Abigail Shoemaker, Mary Shoemaker, and Chris Shoemaker v. Tazewell County Public Schools and Kimberly Benson

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
Fall 2023 Term November 16, 2023
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
No. 22-ICA-327 OF WEST VIRGINIA
_____________________

ABIGAIL SHOEMAKER, MARY SHOEMAKER,
and CHRIS SHOEMAKER,
Plaintiffs Below, Petitioners,

v.

TAZEWELL COUNTY PUBLIC SCHOOLS
and KIMBERLY BENSON,
Defendants Below, Respondents.

___________________________________________________________

Appeal from the Circuit Court of Mercer County
Honorable William Sadler, Judge
Civil Action No. CC-28-2021-C-97

REVERSED AND REMANDED
_________________________________________________________

Submitted: October 31, 2023
Filed: November 16, 2023

Kevin A. Nelson, Esq. Wendy E. Greve, Esq.
Arie M. Spitz, Esq. Christopher T. Ferro, Esq.
Dinsmore & Shohl LLP Pullin, Fowler, Flanagan, Brown &
Charleston, West Virginia Poe, PLLC
Counsel for Petitioners Charleston, West Virginia
Counsel for Respondents

JUDGE LORENSEN delivered the Opinion of the Court.
LORENSEN, Judge:

Petitioners Abigail, Mary, and Chris Shoemaker appeal an order of the

Circuit Court of Mercer County granting summary judgment to Respondent Kimberly

Benson, a high school swim coach employed by Tazewell County Public Schools

(“TCPS”), a school district that administers all public schools in Tazewell County,

Virginia. 1 This matter arises from an incident at the pool facilities of Bluefield State

University (“Bluefield State”) in Bluefield, West Virginia. There, coach Benson was

conducting a swim practice for the Graham High School swim team, 2 of which Petitioner

Abigail Shoemaker was a member. Before entering the pool, coach Benson instructed the

team to perform “wall-sit” exercises, requiring students to brace themselves against a

vertical surface. While performing the exercise, Abigail was positioned against one of the

facility’s exterior wall glass panels, which shattered, inflicting serious injuries. Thereafter,

Petitioners brought this action against Bluefield State, TCPS, and coach Benson.

On appeal, Petitioners argue that the circuit court erred in concluding that

coach Benson, as a public-school employee, was protected by sovereign immunity and

further that the circuit court erred in concluding that coach Benson’s conduct failed to

constitute gross negligence as a matter of Virginia immunity law. We hold the circuit court

1
Petitioners do not appeal the circuit court’s grant of summary judgment as to
TCPS.

Graham High School is located in Bluefield, Tazewell County, Virginia and part
2

of the TCPS system.

1
lacked jurisdiction to maintain this action against coach Benson, an agent of the

Commonwealth of Virginia, absent express consent by Virginia to subject itself to private

suit in West Virginia courts. Accordingly, we remand to the circuit court to dismiss this

case under the principles set forth in Franchise Tax Bd. v. Hyatt, 587 U.S. __, 139 S.Ct.

1485 (2019) (Hyatt III).

I. FACTUAL AND PROCEDURAL BACKGROUND 3

Bluefield State permitted Graham High’s swim team, among other high

school teams, to practice at Bluefield State’s aquatic center. On November 14, 2019,

Abigail Shoemaker and her Graham High teammates arrived for practice and found the

pool was already occupied. While waiting for the pool to be available, coach Benson

instructed the team to begin a series of “dry land exercises” around the deck area of the

pool. The team was instructed to find available space along the walls of the aquatic center

to perform an exercise called a “wall-sit.” Some members of the team, including Abigail,

took positions against the glass panel portions of the facility’s walls. After taking their

positions, the team was then instructed to perform a one-minute wall-sit, which required

the students to lower themselves into a sitting posture while bracing themselves against the

surface. Shortly before the wall-sit exercise was to conclude, the glass panel shattered,

3
Our summary of the facts is abridged because, as discussed below, we need not
consider, on the merits, whether coach Benson's conduct constituted gross negligence.

2
causing a large piece of glass to pierce Abigail’s back. Coach Benson administered

immediate aid to Abigail by applying pressure to the wound until EMS could arrive, but

Abigail suffered significant blood loss and sustained serious injuries.

The Shoemakers filed suit alleging negligence clams against Bluefield State,

TCPS, and coach Benson on May 24, 2021, in the Circuit Court of Mercer County, West

Virginia. Bluefield State settled with the Shoemakers. TCPS and coach Benson filed a joint

motion for summary judgment, which argued, among other things, that they were entitled

to sovereign immunity for the claims against them citing, among other authorities, the 2019

United States Supreme Court Hyatt III case. The circuit court heard the motion on

November 14, 2022, and on December 16, 2022, entered its order granting summary

judgment to TCPS and coach Benson.

