GENERAL COMMENTS

West Virginia has a two-tiered court system consisting of circuit courts at the trial level with only discretionary appeal to the West Virginia Supreme Court of Appeals. There is no intermediate court of appeals. Circuit court decisions are not reported. Decisions of the West Virginia Supreme Court of Appeals are published in the Southeastern Reporter.

SIGNIFICANT DEVELOPMENTS SINCE THE 2010 SURVEY

None.

I. GENERAL LAW OF PRIVACY

A. Legal Basis of Privacy Claims

In West Virginia, public employees are protected by the Fourth Amendment to the United States Constitution, and Article III, Section 6 of the West Virginia Constitution, both of which prohibit the government from unreasonable searches and seizures. These constitutional provisions have been interpreted to create a right of privacy for public employees. See, e.g., Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983) (public employees granted constitutional right to free speech; constitutional right to privacy does not apply to private sector employees). See also Tiernan v. Charleston Area Medical Center, Inc., 203 W.Va. 135, 506 S.E.2d 578 (1998) (private sector employees do not have a cause of action against their employers who terminate them because of their exercise of the employee’s state constitutional right of free speech). Thus, private sector employees are limited to the common law remedies recognizing the tort of invasion of privacy. See I.B, infra.

B. Causes of Action

West Virginia has recognized the standard four types of invasion of privacy claims, as adopted by most states and the Restatement (Second) of Torts. For a lengthy discussion of the development of the tort of invasion of privacy and its elements, reference should be made to the West Virginia Supreme Court of Appeals opinion in Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70, 10 Media L. Rep. 2225 (1984).

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