West Virginia Personal Injury Laws: Deadlines to Sue, Fault Rules and Damage Caps

Two years after the right to sue accrues for damages for personal injuries.

Two years after the right to sue accrues for damage to property.

Two years from the date of the injury, or two years from when the injury was or reasonably should have been discovered, whichever is later, but never more than 10 years after the injury. Claims against nursing homes, assisted living facilities and similar long-term care providers have a one-year deadline (also with discovery and a 10-year limit). For a child injured before age 10, the deadline is two years from the injury or the child's 12th birthday, whichever is longer. The periods are paused while a provider conceals or misrepresents material facts through fraud or collusion.

Two years after the death.

The action must be brought by and in the name of the personal representative of the person who died. The jury (or court) may award damages that seem fair and just and decide how they are divided among the surviving spouse, children (including adopted children and stepchildren), brothers, sisters, parents, and anyone financially dependent on the person or otherwise equitably entitled to share. If there are no such survivors, damages pass under the person's will or the laws of descent. Damages may include sorrow, mental anguish and loss of companionship, lost income and services, and medical and funeral expenses.

Modified comparative fault (51% bar). An injured person's fault does not bar recovery unless it is greater than the combined fault of all others responsible; otherwise, recovery is reduced by the injured person's percentage of fault. Each defendant's liability is generally several only (each pays its own share), except for defendants who conspired together.

No general cap on compensatory damages in ordinary personal injury cases was found. Caps apply to noneconomic damages in medical professional liability cases, to punitive damages, and to noneconomic damages against political subdivisions.

Noneconomic damages against a health care provider are capped at $250,000 per occurrence, or $500,000 per occurrence for wrongful death, permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system, or permanent injury that prevents independent self-care. Since 2004 the caps increase annually for inflation, up to 150% of the base amounts. The caps are not available to a defendant without at least $1 million per occurrence in medical professional liability insurance.

Allowed only if the plaintiff proves by clear and convincing evidence that the harm resulted from conduct carried out with actual malice toward the plaintiff, or a conscious, reckless and outrageous indifference to the health, safety and welfare of others. A defendant may request a two-stage trial. Punitive damages may not exceed the greater of four times compensatory damages or $500,000.

Political subdivisions (counties, cities and similar local bodies): a lawsuit must be filed within two years after the claim arose or the injury was or should have been discovered, whichever is later (with a special rule for children under 10). Punitive damages are not allowed. Economic damages are not capped, but noneconomic damages are capped at $500,000 per person. The complaint may not state a specific dollar amount.

An owner or keeper who lets a dog run at large is liable for any damage the dog causes to another person or their property while running at large. Bites in other situations are not covered by this statute.

Since January 1, 2016, proof of financial responsibility means at least $25,000 for bodily injury or death of one person, $50,000 for bodily injury or death of two or more people in one accident, and $25,000 for property damage.

The driver in a crash causing injury or death, or total apparent property damage of $1,000 or more, must immediately notify police by the quickest means available — the local police department if inside a city or town, otherwise the county sheriff or the nearest West Virginia State Police office.

West Virginia law places the written crash report on the investigating officer rather than the driver. An officer who investigates a crash on public roads causing injury, death or total apparent property damage of $1,000 or more must prepare a report within 24 hours after completing the investigation and submit it to the Division of Highways (a preliminary report is due on the 10th day if the investigation is not finished). Within 24 hours of the crash, the officer must give each involved party, on request and at no cost, the other parties' owner, driver and insurance information.

A driver in a crash causing injury, death or damage to an attended vehicle must stop at or as close to the scene as possible and stay until they have given (if physically able) their name, a valid phone number, the vehicle's year, make, model and last four digits of the VIN, and proof of insurance (insured's name, insurer contact and policy number) — or given this to an investigating officer — and, if anyone is hurt, given reasonable help, including arranging transport for treatment. Intentionally leaving when the driver knows or has reason to believe someone was hurt is a misdemeanor (up to $1,000 and/or up to one year in jail); with serious bodily injury, a felony (up to $2,500 and/or 1 to 3 years); if the crash causes a death, a felony (up to $5,000 and/or 1 to 5 years). Failing to stop after damaging only an attended vehicle is a misdemeanor.

