Recently, major tort reform measures passed during the 2015 legislative session began to take effect. One of the most debated and contested law changes, the bill that changed “deliberate intent” statute, recently went into effect. This bill (HB 2011) was previously covered in our blog.
Proponents of the law have praised it as a key step in reducing the state’s so-called “Judicial Hellhole” status and improving the business climate of the state. This frames the debate as a choice between potential economic growth and the worker’s right to demand accountability for his or her employer’s clear violation of safety standards.
This law, in effect, by overruling the West Virginia Supreme Court’s majority decision in McComas v. ACF Industries and strengthening standards of proof for deliberate intent, frees employers from performing their due diligence in protecting their employees. The law strengthened the burden for proof in the five element test for deliberate intent by requiring all plaintiffs to prove their employers had actual knowledge of unsafe working conditions, as set forth in West Virginia Code § 23-4-2(d)(2)(ii)(B). Actual knowledge may only be shown if the employer intentionally failed to conduct a required inspection that could have prevented the accident. The larger concern here is that state and federal safety standards can essentially be ignored, so long as employers did not deliberately ignore them, setting the table for convenient ignorance by employers. Many workers’ sole form of recourse will now be Workers’ Compensation. Proponents have claimed this should be sufficient for injured workers, although workers rarely fully recover lost wages after filing claims, and do not receive medical benefits they were receiving prior to their injuries.
Another law taking effect last week (SB 421) strengthened the standard of proof for punitive damages, and caps punitive damages to the amount of four times compensatory damages or $500,000, whichever is greater.
Both of these laws are claimed by proponents to support the creation of new jobs and to bring new businesses to West Virginia. However, it’s important to question whether we are truly receiving the economic benefits that come with these new laws, and whether the businesses who base their location on lax employer negligence laws are the types of businesses we want in West Virginia.
The Economic Policy Institute failed to find almost any effect of tort reform upon employment, and an inconclusive effect on productivity. This begs the question: Are these supposed economic benefits going to help West Virginia or just a small group of business interests?
The result of legislation like HB 2011 and SB 421 is that companies who operate in an inherently dangerous field are able to divert some of their risk onto the backs of West Virginia workers. Asking the average West Virginian worker to foot the bill for corporate negligence does not advance our economy, and it increasingly compromises the safety of our state’s workers.