Negligence

To prove negligence, West Virginia law requires a plaintiff show that the defendant owed the plaintiff a duty, that the defendant breached the duty owed, and that the defendant’s breach of duty proximately caused injury to the plaintiff.

Modified Comparative Negligence

As seen in Bradley v. Appalachian Power Co., 256 S.E.2d 879 (1979), West Virginia follows a comparative negligence standard in negligence actions. This means that a plaintiff is not completely barred from monetary recovery where the plaintiff may have been partially negligent in causing their own injury so long as the plaintiff was not found to have been more than 49% at fault. Where a plaintiff is found to be 49% or less at fault for his injury, he will be permitted to recover an amount that is diminished proportionately to the percentage attributed to the plaintiff, if any. However, if a plaintiff is found to be 50% or more at fault for their own injury, monetary recovery may be barred.

Modified Joint & Several Liability

The law in West Virginia (W. Va. Code § 55-7-24) follows a modified version of Joint and Several liability.

Generally, tortfeasors are held severally liable for damages associated with a negligence action, meaning that tortfeasors pay only the percentage of fault as determined by the jury. However, if the tortfeasors are found to have been 31% or more at fault for a plaintiff’s injuries, joint and several liability will apply. Under a theory of joint and several liability, a plaintiff may collect the entire award amount from either tortfeasor.

Damages

Compensatory Damages

Compensatory damages are awarded by a court to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.

Actual damages are meant to reimburse the plaintiff for out-of-pocket expenses for items such as medical expenses. General damages may also be awarded for pain and suffering, mental anguish, loss of opportunity, and loss of future income.

Punitive Damages

Punitive damages are meant to punish a defendant rather than to compensate the plaintiff.

West Virginia Statute §55-7-27, which was passed March 10, 2015, states that punitive damages may only be awarded after the plaintiff establishes by clear and convincing evidence that the defendant acted with actual malice or a conscious, reckless, and outrageous indifference to the health, safety and welfare of others.

After a request for punitive damages is made, the trial can be bifurcated at the request of any defendant. During the first stage of trial, the jury determines liability with regard to compensatory damages and the amount to be awarded. If the defendant is liable for compensatory damages, then the court determines whether sufficient evidence was presented to proceed with the second stage of trial to award punitive damages.

The amount of punitive damages that may be awarded may not exceed the greater of 4X the amount of compensatory damages or $500,000.

DISCLAIMER:

The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.

By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in West Virginia. Should you have a question/concern specific to West Virginia law, please contact an attorney licensed to practice law in the State of West Virginia.