H. B. 2090
(By Delegate Ellem)
[Introduced February 9, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §55-7A-2
of the code of West Virginia,
1931, as amended; and to amend and reenact §61-11A-2
code, all relating to defining victim so as to include a
person who has been damaged as a result of the commission by
a juvenile of a felonious act; and increasing the parents'
liability for the willful, malicious or criminal acts of their
Be it enacted by the Legislature of West Virginia:
of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-11A-2
of said code be
amended and reenacted, all to read as follows:
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7A. LIABILITY OF PARENTS.
§55-7A-2. Parental liability for willful, malicious or criminal
acts of children.
The custodial parent or parents of any minor child shall be
personally liable in an amount not to exceed
dollars for damages which are the proximate result of any one or a
combination of the following acts of the minor child:
(a) The malicious and willful injury to the person of another;
(b) The malicious and willful injury or damage to the property
of another, whether the property be real, personal or mixed; or
(c) The malicious and willful setting fire to a forest or
wooded area belonging to another; or
(d) The willful taking, stealing and carrying away of the
property of another, with the intent to permanently deprive the
owner of possession.
For purposes of this section, "custodial parent or parents"
shall mean the parent or parents with whom the minor child is
living, or a divorced or separated parent who does not have legal
custody but who is exercising supervisory control over the minor
child at the time of the minor child's act.
Persons entitled to recover damages under this article shall
include, but not be limited to, the State of West Virginia, any
municipal corporation, county commission and board of education, or
other political subdivision of this state, or any person or
organization of any kind or character. The action may be brought
in magistrate or another court of competent jurisdiction. Recovery hereunder
shall be is
limited to the actual damages based
upon direct out-of-pocket loss, taxable court costs, and interest
from date of judgment. The right of action and remedy granted
herein shall be in addition to and not exclusive of any rights of
action and remedies therefor against a parent or parents for the
tortious acts of his or their children heretofore existing under
the provisions of any law, statutory or otherwise, or now so
existing independently of the provisions of this article.
The provisions of this article shall be applicable to causes
of action arising on and after the effective date of reenactment of
this article. Causes of actions arising before the effective date
of reenactment of this article and proceedings thereon shall be
governed by the previously enacted provisions of this article in
force at the time the cause arose.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Victim defined; notice to victim; testimony of crime
victim at sentencing hearing.
(a) For the purposes of this section, "victim" means a person
who is a victim of a felony or, if the offense was committed by a
juvenile, a person who is the victim of an offense which would have
been a felony had the juvenile been an adult,
the fiduciary of a
deceased victim's estate or a member of a deceased victim's
(b) Prior to the imposition of sentence upon any defendant who
has been found guilty of a felony or has pleaded guilty or nolo
contendere to any felony, the court shall permit the victim of the
crime to appear before the court for the purpose of making an oral
statement for the record if the victim notifies the court of his or
desire to make
a statement after receiving notification
provided in subsection (c) of this section. If the victim fails to
so notify the court
failure shall constitute a waiver of
the right to make an oral statement. In lieu of
and oral statement, the victim may submit a written statement to
the court or to the probation officer in charge of the case.
probation officer shall forthwith file any
delivered to his or her
office with the sentencing court, and the
statement shall be made a part of the record at the sentencing
statement, whether oral or written, shall
relate solely to the facts of the case and the extent of any
injuries, financial losses and loss of earnings directly resulting
from the crime for which the defendant is being sentenced.
(c) Within a reasonable time, prior to the imposition of
defendant, the prosecuting attorney or
assistant prosecuting attorney in charge of the case shall in
writing advise the person who was the victim of
in the case of a minor, the parent or guardian of
or the fiduciary of his or her
estate, if he or she
be then deceased, of the date, time and place of the original sentencing
hearing, and of the victim's rights to submit a written or oral
statement to the sentencing court as hereinabove provided.
(d) The oral or written statement given or submitted by any
victim in accordance with the provisions of this section shall be
in addition to and not in lieu of the victim impact statement
required by the provisions of section three of this article.
NOTE: The purpose of this bill is to clarify that a "victim"
under the victim protection act includes that person damaged by the
acts of juveniles and to increase the liability of parents for the
malicious or criminal acts of their children.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would