West Virginia Tort Laws

West Virginia, being the state with the highest drug overdose death rate in 2021, faces complex challenges in the area of tort law. As the first state to sue Purdue Pharma in 2001 for the illegal marketing of opioid painkillers, West Virginia has been active in addressing the opioid epidemic's profound impact. 

In light of the Mountain State’s efforts to confront the opioid crisis, the relevance of tort and personal injury laws becomes increasingly significant, bridging people to a broader discussion on these legal concepts. 

A tort is basically an action or inaction that causes harm or injury to someone, leading to civil liability. On the other hand, personal injury refers to harm to an individual’s body, emotional well-being, or reputation, excluding property damage. 

In this article, you will learn about the various aspects of tort laws in West Virginia, including the different tort categories, the deadlines for filing a lawsuit, and the state’s rules on tort liability insurance. 

You will also be able to determine the types of recoverable damages in tort cases, the difference between mass torts and class actions, and the specifics of mass tort litigation. In addition, you will discover the various forms of compensation and legal resources victims can tap into.

Basic Tort Categories in West Virginia

Negligent Torts

A negligent tort occurs when an individual fails to exercise the level of care a reasonably sensible person would to prevent injury or harm in similar situations. An example of a negligent tort is a company failing to upkeep its rides, leading to a customer’s injury. For a successful claim, the plaintiff must:

• Demonstrate that the defendant had a specific duty towards them.

• Prove that the defendant failed to fulfill this duty.

• Establish a direct link between the breach of duty and the incident that ensued.

• Prove that the incident resulted in injury to themselves or a loved one.

Intentional Torts

An intentional tort happens when a person knowingly commits a wrongful act. It does not necessarily mean they intend the resulting harm; instead, they know their actions could cause damage or believe they are justifiable. Examples of intentional torts include:

• Assault - This occurs when a person intentionally instills fear of harm in another person or themselves.

• Malicious prosecution - This arises from filing baseless criminal complaints against someone.

• Defamation - This involves spreading harmful lies about a person, which can be spoken (slander) or written (libel).

• Invasion of privacy - This includes unwarranted dissemination of negative information, with varying standards depending on whether the subject is a public figure.

Strict Liability Torts

Strict liability is a limited aspect of tort liability unrelated to negligence or intent. In West Virginia, strict liability torts are recognized only in specific circumstances, particularly in activities deemed “abnormally dangerous and ultra hazardous,” such as aviation, aerial broadcast spraying, and blasting. 

In addition, the state implements a unique principle in certain product liability cases, particularly those involving product design defects. To establish a valid strict liability tort claim, the plaintiff must demonstrate that an alternate, feasible design existed when the product was manufactured and that this alternative design could have prevented the injury.

Other Tort Categories in West Virginia

Other types of torts in West Virginia are economic torts and nuisances. Economic torts are legal wrongs committed against a person’s financial interests. Examples include:

• Persuading someone to breach a contract

• Using unlawful means to cause harm

• Intimidation

• Economic misrepresentations like malicious falsehood, passing off, and deceit

• Conspiracies through lawful or illegal means.

Nuisances are anything that obstructs the free use and enjoyment of property, causing discomfort or annoyance. The state’s Supreme Court acknowledges that persistent, abnormal noise in a residential area is a nuisance.

Other forms of nuisance include the shadow effects of wind turbines in residential zones. Furthermore, an activity that lowers property value and disrupts enjoyment qualifies as a nuisance.

West Virginia tort laws split nuisances into two categories: public and private. A public nuisance harms the broader community through unlawful activities, causing widespread inconvenience. In contrast, a private nuisance directly harms an individual in their property. 

Tort vs. Crime in West Virginia

In West Virginia, torts and crimes operate on different principles and processes. Criminal law is under government supervision and does not depend on whether the victim agrees to press charges. Tort law, however, grants the injured party the autonomy to file a lawsuit or choose not to. 

A critical distinction lies in the element of harm. For a tort action to be viable, actual harm must have occurred. Criminal law, conversely, covers a broader area. 

It deals with not just actions that injure others but also includes self-inflicted harm, acts posing future danger, and behaviors deemed unethical by societal standards, even if they do not cause immediate harm. 

Penalties in criminal law are notably sterner compared to those in tort law. The gravity of criminal sanctions, such as imprisonment or capital punishment, necessitates robust legal protections. 

These include proving the accused’s guilt beyond reasonable doubt, applying the exclusionary rule, and protecting against double jeopardy. Tort law, in contrast, aims at restitution for the aggrieved party rather than penalizing the wrongdoer. 

