Figaniak et al v. Fraternal Order of Owl's Home Nest et al

Filing 175

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT TYLER JOHNSON'S MOTION FOR SUMMARY JUDGMENT: Denying 133 Motion for Summary Judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 6/19/17. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS G. FIGANIAK and
VALERIE A. FIGANIAK, as
Administrators of the
Estate of Kevin Figaniak,
Plaintiffs,
v.

Civil Action No. 5:15CV111
(STAMP)

FRATERNAL ORDER OF OWL’S HOME NEST,
LOYAL ORDER OF OWLS NEST LODGE 2558,
d/b/a THE OWLS NEST,
a West Virginia corporation,
YE OLDE ALPHA, INC.,
a West Virginia corporation,
CRAIG TYLER PEACOCK, individually,
JARRETT CHANDLER, individually,
and TYLER JOHNSON, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT TYLER JOHNSON’S
MOTION FOR SUMMARY JUDGMENT
This is a wrongful death action arising out of a fight,
resulting in the death of Kevin Figaniak (“Kevin”).

Kevin’s

parents filed this civil action as administrators of his estate,
alleging negligence claims against the participants in the fight.
One of those participants, Tyler Johnson, filed a motion for
summary judgment.

For the following reasons, that motion is

denied.
I.

Facts

Kevin Figaniak and his friend Tyler Johnson (“Johnson”) were
both students at Wheeling Jesuit University in Wheeling, West

Virginia and were on the University’s lacrosse team. ECF No. 138-5
at 8.

The young men went out drinking together at Ye Olde Alpha,

Inc. (“the Alpha”), a local bar and restaurant.
3.

ECF No. 138-1 at

After several hours of drinking, they left the Alpha as it was

closing and began walking back to the Wheeling Jesuit University
campus where they lived.
As the young men were walking down the block, they passed
another bar, the Loyal Order of Owls Nest Lodge 2558 (“the Owls
Nest”).

At that time, Craig Tyler Peacock (“Peacock”), Jarrett

Chandler (“Chandler”), and Tyler Witty (“Witty”) exited the Owls
Nest and began walking to the Alpha.

ECF No. 138-3 at 6.

The

groups converged, and Johnson told them the Alpha was closing. Id.
Peacock, Chandler and Witty then began walking back to Witty’s
pickup truck parked next to the Owls Nest.

Id. at 9.

The young men initially engaged in friendly conversation. Id.
at 6; ECF No. 138-7 at 3.

Johnson then asked Peacock if they were

in college and where they went to school.
7 at 3-4.

ECF No. 138-3 at 6; 138-

Peacock responded that they were “pipeliners,” working

as welders in the construction of natural gas pipelines in the
area.

ECF No. 138-3 at 6;

138-7 at 4.

Johnson then responded

with some variation of “Oh, that’s right. You don’t need a f*****g
education for that.”

ECF No. 138-3 at 6; 138-7 at 4.

Peacock took

offense to Johnson’s comment, believing Johnson was expressing
elitism and was putting down blue-collar workers. ECF No. 138-3 at

2

6, 8.

The young men then began trading insults and arguing.

at 5, 9.

Id.

Johnson testified at his deposition that he did not

remember this interaction due to his level of intoxication and the
passage of time.

ECF No. 138-1 at 5-6.

Johnson and Kevin continued walking down the street toward
campus and into a residential neighborhood.
However, the young mens’ argument continued.

ECF No. 138-3 at 9.
Peacock and Witty

testified in their depositions that as Johnson and Kevin walked,
Johnson turned around several times and yelled back at them,
“baiting” them into continuing the argument and following.
5-6, 8-9; ECF No. 138-7 at 6.

Id. at

Johnson testified in his deposition

that it was Kevin who continued to turn around and yell or smile at
Peacock and Witty, and that he attempted to get Kevin to cease his
actions and to continue walking.

ECF No. 138-1 at 4, 7.

It is

undisputed that Peacock argued back and that he and Witty continued
to follow Kevin and Johnson.

ECF No. 138-3 at 9.

Peacock

testified in his deposition that generally all of them exchanged
insults,

including

Kevin.

Id.

at

11-12.

However,

he

also

testified specifically that he did not recall Kevin saying anything
or turning around to yell or smile.

Id. at 12.

At this time,

Chandler was urinating near Witty’s truck back at the Owls Nest,
and then caught up with the group.

ECF No. 134-4 at 6-7.

Peacock, Witty, and Chandler caught up to Kevin and Johnson,
and the argument continued face-to-face on the sidewalk along

3

Locust Avenue in a residential neighborhood.

ECF No. 138-2 at 3;

138-3

deposition

at

12.

Chandler

testified

attempted to end the confrontation.
3.

in

his

that

he

ECF No. 134-4 at 8; 138-2 at

Witty testified in his deposition that Kevin seemed intent on

fighting.

ECF No. 138-7 at 6.

Kevin then pushed Chandler.

No. 138-2 at 4; ECF No. 138-7 at 6-7.
punching Kevin on the chin.

ECF

Chandler responded by

ECF No. 138-2 at 4.

