Whitlow v. Board of Education of Kanawha County
In Whitlow v. Board of Education of Kanawha County, 190 W. Va. 223, 438 S.E.2d 15 (1993), the plaintiff was injured in 1987 when the bleachers at her junior high school collapsed.
At the time of the accident, she was fifteen years old. The plaintiff filed a law suit in 1991. The trial court dismissed the action on the grounds that the statute of limitations for the West Virginia Governmental Tort Claims and Insurance Act, W. Va. Code 29-12A-6 (1986), had run.
The plaintiff appealed the dismissal arguing that W. Va. Code 29-12A-6 violated the Equal Protection Clause of the state constitution.
The defendant asked the Court not to address the constitutional issue because it was never raised at the trial court level.
The Court acknowledged the general rule that "when nonjurisdictional questions have not been decided at the trial court level and are then first raised before the Court, they will not be considered on appeal." Whitlow, 190 W. Va. at 226, 438 S.E.2d at 18.
Nevertheless, the Court declined to apply the general waiver rule for the following reasons:
"In this case, we are confronted with very limited and essentially undisputed facts. The constitutional issue raised for the first time on appeal is the controlling issue in the resolution of the case. If the statute is unconstitutional, the case should not be dismissed. Furthermore, the issue is one of substantial public interest that may recur in the future. . . .
. . . Here, the defendant has thoroughly briefed the constitutional issue in response to the plaintiff's claim. We view the matter as sufficiently developed to decide the issue." (Whitlow, 190 W. Va. at 226-27, 438 S.E.2d at 18-19.)