "[c]omplications of multiple blunt force injuries" as the cause, with heart disease as a contributing factor. No criminal charges were filed, the opinion noted.

The estate alleged that Mr. May would not have stayed in the home where he was fatally injured had Mr. Secrist removed him, referred the matter to the prosecuting attorney or sought court intervention. The circuit court denied the motions to dismiss, ruling that whether Mr. Secrist's acts were ministerial duties under the statute and whether his conduct was willful or wanton were questions of fact for a jury. The defendants appealed immediately under the collateral order doctrine.

Justice Wooton wrote that the trial court never applied the immunity framework. "The circuit court's order is not supported by our well-established caselaw providing that, absent certain factual disputes, a qualified immunity claim presents a question of law for a court to decide," the opinion said. Because the complaint's allegations are taken as true at that stage, the court found nothing for a jury to resolve.

On the merits, the court relied on its 2018 decision in Crouch v. Gillispie, which shielded a Child Protective Services worker who closed a case without removing a child from the home. "Applying the foregoing to Petitioners' actions in this case, we easily conclude that the acts at issue are discretionary," Justice Wooton wrote, pointing to the investigator's repeated visits and interviews.

The court rejected both statutes the estate offered as clearly established law. The misdemeanor penalty for mandatory reporters who knowingly fail to report "does not confer a clearly established right upon a vulnerable adult, nor does it specify or define how an APS abuse and neglect investigation is to be conducted," the opinion said. The provision that gives caseworkers statutory immunity, subject to an exception for willful and wanton misconduct, likewise confers no right on the adult, the court held.

The complaint also never alleged fraud, malice or oppression, the court found, and its claims of willful misconduct offered no supporting facts. The court said those claims fell "far short of the heightened pleading standard that is required when immunities are implicated." Justice Wooton wrote that "the gravamen of Respondent's complaint is that if Mr. Secrist had done his job properly, the harm would not have occurred," an argument the court said it had repeatedly rejected.

The opinion added that the estate had not tied the investigator's conduct to the death. "Respondent has not identified the precise cause and nature of Mr. May's death: when it occurred, how it occurred, and how Mr. Secrist's actions or inactions proximately caused it," Justice Wooton wrote. The record showed only that Mr. May died about six weeks after the referral was closed.

Marc C. Dean of Steptoe & Johnson PLLC represented Mr. Secrist and the department. Robert B. Kuenzel of Kuenzel Law, PLLC represented the estate.

The case, which was submitted on Oct. 13, now returns to the Logan County Circuit Court for entry of an order granting the motions to dismiss.