The circuit court proceeded to consider whether coach Benson was entitled

to qualified immunity under Virginia law. The circuit court explained that “to the extent

[coach Benson] argues that this Court does not have jurisdiction over her because of

sovereign immunity, the Court must determine whether she qualifies for sovereign

immunity.” The circuit court concluded that pursuant to Virginia law, TCPS, as a school

board, was entitled to absolute sovereign immunity for all claims alleged against them in

3
the complaint. 4 The circuit court further concluded that, as a matter of law, the coach’s

conduct did not constitute gross negligence, and therefore coach Benson was entitled to

qualified immunity applying Virginia state law qualified immunity principles. The

Shoemakers now appeal the circuit court’s grant of summary judgment as to coach Benson.

II. STANDARD OF REVIEW

Our standard of review is well settled: “A circuit court’s entry of summary

judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d

755 (1994). “[A]ppellate courts review questions involving principles of sovereign

immunity de novo.” Gribben v. Kirk, 195 W. Va. 488, 493, 466 S.E.2d 147, 152 (1995)

(quoting United States v. Woodley, 9 F.3d 774, 781 (9th Cir. 1993)). With this plenary

standard in mind, we address the issues presented.

III. DISCUSSION

As a general principle, “sovereign immunity is the privilege of the sovereign

not to be sued without its consent.” Va. Off. for Prot. & Advoc. v. Steward, 563 U.S. 247,

253 (2011). Whether sovereign immunity serves as an initial bar to a suit presents a

jurisdictional issue. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“sovereign immunity

is jurisdictional in nature”). Both federal and state courts are divided as to if this

4
The Shoemakers did not appeal the circuit court’s ruling that TCPS is entitled to
absolute immunity.

4
jurisdictional issue implicates subject matter jurisdiction of a court or if it constitutes a

waivable component of personal jurisdiction. 5 Virginia has interpreted issues of sovereign

immunity to implicate subject matter jurisdiction. See Afzall ex rel. Afzall v.

Commonwealth, 639 S.E.2d 279, 281 (Va. 2007). While acknowledging the jurisdictional

dimension to sovereign immunity matters, we find it unnecessary to further differentiate

between personal and subject matter jurisdiction in this case because TCPS and coach

Benson asserted sovereign immunity as a defense from this suit’s inception, fully

preserving this issue. See Hyatt III, 587 U.S. ___, 139 S. Ct. at 1491 n.1.

The Shoemakers’ assignments of error focus largely on the circuit court’s

application of Virginia’s sovereign immunity jurisprudence at summary judgment. They

5
The United States Supreme Court has left the issue open: “[Whether] Eleventh
Amendment immunity is a matter of subject-matter jurisdiction [is] a question we have not
decided.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 391 (1998). However, cases
addressing the “jurisdictional nature” of sovereign immunity have not yet reached a
consensus.

State courts, deciding issues of interstate sovereign immunity, are similarly divided:
Compare Henry v. New Jersey Transit Corp., 210 N.E.3d 451, 459 (N.Y. 2023) (“The
Supreme Court's determination that interstate sovereign immunity is waivable fatally
undermines [New Jersey]’s argument that interstate sovereign immunity is rooted in
subject matter jurisdiction because subject matter jurisdiction, as a rule, ‘cannot be
dispensed with by litigants’ and ‘can never be forfeited or waived’”) and Bisher v. Lehigh
Valley Health Network, Inc., 265 A.3d 383, 400 n.10 (Pa. 2021) (“We treat sovereign
immunity as a waivable defense that does not implicate a trial court's competence to hear
a case”), with Christ v. Texas Dep't of Transportation, 664 S.W.3d 82, 86 (Tex. 2023),
reh'g denied (May 5, 2023) (“sovereign immunity implicates a trial court's subject-matter
jurisdiction”) and Brooks v. Ewing Cole, Inc., 259 A.3d 359, 371 (Pa. 2021) (“Sovereign
immunity is an absolute defense that is not waivable.” (citation omitted)).

