New Proposed West Virginia Legislation Would Give Law Breakers a Free Pass

To protect peoples’ safety, West Virginia and many of its cities and counties have laws requiring businesses and property owners to follow certain safety rules — like maintaining hand rails down long flights of steps and working fire extinguishers.  However, some members of the West Virginia Legislature are trying to pass a bill that would give property owners, including slumlords, a free pass to ignore these laws and maintain dangerous conditions on their property even though people will almost certainly be seriously injured or killed as a result.  In response to this proposed law, the WVAJ has issued a well-reasoned press release.

West Virginia Legislature Should Not Be in the Business of Rewarding People Who Break the Law

Charleston, W.Va. – The West Virginia Association for Justice today demanded to know why members of the West Virginia Legislature were pursuing legislation in both houses that would encourage and reward people for breaking the law.  Under proposed SB 13 and HB 2013, property owners and occupants could no longer be held accountable for dangerous conditions–even when those conditions violate existing state and local codes and safety regulations.

“State and local building codes, fire codes and other safety regulations exist for a reason–to keep us safe.  A century ago, accidents occurred in workplaces, schools, apartment buildings, homes because no safety codes existed.  There were accidents, and people died.  It’s been said that behind every one of those codes and regulations are 100 bodies.  Those codes keep us safe, and protect us from serious injury or death,” said Anthony Majestro, president of the West Virginia Association for Justice.

“Why would the legislature give total immunity for breaking these laws?  Too many businesses and slum lords violate them now.  What’s going to happen when they know that they don’t need to even try?  People are going to get hurt, and people are going to die–and no one is going to be held responsible.  If there is no accountability, no one is safe.”

Legislators claim that the legislation is necessary to re-establish an open and obvious doctrine, which provides a defense for landowners if someone is injured but the condition should have been a known hazard.  Despite their claims, the West Virginia Supreme Court’s decision in the Hersh v. E-T Enterprisesdid not eliminate the open and obvious defense under common law.  It requires the jury to weigh the injured person’s negligence versus the liability of the landowner.  In the Hersh case, the owner removed a handrail from a flight of stairs, even though that handrail was required by city building code.

“There are two serious issues with this immunity the Legislature may not have even considered,” said Majestro.  “First, not everyone is capable of fully understanding the risks that a hazard may pose.  Children, the mentally and physically-challenged and seniors may not understand, and there is no flexibility under the proposal.  They are going to be far more vulnerable than the rest of us–and if your child or elderly parent is hurt, there’s nothing you will be able to do.”

“Second, this thing is going to kill our property values.  Think about it.  No one is going to be required to keep up their property.  Dilapidated and dangerous property conditions will be a real threat to public safety and will pull all property values in the area down in the gutter with them.”

One of our motives for posting this was in remembrance of an elderly client who severely broke her arm when a restaurant’s broken sidewalk caused her to fall. The woman’s arm never fully healed.  Initially, the restaurant tried to blame the elderly lady for falling by arguing that since their sidewalk was in such bad condition (and in violation of safety laws), the elderly lady should have noticed that and somehow avoided falling. Fortunately, we were successful in overcoming those arguments. The proposed anti premise liability bill discussed above would have given the restaurant immunity for its misconduct that violated state and county law, and likely left an elderly woman with a deformed wrist and unpaid medical bills. 

Another article from the Charleston Daily Mail addresses some of the other dangers the proposed bill would pose to ordinary people and their families.