Maynard

Berger

CHARLESTON – West Virginia State Police must stand trial with Trooper C. F. Kane in a civil suit over 16 shots Kane fired into the late Charlie Pruitt in the living room of his McDowell County home.

All five Justices of the state Supreme Court agreed June 3 that Kanawha Circuit Judge Irene Berger must hear a claim of Vanessa Pruitt that faulty training caused her husband's death.

Kane testified in a deposition that State Police didn't train him in when to stop firing and that they trained him to stop when the immediate threat ended.

"We believe that this conflict in testimony creates a genuine issue of material fact," Chief Justice Spike Maynard wrote for a unanimous Court.

He wrote that "resolution of this issue at trial may rest upon whether the jury finds Trooper Kane's testimony credible."

Although the Justices reversed Berger in excusing State Police from the suit, they affirmed her in rejecting claims against State Police under U.S. civil rights law.

They also affirmed her rejection of an argument that a county prosecutor conceded the liability of State Police to grand jurors investigating Pruitt's death.

Pruitt's daughter, Tasha Pruitt, sent police to his home with a 911 call two days before Christmas 2001.

Her report was false, both sides stated at oral argument before the Justices March 12.

Kane entered Pruitt's home, fired 12 shots, reloaded and fired four more shots.

Pruitt did not fire a shot.

Maynard wrote that "although the issue is disputed, there is evidence from which a person could conclude that the decedent was not holding a firearm when he was shot."

In 2003, Vanessa Pruitt sued Kane and the Department of Public Safety, now known as State Police, in Kanawha Circuit Court.

She alleged violations of state and national constitutions and of common law.

She also asserted claims under U. S. civil rights law providing that "every person" who deprives another of rights under color of law shall be liable in an action at law.

State Police and Kane moved in 2006 for summary judgment. State Police argued that the agency is not a person for purposes of federal law.

Pruitt responded that the state had taken a position on its liability and the doctrine of equitable estoppel precluded a switch to an opposite position.

According to Pruitt, a McDowell County prosecutor expressed the state's position when he told grand jurors the widow would sue the state and collect $30 million.

The grand jury issued no indictment.

Pruitt also argued that the state's insurer, a person under the law, was the real party.

Berger denied summary judgment to Kane but granted it to State Police, declaring the insurance argument unpersuasive.

"Accepting that argument would essentially obliterate the definition of the term 'person' as used in the statute for most all cases," Berger wrote.

She wrote that even if State Police were a person, Pruitt hadn't identified any policy or custom that deprived her or her husband of rights.

Berger ruled that equitable estoppel did not apply to the prosecutor's statement.

The Justices agreed with her in rejecting insurance and estoppel arguments.

State Police and the prosecutor can't be the same party for estoppel purposes, Maynard wrote, in the absence of evidence that they acted in privity with one another.

Still, the Justices could not go along with Berger in rejecting claims of faulty training and supervision.

They quoted a 1981 decision that if an agent or employee can be held liable for torts when acting in the scope of his job, his principal or employer may also be held liable.

"Under this rule," Maynard wrote, "the Department may be liable for any wrongful acts found to be committed by Trooper Kane."

He wrote, "Absent express provisions of the insurance contract to the contrary or other exceptions, the jury may find that the Department's liability is coterminous with that of Trooper Kane."

Truman Chafin and Letitia Neese Chafin of Williamson represent Pruitt, along with John Yoder of Harpers Ferry.

Attorney General Darrell McGraw and senior assistant Steven Compton represent State Police.

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