prima facie presumption in West Virginia

2010In syllabus point three of Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164 , 358 S.E.2d 423 (1986), this Court set out the elements of a prima facie claim of disparate treatment: In order to make a prima facie case of [disparate treatment] employment discrimination under the West Virginia Human Rights Act, W.

2010In syllabus point three of Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164 , 358 S.E.2d 423 (1986), this Court set out the elements of a prima facie claim of disparate treatment: In order to make a prima facie case of [disparate treatment] employment discrimination under the West Virginia Human Rights Act, W.

1979Va. 427 , 3 S.E.2d 627 (1939): “Proof that a bottling company through a distributor caused to be sold a bottle of coca-cola containing a harmful substance which was consumed by the purchaser, resulting in his injury, gives rise to a prima facie presumption of negligence on the part of the bottling company and it is for the jury to determine whether, under all the circumstances, proof of a careful bottling system followed by the defendant company, which does not single out the specific article distributed and consumed, meets the presumption so arising.” Another step in the evolution of our tort

1959In Blevins v. Raleigh Coca-Cola Bottling Works, 121 W.Va. 427 , 3 S.E.2d 627, 628 , this Court stated: "In so far as the proof of negligence is concerned, it is now the established rule in this state affecting the preparation and distribution of foodstuffs that the rule of res ipsa loquitur applies between the packer and the ultimate consumer, and that it rests with the jury to determine whether the packer-defendant's proof of a method and system showing the exercise of extraordinary care, but not relating to the specific article consumption of which it is contended injured the plaintiff, is i

1959Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115 , 2 S.E.2d 898 ; Parr v. Coca-Cola Bottling Works, 121 W.Va. 314 , 3 S.E. 2d 499 ." In that case and the cases cited *492 therein, in the Rutherford case and in the Holley v. Purity Baking Company case, 128 W.Va. 531 , 37 S.E.2d 729 , 167 A.L.R. 648 , alleged liabilities were founded on the presence in the original packages of deleterious or harmful substances.

1959Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115 , 2 S.E.2d 898 ; Parr v. Coca-Cola Bottling Works, 121 W.Va. 314 , 3 S.E. 2d 499 ." In that case and the cases cited *492 therein, in the Rutherford case and in the Holley v. Purity Baking Company case, 128 W.Va. 531 , 37 S.E.2d 729 , 167 A.L.R. 648 , alleged liabilities were founded on the presence in the original packages of deleterious or harmful substances.

2019Human Rights Comm'n , 189 W.Va. 314 , 431 S.E.2d 353 (1993). 9 Hence, to state a prima facie claim under the Morris Memorial framework, a plaintiff alleging disability discrimination in the employment context must (in part) show he or she is a qualified individual with a disability and is "able and competent, with reasonable accommodation, to perform the essential functions of the job[.]" W.Va.

2019Human Rights Comm'n , 189 W.Va. 314 , 431 S.E.2d 353 (1993). 9 Hence, to state a prima facie claim under the Morris Memorial framework, a plaintiff alleging disability discrimination in the employment context must (in part) show he or she is a qualified individual with a disability and is "able and competent, with reasonable accommodation, to perform the essential functions of the job[.]" W.Va.

2019Va. 95 , 511 S.E.2d 720 ("To make out a prima facie claim for tortious interference with parental or custodial relationship, the complaining parent must demonstrate: (1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent's consent, o

2005As stated in Syllabus point 7 of Kessel v. Leavitt, [t]o make out a prima facie claim for tortious interference with parental or custodial relationship, the complaining parent must demonstrate: (1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, with

2014Pt. 3, Waugh v. Traxler, 186 W.Va. 355 , 412 S.E.2d 756 (1991) (“The prima facie presumption of negligence created upon violation of a traffic statute or safety regulation may be rebutted by evidence tending to show that the person violating the statute did what might reasonably have been expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.”). 2 With regard to our standard for reviewing a circuit court’s ruling on a motion for a new trial, we have explained that [a]s a general proposition, we review a circuit court’s rulings on a mo

2014Pt. 3, Waugh v. Traxler, 186 W.Va. 355 , 412 S.E.2d 756 (1991) (“The prima facie presumption of negligence created upon violation of a traffic statute or safety regulation may be rebutted by evidence tending to show that the person violating the statute did what might reasonably have been expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.”). 2 With regard to our standard for reviewing a circuit court’s ruling on a motion for a new trial, we have explained that [a]s a general proposition, we review a circuit court’s rulings on a mo

1987Moving Corp. v. S & M Systems Corp., 216 Va. 322, 326 , 218 S.E.2d 441, 444 (1975): "The existing certificate carries with it a legislative declaration and a prima facie presumption that it does serve the public convenience and necessity, and the burden is on a protestant to a transfer to show ruinous or unreasonable competition, or that the transfer will not serve the public convenience and necessity." [6] See also Chartered Bus Serv. v. Dominion Coach Co., 232 Va. 357 , 350 S.E.2d 625 (1986); Be-Mac Transport Co., Inc. v. Illinois Commerce Comm'n, 38 Ill.2d 154 , 230 N.E.2d 216 (1967).

