Alaska

West Virginia

 

 

 

Statutes of Limitations (WEST VIRGINIA) 

 

Personal Injury - 2 yrs. [W.Va. Code § 55-2-12]

Wrongful Death - 2 yrs. (after death) [W.Va. Code § 55-7-6]

Property Damage - 2 yrs. [W.Va. Code § 55-2-12]

Written Contracts - 10 yrs. [W.Va. Code § 55-2-6]

Oral Contracts - 5 yrs. [W.Va. Code § 55-2-6]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. [W.Va. Code § 46-2-725]

 

In tort actions, unless there is a clear statutory prohibition to its application, under the “discovery rule” the statute begins to run when Plaintiff knows, or by the exercise of reasonable diligence, should know: (1) that Plaintiff has been injured, (2) identity of Defendant who owed Plaintiff a duty to act with due care, and who breached that duty, and (3) that the conduct of that Defendant has a causal relation to the injury. [Trafalgar House Const., Inc. v. ZMM, Inc., 567 S.E.2d 294 (W. Va. 2002)].

 

 

 

 

Statute of Repose (Products) (WEST VIRGINIA)

 

None.

 

Admissibility of Expert Testimony (WEST VIRGINIA)

 

Daubert analysis is followed in analyzing the admissibility of expert testimony under WV Rules of Evidence.  An assessment should be made in regard to the expert testimony’s reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of whether: (1) the scientific theory and its conclusion can be and have been tested; (2) the scientific theory has been subjected to peer review and publication; (3) the scientific theory’s actual or potential rate of error is known; and (4) whether the scientific theory is generally accepted within the scientific community [Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993)].

 

 

 

 

 

Causes of Action (WEST VIRGINIA)

 

Product liability actions may be premised on three independent theories: strict liability, negligence, and warranty [Ilosky v. Michelin Tire Corp., 307 S.E.2d 603 (W. Va. 1983)]

 

Strict Liability – A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.  Once it can be shown that the product was defective when it left the manufacturer and that the defect proximately caused the plaintiff’s injury, a recovery is warranted absent some conduct on the part of the plaintiff that may bar his recovery [Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666 (W. Va. 1979)].

 

Negligence – Product liability actions may be premised on three independent theories: strict liability, negligence, and warranty [Ilosky v. Michelin Tire Corp., 307 S.E.2d 603 (W. Va. 1983)].

 

Breach of Warranty – West Virginia has adopted the standard UCC express warranty [W. Va. Code § 46-2-313]; implied warranty of merchantability [W. Va. Code § 46-2-314]; implied warranty of fitness for particular purpose [W. Va. Code § 46-2-315].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [W. Va. Code § 46-2-318].

 

Definition of “Defect” (WEST VIRGINIA)

 

A defective product may fall into three categories: design defectiveness; structural defectiveness; and use defectiveness arising out of the lack of (or the inadequacy of) warnings, instructions and labels.  The general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer’s standards should have been at the time the product was made [Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666 (W. Va. 1979)].

 

 

 

 

Liability of Sellers (WEST VIRGINIA)

 

The rule for establishing strict liability applies to both the manufacturer and the seller, who are engaged in the business of selling such product which is expected to and does reach the user without substantial change in the condition in which it was sold [Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666 (W. Va. 1979)].  An innocent seller can be subject to liability simply by virtue of being present in the chain of distribution of the defective product [Dunn v. Kanawha County Bd. of Educ., 459 S.E.2d 151 (W. Va. 1995)].

 

Defenses (WEST VIRGINIA)      

 

Comparative Negligence – West Virginia follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [W.Va.Code, § 55-7-13c].  Comparative negligence is available as an affirmative defense in a cause of action founded on strict liability so long as the complained of conduct is not a failure to discover a defect or to guard against it [Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W. Va. 1982)].

Assumption of Risk – Under a comparative assumption of risk system, the defense of assumption of risk does not operate as a complete bar to the plaintiff’s recovery. Instead, the plaintiff’s degree of fault arising from the assumption of risk is determined by the jury, and the total award of damages is then diminished accordingly [King v. Kayak Mfg. Corp., 387 S.E.2d 511 (W. Va. 1989)].

 

Product MisuseComparative negligence does not differ from product misuse in that this defense focuses on the plaintiff's conduct [Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W. Va. 1982)].