Mass Torts in West Virginia

A mass tort is characterized as an action or lack thereof that leads to injury or distress affecting a large group of people. Such torts commonly arise from widespread harm caused by faulty products, catastrophic events resulting in numerous injuries like an air crash, or the broad exposure of people to toxic substances or medical drugs. 

For events like floods, hurricanes, tornadoes, and other acts of nature without a specific party to hold responsible, mass tort litigation can still ensue if insurance companies inadequately compensate the affected parties following such disasters.

A mass tort case involves multiple individual lawsuits against a singular defendant. The primary goal of mass tort litigation is to achieve restitution for people harmed by companies' reckless or deceitful actions. The shared legal and factual elements in mass tort lawsuits pave the way for a more streamlined and impactful litigation process. Individual lawsuits may drag on for extended periods, incurring millions in costs. Mass tort litigation aims to simplify the legal process and reduce expenses by handling similar cases in a unified manner.  

Mass Torts vs. Class Actions

Though often used interchangeably, mass torts and class actions differ in their legal nuances. Mass torts bring together multiple claims for injury filed against the same defendant or defendants simultaneously. In a mass tort, every claimant holds individual authority over their case despite facing a common defendant.

In contrast, class actions merge numerous plaintiffs into a single claim. In this arrangement, a chosen plaintiff represents the group and files the petition. Every member receives notification and can decide whether to exclude themselves or appoint personal legal representation. Class actions rely heavily on the similarity of the involved plaintiffs’ circumstances.

The decision to pursue a mass tort or class action hinges on the commonality of the plaintiffs’ experiences. A mass tort is more appropriate if individual experiences are more distinct. Conversely, a class action is applicable in cases where the similarities among plaintiffs’ circumstances are substantial enough to warrant a unified legal approach.

The Mass Tort Process

Pursuing a mass tort case involves different stages, each vital in addressing the complex issues presented by these large-scale legal matters.

1. Reviewing records. This initial stage involves a thorough examination of all relevant documents, including the plaintiff’s statements and medical records. 

2. Identifying common injury patterns. The attorney looks for commonalities and consistency in the records to establish the foundation of the case. They also locate a group of people alleging similar injuries caused by a specific drug or product. The plaintiffs’ lawyers compile all of the evidence from these individuals to create cases against the offender.

3. Filing a legal case and submitting for an MDL assessment. This stage involves formally submitting the lawsuits to state courts. After filing the lawsuits, there is a possibility for them to be integrated into multidistrict litigation, a process created by the U.S. federal government for efficiently handling large numbers of similar complex lawsuits

4. Conducting bellwether trials. Attorneys first conduct bellwether trials against the same party, focusing on the most severe cases, like those involving fatalities or significant harm from defective products or drugs. These trials provide a basis for predicting outcomes in related cases and guiding strategies for settlements or further litigation.

5. Negotiating settlements or judicial resolutions. The mass tort process concludes with either settlement negotiations or court resolutions, with most lawyers preferring to settle cases out of court. The duration and complexity of this stage can vary, often stretching over months or years. 

West Virginia Tort Liability Insurance Requirements

Under West Virginia law, all businesses with registered vehicles must secure liability insurance. This insurance is pivotal as it offers a financial shield against liabilities arising from vehicular mishaps. The law stipulates a baseline coverage of $25,000 for incidents involving a single injury in an accident and $50,000 for accidents resulting in multiple injuries. For any damage to property, a minimum coverage of $25,000 is also mandatory. Non-compliance can lead to stringent penalties, including vehicle registration and driver’s license suspension, along with reinstatement fees.

In mass torts involving major traffic accidents, such as bus collisions and crashes, the importance of liability insurance is emphasized. Given the size and weight of buses, when combined with factors like high speed and challenging traffic conditions, bus accidents often lead to significant losses. With liability insurance, any injuries and damages incurred are covered up to the policy’s limit, shielding companies from severe economic impact. 

The Statute of Limitations for Tort Cases in West Virginia

In West Virginia, the statute of limitations for tort cases varies depending on the tort category. As a general rule, a legal action must be filed within a designated period after a legal claim arises.

Regarding claims for medical professional liability, the timeframe begins either two years following the date of the injury or two years from the point of injury discovery or the time when it should have been reasonably discovered, whichever is later. It is important to note that such actions cannot be initiated after a decade from the injury date. Furthermore, the discovery rule delays the commencement of the statute of limitations until the injured party is either aware of or should be reasonably aware of the injury and the responsible party. This rule is particularly essential in cases where the injury remains hidden or is not easily identifiable.

When the injured party is a minor under 10 at the time of the injury, a lawsuit must be filed within two years of the incident or before the minor turns 12, whichever is later. In legal malpractice situations, West Virginia personal injury laws dictate that claims must be filed within one year.