1987Moving Corp. v. S & M Systems Corp., 216 Va. 322, 326 , 218 S.E.2d 441, 444 (1975): "The existing certificate carries with it a legislative declaration and a prima facie presumption that it does serve the public convenience and necessity, and the burden is on a protestant to a transfer to show ruinous or unreasonable competition, or that the transfer will not serve the public convenience and necessity." [6] See also Chartered Bus Serv. v. Dominion Coach Co., 232 Va. 357 , 350 S.E.2d 625 (1986); Be-Mac Transport Co., Inc. v. Illinois Commerce Comm'n, 38 Ill.2d 154 , 230 N.E.2d 216 (1967).

1987Moving Corp. v. S & M Systems Corp., 216 Va. 322, 326 , 218 S.E.2d 441, 444 (1975): "The existing certificate carries with it a legislative declaration and a prima facie presumption that it does serve the public convenience and necessity, and the burden is on a protestant to a transfer to show ruinous or unreasonable competition, or that the transfer will not serve the public convenience and necessity." [6] See also Chartered Bus Serv. v. Dominion Coach Co., 232 Va. 357 , 350 S.E.2d 625 (1986); Be-Mac Transport Co., Inc. v. Illinois Commerce Comm'n, 38 Ill.2d 154 , 230 N.E.2d 216 (1967).

1987Moving Corp. v. S & M Systems Corp., 216 Va. 322, 326 , 218 S.E.2d 441, 444 (1975): "The existing certificate carries with it a legislative declaration and a prima facie presumption that it does serve the public convenience and necessity, and the burden is on a protestant to a transfer to show ruinous or unreasonable competition, or that the transfer will not serve the public convenience and necessity." [6] See also Chartered Bus Serv. v. Dominion Coach Co., 232 Va. 357 , 350 S.E.2d 625 (1986); Be-Mac Transport Co., Inc. v. Illinois Commerce Comm'n, 38 Ill.2d 154 , 230 N.E.2d 216 (1967).

1959Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115 , 2 S.E.2d 898 ; Parr v. Coca-Cola Bottling Works, 121 W.Va. 314 , 3 S.E. 2d 499 ." In that case and the cases cited *492 therein, in the Rutherford case and in the Holley v. Purity Baking Company case, 128 W.Va. 531 , 37 S.E.2d 729 , 167 A.L.R. 648 , alleged liabilities were founded on the presence in the original packages of deleterious or harmful substances.

1950Va. 531 , 37 S. E. 2d 729 , in which this Court, in point 3 of the syllabus, held that it is reversible error to instruct the jury that if it should find from a preponderance of the evidence that plaintiff sustained injuries as the proximate result of attempting to eat food, manufactured by defendant, contained in defendant’s original package, and purchased by plaintiff consumer from one of defendant’s distributors, “there is ‘a prima facie presumption of law that said defendant was guilty of negligence.’ (Italics supplied).” In the latter case, this Court held that a presumption of law is a r

1959Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115 , 2 S.E.2d 898 ; Parr v. Coca-Cola Bottling Works, 121 W.Va. 314 , 3 S.E. 2d 499 ." In that case and the cases cited *492 therein, in the Rutherford case and in the Holley v. Purity Baking Company case, 128 W.Va. 531 , 37 S.E.2d 729 , 167 A.L.R. 648 , alleged liabilities were founded on the presence in the original packages of deleterious or harmful substances.

1946Va. 314 , 3 S. E. 2d 499 , the question of whether the rule of res ipsa loquitur creates merely an inference or gives rise to a rebuttable presumption was before the Court, and in the first syllabus this Court plainly declared, without calling the doctrine by name-, that it does give rise to a prima facie presumption, following the line of West Virginia cases then thought to be too well known to require citation.

2025In fact, in Travis, the SCAWV clarified the implications of Syllabus Points 14 and 15 of Tudor, stating that “in order for a plaintiff to recover both compensatory damages and punitive damages in an intentional or reckless infliction of emotional distress claim, expert testimony should be used to establish the extent of the plaintiff’s emotional injury.” Travis, 202 W.

2023Pt. 6, in part, Barefoot v. Sundale Nursing Home, 193 W.

2014In re State Public Building Asbestos Litigation, 193 W.Va. 119 , 454 S.E.2d 413 (1994) . . . .

2014In re State Public Building Asbestos Litigation, 193 W.Va. 119 , 454 S.E.2d 413 (1994) . . . .

2013“Once a prima facie claim is established by the claimant and the employer fails to offer medical evidence to refute the medical causation, refusal of the claim for lack of medical causation is reversible error as it is based on pure conjecture.” Hoult v. Workers’ Compensation Commissioner, 181 W.Va. 551 , 383 S.E. 2d 516 (1989).

2013“Once a prima facie claim is established by the claimant and the employer fails to offer medical evidence to refute the medical causation, refusal of the claim for lack of medical causation is reversible error as it is based on pure conjecture.” Hoult v. Workers’ Compensation Commissioner, 181 W.Va. 551 , 383 S.E. 2d 516 (1989).

