No. 26004 -- Joe Bailey, et al. v. Norfolk and Western Railway Company
Maynard, Justice, concurring in part; dissenting in part:
I concur with Justice Davis' dissent, but I write separately to reiterate a crucial
point. Even though I cannot say it any better than Justice Davis did in footnote 2, let me be
perfectly clear that this Court cannot and should not sua sponte create a new cause of action
and simultaneously decide the merits of the new cause of action against the defendant.
Justice Davis mentions the only two ways this Court can constitutionally
recognize a new cause of action. Because I believe this is so important, let me say it again:
(1) a party may advocate a new theory at the trial level and prevail; on appeal, this Court may
recognize the new cause of action, or (2) a party may advocate a new cause of action at the
trial level but be prevented from litigating the matter; on appeal, this Court may recognize
the unlitigated new cause of action and remand for trial. That did not happen here.
By creating a new cause of action and turning the decision on this new cause
of action, the majority denies this defendant due process. The defendant has not had and will
not have the opportunity to rebut a cause of action under W.Va. Code § 5-11-9(7)(A) and
the collateral victim doctrine because no such evidence was presented in this case.
Because I believe in the Constitution of the United States and the Constitution of the State of West Virginia, I dissent. I am authorized to state that Justice Davis joins me in this dissent.