What can I do if I have been injured by a state owned or city owned auto and they claim immunity? What if I have been injured in jail?

Injured by a Government Vehicle or in a West Virginia Jail or Prison? Understanding Immunity and Your Right to Recover:

When a person is injured by a police car, ambulance, fire truck, city truck, county vehicle, prison or jail vehicle, motorcycle, or other government-owned vehicle, the government may assert immunity from a traditional personal-injury lawsuit. You may be told that: “We are immune and there is no recovery.”

But governmental immunity does not necessarily mean that an injured person has no right to recover compensation.

West Virginia law provides several potential avenues of recovery. Depending upon the circumstances, an injured person may have:

• a claim against the governmental entity;
• a claim against the individual government employee;
• a claim under the person's own uninsured-motorist (“UM”) or underinsured-motorist (“UIM”) coverage;
• a federal civil-rights claim under 42 U.S.C. § 1983; or
• multiple claims that must be pursued simultaneously.

One of the most important West Virginia decisions involving government vehicles is Jenkins v. City of Elkins, 230 W. Va. 335, 738 S.E.2d 1 (2012).

Jenkins v. City of Elkins: Your Own Uninsured-Motorist Coverage May Apply

In Jenkins v. City of Elkins, 230 W. Va. 335, 738 S.E.2d 1 (2012), the West Virginia Supreme Court of Appeals addressed whether uninsured-motorist coverage could apply when an automobile accident was caused by a governmental tortfeasor who was immune from liability.

The Court held that it could.

The Court specifically held that:

“uninsured motor vehicle coverage is triggered when a person sustains an automobile injury or loss that is caused by a tortfeasor who is immune from liability.”

Jenkins v. City of Elkins, 230 W. Va. 335, 738 S.E.2d 1 (2012).

The Court further held that an insured is “legally entitled to recover” for purposes of UM coverage by establishing the fault of the tortfeasor and the amount of the insured's damages. The fact that the tortfeasor is immune does not, by itself, prevent the injured person from recovering UM benefits.

Most importantly, the Court held that a policy exclusion attempting to exclude UM coverage simply because the vehicle was owned by a governmental entity violated West Virginia public policy and was unenforceable.

Jenkins, 230 W. Va. at 335, 738 S.E.2d at 1.

What does that mean in practical terms?

Consider a motorist who is struck by a:

• municipal police cruiser;
• county sheriff's vehicle;
• ambulance;
• fire truck;
• municipal pickup truck;
• county maintenance truck;
• prison or jail transportation vehicle; or
• other government-owned automobile or truck.

If the governmental defendant is legally immune from liability, the injured person should not automatically assume that the case is over regardless of what you have been told by anyone.

The injured person's own automobile or motorcycle insurance policy may provide UM coverage.

That is the significance of Jenkins.

West Virginia Requires Uninsured-Motorist Coverage

West Virginia law generally requires qualifying motor-vehicle liability policies issued in the state to contain uninsured-motorist coverage.

W. Va. Code § 33-6-31(b) requires an applicable policy to provide UM coverage at least at the statutory minimum limits and provides insureds options to purchase higher limits. W. Va. Code § 33-6-31.

The statute defines an uninsured motor vehicle to include certain vehicles for which the required liability insurance is absent, denied, or otherwise unavailable. Jenkins established that, for purposes of the statute, a vehicle operated by a tortfeasor who is immune from liability can fall within the statutory definition.

Jenkins, 230 W. Va. 335, 738 S.E.2d 1.

This is why a person involved in a collision with a government vehicle should immediately determine what UM/UIM coverage is available under:

• the automobile involved in the accident;
• a motorcycle policy;
• another automobile in the household;
• applicable resident-relative coverage;
• other potentially applicable policies; and
• any applicable commercial or employer policy.

The exact policy language and circumstances matter.

The Type of Government Vehicle Does Not End the Analysis

Governmental immunity can arise in accidents involving virtually any type of government vehicle, including:

Police cars. Ambulances. Fire trucks. City trucks. County trucks. Utility vehicles. Prison vehicles. Jail transportation vehicles. School vehicles. Government automobiles. Motorcycles.

The important questions are:

1. Who owned the vehicle?
2. Who was driving it?
3. Was the driver acting within the scope of employment?
4. Was the vehicle being operated negligently?
5. Does a specific statutory immunity apply?
6. Is the governmental entity a political subdivision or the State?
7. Does the employee have individual immunity?
8. What insurance coverage exists?
9. Does the injured person's own UM/UIM coverage apply?