2013“Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation are those as may fairly and reasonably be considered as arising naturally - that is, according to the usual course of things - 6 from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of its breach.” Syllabus Point 2, Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro, 158 W.Va. 708 , 214 S.E.2d 823 (1975).

2013“Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation are those as may fairly and reasonably be considered as arising naturally - that is, according to the usual course of things - 6 from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of its breach.” Syllabus Point 2, Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro, 158 W.Va. 708 , 214 S.E.2d 823 (1975).

2004The only guidance the majority provides to trial courts for this stage is that the party seeking to defeat application of the attorney-client privilege must introduce evidence establishing "`that the client intended to perpetrate a [crime or] fraud'" and that the trial court must "'"find a valid relationship between the confidential communication that was made and the crime or fraud."'" Id. at 718, 601 S.E.2d at 38 (quoting Medical Assurance, 213 W.Va. at 477 , 583 S.E.2d at 100 ) (quoting 1 Franklin D.

2004In syllabus point five of Hanlon v. Chambers, 195 W.Va. 99 , 464 S.E.2d 741 (1995), we held: To establish a claim for sexual harassment under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., based upon a hostile or abusive work environment, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) it was imputable on some factual basis to the employer.

2004In syllabus point five of Hanlon v. Chambers, 195 W.Va. 99 , 464 S.E.2d 741 (1995), we held: To establish a claim for sexual harassment under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., based upon a hostile or abusive work environment, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) it was imputable on some factual basis to the employer.

2004The only guidance the majority provides to trial courts for this stage is that the party seeking to defeat application of the attorney-client privilege must introduce evidence establishing "`that the client intended to perpetrate a [crime or] fraud'" and that the trial court must "'"find a valid relationship between the confidential communication that was made and the crime or fraud."'" Id. at 718, 601 S.E.2d at 38 (quoting Medical Assurance, 213 W.Va. at 477 , 583 S.E.2d at 100 ) (quoting 1 Franklin D.

2004The only guidance the majority provides to trial courts for this stage is that the party seeking to defeat application of the attorney-client privilege must introduce evidence establishing "`that the client intended to perpetrate a [crime or] fraud'" and that the trial court must "'"find a valid relationship between the confidential communication that was made and the crime or fraud."'" Id. at 718, 601 S.E.2d at 38 (quoting Medical Assurance, 213 W.Va. at 477 , 583 S.E.2d at 100 ) (quoting 1 Franklin D.

2001Id. at 471-72 , 465 S.E.2d at 928-29 . [11] The question of whether the Appellant's contrary evidence rebutted the prima facie case of negligence created by the statutory violation is solely a jury question since the primary purpose of the presumption created by the prima facie rule is to protect the proponent from an adverse dismissal or judgment as a matter of law.

2001Id. at 471-72 , 465 S.E.2d at 928-29 . [11] The question of whether the Appellant's contrary evidence rebutted the prima facie case of negligence created by the statutory violation is solely a jury question since the primary purpose of the presumption created by the prima facie rule is to protect the proponent from an adverse dismissal or judgment as a matter of law.

1998We additionally hold, consistent with our prior holding in Syllabus point 2 of Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W.Va. 210 , 314 S.E.2d 166 (1983), that to make out a prima facie claim for tortious interference with parental or custodial relationship, the complaining parent must demonstrate: (1) the complaining parent has a right to establish or maintain a parental or *766 custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or cust

1998We additionally hold, consistent with our prior holding in Syllabus point 2 of Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W.Va. 210 , 314 S.E.2d 166 (1983), that to make out a prima facie claim for tortious interference with parental or custodial relationship, the complaining parent must demonstrate: (1) the complaining parent has a right to establish or maintain a parental or *766 custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or cust

1992This Court explained in Kanawha Valley Regional Transportation Authority v. West Virginia Human Rights Commission, 181 W.Va. 675 , 383 S.E.2d 857 (1989), that in articulating the prima facie test set forth in syllabus point 3 of Conaway , the Court did not intend to create a more narrow standard of analysis in discrimination cases than undertaken in the federal courts.

1992This Court explained in Kanawha Valley Regional Transportation Authority v. West Virginia Human Rights Commission, 181 W.Va. 675 , 383 S.E.2d 857 (1989), that in articulating the prima facie test set forth in syllabus point 3 of Conaway , the Court did not intend to create a more narrow standard of analysis in discrimination cases than undertaken in the federal courts.

1991Pt. 2, Jarvis v. Modern Woodmen of America, 185 W.Va. 305 , 406 S.E.2d 736 (1991).

1991Pt. 2, Jarvis v. Modern Woodmen of America, 185 W.Va. 305 , 406 S.E.2d 736 (1991).

1991In other words, do the facts support a finding that the appellee adequately rebutted the prima facie presumption of negligence established by the appellants? *360 “ ‘In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences whic

1991In other words, do the facts support a finding that the appellee adequately rebutted the prima facie presumption of negligence established by the appellants? *360 “ ‘In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences whic

1991In other words, do the facts support a finding that the appellee adequately rebutted the prima facie presumption of negligence established by the appellants? *360 “ ‘In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences whic