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See, Syl. Pt. 6, McDavid v. United States, 213 W.Va. 592 584 S.E.2d 226 (2003). Punitive damages are also available under West Virginia law for a wrongful death claim.
Punitive Damages
The West Virginia Code expressly limits punitive damages in all types of cases. West Virginia Code § 55- 7-29 limits awards of punitive damages to cases in which the plaintiff establishes by clear and convincing evidence that that the damages suffered were the result of the conduct that was carried out by the defendant with actual malice toward the plaintiff or a conscious, reckless, and outrageous indifference to the health, safety, and welfare of others. Further, the statute limits the amount of punitive damages recoverable to the greater of four times the amount of compensatory damages or $500,000. See, W. Va. Code §55-7-29(c).
CONSTRUCTION AND DEATH ACTIONS IN FLORIDA
Overview of Negligence Actions in Construction Accidents Under Florida Law
Like many other states, Florida law provides the standard negligence cause of action to recover damages in construction cases. To recover under Florida law, a plaintiff must establish: (1) the defendant owed the plaintiff a legal duty; (2) the defendant breached that duty, (3) the plaintiff suffered injury as a result of the breach; and (4) the injury caused damage. Kayfetz v. A.M. Best Roofing, Inc., 832 So. 2d 784, 786 (Fla. 3d DCA 2002).
Florida law does not typically permit recovery for emotional distress in claims for negligence. Rivers v. Grinsley Oil Co., Inc., 842 So. 2d 975, 976 (Fla. 2d DCA 2003). Yet, Florida law does permit a plaintiff to bring a claim to recover for emotional distress damages under the “impact rule.” Id. That is, a plaintiff must suffer a physical injury—an “impact”—before recovering for emotional distress damages caused by the negligence of the defendant. Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So. 2d 1294, 1296 (Fla. 4th DCA 1992).
As an “exception” to the impact rule, bystander plaintiffs may also recover for emotional damages caused by the negligence of the defendant if a plaintiff demonstrates that (1) the plaintiff suffered a physical injury; (2) the plaintiff’s physical injury was caused by psychological trauma; (3) the plaintiff was involved in some way in the event causing the negligent injury to the directly injured person; and (4) the plaintiff had a close personal relationship to the directly injured person, then the plaintiff may recover damages. Zell v. Meek, 665 So.2d 1048, 1054 (Fla. 1995). In other words, the bystander plaintiff must demonstrate that the emotional distress caused a physical injury. See id.
Construction Accidents in South Florida: A Case Study
With scaffolding on seemingly every street corner and roadblocks aplenty, South Florida is no stranger to construction as the urban giant of the Sunshine State. A construction contract means not only building a structure, but also building an economy along with providing security to companies and their employees. But under every wall of security looms the shadow of risk. Negligence and personal injury lawsuits live in this shadow.
Take Miami-Dade College. Miami-Dade College has had the largest undergraduate student enrollment in the country with over 100,000 students. As a commuter school, Miami-Dade College has built multiple facilities and campus locations across Miami-Dade County. However, for these facilities and campuses to function, people need a place to park.
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