Judicial compensation for accidental injuries is grounded upon legal fault. Assessment of fault involves not only finding the facts concerning actions of the parties, but also evaluation of their conduct. Determination is made whether the behavior is justified and, consequently, does not give rise to recovery, or whether it should be condemned, thus serving as a basis for compensation. This, the ethical portion of the problem of negligence liability, is performed by comparing the actions of a party with those of a hypothetical person, the reasonable man of ordinary prudence, acting under similar circumstances. The infinite variety of fact patterns that may arise dooms efforts in any single lawsuit to do much more than give particularized content to this vague standard. But, through use of standards of conduct established by legislative enactment, more stable measures of the character of behavior are made available. The expansion in the volume of statutes has increased the importance in negligence litigation in West Virginia courts of legislative provisions. In civil actions legislation is being used both by plaintiffs and by defendants as a source for standards of conduct. This paper will examine some of those cases. Discussed herein will be: (1) the effect of violation of legislative standards upon primary negligence, (2) the impact of statutory nonobservance upon contributory negligence, and (3) the relevance in private litigation of compliance with legislative provisions.
Ray J. Davis,
West Virginia Negligence Cases and Legislative Standards of Conduct,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol61/iss1/2