CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
ARTICLE 7. ACTIONS FOR INJURIES.
An action for seduction may be maintained, without any
allegation of proof of the loss of the service of the female by
reason of the defendant's wrongful act.
§55-7-2. Insulting words.
All words which, from their usual construction and common
acceptation, are construed as insults and tend to violence and
breach of the peace, shall be actionable. No demurrer shall
preclude a jury from passing thereon.
§55-7-3. Unlawful seizure or attachment.
If the property be distrained for any rent not due, or
attached for any rent not accruing, or taken under any attachment
sued out without good cause, the owner of such property may, in an
action against the party suing out the warrant of distress or
attachment, recover damages for the wrongful seizure, and also, if
the property be sold, for the sale thereof.
§55-7-4. Action of replevin abolished.
No action of replevin shall be hereafter brought.
§55-7-5. Action for death by wrongful act.
Whenever the death of a person shall be caused by wrongful
act, neglect, or default, and the act, neglect or default is such
as would (if death had not ensued) have entitled the party injured
to maintain an action to recover damages in respect thereof, then,
and in every such case, the person who, or the corporation which,
would have been liable if death had not ensued, shall be liable to
an action for damages, notwithstanding the death of the person
injured, and although the death shall have been caused under such
circumstances as amount in law to murder in the first or second
degree, or manslaughter. No action, however, shall be maintained
by the personal representative of one who, not an infant, after
injury, has compromised for such injury and accepted satisfaction
therefor previous to his death. Any right of action which may
hereafter accrue by reason of such injury done to the person of
another shall survive the death of the wrongdoer, and may be
enforced against the executor or administrator, either by reviving
against such personal representative a suit which may have been
brought against the wrongdoer himself in his lifetime, or by
bringing an original suit against his personal representative after
his death, whether or not the death of the wrongdoer occurred
before or after the death of the injured party.
§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 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 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 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) 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 defendant or defendants
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 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.
§55-7-7. Compromise of claim for death by wrongful act.
The personal representative of the deceased may compromise any
claim to damages arising under section five of this article before
or after action brought. What is received by the personal
representative under the compromise shall be treated as if
recovered by him in an action under the section last mentioned.
When the judge acts in vacation, he shall return all the papers in
the case, and orders made therein, to the clerk's office of such
court. The clerk shall file the papers in his office as soon as
received, and forthwith enter the order in the order book on the
law side of the court. Such orders, and all the proceedings in
vacation, shall have the same force and effect as if made or had in
term. Upon approval of the compromise, the court shall apportion
and distribute such damages, or the compromise agreed upon, after
making provisions for those expenditures, if any, specified in
subdivision (2), subsection (c), section six of this article, in
the same manner as in the cases tried without a jury.
§55-7-8. Personal injury action where injuries result in death.
Where an action is brought by a person injured for damage
caused by the wrongful act, neglect or default of any person or
corporation, and the person injured dies as a result thereof, the
action shall not abate by reason of his or her death but, his or
her death being suggested, it may be revived in the name of his or
her personal representative, and the complaint shall be amended so
as to conform to an action under sections five and six of this
article, and the case proceeded with as if the action had been
brought under said sections. Additionally a separate and distinct
cause of action may be brought, and if brought, shall be joined in
the same proceeding for damages incurred between the time of injury
and death where not otherwise provided for in said sections five
and six. In either case there shall be but one recovery for each
element of damages: Provided,
That nothing in this section shall
be construed in derogation of the provisions of section twelve of
§55-7-8a. Actions which survive; limitations; law governing such
(a) In addition to the causes of action which survive at
common law, causes of action for injuries to property, real or
personal, or injuries to the person and not resulting in death, or
for deceit or fraud, also shall survive; and such actions may be
brought notwithstanding the death of the person entitled to recover
or the death of the person liable.
(b) If any such action is begun during the lifetime of the
injured party, and within the period of time permissible under the
applicable statute of limitations as provided by articles two and
two-a of this chapter, (either against the wrongdoer or his
personal representative), and such injured party dies pending the
action it may be revived in favor of the personal representative of
such injured party and prosecuted to judgment and execution against
the wrongdoer or his personal representative.