Governmental Tort Claims Act: Immunity Is Not Absolute

West Virginia's Governmental Tort Claims and Insurance Reform Act, W. Va. Code §§ 29-12A-1 through -18, governs many claims against political subdivisions such as counties and municipalities.

The Act generally provides immunity unless one of its statutory exceptions to immunity applies.

W. Va. Code § 29-12A-4(c)(1), however, expressly provides that, subject to the Act's immunities, a political subdivision is liable for injuries caused by the negligent operation of a vehicle by its employees while acting within the scope of employment and authority.

W. Va. Code § 29-12A-4(c)(1).

This provision is extremely important in automobile, truck, motorcycle, police-car, ambulance, and fire-truck cases.

The West Virginia Supreme Court has recognized this distinction in cases including Smith v. Burdette, 211 W. Va. 477, 566 S.E.2d 614 (2002) and Craft v. City of Bridgeport, 238 W. Va. 410, 796 S.E.2d 58 (2017).

The question therefore is not simply:

“Was the defendant a government employee?”

It is:

“What specific act caused the injury, and does the statute provide immunity for that particular act?”

Police and Emergency Vehicles

West Virginia law recognizes special rules concerning emergency vehicles, but those rules do not provide unlimited protection for negligent or reckless conduct.

In Sergent v. City of Charleston, 209 W. Va. 623, 550 S.E.2d 311 (2001), the Supreme Court addressed the operation of emergency vehicles and the statutory privileges afforded to emergency responders.

The circumstances surrounding the collision—including speed, emergency lights, sirens, intersection control, right-of-way, and the manner in which the vehicle was operated—can therefore be critical.

A person injured by a police car, ambulance, or fire truck should preserve and investigate:

• dash-camera footage;
• body-camera footage;
• dispatch recordings;
• GPS data;
• vehicle data;
• radio traffic;
• photographs;
• surveillance video;
• accident reconstruction evidence; and
• eyewitness testimony.

Jail and Prison Immunity Under West Virginia Law

Jail and prison cases require a different analysis.

W. Va. Code § 29-12A-5(a)(14) provides political subdivisions immunity for claims resulting from the:

“Provision, equipping, lawful operation or maintenance of any prison, jail or correctional facility...”

W. Va. Code § 29-12A-5(a)(14).

That provision can be a significant obstacle to a state-law negligence claim against a political subdivision arising from the operation of a jail or correctional facility.

But it does not mean every claim involving a jail or prison is automatically barred.

Several separate questions must be considered.

Individual Government Employees Can Lose Immunity

West Virginia Code § 29-12A-5(b) provides immunity to employees of political subdivisions unless:

1. the employee acted manifestly outside the scope of employment;
2. the employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner; or
3. another statute expressly imposes liability.

W. Va. Code § 29-12A-5(b).

The leading West Virginia case is Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993).

Beckley established the three statutory exceptions to employee immunity and explained that the “method of providing police, law enforcement or fire protection” immunity concerns governmental policy concerning how those services are provided—not necessarily every negligent act committed by an employee.

Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993).

The Supreme Court has continued to apply this framework. See Mallamo v. Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525 (1996); Cabell County Commission v. Whitt, 242 W. Va. 175, 832 S.E.2d 561 (2019).

Thus, even when a governmental entity asserts immunity, the conduct of the individual employee must be separately examined.

Prison and Jail Abuse Can Also Create Federal Constitutional Claims

A particularly important distinction exists between an ordinary state-law negligence claim and a claim that jail or prison officials violated the United States Constitution.

Federal constitutional claims may arise under 42 U.S.C. § 1983.

Potential claims include:

• excessive force;
• failure to protect an inmate;
• deliberate indifference to serious medical needs;
• unconstitutional conditions of confinement;
• sexual abuse;
• failure to respond to known threats;
• denial of necessary medical care; and
• other conduct violating clearly established constitutional rights.

A West Virginia immunity statute does not automatically eliminate a properly established federal constitutional claim.

See Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).

However, a plaintiff still must prove the elements of the federal claim and overcome any applicable federal immunity.

The Eighth Amendment Applies to Convicted Prisoners

For a person who has been convicted and sentenced, claims involving cruel conditions of confinement, failure to protect, and deliberate indifference generally arise under the Eighth Amendment.

The leading Supreme Court case is Farmer v. Brennan, 511 U.S. 825 (1994).

Under Farmer, an Eighth Amendment failure-to-protect claim generally requires proof of a sufficiently serious risk of harm and that the official actually knew of and disregarded that substantial risk.

Farmer v. Brennan, 511 U.S. 825, 834–37 (1994).

