Brooks v. City of Weirton
In Brooks v. City of Weirton, 202 W.Va. 246, 503 S.E.2d 814 (1998), the Court reached a different conclusion.
The Court held that if a political subdivision was immune under the provisions of the Act, then the political subdivision could not be directly named as a defendant under the Act.
Instead, the Court indicated that if an employee's conduct was actionable under the Act, and even if the political subdivision was financially responsible for the employee's conduct, then any lawsuits regarding the employee must proceed in the employee's name.
The Court stated:
In the instant case, the plaintiff has alleged that the City's sanitation workers, acting within the scope of their employment, ran a jackhammer and a drill near the trench where Mr. Brooks was working - in reckless disregard of the fact that the City employees' activity might cause the trench to collapse.
Under these alleged facts, W.Va. Code, 29-12A-5(b)(2) 1986, authorizes suit against the City employees, if it is proved that their "acts or omissions were . . . in a wanton or reckless manner. . . ." (202 W.Va. at 255, 503 S.E.2d at 823.)