(c) If the injured party dies before having begun any such
action and it is not at the time of his death barred by the
applicable statute of limitations under the provisions of articles
two and two-a of this chapter, such action may be begun by the
personal representative of the injured party against the wrongdoer
or his personal representative and prosecuted to judgment and
execution against the wrongdoer or his personal representative.
Any such action shall be instituted within the same period of time
that would have been applicable had the injured party not died.
(d) If any such action mentioned in the preceding subsections
(a), (b) and/or (c) shall have been begun against the wrongdoer and he or she dies during the pendency thereof, it may be revived
against the personal representative of the wrongdoer and prosecuted
to judgment and execution.
(e) The applicable provisions of article eight, chapter
fifty-six of this code shall govern the actions hereinabove
mentioned, with reference to their abatement, revival,
discontinuance, reinstatement and substitution of parties.
(f) Nothing contained in this section shall be construed to
extend the time within which an action for any other tort shall be
brought, nor to give the right to assign a claim for a tort not
§55-7-9. Violation of statutes.
Any person injured by the violation of any statute may recover
from the offender such damages as he may sustain by reason of the
violation, although a penalty or forfeiture for such violation be
thereby imposed, unless the same be expressly mentioned to be in
lieu of such damages.
§55-7-10. Trespass abolished; trespass on the case to lie in lieu
The action of trespass is abolished. In all cases in which an
action of trespass could have been maintained an action of trespass
on the case shall lie.
§55-7-11. Suits against unincorporated common carriers.
Where common carriers are not incorporated, any one or more of
them may be sued by his or their name or names only, to recover
damages for loss of, or injury to, any parcel, package, or person;
and such suit shall not abate for the want of joining any of the
coproprietors, or copartners.
WVC 55 - 7 - 11 A
§55-7-11a. Settlement, release or statement within twenty days
after personal injury; disavowal; certain
expressions of sympathy inadmissible as evidence.
(a) If a person sustains a personal injury, no person shall
within twenty days from the date of the personal injury while the
injured person is either: (i) An inpatient in any hospital; or
(ii) partially or totally unable to engage in his or her usual
trade, profession or occupation:
(1) Negotiate or attempt to negotiate a settlement of any
claim for such personal injury with or for and on behalf of the
(2) Obtain or attempt to obtain from the injured person a
partial or general release of liability for such injury; or
(3) Obtain or attempt to obtain any statement, either written
or oral, from the injured person for use in negotiating a
settlement or obtaining a partial or general release of liability
with respect to the personal injury: Provided, That nothing herein
shall prohibit a person acting or intending to act for and on
behalf of the injured person from obtaining any statement, oral or
written, from an injured person upon the express request of the
Nothing herein shall prevent a person who may be liable for
damages on account of the personal injury from making an advance
payment of all or any part of his or her liability for the damages;
any sum paid during the twenty days by a person liable for damages on account of the personal injury is allowed as full credit against
any damages which may be finally determined to be due an injured
Any settlement, release of liability or statement entered
into, obtained or made in violation of this section may be
disavowed by the injured person at any time within one hundred
eighty days from the date of the personal injury by executing a
written statement of disavowal and thereupon forwarding a copy of
the same to the person violating this section, in which event the
settlement, release or statement may not be admissible in evidence
for any purpose in any court or other proceeding relating to the
personal injury, if any consideration paid for the settlement of or
the general release of liability for the personal injury, at the
time of the forwarding of the copy of the written statement of
disavowal, is repaid or returned to the person who paid the
(b) (1) No statement, affirmation, gesture or conduct of a
healthcare provider who provided healthcare services to a patient,
expressing apology, sympathy, commiseration, condolence, compassion
or a general sense of benevolence, to the patient, a relative of
the patient or a representative of the patient and which relate to
the discomfort, pain, suffering, injury or death of the patient
shall be admissible as evidence of an admission of liability or as
evidence of an admission against interest in any civil action
brought under the provisions of article seven-b, chapter fifty-five of this code, or in any arbitration, mediation or other alternative
dispute resolution proceeding related to such civil action.