Nevertheless, it is critical to understand that simple unawareness of a legal claim or the identity of the responsible party does not postpone the statute of limitations.

How Much Can Someone Sue in a Tort Case in West Virginia?

In tort cases in West Virginia, damages are categorized into two types:

• Compensatory damages - Aimed at reimbursing the plaintiff for losses, these are split into:

  • Economic damages - Cover financial losses like lost wages, property damage, and medical expenses.

  • Non-economic damages - Cover intangible losses such as emotional distress and loss of enjoyment of life. 

• Punitive damages - Designed to punish the defendant for dreadful conduct, such as willful negligence or malicious acts.

In medical malpractice cases, West Virginia initially set a cap of $1 million on non-economic damages in 1986. This cap was later reduced to $250,000 in 2003, reflecting the state’s response to the medical malpractice insurance crisis and lobbying efforts. These caps are vital in mass torts, balancing the interests of plaintiffs, medical professionals, and insurers.

West Virginia law, particularly §55-7-25, restricts plaintiffs from specifying an exact damage amount in their initial filing. They can only assert that the claimed damages are at least the minimal amount required to initiate action. According to the West Virginia Rules of Civil Procedure, defendants can request a detailed damage statement from the plaintiff within 30 days.

The state enforces strict criteria for awarding punitive damages. Under §55-7-29, such damages require clear evidence of the defendant’s severely wrongful conduct. This rule ensures punitive damages are reserved for extreme cases. 

Moreover, West Virginia’s modified comparative negligence system impacts compensation in negligence cases. If a plaintiff is found 50% or more at fault for their damages, they are barred from receiving compensation.

Other Legal Remedies in Tort Cases in West Virginia

In West Virginia tort cases, individuals have access to two legal remedies beyond damages: injunction and restitution. An injunction, as outlined in Rule 65 of the West Virginia Rules of Civil Procedure, serves as a court order that either mandates or restrains specific actions. 

A preliminary injunction demands prior notification to the opposing party and may merge with the trial. Evidence presented in an injunction applies to the trial, preserving jury rights. 

Injunctions can be issued without notifying the other party if urgent and severe harm is evident, but they must be detailed and short-lived, typically no longer than 10 days unless extended. 

Additionally, the applicant must provide some form of financial guarantee or assurance, except for government entities. These orders must be specific and detailed, affecting only those who receive actual notice.

Restitution occurs when the judge orders the defendant to compensate the victim by paying for their loss. Under West Virginia Code §61-11A-5, the court assesses the victim’s losses, the defendant’s finances, and other relevant factors when deciding on restitution. It can instruct probation officers to gather this data for inclusion in pre-sentencing reports. Both the defendant and prosecutor receive these details. 

Restitution disputes are settled based on evidence weight, with the prosecution proving the victim’s loss and the defendant demonstrating their financial capacity and the dependent’s needs.

When seeking legal remedies, the expertise of litigation attorneys becomes invaluable, ensuring that all legal procedures are adhered to and the client's interests are effectively represented.

Resources for Tort Victims in West Virginia

West Virginia Lawyer Referral Service

The West Virginia Lawyer Referral Service, provided by the West Virginia State Bar, offers critical aid for those affected by torts. For a nominal fee of $25 or less, the program arranges an initial 30-minute consultation with local legal professionals with expertise in various areas, including tort law. This meeting is essential to assess the need for representation and the associated costs. 

Volunteer lawyers can be contacted at (800) 642-3617 every Tuesday, from 6 a.m. to 8 p.m. Victims can also contact a lawyer by clicking the “Request a lawyer online” button on the program’s website.

West Virginia Department of Homeland Security

The West Virginia Department of Homeland Security plays a pivotal role in supporting tort victims in the state. It serves as the lead agency for organizing responses to disasters and emergencies, both natural and manmade. Specifically, through the department’s Division of Emergency Management, WVDHS coordinates various state and local agencies during crises. This approach is crucial for tort victims, especially in incidents involving widespread impact. 

Victims can reach out to the WVDHS office at (304) 558-2930 or contact its Emergency Management Hotline at (304) 558-5380 for after-hour emergencies.

West Virginia Attorney General's Office

The West Virginia Attorney General’s Office, which serves as the state’s chief legal authority, provides significant aid to tort plaintiffs. It is authorized to designate special assistant attorneys general to assist in various legal matters, including tort cases. Its role extends to enforcing laws related to consumer protection and civil rights, which are pivotal for tort victims. Individuals seeking assistance can visit the Main Office Administration at the State Capitol Complex, Building 1, Room E-26, 1900 Kanawha Blvd. E, Charleston, WV 25305. The office can be contacted by phone at (304) 558-2021 or by fax at (304) 558-0140.