5
challenge the circuit court’s determination that coach Benson’s conduct did not constitute

gross negligence so as to entitle her to qualified immunity under Virginia’s law. Because

we decide this case on more basic “structural” interstate sovereign immunity principles,

we need not address the merits of the Shoemakers’ challenge to the circuit court’s gross

negligence findings under Virginia’s state law qualified immunity jurisprudence. 6

A. Overview of Virginia Sovereign Immunity Principles

A brief overview of Virginia’s sovereign immunity jurisprudence provides

context to the circuit court’s order below. “As a general rule, the Commonwealth is

immune both from actions at law for damages and from suits in equity to restrain

governmental action or to compel such action.” Afzall, 639 S.E.2d at 282 (quoting Alliance

to Save the Mattaponi v. Commonwealth, 621 S.E.2d 78, 96 (Va. 2005)). This immunity

extends to government agencies, including local school boards. See Kellam v. Sch. Bd. of

City of Norfolk, 117 S.E.2d 96, 100 (Va. 1960) “An employee of a governmental body is

entitled to the protection of sovereign immunity.” Lentz v. Morris, 372 S.E.2d 608, 610

(Va. 1988) (quoting Messina v. Burden, 321 S.E.2d 657, 660 (Va. 1984)).

6
Rule 10(c)(3) of the Rules of Appellate Procedure provides that: “The statement
of the assignments of error will be deemed to include every subsidiary question fairly
comprised therein.” Moreover, because sovereign immunity implicates a controlling
constitutional issue, we may consider it. See PITA, LLC v. Segal, No. 22-ICA-4, 2023 WL
5843577 (W. Va. Ct. App. Sept. 11, 2023) (citing Syl. Pt. 1, Louk v. Cormier, 218 W. Va.
81, 622 S.E.2d 788 (2005) (appellate courts have the discretion to raise a controlling
constitutional issue for the first time on appeal).

6
Under Virginia law, in most instances, state agents are also protected by

sovereign immunity; however, “[a] state employee who acts wantonly, or in a culpable or

grossly negligent manner, is not protected [by sovereign immunity].” James v. Jane, 282

S.E.2d 864, 869 (Va. 1980); accord Va. Code § 8.01-220.1:2 (2013) (immunizing teachers

employed by a local school board from liability within the scope of employment, unless

acting grossly negligent). Further, an educator’s “supervision and control of a physical

education class” are acts within the scope of immunity. Lentz, 372 S.E.2d at 610–11.

Otherwise, in order to overcome sovereign immunity, the court must determine that the

immunity has been expressly waived by statute. “‘[O]nly the legislature acting in its policy-

making capacity can abrogate the Commonwealth's sovereign immunity.’” Afzall, 639

S.E.2d at 282 (quoting Commonwealth v. Luzik, 524 S.E.2d 871, 876 (Va. 2000)). “A

‘waiver of immunity cannot be implied from general statutory language’ but must be

‘explicitly and expressly announced’ in the statute.” Id. (quoting Hinchey v. Ogden, 307

S.E.2d 891, 895 (Va. 1983)). The circuit court worked through these principles in ruling

on the motion for summary judgment.

However, throughout this litigation, TCPS and coach Benson asserted a

broad interstate or “structural” sovereign immunity principle citing Hyatt III. This principle

addresses the fundamental question of whether federal law prohibits a West Virginia court

from entering a judgment or, indeed, from asserting any jurisdiction over another sovereign

state.

7
B. Structural Interstate Sovereign Immunity under Hyatt III

In 2019, the Supreme Court of the United States in Franchise Tax Bd. v.

Hyatt, 587 U.S. ___ applied a structural source of interstate sovereign immunity. “Interstate

sovereign immunity is… integral to the structure of the [U.S.] Constitution.” Hyatt III, 587

U.S. at ___, 139 S.Ct. at 1498. In Hyatt III, a Nevada resident sued the California Franchise

Tax Board (“Board”) in Nevada state court claiming that the Board committed various torts

in Nevada against him while it conducted tax audits. A Nevada jury agreed with the

taxpayer and awarded significant damages against the Board. Ultimately, the Supreme

Court after considering the case two times earlier, decided that the United States

Constitution does not permit a state to be sued by a private party without its consent in the

courts of a different state, overruling Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182 (1979)

(the Supreme Court permitted a suit for damages against an instrumentality of Nevada in a

California court concerning an auto accident in California involving an employee of the

University of Nevada).

We now turn to the circumstances of the case at bar in light of Hyatt III.

According to Virginia law, coach Benson falls within the category of state agents entitled

to a presumption of state immunity. 7 The Shoemakers do not dispute this; nor do they

7
See Lentz, 372 S.E.2d at 610–11 (an educator’s “supervision and control of a
physical education class” are acts within the scope of immunity). This immunity has also
been codified:

Any teacher employed by a local school board in the Commonwealth shall
not be liable for any civil damages for any acts or omissions resulting from
8
dispute that, at the time of the incident, coach Benson was an employee of TCPS, a swim

team coach supervising her students. Suits against state agents, in their official capacity,

are treated the same as suits against the state itself:

Official-capacity suits . . . generally represent only another way of pleading
an action against an entity of which an officer is an agent . . . . As long as the
government entity receives notice and an opportunity to respond, an official-
capacity suit is, in all respects other than name, to be treated as a suit against
the entity . . . . It is not a suit against the official personally, for the real party
in interest is the entity. Thus, . . . a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the government entity
itself.