(2) Terms not otherwise defined in this section have the
meanings assigned to them in article seven-b, chapter fifty-five of
this code. For purposes of this section, unless the context
otherwise requires, "relative" means a spouse, parent, grandparent,
stepfather, stepmother, child, grandchild, brother, sister,
half-brother, half-sister or spouse's parents. The term includes
said relationships that are created as a result of adoption. In
addition, "relative" includes any person who has a family-type
relationship with a patient.
§55-7-12. Liability of one joint tort-feasor not affected by
release to, or accord and satisfaction with,
A release to, or an accord and satisfaction with, one or more
joint trespassers, or tort-feasors, shall not inure to the benefit
of another such trespasser, or tort-feasor, and shall be no bar to
an action or suit against such other joint trespasser, or
tort-feasor, for the same cause of action to which the release or
accord and satisfaction relates.
WVC 55 - 7 - 13
Acts, 2015 Reg. Sess., Ch. 59.
WVC 55 - 7 - 13 A
§55-7-13a. Modified comparative fault standard established.
(a) For purposes of this article, "comparative fault" means
the degree to which the fault of a person was a proximate cause of
an alleged personal injury or death or damage to property,
expressed as a percentage. Fault shall be determined according to
section thirteen-c of this article.
(b) In any action based on tort or any other legal theory
seeking damages for personal injury, property damage, or wrongful
death, recovery shall be predicated upon principles of comparative
fault and the liability of each person, including plaintiffs,
defendants and nonparties who proximately caused the damages, shall
be allocated to each applicable person in direct proportion to that
person's percentage of fault.
(c) 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
WVC 55 - 7 - 13 B
As used in this article:
"Compensatory damages" means damages awarded to compensate a
plaintiff for economic and noneconomic loss.
"Defendant" means, for purposes of determining an obligation
to pay damages to another under this chapter, any person against
whom a claim is asserted including a counter-claim defendant,
cross-claim defendant or third-party defendant.
"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, or economic injury, including, but not limited
to, negligence, malpractice, strict product liability, absolute
liability, liability under section two, article four, chapter
twenty-three of this code or assumption of the risk.
"Plaintiff" means, for purposes of determining a right to
recover under this chapter, any person asserting a claim.
WVC 55 - 7 - 13 C
§55-7-13c. Liability to be several; amount of judgment; allocation
(a) In any action for damages, the liability of each defendant
for compensatory damages shall be several only and may not be
joint. Each defendant shall be liable only for the amount of
compensatory damages allocated to that defendant in direct
proportion to that defendant's percentage of fault, and a separate
judgment shall be rendered against each defendant for his or her
share of that amount. However, joint liability may be imposed on
two or more defendants who consciously conspire and deliberately
pursue a common plan or design to commit a tortious act or
omission. Any person held jointly liable under this section shall
have a right of contribution from other defendants that acted in
(b) 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 compensatory damages recoverable by
the plaintiff by the percentage of each defendant's fault and,
subject to subsection (d) of this section, that amount shall be the
maximum recoverable against that defendant.
(c) Any fault chargeable to the plaintiff shall not bar
recovery by the plaintiff unless the plaintiff's fault is greater
than the combined fault of all other persons responsible for the
total amount of damages, if any, to be awarded. If the plaintiff's
fault is less than the combined fault of all other persons, the plaintiff's recovery shall be reduced in proportion to the
plaintiff's degree of fault.
(d) Notwithstanding subsection (b) of this section, if a
plaintiff through good faith efforts is unable to collect from a
liable defendant, the plaintiff may, not later than one year after
judgment becomes final through lapse of time for appeal or through
exhaustion of appeal, whichever occurs later, move for reallocation
of any uncollectible amount among the other parties found to be
(1) Upon the filing of the motion, the court shall determine
whether all or part of a defendant's proportionate share of the
verdict is uncollectible from that defendant and shall reallocate
the uncollectible amount among the other parties found to be
liable, including a plaintiff at fault, according to their
percentages at fault: Provided,
That the court may not reallocate
to any defendant an uncollectible amount greater than that
defendant's percentage of fault multiplied by the uncollectible
amount: Provided, however,
, That there shall be no reallocation
against a defendant whose percentage of fault is equal to or less
than the plaintiff's percentage of fault.