Medical-care claims by convicted prisoners are also analyzed under the Eighth Amendment's deliberate-indifference framework.

Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).

Pretrial Detainees Are Protected by the Fourteenth Amendment

A person who has not been convicted is a pretrial detainee.

The constitutional analysis is different because a pretrial detainee cannot constitutionally be punished merely because he or she is being detained before trial.

In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the United States Supreme Court held that a pretrial detainee's excessive-force claim is governed by an objective reasonableness standard.

Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015).

The Fourth Circuit—which includes West Virginia—subsequently applied an objective framework to pretrial detainee deliberate-indifference claims in Short v. Hartman, 87 F.4th 593 (4th Cir. 2023).

Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023).

This creates an important distinction:

Consequently, whether the injured person was convicted or awaiting trial can substantially change the legal analysis.

State Agency, County and Municipal Immunity Are Not the Same

Another critical issue is identifying the governmental defendant.

The West Virginia Governmental Tort Claims and Insurance Reform Act primarily addresses political subdivisions, which include entities such as counties and municipalities.

W. Va. Code § 29-12A-3(c).

The statute expressly distinguishes the State of West Virginia from political subdivisions.

W. Va. Code § 29-12A-3(e).

Consequently, a claim against:

• a city;
• a county commission;
• a sheriff's office;
• a regional jail authority;
• the West Virginia Division of Corrections;
• a state agency; or
• an individual officer

may involve different immunity doctrines.

The West Virginia Supreme Court addressed these distinctions in West Virginia Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014) and West Virginia Regional Jail & Correctional Facility Authority v. Estate of Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020).

Immunity Does Not Always Mean No Recovery

A government-immunity case should therefore be analyzed through several potential avenues:

Government vehicle collision

A political subdivision may be liable for negligent operation of a vehicle under W. Va. Code § 29-12A-4(c)(1), unless a statutory immunity applies.

Government vehicle is immune

The injured person's own UM coverage may nevertheless be triggered under Jenkins v. City of Elkins.

Employee acts recklessly or wantonly

The employee may fall within the exception to statutory immunity under W. Va. Code § 29-12A-5(b).

Employee acts maliciously or in bad faith

The employee may likewise lose statutory immunity.

Constitutional violation

A properly established § 1983 claim may provide a separate federal cause of action.

Local-government policy or custom

A constitutional claim against a local governmental entity may be possible under Monell v. Department of Social Services, 436 U.S. 658 (1978) when the constitutional violation resulted from an official policy or custom.

Pretrial detainee

The Fourteenth Amendment and Kingsley and Short provide the governing framework.

Convicted prisoner

The Eighth Amendment and Farmer provide the governing framework.

The Bottom Line for Injured West Virginians

Being injured by a government vehicle does not automatically mean that governmental immunity leaves you without compensation.

If you are injured by a police car, ambulance, fire truck, city truck, county truck, prison vehicle, jail vehicle, motorcycle, automobile, or other government vehicle, the case should be evaluated under both governmental-immunity law and insurance law.

And when the governmental tortfeasor is immune, Jenkins v. City of Elkins, 230 W. Va. 335, 738 S.E.2d 1 (2012) provides an important avenue to pursue compensation through the injured person's own uninsured-motorist coverage.

For jail and prison injuries, the analysis can be even more complicated. A convicted prisoner generally proceeds under the Eighth Amendment, while a pretrial detainee's claim is generally governed by the Fourteenth Amendment. The distinction can determine what the injured person must prove.

The critical question is therefore not simply:

“Is the government immune?”

The real questions are:

What immunity applies? Who is immune? What conduct caused the injury? Is there an exception? Is the individual employee immune? Is there insurance? Does the injured person's UM/UIM coverage apply? And does the conduct also violate the United States Constitution?

Those questions can make the difference between a claim being dismissed and an injured person obtaining compensation.

The Nestor Law Office

Attorney William “Ty” Nestor and The Nestor Law Office, William T. Nestor, PLLC, represents injured West Virginians in automobile and personal-injury matters, including cases involving governmental entities and difficult insurance and immunity issues.

When a government vehicle, police officer, ambulance, truck, jail, prison, or other governmental actor is involved, the case may require analysis of West Virginia tort law, governmental immunity, insurance coverage, uninsured-motorist law, federal civil-rights law, and constitutional protections.

The Nestor Law Office can evaluate the circumstances of the injury and determine what potential avenues of recovery may be available.

We have represented people injured in West Virginia Jails and have successfully navigated West Virginia’s Tort Claims and Insurance Reform Act to get people the compensation they deserve when injured by a government owned auto.