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (cleaned up) (emphasis added). Given

coach Benson’s status as a state agent, West Virginia’s courts may not proceed to determine

the merits of her entitlement to qualified immunity under Virginia law absent clear consent

or waiver.

We briefly consider if the immunity has been waived by explicit consent or

conduct. “A State's consent to suit must be “unequivocally expressed” in the text of the

relevant statute.” Sossamon v. Texas, 563 U.S. 277, 284 (2011) (quoting Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)); accord Afzall ex rel. Afzall v.

the supervision, care or discipline of students when such acts or omissions
are within such teacher's scope of employment and are taken in good faith in
the course of supervision, care or discipline of students, unless such acts or
omissions were the result of gross negligence or willful misconduct.

Va. Code § 8.01-220.1:2(A).

9
Commonwealth, 639 S.E.2d 279, 282 (Va. 2007). A “[w]aiver [of sovereign immunity]

may not be implied.” Sossamon, 563 U.S. at 284 (quoting Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999)); accord Afzall, 639 S.E.2d

at 282. However, a sovereign’s litigation conduct may create a finding of waiver. See, e.g.,

Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 617 (2002). At oral

argument, the Shoemakers conceded that “no behavior . . . took place during the case” that

would constitute waiver. Accordingly, we need not further address waiver by conduct. 8

This leaves us to consider whether Virginia has unequivocally expressed its

consent to be sued in West Virginia. Virginia’s highest court has explained that “‘only the

legislature acting in its policy-making capacity can abrogate the Commonwealth's

sovereign immunity.’” Afzall, 639 S.E.2d at 282 (quoting Commonwealth v. Luzik, 524

S.E.2d 871, 876 (Va. 2000)). Accordingly, we must look to Virginia’s codified law. During

oral argument, the Shoemakers indicated they were relying on a Virginia statute to create

a waiver of sovereign immunity. 9 Specifically, counsel articulated that the statute requires

a state agent to “qualify” for immunity. In other words, in the Shoemakers’ view, coach

8
We also find Hyatt III instructive on this point, as the Supreme Court addressed a
similar issue. There, in an interstate suit heard in Nevada, despite the extensive litigation a
California agency had engaged in, the Supreme Court concluded that, because the agency
had raised and maintained its assertion of immunity from the suit’s inception, it had not
waived its immunity by conduct. See Hyatt III, 587 U.S. at ____,139 S. Ct. at 1491 n.1.
9
While never specifically mentioned, we presume counsel was referring to the
statutory provision governing civil immunity for Virginia’s educators. See Va. Code §
8.01-220.1:2.

10
Benson was unprotected by sovereign immunity until her conduct was determined to not

be grossly negligent. Further, until that determination occurs, any jurisdictional issues

created by interstate sovereign immunity are not ripe for adjudication. We find this

argument unpersuasive in light of the sweeping structural interstate sovereign immunity

rule set forth in Hyatt III.

III. CONCLUSION

After examining relevant Virginia law, we fail to find a waiver of Virginia’s

immunity by express waiver or consent. 10 Accordingly, in light of the constitutional rule

enunciated in Hyatt III, we reverse the December 16, 2022, order of the Circuit Court of

Mercer County and remand this matter for dismissal of the claims. 11

Reversed and Remanded.

10
Other courts applying Hyatt III have come to similar conclusions. See State v.
Great Lakes Mins., LLC, 597 S.W.3d 169, 173 (Ky. 2019) (holding that Hyatt III barred a
suit against a state agent acting in his official capacity); Farmer v. Troy Univ., 879 S.E.2d
124, 131 (N.C. 2022) cert. denied, 143 S. Ct. 2561 (2023); Marshall v. Se. Pennsylvania
Transportation Auth., 300 A.3d 537, 549 (Pa. Commw. Ct. 2023); see also Nizomov v.
Jones, No. 2020-09716, 2023 WL 6853989, at *2 (N.Y. App. Div. Oct. 18, 2023); Belfand
v. Petosa, 196 A.D.3d 60, 73, (N.Y. App. Div. 2021).
11
We note a savings statute may be applicable to the dismissal of these claims. See
Va. Code § 8.01-229 (2016) (tolling statutes of limitations when claims are dismissed
without an adjudication on the merits).

11