Kevin twisted

slightly and fell back, landing on the ground face up.

Id.

Johnson and Witty testified in their depositions that Kevin fell
back onto the sidewalk and that the back of his head hit the
concrete.

ECF No. 138-7 at 7; 134-2 at 15, 18.

Chandler testified

in his deposition that Kevin fell back into a grassy area and that
his head landed in the grass rather than on the concrete.

See ECF

No. 138 at 27.
Johnson then punched and pushed Peacock and turned to run but
was tackled by Peacock, who then struck him several times while
sitting on top of him.

ECF No. 138-2 at 5; 138-3 at 3.

testified that he tried to pull Peacock off of Johnson.
138-2 at 5.

However, Peacock denies this.

Chandler
ECF No.

ECF No. 138-3 at 4.

Chandler then fled the scene and ran back to Witty’s truck parked
near the Owls Nest.

ECF No. 138-2 at 5; 138-3 at 9.

Witty pulled

Peacock off of Johnson, and he and Peacock then ran back to Witty’s
truck.

ECF No. 138-3 at 9; 138-7 at 8.

As the two ran away,

Peacock’s foot came into contact with Kevin’s head.

4

ECF No. 138-7

at 8.

Witty later told police he believed Peacock intentionally

kicked Kevin but has since testified in his deposition that he
believed Peacock tripped over Kevin’s head.

Id. at 8-9.

Peacock

testified in his deposition that he did not recall intentionally
kicking Kevin and that if his foot contacted Kevin’s head it
happened unintentionally when he “leaped over him.”
at 3.

ECF No. 138-3

After the young men got to the truck, they drove to Jill’s

Lounge and Gentlemen’s Club, a strip club in Triadelphia, West
Id. at 9.

Virginia and continued drinking.

After Witty and Peacock fled, Johnson knocked on the doors of
nearby houses.

ECF No. 138-5 at 5.

awoke and answered.

Id.

Robert Hartley (“Hartley”)

Johnson, in a panicked state, asked

Hartley to help him move Kevin back to campus, but Hartley told
Johnson that Kevin needed medical attention and that it was not a
good idea to move him.

ECF No. 138-4 at 3, 6.

Johnson then

offered to pay Hartley for his help and asked him not to call the
police.
9-1-1.

Id. at 6.

Hartley refused, and his neighbor then called

ECF No. 138-5 at 5.

Johnson then attempted to move Kevin on his own by lifting
Kevin’s shoulders from behind. ECF No. 138-1 at 11-12; 138-4 at 34.

However, Johnson was unable to lift Kevin beyond a sitting

position and Kevin slipped from Johnson’s grip.
12; ECF No. 138-4 at 5.

ECF No. 138-1 at

Kevin fell to the left into the grass and

“kind of face planted into the grass next to his legs.”

5

ECF No.

138-4 at 4.

Johnson attempted to lift Kevin again, but Hartley

protested, and Johnson laid Kevin back down.

Id.

However, as

Johnson was laying Kevin down, Kevin’s head snapped backwards and
fell about ten inches, hitting the sidewalk.

ECF No. 138-1 at 12;

138-4 at 4-5.
Hartley testified at his deposition that when he first saw
Kevin, he was laying flat on his back with his waist and legs
laying in the grass and his torso and head on the sidewalk.
No. 138-4 at 3.

ECF

Hartley said Kevin appeared to be unconscious,

that he never moved, and that his breathing was labored and
“gurgling.”

Id. at 3-4.

Hartley said that Kevin’s condition did

not appear to change at any point, even after Johnson attempted to
lift him.

Id. at 5-6.

An ambulance arrived and rushed Kevin to the hospital.
No. 138-5 at 3-4.

ECF

Treating physicians at Wheeling Hospital

completed a computerized axial tomography scan of Kevin, finding
severe bleeding on his brain and a fracture in his skull from “near
his right temple area around to the back of his head.”

Id. at 7.

The attending neurosurgeon concluded that Kevin was “in a coma due
to traumatic brain injury including damage to approximately 3/4 of
his brain stem.”
transferred

to

Id.
UPMC

Kevin was placed on life support and
Presbyterian

Pennsylvania but died the next day.

6

Hospital
Id. at 5, 8.

in

Pittsburgh,

After an autopsy, the Chief Medical Examiner for the City of
Wheeling, Jimmie K.A. Smith, M.D., concluded that the cause of
death was subdural hematoma, a collection of blood between the
brain surface and the protective covering of the brain caused by
traumatic brain injury.

ECF No. 136-1 at 4.

He found that the

back of Kevin’s skull was fractured, that Kevin had abrasions on
the back of his head and above his left eye, and that Kevin’s brain
showed signs of at least one blow to the back of his head, and
blows to the left and right sides of his head.

Id. at 4-5.

He

concluded that Kevin’s death was caused by several blows to the
head

and

that

he

was

not

able

to

separate

those

blows

as

individually sufficient to cause death. Id. at 9-12. Dr. Smith is
also listed as an expert witness for Chandler.

