Senate Bill No. 403

(By Senator Sprouse)

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[Introduced March 21, 1996; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section six, article seven, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section nineteen, all relating to establishing civil causes of action for the sale of drugs to minors which result in injury or death; standing to bring suit; and jury considerations.

Be it enacted by the Legislature of West Virginia:
That section six, article seven, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section nineteen, all to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-6. By whom action for wrongful death to be brought; amount and distribution of damages; period of limitation.

(a) Every such action shall be brought by and in the name of the personal representative of such the deceased person who has been duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, and the amount recovered in every such action shall be recovered by said personal representative and be distributed in accordance herewith. If the personal representative was duly appointed in another state, territory or district of the United States, or in any foreign country, such the personal representative shall, at the time of filing of the complaint, post bond with a corporate surety thereon authorized to do business in this state, in the sum of one hundred dollars, conditioned that such the personal representative shall pay all costs adjudged against him or her and that he or she shall comply with the provisions of this section. The circuit court may increase or decrease the amount of said bond, for good cause.
(b) In every such action for wrongful death, the jury, or in a case tried without a jury, the court, may award such damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution after making provision for those expenditures, if any, specified in subdivision (2), subsection (c) of this section. If there are no such survivors, then the damages shall be distributed in accordance with the decedent's will or, if there is no will, in accordance with the laws of descent and distribution as set forth in chapter forty-two of this code. If the jury renders only a general verdict on damages and does not provide for the distribution thereof, the court shall distribute the damages in accordance with the provisions of this subsection.
(c) (1) The verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) costs of drug dependency treatment programs or other health care associated with drug abuse if the action is brought pursuant to section nineteen of this article; and(D) (E) reasonable funeral expenses.
(2) In its verdict the jury shall set forth separately the amount of damages, if any, awarded by it for reasonable funeral, hospital, medical and said other expenses incurred as a result of the wrongful act, neglect or default of the defendaent or defendaents which resulted in death, and any such amount recovered for such expenses shall be so expended by the personal representative.
(d) Every such action shall be commenced within two years after the death of such deceased person, subject to the provisions of section eighteen, article two, chapter fifty-five. The provisions of this section shall may not apply to actions brought for the death of any person occurring prior to the first day of July, one thousand nine hundred eighty-eight.
 §55-7-19. Action for death or injury caused by the sale of drugs to a minor; standing of parent to sue; jury considerations for damages.
(a) Whenever the death, by direct causation or suicide, or the injury of a minor child is caused by the dependency of that child upon illegal or controlled substances, or the consumption by that child of illegal or controlled substances, which substances were obtained illegally by the child, whether acquired by purchase or given gratuitously, from a third party, the parent, legal guardian or personal representative of the deceased or injured child is entitled to maintain an action to recover damages against the third party who supplied the illegal or controlled substance. The third party is liable to an action for damages for:
(1) The wrongful death of the minor child pursuant to sections five, six and eight of this article; or
(2) The personal injury to the minor child.
(b) In every action for wrongful death brought pursuant to this section, the jury, or in a case tried without a jury, the court, may award damages as it seems fair and just. The verdict of the jury , or the court in a case tried without a jury, shall include, but is not limited to, damages for the following: (1) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
(2) Compensation for reasonably expected loss of: (A) Income of the decedent; and (B) services, protection, care and assistance provided by the decedent;
(3) Expenses for the care, treatment and hospitalization of the decedent incident to the drug dependency or the drug overdose resulting in death, including death by suicide which occurred while the decedent was dependent upon or under the influence of the illegal or controlled substance;
(4) Costs of care, treatment and hospitalization of the decedent for injury sustained prior to death while under the influence of the illegal or controlled substance; and
(5) Reasonable funeral expenses.
(c) In its verdict for the wrongful death, the jury, or the court in a case tried without a jury, shall set forth separately the amount of damages, if any, awarded by it for reasonable funeral, hospital, medical and other expenses incurred as a result of the defendant's or defendaents' wrongful action in supplying the illegal or controlled substance to the deceased minor child, whether sold or given gratuitously, which resulted in death, and any amount recovered for such expenses shall be so expended by the parent, legal guardian or personal representative bringing the action.
(d) In every action for personal injury of the minor child brought pursuant to this section, the jury, or in a case tried without a jury, the court, may award damages as to it seem fair and just. The verdict of the jury , or the court in a case tried without a jury, shall include, but is not limited to, damages for the following:
(1) Mental distress suffered by the minor child caused by the consumption of or the dependency on the illegal or controlled substance;
(2) Physical, mental or emotional problems caused by the consumption of or dependency on the illegal or controlled substance;
(3) Physical, mental or emotional problems due to an injury sustained while under the influence of the illegal or controlled substance;
(4) Compensation for expenses for the care, treatment and hospitalization of the minor child incident to the consumption of or the dependency on the illegal or controlled substance, including drug treatment programs or therapy, and counseling or therapy for attendant mental or emotional problems; and
(5) Compensation for the costs associated with lost or delayed education or educational opportunities for the minor child incident to the drug consumption or dependency;
(e) In its verdict for the personal injury, the jury, or the court in a case tried without a jury, shall set forth separately the amount of damages, if any, awarded by it for reasonable hospital, medical, therapy or counseling and other expenses incurred as a result of the defendant's or defendants' wrongful action in supplying the illegal or controlled substance to the minor child, whether sold or given gratuitously, which resulted in the injury, and any amount recovered for such expenses shall be so expended by the parent, legal guardian or personal representative bringing the action.
This section does not apply to physicians, health care providers or pharmacists who prescribe or dispense a controlled substance to a minor child pursuant to a medical condition diagnosed by a qualified physician or health care provider.


NOTE: The purpose of this bill is to establish a civil cause of action for personal injury to or wrongful death of a minor child caused by that minor child's consumption of or dependency on an illegal or controlled substance. The bill allows the parent, legal guardian or personal representative of the affected minor child to maintain a cause of action against the person or persons who supplied the illegal or controlled substance to the minor child. The cause of action would not apply to health care providers or pharmacists prescribing or dispensing controlled substances pursuant to a medical condition diagnosed by a qualified health care provider.

Section 55-7-19 is new; therefore strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.