WASHINGTON – Not long ago, West Virginia usually was at the top of the annual Judicial Hellholes list.
Now, the Mountain State usually only gets mentioned in the American Tort Reform Association’s annual report for progress made since a series of legal reforms began almost 10 years ago.
This year’s report, which was released December 5, cites a West Virginia Supreme Court of Appeals opinion that the ATRA says “reasonably limits employer liability for employee conduct outside of work.”
The ruling in Speedway v. Jarrett was issued March 21. In the case that originated in Marshall County, the plaintiff sought to hold Speedway responsible for an auto accident caused by an employee who was under the influence of illicitly obtained prescription drugs. The accident occurred an hour after the employee’s shift had ended. It was seven miles away from the convenience store, and the employee was running a personal errand. The company did not know of the employee’s drug use as she had hidden it from Speedway.
“In addition to seeking compensation for hypothetical injuries like an increased risk of harm, plaintiffs’ attorneys also have tried to expand the duty owed by employers as another way of opening businesses up to limitless liability,” the Judicial Hellholes report states. “Nevertheless, because the employee appeared tired at work and the employer asked her to work an extra hour, the plaintiff alleged that the store engaged in ‘affirmative conduct’ that created a risk of harm and had a duty to stop its employee from driving at the end of her shift.”
A Marshall County jury found Speedway at fault for 30 percent of the resulting damages, in excess of $2 million. Speedway challenged the verdict, arguing it owed the plaintiff no duty of care and was not responsible for an employee’s negligent conduct outside of work.
The state Supreme Court agreed in a unanimous opinion, saying an employer cannot be held liable for the actions of employees acting outside the scope of their employment.
“The court declined to find that the employer had engaged in affirmative conduct that created a foreseeable risk of harm,” the Hellholes report states. “It distinguished the case from situations in which an employer provided an employee with alcohol or required an employee who warned his supervisor that he was exhausted to continue to work an extraordinarily lengthy shift.
“Here, the employer was not even aware of the employee’s drug abuse and had asked the employee if she would like to leave early, an offer she declined. Thus, the court reasoned that the plaintiff had failed to show the employer ‘created an unreasonable risk of harm to the motoring public’ and had no duty to prevent the employee from driving.”
The ATRA report also praised the West Virginia Legislature for passing House Bill 3270 that amended the state’s deliberate intent law.
HB 3270, which went into effect July 1, made two changes. First, a requirement was added that when an employee asserts deliberate intent with respect to occupational pneumoconiosis, the employee “must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.” The provision was directed primarily at the mining industry, making it clear it is not sufficient for a plaintiff to rely upon the fact that a coal operator’s respirable dust samples exceeded the applicable standard on one or more occasions.
It also added a new statute that places limitations on the recovery of noneconomic damages, making the maximum recoverable by an employee as compensatory damages for noneconomic loss is the higher of two times the economic damages before offset or $500,000 for each person, regardless of the number of plaintiffs or defendants. It also limits fees and costs recoverable by plaintiff attorneys in such cases.
Georgia courts as well as the Pennsylvania Supreme Court and Philadelphia Court of Common Pleas were tied for the top ranking, saying those jurisdictions are the most unfriendly to businesses. Those courts were followed by Cook County, Illinois; California; New York City; South Carolina Asbestos Litigation; Lansing, Michigan; Louisiana; and St. Louis.
Judicial Hellholes is a program of the American Tort Reform Foundation. Created in 2002, it documents abuses within the civil justice system. ATRF is a sister organization of the American Tort Reform Association, which is a nonpartisan, nonprofit organization dedicated to reforming the civil justice system through education and legislative enactment.