A West Virginia statute limits slip-and-fall and other premises claims for obvious dangers: a property owner, lessee or other lawful occupant owes no duty to protect others against dangers that are open, obvious, reasonably apparent, or as well known to the injured person as to the owner, and is not liable for injuries from those dangers. The Legislature said the law restores the 'open and obvious' doctrine as it stood before the state Supreme Court of Appeals' 2013 decision in Hersh v. E-T Enterprises. The statute does not itself create any cause of action; the general duty owed to visitors comes from court decisions not read here.

For claims against West Virginia cities, counties and other political subdivisions, the Governmental Tort Claims and Insurance Reform Act gives immunity for losses resulting from snow or ice conditions or other temporary or natural conditions on any public way or public place caused by weather, unless the condition was affirmatively caused by the political subdivision's negligent act.

West Virginia political subdivisions (cities, counties and similar local bodies) are liable for injury, death or loss caused by their negligent failure to keep public roads, highways, streets, alleys, sidewalks, bridges or public grounds open, in repair or free from nuisance (a municipality has a full defense for a bridge it is not responsible for maintaining or inspecting). They are immune for weather-related snow or ice conditions on public ways unless they negligently caused the condition. The sections read do not address liability of the owner of property next to a sidewalk.

Claims against West Virginia political subdivisions are governed by the Governmental Tort Claims and Insurance Reform Act. A lawsuit must be filed within two years after the cause of action arose or after the injury was discovered or reasonably should have been discovered, whichever is later (with a longer period for children injured under age 10); the complaint may not state a dollar amount. Punitive damages are not allowed, economic damages are not capped, and noneconomic damages are capped at $500,000 per person. State-agency claims are handled separately (see injury/government_claims).

A West Virginia landowner owes no duty to keep land safe for people entering it for recreational or wildlife propagation purposes and no duty to warn of dangers; an owner who invites or allows such use without charge does not promise the land is safe, does not make the user an invitee or licensee, and is not liable for injuries caused by the user. The law does not limit liability for deliberate, willful or malicious injury, or where the owner charges a fee to enter (other than payments from government agencies).

West Virginia requires every motorcycle or motor-driven cycle operator and passenger, of any age, to wear a securely fastened protective helmet meeting ANSI Z90.1, federal Motor Vehicle Safety Standard No. 218, or Snell standards, plus approved eye protection. Drivers of fully enclosed autocycles with a valid license are exempt. The section does not address the effect on damages.

No West Virginia statute in effect names lane splitting. The general lane rule says that on a road divided into clearly marked lanes, a vehicle must be driven as nearly as practicable entirely within a single lane and may not move from it until the driver has made sure it is safe; violation is a misdemeanor with fines up to $100, $200 and $500 for repeat convictions.

When traffic signals are not in place or working, drivers must yield (slowing or stopping if needed) to a pedestrian in a crosswalk on the driver's half of the road or approaching closely from the other half; pedestrians may not suddenly step into the path of a vehicle too close to yield, and drivers may not pass a vehicle stopped at a crosswalk for a pedestrian. A pedestrian crossing anywhere other than a marked crosswalk or an unmarked crosswalk at an intersection must yield to all vehicles, and between adjacent signalized intersections pedestrians may cross only in a marked crosswalk.

A bicyclist on a roadway has all the rights and duties of a vehicle driver, except special bicycle rules and provisions that cannot apply. A driver passing a bicycle must pass to the left at a distance of at least three feet at a careful and reduced speed. Riders and passengers under 15 must wear a securely fastened, properly fitting bicycle helmet on public roads, bike paths and other public rights-of-way, and parents may not knowingly allow a violation.

While a West Virginia rideshare (transportation network company) driver is logged on and available but not on a ride: primary liability insurance of at least $50,000 per person and $100,000 per incident for death and bodily injury and $25,000 for property damage, plus uninsured and underinsured motorist coverage as state law requires. During a prearranged ride: at least $1,000,000 for death, bodily injury and property damage, plus uninsured/underinsured motorist coverage as required. If the driver's insurance lapses or falls short, the company's insurance must cover from the first dollar and defend the claim.

West Virginia's workers' compensation law gives an employer that maintains coverage immunity from damages suits for employee injuries 'however occurring'. That immunity is lost only for 'deliberate intention', proved either by a specific intent to injure or by a statutory list of facts that begins with a specific unsafe working condition presenting a high degree of risk, which can apply to construction hazards. A worker may also collect comp and make a claim against a third party who caused the injury, subject to the carrier's subrogation lien.