March 23, 2015
The recent election that brought Republicans into power in the West Virginia legislature has resulted in many changes. One such change is significant tort reform. Recently, the legislature passed many measures that limit the recovery rights of those that are injured. As a result, it is important for everyone to be familiar with the changes and what they mean.
Punitive damages limitations
One of measures recently passed is a cap on punitive damages. These damages are sometimes awarded in personal injury cases to punish the party responsible for causing the injuries. This type of damages is not awarded based on the injured party’s loss, but to punish the responsible party in cases where the party acted in a manner that was reckless, wanton or displaying an indifference for the safety of others.
Specifically, the legislature passed a law capping the amount of punitive damages that may be awarded to four times the amount of compensatory damages awarded or $500,000, whichever is greater. Also, the legislature limited the cases where punitive damages may be awarded to instances where the wrongdoer’s conduct involved actual malice or a reckless, conscious and outrageous indifference to the welfare, health and safety of others.
Although punitive damages are not always awarded in personal injury cases, this law will likely significantly reduce the recovery of those that are injured by the most egregiously careless or reckless parties.
Premises liability changes
Other legislation addressed premises liability-the duty of landowners to warn and protect those on their land against dangers. One new law reinstated the “open and obvious” doctrine that was abolished by a 2013 West Virginia Supreme Court opinion. Under this doctrine, landowners have no duty to protect those on their land against dangers that are “open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant of the premises.” As such, landowners may no longer be held liable for injuries caused by such dangers.
Additionally, new legislation was passed that made it clear that landowners have no duty to warn or protect those trespassing on their land against dangers on the land. This means that trespassers (even those that did not know that they were trespassing at the time) will likely be unable to recover compensation for injuries from the landowner that they acquired due to a danger on the land.
Probably the most important change involved a change in the standard that determines allocation of fault in personal injury (e.g. car accidents, medical malpractice, workplace accidents, etc.), wrongful death and property damage cases involving more than one defendant (or party responsible for the injury). The new standard abandons the “joint and several” liability standard long used in West Virginia. Under this standard, if more than one party is found liable for the plaintiff’s injuries, any of the defendants could be held liable for the entire amount of damages, if one party could not pay (or was insolvent).
Under the new comparative fault standard, defendants that are found liable are only responsible for paying damages in proportion to their respective fault for the injury. As an example, if the damage award was $100,000 and one defendant was deemed 30 percent at fault and the other 70 percent, the amount each would be responsible for would be $30,000 and $70,000 respectively.
Although this change may seem fair, it often unjustly affects the injured party’s. Since neither defendant is responsible for the other defendants’ damages, if one defendant is unable to pay their share, it could mean that the injured party is left without sufficient recovery for their medical bills, loss of wages and other losses from the injury. This is especially the case if the insolvent defendant is the 70 percent at fault party in the example above.
Speak with an attorney
Though lauded by business interests, these recent changes significantly affect the rights of injured parties within the state by limiting, and in some cases outright curtailing, their rights of recovery. However, if you are injured by someone else’s negligence you should not let these changes deter you from seeking the advice of an experienced personal injury attorney. An attorney can review the facts of your case, advise you of your rights and work to obtain fair and suitable compensation on your behalf.