According to a recent report, the Supreme Court of Appeals' decision in West Virginia Regional Jail and Correctional Facility Authority v. A.B. may be reconsidered. An order not yet obtained by WVSCBlog.com, (UPDATE: The order may be read here: AB Order, and the corrected order is here) but said to have been released to the parties yesterday, indicated that a "modified opinion" will be released by the Court. According to the Charleston Gazette:
This does not happen very often. We are really pleased,” said attorney Mike Woelfel, who petitioned the court for a rehearing. “My guess is we were able to raise some legal issues that had not been presented previously in the case.
Additional oral arguments are not expected to be held. The West Virginia Association for Justice, among others, sought reconsideration of what was perceived as a harsh decision that would make it difficult for victims of prison sexual assaults, at the hands of guards or officials, to ever prove and win their cases. The WVAJ brief stated:
The harmful message sent by this Court with this decision is entities may not be held liable for the life-altering and permanent injuries inflicted by one of its agents, contractors, or employees committing a sexual assault, even where the assault occurred in the workplace at a time when the employee was on the job and being paid by the employer and in a situation where the employer had invested in the employee a tremendous amount of power and authority over the person sexually assaulted.
Justices Ketchum and Loughry are reported to have dissented from the decision to reconsider the decision. We will continue to update this case as information becomes available.