Fields v. Mellinger (concurring opinion by Hutchison J.) ( 2020 )

FILED
November 18, 2020
No. 20-0183 – Cody Ryan Fields v. Ross H. Mellinger, et al. released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Hutchison, J., concurring:
I concur with the majority’s holding that West Virginia does not recognize a private
right of action for monetary damages for a violation of Article III, Section 6 of the West
Virginia Constitution. I write separately because I believe that the Court should look to
The Restatement (Second) of Torts § 874A (1979) in determining whether a legislative
provision (or, in this case, a constitutional provision) implies a private right of action for
monetary damages.
Section 874A provides:
When a legislative provision 1 protects a class of persons by
proscribing or requiring certain conduct but does not provide a
civil remedy for the violation, the court may, if it determines
that the remedy is appropriate in furtherance of the purpose of
the legislation and needed to assure the effectiveness of the
provision, accord to an injured member of the class a right of
action, using a suitable existing tort action or a new cause of
action analogous to an existing tort action.
(Footnote added). Comment h to § 874A instructs: “The primary test for determining
whether the courts should provide a tort remedy for violation of the legislative provision is
whether this remedy is consistent with the legislative provision, appropriate for promoting
1
Comment a to § 874A clarifies that, “[a]s used in this Section, the term ‘legislative
provision’ includes statutes, ordinances and legislative regulations of administrative
agencies at various levels of government. It also includes constitutional provisions.”
its policy and needed to assure its effectiveness.” Id. In so determining, the section
enumerates six factors “to which a court may be expected to give consideration.” They
include:
(1) The nature of the legislative provision;
(2) The adequacy of existing remedies;
(3) The extent to which the tort action will aid or supplement or interfere with, existing
remedies and other means of enforcement;
(4) The significance of the purpose that the legislative body is seeking to effectuate;
(5) The extent of the change in tort law; and
(6) The burden that the new cause of action will place on the judicial machinery.
Id. See e.g., Alaska Marine Pilots v. Hendsch, 950 P.2d 98 (Alaska 1997); Katzberg v.
Regents of Univ. of Calif., 58 P.3d 339 (Calif. 2002). I believe that consideration of the
certified question under these factors would render a decision that is consistent with the
majority’s ultimate conclusion that no private right of action for monetary damages exists
for a violation of Article III, Section 6 of the West Virginia Constitution.
For the foregoing reason, I concur.