CHARLESTON – A wrongful death lawsuit against the Monroe County dog warden will continue as a result of a recent decision by the state Supreme Court.
The court on Sept. 27 overturned the decision of Monroe Circuit Judge Robert A. Irons that dismissed Dreama Bowden’s lawsuit against the Monroe County Commission and Patricia Green, the county dog warden.
Bowden filed the lawsuit as administratrix of the Estate of Lowell Bowden, who was killed by a group of pit bulls she alleged should have been seized before the attack.
Irons dismissed the lawsuit before Bowden could amend her complaint with additional allegations, citing the public duty doctrine and certain immunities regarding taxation, licensing and inspection functions.
“While employees of political subdivisions are generally immune for their negligence as provide by West Virginia Code… the complaint alleges, alternatively, that Ms. Green acted in a manner that was ‘willful, wanton and/or [with] reckless disregard,’” the per curiam decision says.
“Such allegations are sufficient to allege an absence of immunity as to Ms. Green personally under West Virginia Code… which strips an employee of immunity if the employee’s acts or omissions ‘were with malicious purpose, in bad faith, or in a wanton or reckless manner[.]’”
The incident occurred on Nov. 27, 2009, when Lowell Bowden was taking a walk along Broyles Cemetery Road near Landslide. He was attacked by several American Pit Bull Terriers owned by Justin Blankenship, Anna Hughes and Mose Christian, the opinion says.
Lowell Bowden was maimed beyond recognition and ultimately died as a result of his injuries.
Many members of the community had complained to Green that the pit bulls were running loose and attacking people, the plaintiff said.
Three weeks before the attack, Green issued a citation to Blankenship for harboring vicious dogs but did not seize or impound the animals for lack of registration/payment of property taxes, the plaintiff said.
Dreama Bowden wanted to amend her complaint to allege she personally contacted Green to complain about the pit bulls, and that Green assured her she would “take care of” the dogs.
Other defendants in the lawsuit have already settled or had default judgments entered against them.
Monroe County cited immunity from claims of failure to provide law enforcement protection, failure to collect taxes or registration fees, failure of licensing powers and failure to inspect hazardous property.
Dreama Bowden conceded she is making one of those claims, but says her proposed amendment would allege sufficient facts to establish the “special relationship” exception to the public duty doctrine.
Bowden says no scheduling order has been entered an only minimal written discovery has taken place, so the defendants would not be prejudiced by an amended complaint.
“We can perceive no prejudice to respondents in permitting the amendment; certainly petitioner alleged facts sufficient to entitle her to conduct additional discovery and develop the evidence,” the opinion says.
Travis A. Griffith of Olivio & Griffith in Charleston is representing Bowden, while Wendy E. Greve of Pullin, Fowler, Flanagan, Brown & Poe in Charleston is representing the county.
From the West Virginia Record: Reach John O’Brien at firstname.lastname@example.org.