(2) If the motion is filed, the parties may conduct discovery
on the issue of collectibility prior to a hearing on the motion.
(e) A party whose liability is reallocated under subsection
(d) of this section is nonetheless subject to contribution and to
any continuing liability to the plaintiff on the judgment.
(f) This section does not affect, impair or abrogate any right
of indemnity or contribution arising out of any contract or
agreement or any right of indemnity otherwise provided by law.
(g) The fault allocated under this section to an immune
defendant or a defendant whose liability is limited by law may not
be allocated to any other defendant.
Notwithstanding any other provision of this section to the
contrary, a defendant that commits one or more of the followings
acts or omissions shall be jointly and severally liable:
(1) A defendant whose conduct constitutes driving a vehicle
under the influence of alcohol, a controlled substance, or any
other drug or any combination thereof, as described in section two,
article five, chapter seventeen-c of this code, which is a
proximate cause of the damages suffered by the plaintiff;
(2) A defendant whose acts or omissions constitute criminal
conduct which is a proximate cause of the damages suffered by the
(3) A defendant whose conduct constitutes an illegal disposal
of hazardous waste, as described in section three, article
eighteen, chapter twenty-two of this code, which conduct is a
proximate cause of the damages suffered by the plaintiff.
(i) This section does not apply to the following statutes:
(1) Article twelve-a, chapter twenty-nine of this code;
(2) Chapter forty-six of this code; and
(3) Article seven-b, chapter fifty-five of this code.
WVC 55 - 7 - 13 D
§55-7-13d. Determination of fault; imputed fault; plaintiff's
involvement in felony criminal act; burden of
proof; limitations; applicability; severability.
(a) Determination of fault of parties and nonparties.
(1) In assessing percentages of fault, the trier of fact shall
consider the fault of all persons who contributed to the alleged
damages regardless of whether the person was or could have been
named as a party to the suit.
(2) Fault of a nonparty shall be considered if the plaintiff
entered into a settlement agreement with the nonparty or if a
defending party gives notice no later than one hundred-eight days
after service of process upon said defendant that a nonparty was
wholly or partially at fault. Notice shall be filed with the court
and served upon all parties to the action designating the nonparty
and setting forth the nonparty's name and last-known address, or
the best identification of the nonparty which is possible under the
circumstances, together with a brief statement of the basis for
believing such nonparty to be at fault;
(3) 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 in proportion to
the percentage of fault assigned to the settling party or nonparty.
(4) Nothing in this section is meant to eliminate or diminish any defenses or immunities, which exist as of the effective date of
this section, except as expressly noted herein;
(5) 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 do not subject any nonparty to liability in that or
any other action, or may not be introduced as evidence of liability
or for any other purpose in any other action; and
(6) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating the percentage of
the total fault that is allocated to each party and nonparty
pursuant to this article. For this purpose, the court may
determine that two or more persons are to be treated as a single
(b) Imputed fault.
- Nothing in this section may be construed
as precluding a person from being held liable 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. In any action where any party seeks to impute fault
to another, the court shall instruct the jury to answer special
interrogatories or, if there is no jury, shall make findings, on
the issue of imputed fault.
(c) Plaintiff's involvement in felony criminal act
. - In any
civil action, a defendant is not liable for damages that the
plaintiff suffers as a result of the negligence or gross negligence
of a defendant if such damages arise out of the plaintiff's
commission, attempt to commit or fleeing from the commission of a
felony criminal act: Provided
, That the plaintiff has been
convicted of such felony, or if deceased, the jury makes a finding
that the decedent committed such felony.
(d) Burden of proof. -
The burden of alleging and proving
comparative fault shall be upon the person who seeks to establish
(e) Limitations. -
Nothing in this section creates a cause of
action. Nothing in this section alters, in any way, the immunity of
any person as established by statute or common law.
(f) Applicability. -
This section applies to all causes of
action arising or accruing on or after the effective date of its
(g) Severability. -
The provisions of this section are
severable from one another, so that if any provision of this
section is held void, the remaining provisions of this section
shall remain valid.