 

 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (WEST VIRGINIA)

 

Plaintiff who suffers mere economic loss as a result of a defective product must turn to UCC to seek relief [Basham v. General Shale, 377 S.E.2d 830 (W.Va.1988)]

 

Property damage to defective products which results from sudden calamitous event is recoverable under strict liability cause of action, but damages which result merely because of “bad bargain” are outside scope of strict liability [Capitol Fuels, Inc. v. Clark Equipment Co., 382 S.E.2d 311 (W.Va. 1989)].

Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (WEST VIRGINIA)

 

Circumstantial evidence is sufficient to make a prima facie case in a strict liability action, even though the precise nature of the defect cannot be identified, so long as the evidence shows that a malfunction in the product occurred that would not ordinarily happen in the absence of a defect. Moreover, the plaintiff must show there was neither abnormal use of the product nor a reasonable secondary cause for the malfunction [Anderson v. Chrysler Corp., 403 S.E.2d 189  (W. Va. 1991)]

 

A product defect may be inferred where there is evidence sufficient for a jury to conclude that the accident would not have occurred unless the product was defective. In some instances the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the “malfunction” theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes [Bennett v. ASCO Servs., 621 S.E.2d 710 (W. Va. 2005)].

 

 

 

 

 

Design Defects (WEST VIRGINIA)                                                                                                

 

One of the categories of defective product is “design defectiveness.”  The general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer’s standards should have been at the time the product was made [Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666 (W. Va. 1979)].

 

West Virginia Supreme Court has held that “a risk/utility analysis does have a place in a tort product liability case by setting the general contours of relevant expert testimony concerning the defectiveness of the product” [Morningstar v. Black & Decker Mfg. Co., 253 S.E.2d 666 (W. Va. 1979)]. 

 

West Virginia Supreme Court has not stated one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product. Nevertheless, even if it is not required, offering evidence of a safer alternative is at least one method of showing that a product is not reasonably safe for its intended use for the purposes of a design defect claim. An alternative design must not be an altogether essentially different product. An alternative design is not reasonable if it alters a fundamental and necessary characteristic of the product [Michael v. Wyeth, LLC, 2011 U.S. Dist. LEXIS 56157 (S.D. W. Va. 2011)].

 

The state of the art at the time the product was marketed, while not conclusive, is evidence of due care.  It is also evidence of whether or not a product is “unsafe” under the theory of recovery of strict liability in tort [Chase v. General Motors Corp., 856 F.2d 17 (4th Cir. Va. 1988)].

 

 

 

 

 

 

 

 

Failure to Warn (WEST VIRGINIA)

 

One of the categories of defective products is “defectiveness arising out of the lack of, or the adequacy of, warnings, instructions, and labels.”  For the duty to warn to exist, the use of the product must be foreseeable to the manufacturer or seller. The question of what is an intended use of a product carries with it the concept of all those uses a reasonably prudent person might make of the product, having in mind its characteristics, warnings and labels.  In order to escape being unreasonably dangerous, a potentially dangerous product must contain or reflect warnings covering all foreseeable uses. These warnings must be readily understandable and make the product safe.  The determination of whether a defendant's efforts to warn of a product's dangers are adequate is a jury question [Ilosky v. Michelin Tire Corp., 307 S.E.2d 603 (W. Va. 1983)].

 

A federal court predicted that West Virginia would adopt the “sophisticated user” defense [Roney v. Gencorp, 654 F. Supp. 2d 501 (S.D. W. Va. 2009)].

 

West Virginia has has never adopted a heeding presumption (which is a presumption in strict liability cases that a plaintiff would have read and heeded an adequate warning if it had been given) [Muzichuck v. Forest Labs., Inc., 2015 U.S. Dist. LEXIS 5440 (N.D. W. Va. 2015)].

 

 

 

Independent Cause of Action for Evidence Spoliation (WEST VIRGINIA)

 

West Virginia does not recognize negligent spoliation as a stand-alone tort against a party to the action.  However, West Virginia recognizes negligent spoliation as a stand-alone tort against a third party.  Also, West Virginia recognizes intentional spoliation as a stand-alone tort against either a party to the civil action or a third party [Hannah v. Heeter, 213 W.Va. 704 (W.Va. 2003)]