H. B. 4702

(By Delegates Modesitt, L. Smith, Stalnaker,

Stemple, Williams, Ashley and Schadler)

[Introduced February 25, 2000; referred to the

Committee on the Judiciary.]

A BILL to amend and reenact section two, article seven-a, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section two, article eleven-a, chapter sixty-one of said 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 children.

Be it enacted by the Legislature of West Virginia:
That section two, article seven-a, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section two-a, article eleven-a, chapter sixty-one of said code be amended and reenacted, all to read as follows:


§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 five ten thousand 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; or
(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 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.

§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 immediate family.
(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 desire to make such a statement after receiving notification provided in subsection (c) of this section. If the victim fails to so notify the court such failure shall constitute a waiver of the right to make an oral statement. In lieu of such appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. Such probation officer shall forthwith file any such statement delivered to his office with the sentencing court, and the statement shall be made a part of the record at the sentencing hearing. Any such 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 sentence upon such defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall in writing advise the person who was the victim of such crime or in the case of a minor, the parent or guardian of such minor, or the fiduciary of his estate, if he 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 be added.