§55-7-14. Liability of visual or sound broadcasting stations for
The owner, licensee or operator of a visual or sound radio
broadcasting station or network of stations, and the agents or
employees of any such owner, licensee or operator, shall not be
liable for any damages for any defamatory statement published or
uttered in or as a part of a visual or sound radio broadcast, by
one other than such owner, licensee or operator, or agent or
employee thereof, unless it shall be alleged and proved by the
complaining party, that such owner, licensee, operator or such
agent or employee, has failed to exercise due care to prevent the
publication or utterance of such statement in such broadcast.
In no event, however, shall any owner, licensee or operator or
the agents or employees of any such owner, licensee or operator of
such a station or network of stations be held liable for any
damages for any defamatory statement uttered over the facilities of
such station or network by any legally qualified candidate for
§55-7-15. Aid to victim of accident and victim of crime; immunity
from civil liability.
No person, including a person licensed to practice medicine or
dentistry, who in good faith renders emergency care at the scene of
an accident or to a victim at the scene of a crime, without
remuneration, shall be liable for any civil damages as the result
of any act or omission in rendering such emergency care.
WVC 55 - 7 - 16
§55-7-16. Immunity from liability for ski patrol rendering
(a) A member in good standing of a national ski patrol system
who, without compensation, provides emergency aid or assistance to
an injured or ill person at the scene of a ski resort rescue
operation, outdoor emergency rescue operation or while otherwise
performing ski patrol or while transporting an injured or ill
person to a place for transfer to an available emergency medical
center or hospital as the result of being on ski patrol, may not be
held liable for civil damages for any alleged act or omission which
is claimed to have occurred during the rendering of the emergency
aid or assistance. The limitation of liability established by the
provisions of this section apply to acts or omissions rendered in
(b) For the purposes of this section, a national ski patrol
system is a national organization whose members are volunteers and
do not receive compensation and are required to obtain training in
safety and emergency medical treatment.
(c) For purposes of this section, the term "compensation" does
not include access to a recreational facility, complimentary lift
tickets, food, lodging or other gifts or discounts that may be
offered or accessible to a person.
§55-7-17. Aid by trained hazardous substance response personnel;
immunity from civil liability; definitions.
No person trained in a qualified program of hazardous
substance emergency response certified by the state fire marshal
pursuant to rules promulgated by authority of subsection (a),
section five-a, article three, chapter twenty-nine of this code,
who in good faith renders advice or assistance at the scene of an
actual or threatened discharge of any hazardous substance and
receives no remuneration for rendering such advice or assistance,
is liable for any civil damages as the result of any act or
omission in rendering such advice or assistance: Provided,
the exemption from liability for civil damages of this section
shall be extended to any such person who receives reimbursement for
out-of-pocket expenses incurred in rendering such advice or
assistance or compensation from his or her regular employer for the
time period during which he or she was actually engaged in
rendering such advice or assistance but is not extended to any such
person who by his or her act or omission caused or contributed to
the cause of such actual or threatened discharge of any hazardous
For the purposes of this section, "hazardous substance" means
any "hazardous substance" as defined in chapter eighty-eight, Acts
of the Legislature, regular session, one thousand nine hundred
eighty-five; any "chemical substances and materials" listed in the
rules promulgated by the commissioner of labor pursuant to section
eighteen, article three, chapter twenty-one, of this code; and any
"hazardous waste" as defined in section three, article eighteen, chapter twenty-two of this code.
§55-7-18. Limiting liability of home care service providers,
daycare centers and residential care facilities
disclosing certain employment information.
When a residential care facility required to be registered,
licensed or certified under the laws of the state, a licensed day
care center, or an agency providing services in the home to
children or incapacitated adults is asked to provide an employment
reference with respect to a named individual who provided services
to children or incapacitated adults for compensation, no person
shall be liable for disclosing information related to the named
individual's employment history, including a subjective assessment
of whether the named individual is suited to provide services to
children or incapacitated adults, unless it is alleged and proven
that the information disclosed was false and disclosed with
knowledge that the information was false.
WVC 55 - 7 - 18 A
§55-7-18a. Employer immunity from liability; disclosure of
information regarding former employees.
(a) Any employer or his or her designated agent who discloses
job-related information that may be reasonably considered adverse
about a former or current employee to a prospective employer of the
former or current employee is presumed to be acting in good faith
and is immune from civil liability for the disclosure or its
, That the disclosure of such information
pursuant to this subsection shall be in writing and a copy of any
such disclosure shall be provided to the former or current employee
at the time of disclosure.
