H. B. 2726

(By Delegates Jenkins, Greear, Amores, Ashley, Petersen,

Bennett and Beane)

[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]

A BILL to amend chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article seven-d, relating to comparative fault and joint and several liability generally; definitions; establishing the comparative fault standard; abolishing joint liability except in limited circumstances; describing how to consider the fault of nonparties; describing how to consider the fault and the amounts paid by settling parties; describing the effect of a good faith settlement by one person upon the contribution rights of another; providing for the use of special interrogatories; defining the concept and applicability of the doctrine of assumption of the risk; establishing an irrebuttable presumption of knowledge regarding certain warnings; setting forth the circumstances under which joint liability shall be imposed; allowing the assessment of a percentage of fault for failing to take reasonable precautionary measures that are available; precluding recovery by a plaintiff injured while involved in a felony criminal act; precluding the allocation of fault to a person such as a seller, distributor or installer on a strict product liability theory where that person did not contribute to the alleged defect; providing for the burden of proof; limitations; severability; repeal of conflicting laws; applicability.

Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article seven-d, to read as follows:
§55-7D-1. Short title.

This article may be cited as the West Virginia comparative fault act.
§55-7D-2. Definitions.
The following words, as used in this article, shall have the meanings set forth below unless the context clearly requires otherwise:
(a) "Damage" or "damages" means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, any other theory of damages such as fear of loss or illness or injury, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities and other losses. It does not include punitive damages.
(b) "Fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damage to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, medical professional liability, strict product liability, absolute liability, liability under section two, article four, chapter twenty-three of this code, or assumption of the risk as described in section six of this article.
(c) "Comparative fault" means the degree to which the fault of each person was a proximate cause of the alleged injury or death or damage to property, tangible or intangible, expressed as a percentage.
(d) "Person" means any individual, corporation, company, association, firm, partnership, society, joint stock company or any other entity, including any governmental entity or unincorporated association of persons.
(e) "Plaintiff" means, for purposes of determining a right to recover under this article, any person asserting a claim.
(f) "Defendant" means, for purposes of determining an obligation to pay damages to another under this article, any person against whom a claim is asserted by a plaintiff.
§55-7D-3. Comparative fault standard established.
In any action for personal injury, property damage or wrongful death, recovery shall be predicated upon principles of comparative fault and the liability of each person who caused the injury shall be allocated to each person in direct proportion to that person's percentage of fault. Where the percentage of fault chargeable to the plaintiff is less than the aggregate fault of all defendants and nonparties, the plaintiff may recover damages, but the plaintiff's recovery of damages shall be diminished in proportion to the percentage of fault chargeable to the plaintiff.
Where the plaintiff's percentage of fault is equal to or exceeds the aggregate fault of all defendants and nonparties, the plaintiff shall be barred from any recovery.
The total of the percentages of comparative fault allocated by the trier of fact with respect to a particular incident or injury must equal either zero percent or one hundred percent.
§55-7D-4. Several liability.
Except as provided in section seven of this article, or in instances where joint liability is specifically imposed by statute, in any action for personal injury, property damage or wrongful death, the liability of each defendant for damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault and a separate judgment shall be rendered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault and that amount shall be the maximum recoverable against said defendant.
§55-7D-5. Fault of nonparties.
(a) In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether said person was, or could have been named as a party to the suit. Such fault shall include the fault imputed or attributed to a person by operation of law, if any. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice no later than one hundred twenty days before the date of trial that a nonparty was wholly or partially at fault. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault. In all instances where a nonparty is assessed a percentage of fault, any recovery by a plaintiff shall be reduced in proportion to the percentage of fault chargeable to such nonparty. Where a plaintiff has settled with a party or nonparty before verdict, that plaintiff's recovery will be reduced by the amount of such settlement or in proportion to the percentage of fault assigned to the settling party or nonparty, whichever is greater.
(b) A good faith settlement by any person with a plaintiff extinguishes all rights of other persons to seek or obtain contribution from the settling person. Plaintiff shall fully inform all other persons against whom liability is asserted of the terms of any such settlement, which shall then be considered in any verdict pursuant to section five-a of this article.
(c) Nothing in this article is meant to eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties. Where fault is assessed against nonparties, findings of such fault shall not subject any nonparty to liability in this or any other action, or be introduced as evidence of liability in any action.
(d) In all actions involving fault of more than one person, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating:
(1) The amount of damages that each person making a claim would be entitled to recover if comparative fault is disregarded; and
(2) The percentage of the total fault that is allocated to each person pursuant to the provisions of this article. For this purpose the court may determine that two or more persons are to be treated as a single person.
§55-7D-6. Assumption of the risk.
(a) Assumption of the risk shall operate as a complete bar to an action when the injured person:
(1) Expressly, in writing or orally, assumed the risk of injury; or
(2) Had knowledge of the risk, as proven by actions, statements or direct testimony, yet undertook or continued the activity that constituted exposure to the risk.
(b) In situations not covered by section six-a, but where reasonably prudent persons would have realized the risk before exposing themselves to it, assumption of the risk shall be considered as a factor in apportioning fault.
(c) In all cases involving products, structures or services where a warning has been provided concerning the product, structure or service, including any warning required or approved by a federal or state government body or regulatory agency, proof of the existence of the warning will create an irrebuttable presumption that the plaintiff knew of the warning's content.
§55-7D-7. Concert of action.
(a) Notwithstanding the provisions of section four of this article, joint liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act and actively take part in it. Except as provided in section five-b of this article, any person held jointly liable under this section shall have a right of contribution from those with whom he was acting in concert. A person shall be held jointly responsible only for the total portion of comparative fault assessed to those with whom he acted in concert under this section.
(b) A person shall also be responsible for the portion of comparative fault assessed against another person who was acting as an agent or servant of such person, or if the fault of the other person is otherwise imputed or attributed to such person by statute or common law.
§55-7D-8. Failure to take reasonable precautionary measures.
In any civil action, the finder of fact may assess a percentage of fault against a plaintiff who is injured as a proximate result of that plaintiff's failure to take reasonable precautionary measures that are available, such as wearing a seatbelt, even if such failure is not a proximate cause of the accident.
§55-7D-9. Plaintiff involved in felony criminal act.
In any civil action, a defendant is not liable for damages that the plaintiff incurs if the plaintiff is harmed as a result of the negligence or gross negligence of a defendant while the plaintiff is attempting to commit, committing or fleeing from his or her commission of a felony criminal act.
§55-7D-10. Fault of person not a manufacturer.
A person who is not the manufacturer of a product but is merely in the chain of its distribution, such as a seller, distributor or installer, and who did not alter, change or modify the product in a way that created or contributed to the alleged defect, may not be assessed a percentage of comparative fault under the theory of strict product liability for accidents, injuries or damages proximately caused, in whole or in part, by the product.
§55-7D-11. Burden of proof.
The burden of alleging and proving comparative fault shall be upon the person who seeks to establish such fault.
§55-7D-12. Limitations.
Nothing in this article shall be construed to create a cause of action. Nothing in this article shall be construed, in any way, to alter the immunity of any person as established by statute or common law.
§55-7D-13. Severability.
If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.
§55-7D-14. Conflicting laws repealed.
This article supersedes, invalidates and repeals all other state laws which conflict with its provisions.
§55-7D-15. Applicability.
This article applies to all tort actions commenced on or after the effective date of this article.

NOTE: The purpose of this bill is to establish and operationalize a comparative fault standard.

This article is new; therefore, strike-throughs and underscoring have been omitted.