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Damages
Damages need not be proven with mathematical certainty in Indiana but cannot be based on guess or speculation. Indiana Model Civil Jury Instructions, No. 701. Personal injury damages can include: (1) the effect of the injury on the plaintiff’s ability to function as a whole person; (2) whether the injury is temporary or permanent; (3) the value of lost time from work or impairment of earning capacity; (4) past and future physical pain and mental suffering; (5) reasonable value of past and future medical care; (6) aggravation of a pre-existing condition; (7) disfigurement or deformity; and (8) life expectancy of plaintiff. Id., 703.
Punitive damages are limited by statute in Indiana and cannot be more than the greater of three times compensatory damages or $50,000. IC 34-51-3-1. In addition, only twenty-five percent of a punitive damages award is payable to the prevailing party. The remaining seventy-five percent is paid into a violent crime victim compensation fund administered by the State. IC 34-51-3-6. Jurors are not permitted to know about the statutory limitations on punitive damages. IC 34-51-3-3.
Punitive damages in Indiana require a higher burden of proof and the jury must find that they are supported by clear and convincing evidence. IC 34-51-3-2.
CONSTRUCTION AND DEATH ACTIONS IN WEST VIRGINIA
Overview of Negligence Actions in Construction Accidents under West Virginia Law
In West Virginia, “before one can recover under a tort theory of liability, he or she must prove each of the four elements of a tort: duty, breach, causation, and damages.” Carter v. Monsanto Co., 212 W.Va. 732, 737, 575 S.E.2d 342, 347 (2002). See also, Syllabus Point 3, Alexander v. Jennings, 150 W.Va. 629, 149 S.E.2d 213 (1966) (“To recover in an action based on negligence the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains.”); Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 118, 2 S.E.2d 898, 899 (1939) (“In every action for damages resulting from injuries to the plaintiff, alleged to have been inflicted by the negligence of the defendant, it is incumbent upon the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A duty which the defendant owes to him; (2) A negligent breach of that duty; (3) Injuries received thereby, resulting proximately from the breach of that duty.”).
Issues Specific to Construction Accidents in West Virginia
A general contractor supervising a construction project that employs multiple subcontractors—where the general contractor oversees the details of the work—has a duty of safety to all workers on the site, and will be held liable for safety violations that could reasonably have been prevented or abated by reason of the general contractor’s supervisory capacity. See, France v. S. Equip. Co., 225 W. Va. 1, 15, 689 S.E.2d 1, 15 (2010). West Virginia law further provides that “a property owner only has a duty to turn over a reasonably safe workplace to an independent contractor; the property owner generally cannot be held liable for any hazards thereafter created by the independent contractor.” Id., at 10.
W. Va. Code § 21-3-1 states, in part: Every employer and every owner of a place of employment, place of public assembly, or a public building, now or hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably safe. See also, Syllabus Point 3, Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986) (“Under W. Va. Code § 23-3-1, the employer and the owner of a place of employment,
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