(b) For the purposes of this section, the presumption of good
faith is rebutted upon a showing, by a preponderance of the
evidence, that the information disclosed was:
(1) Knowingly false;
(2) Disclosed with reckless disregard for the truth;
(3) Deliberately misleading;
(4) Rendered with malicious purpose toward the former or
current employee; or
(5) Disclosed in violation of a nondisclosure agreement or
(c) For purposes of this section, "job-related information"
means information concerning a person's education, training,
experience, qualifications, conduct and job performance which is
offered for the purpose of providing criteria to evaluate the person's suitability for employment.
(d) If an employer disclosed job-related information to a
prospective employer of a former or current employee that was false
or misleading, and if the current or former employee requests, then
the employer shall give corrected information to every person or
entity that is in the employer's records as having received the
original information, with a copy thereof to the former or current
§55-7-19. Liability of physicians who render services at school
athletic events; limiting liability; exceptions.
(a) Any person licensed to practice medicine and surgery
pursuant to the provisions of article three, chapter thirty of this
code or any person licensed to practice medicine and surgery as an
osteopathic physician and surgeon pursuant to the provisions of
article fourteen, chapter thirty of this code: (1) Who is acting
in the capacity of a volunteer team physician in attendance at an
athletic event sponsored by a public or private elementary or
secondary school; and (2) who gratuitously and in good faith prior
to the athletic event agrees to render emergency care or treatment
to any participant during such event in connection with an
emergency arising during or as the result of such event, without
objection of such participant, shall not be held liable for any
civil damages as a result of such care or treatment, or as a result
of any act or failure to act in providing or arranging further
medical treatment, to an extent greater than the applicable limits
of his or her professional liability insurance policy or policies
when such care or treatment was rendered in accordance with the
acceptable standard of care established in section three, article
seven-b of this chapter.
(b) The limitation of liability established by the provisions
of this section shall not apply to acts or omissions constituting gross negligence. For purposes of this section, the term "athletic
event" includes scheduled practices for any athletic event.
WVC 55 - 7 - 20
§55-7-20. Limiting civil liability of nonprofits for arranging
passage on excursion trains.
Any not for profit corporation for which one of its purposes
is to arrange for persons or groups of persons to take excursions
through, on, at or near places of scenic, historic or educational
interest using trains, trackage or other related equipment and
facilities of a regulated common carrier or governmental entity,
shall not be liable for personal injury, wrongful death or property
damage arising from the acts or omissions of the regulated common
carrier or governmental entity so long as the role of the not for
profit is limited to arranging for persons or groups of persons to
participate in the excursion and providing tour information
regarding the scenic, historic or educational qualities of the
WVC 55 - 7 - 21
§55-7-21. Creating presumption of good faith for court-appointed
licensed psychologists and psychiatrists conducting
a child custody evaluation; method for assigning
court and legal fees.
(a) A licensed psychologist or licensed psychiatrist who has
been appointed by a court to conduct a child custody evaluation in
a judicial proceeding shall be presumed to be acting in good faith
if the evaluation has been conducted consistent with standards
established by the American psychological association's guidelines
for child custody evaluations in divorce proceedings.
(b) No complaint to a licensing or accrediting entity against
a court-appointed licensed psychologist or psychiatrist relating to
a child custody evaluation shall be considered if it is filed
anonymously and does not include the full name, address and
telephone number of the complainant.
(c) Any action filed against a licensed psychologist or
licensed psychiatrist alleging tortious conduct related to evidence
provided while acting as a court-appointed expert in a child
custody matter shall contain a recitation of a specific allegation
of breaches of American psychological association's guidelines for
child custody evaluations in divorce proceedings. Failure to
specifically plead such violations shall be cause for dismissal of
(d) Any licensed psychologist or licensed psychiatrist who is
named in a civil action as a defendant because of his or her performance of a child custody evaluation while acting as a
court-appointed expert and who prevails due to a finding that he or
she acted consistently with the American psychological
association's guidelines shall be entitled to reimbursement of all
reasonable costs and attorneys fees expended.
WVC 55 - 7 - 22
§55-7-22. Civil relief for persons resisting certain criminal
(a) A lawful occupant within a home or other place of
residence is justified in using reasonable and proportionate force,
including deadly force, against an intruder or attacker to prevent
a forcible entry into the home or residence or to terminate the
intruder's or attacker's unlawful entry if the occupant reasonably
apprehends that the intruder or attacker may kill or inflict
serious bodily harm upon the occupant or others in the home or
residence or if the occupant reasonably believes that the intruder
or attacker intends to commit a felony in the home or residence and
the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of
residence does not have a duty to retreat from an intruder or
attacker in the circumstances described in subsection (a) of this
(c) A person not engaged in unlawful activity who is attacked
in any place he or she has a legal right to be outside of his or
her home or residence may use reasonable and proportionate force
against an intruder or attacker: Provided, That such person may
use deadly force against an intruder or attacker in a place that is
not his or her residence without a duty to retreat if the person
reasonably believes that he or she or another is in imminent danger
of death or serious bodily harm from which he or she or another can
only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force
under this section shall constitute a full and complete defense to
any civil action brought by an intruder or attacker against a
person using such force.
(e) The full and complete civil defense created by the
provisions of this section is not available to a person who:
(1) Is attempting to commit, committing or escaping from the
commission of a felony;
(2) Initially provokes the use of force against himself,
herself or another with the intent to use such force as an excuse
to inflict bodily harm upon the assailant; or
(3) Otherwise initially provokes the use of force against
himself, herself or another, unless he or she withdraws from
physical contact with the assailant and indicates clearly to the
assailant that he or she desires to withdraw and terminate the use
of force, but the assailant continues or resumes the use of force.
(f) The provisions of this section do not apply to the
creation of a hazardous or dangerous condition on or in any real or
personal property designed to prevent criminal conduct or cause
injury to a person engaging in criminal conduct.
(g) Nothing in this section shall authorize or justify a
person to resist or obstruct a law-enforcement officer acting in
the course of his or her duty.
WVC 55 - 7 - 23
§55-7-23. Prescription drugs and medical devices; limiting health
care providers' liability exposure.
(a) No health care provider, as defined in section two,
article seven-b of this chapter, is liable to a patient or third
party for injuries sustained as a result of the ingestion of a
prescription drug or use of a medical device that was prescribed or
used by the health care provider in accordance with instructions
approved by the U.S. Food and Drug Administration regarding the
dosage and administration of the drug, the indications for which
the drug should be taken or device should be used, and the
contraindications against taking the drug or using the device:
, That the provisions of this section shall not apply if:
(1) The health care provider had actual knowledge that the drug or
device was inherently unsafe for the purpose for which it was
prescribed or used or (2) a manufacturer of such drug or device
publicly announces changes in the dosage or administration of such
drug or changes in contraindications against taking the drug or
using the device and the health care provider fails to follow such
publicly announced changes and such failure proximately caused or
contributed to the plaintiff's injuries or damages.
(b) The provisions of this section are not intended to create
a new cause of action.
WVC 55 - 7 - 24
Acts, 2015 Reg. Sess., Ch. 59.
WVC 55 - 7 - 25
§55-7-25. Personal injury and wrongful death actions; complaint;
specific amount of damages not to be stated.
In any action to recover damages for personal injury or
wrongful death, no specific dollar amount or figure relating to
damages being sought may be included in the complaint. However,
the complaint may include a statement reciting that the amount in
controversy satisfies the minimum jurisdictional amount established
for filing the action. Further, and pursuant to the West Virginia
Rules of Civil Procedure pertaining to discovery, any party
defendant may at any time request a written statement setting forth
the nature and amount of damages sought. The request shall be
served upon the plaintiff who shall serve a responsive statement as
to the nature and amount of damages sought within thirty days
thereafter. If no response is served within thirty days after
receipt of service by the plaintiff, the party defendant requesting
the statement may petition the court in which the action is pending
to order the plaintiff to serve a responsive statement upon the
requesting party defendant. This section applies only to
complaints filed on or after the first day of July, two thousand
WVC 55 - 7 - 26
§55-7-26. First responders who use forced entry in response to 911
call; limited immunity from civil and criminal
(a) "First responder" includes: law-enforcement officers,
firefighters, emergency medical services personnel and others that
respond to calls for emergency medical assistance.
(b) Neither a first responder nor his or her supervisor,
agency, employer or supervising entity is liable for any civil
damages or criminal liability resulting from a forcible entry of a
home, business or other structure if the first responder:
(1) Is responding to a documented 911 call for emergency
(2) Has made reasonable efforts to summon an occupant of the
home, business, or structure by knocking or otherwise notifying the
occupant(s) of his or her presence;
(3) Has not received a response from an occupant within a
reasonable period of time; and
(4) Has a good faith belief that it is necessary to make a
forcible entry for the purposes of rendering emergency medical
assistance or preventing imminent bodily harm.
(c) Nothing in this section shall affect the standard of care
a first responder must employ when rendering aid after gaining
WVC 55 - 7 - 27
§55-7-27. Liability of possessor of real property for harm to a
(a) A possessor of real property, including an owner, lessee
or other lawful occupant, owes no duty of care to a trespasser
except in those circumstances where a common-law right-of-action
existed as of the effective date of this section, including the
duty to refrain from willfully or wantonly causing the trespasser
(b) A possessor of real property may use justifiable force to
repel a criminal trespasser as provided by section twenty-two of
(c) This section does not increase the liability of any
possessor of real property and does not affect any immunities from
or defenses to liability established by another section of this
code or available at common law to which a possessor of real
property may be entitled.
(d) The Legislature intends to codify and preserve the common
law in West Virginia on the duties owed to trespassers by
possessors of real property as of the effective date of this
WVC 55 - 7 - 28
§55-7-28. Limiting civil liability of a possessor of real
property for injuries caused by open and obvious
(a) A possessor of real property, including an owner, lessee
or other lawful occupant, owes no duty of care to protect others
against dangers that are open, obvious, reasonably apparent or as
well known to the person injured as they are to the owner or
occupant, and shall not be held liable for civil damages for any
injuries sustained as a result of such dangers.
(b) Nothing in this section creates, recognizes or ratifies a
claim or cause of action of any kind.
(c) It is the intent and policy of the Legislature that this
section reinstates and codifies the open and obvious hazard
doctrine in actions seeking to assert liability against an owner,
lessee or other lawful occupant of real property to its status
prior to the decision of the West Virginia Supreme Court of Appeals
in the matter of Hersh v. E-T Enterprises, Limited Partnership
W. Va. 305 (2013). In its application of the doctrine, the court
as a matter of law shall appropriately apply the doctrine
considering the nature and severity, or lack thereof, of violations
of any statute relating to a cause of action.
WVC 55 - 7 - 29
§55-7-29. Limitations on punitive damages.
(a) An award of punitive damages may only occur in a civil
action against a defendant if a plaintiff establishes by clear and
convincing evidence that the damages suffered were the result of
the conduct that was carried out by the defendant with actual
malice toward the plaintiff or a conscious, reckless and outrageous
indifference to the health, safety and welfare of others.
(b) Any civil action tried before a jury involving punitive
damages may, upon request of any defendant, be conducted in a
bifurcated trial in accordance with the following guidelines:
(1) In the first stage of a bifurcated trial, the jury shall
determine liability for compensatory damages and the amount of
compensatory damages, if any.
(2) If the jury finds during the first stage of a bifurcated
trial that a defendant is liable for compensatory damages, then the
court shall determine whether sufficient evidence exists to proceed
with a consideration of punitive damages.
(3) If the court finds that sufficient evidence exists to
proceed with a consideration of punitive damages, the same jury
shall determine if a defendant is liable for punitive damages in
the second stage of a bifurcated trial and may award such damages.
(4) If the jury returns an award for punitive damages that
exceeds the amounts allowed under subsection (c) of this section,
the court shall reduce any such award to comply with the
limitations set forth therein.
(c) The amount of punitive damages that may be awarded in a
civil action may not exceed the greater of four times the amount of
compensatory damages or $500,000, whichever is greater.
Note: WV Code updated with legislation passed through the 2015 Regular Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.