Joseph Burton,

M.D., Johnson’s expert, concluded that Kevin’s initial fall onto
the sidewalk would have been sufficient to cause his death, ECF No.
134-10 at 9, while Wayne K. Ross, M.D., the plaintiffs’ expert,
concluded that it would not have been sufficient to cause Kevin’s
death.

ECF No. 134-11 at 8.

Chandler later plead guilty to involuntary manslaughter for
Kevin’s death.

Peacock was charged with murder and was acquitted

after a jury trial. Johnson was not criminally charged in relation
to the fight.

7

Kevin’s parents filed this civil action on behalf of Kevin’s
estate against Johnson, Peacock, Chandler.1
negligence,

wrongful

death,

and

The plaintiffs allege

survivorship

claims

against

Johnson, Peacock, and Chandler; and assault and battery claims
against Peacock and Chandler.

Each defendant filed crossclaims

for contribution and implied indemnification against each other
defendant. Johnson filed a motion for summary judgement, which the
plaintiffs, Chandler, and Peacock oppose.
II.

Applicable Law

Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A fact is

“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).

A dispute of material

fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”

Id.

If the

nonmoving party “fails to make a showing sufficient to establish

1

Originally, the plaintiffs also alleged negligence claims
against the Owls Nest, the Alpha, and the Fraternal Order of Owl’s
Home Nest (“Fraternal Order”). The parties voluntarily dismissed
their claims, including the crossclaims, against Fraternal Order,
and it is no longer a party to this action.
Further, the
plaintiffs settled their claims against the Alpha and the Owls
Nest, and this Court approved that settlement under West Virginia
Code § 55-7-7. As part of that settlement, all crossclaims against
the Alpha and the Owls Nest were dismissed with prejudice. Thus,
the only remaining defendants are Johnson, Chandler, and Peacock.
8

the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.

See

“The burden then shifts to the

nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”

Temkin v. Frederick County Comm’rs, 945

F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Inc., 477 U.S. 242, 256 (1986).

Anderson v. Liberty Lobby,

Moreover, “[t]he nonmoving party

cannot create a genuine issue of material fact through mere
speculation
Othentec

or

Ltd.

the
v.

building

Phelan,

526

of

one

F.3d

(internal quotation marks omitted).

inference
135,

140

upon
(4th

another.”
Cir.

2008)

The nonmoving party must

produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing

9

it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).
III.

Discussion

Johnson seeks summary judgment on the plaintiffs’ negligence
and wrongful death claims against him.

To maintain their wrongful

death claim, the plaintiffs, as Kevin’s beneficiaries, must show
that Kevin’s death was caused by Johnson’s negligence. Bradshaw v.
Soulsby, 558 S.E.2d 681, 687 (W. Va. 2001); see also W. Va. Code
§ 55-7-5.

To prove negligence, the plaintiffs must show: (1) that

Johnson owed Kevin a duty; (2) that Johnson negligently breached
that duty; (3) that Kevin was injured by Johnson’s breach; and (4)
that Kevin’s injuries were proximately caused by Johnson’s breach.
Wheeling Park Comm’n v. Dattoli, 7897 S.E.2d 546, 551 (W. Va.
2016).
The plaintiffs allege two distinct negligence claims against
Johnson; that he negligently instigated the fight, and that he
negligently caused further injury when he attempted to move Kevin.
Johnson argues that he did not owe Kevin a duty to prevent the
fight or to provide aid, that his alleged breach did not cause
Kevin’s death, that his actions were not the proximate cause of
Kevin’s death, and that Johnson is immune from liability for
Kevin’s post-fight injuries under West Virginia’s “good Samaritan”
statute.

10

A.

Pre-Fight Negligence
Johnson seeks summary judgment as to his actions before the

fight.

He argues that he did not owe Kevin a duty of care

regarding the lead-up to the fight because it was not foreseeable
that Kevin would be injured as a result of Johnson’s verbal
argument with Peacock. Further, Johnson argues that his negligence
was not the proximate cause of Kevin’s death.
1.

Duty

Generally, one has a duty “to conform to the legal standard of
reasonable conduct in light of the apparent risk” in a given
situation. Id. (internal quotation marks omitted). In determining
the scope of that duty in a particular situation, courts must
consider the foreseeability of harm, “the likelihood of injury, the
magnitude

of

the

burden

of

guarding

against

it,

and

the

consequences of placing that burden on the defendant,” along with
other “broader policy consideration . . . [that] are not so readily
articulated.”

Id. at 568.

However, “[t]he ultimate test of the

existence of a duty to use care is found in the foreseeability that
harm may result if it is not exercised.”

Marcus v. Staubs, 736

S.E.2d 360, 370 (W. Va. 2012) (internal quotation marks omitted).
“The test is, would the ordinary man in the defendant’s position,
knowing what he knew or should have known, anticipate that harm of
the general nature of that suffered was likely to result?”

Id.

(internal quotation marks omitted). Regardless, generally “one who

11

engages in affirmative conduct, and thereafter realizes or should
realize that such conduct has created an unreasonable risk of harm
to another, is under a duty to exercise reasonable care to prevent
the threatened harm.”

Robertson v. LeMaster, 301 S.E.2d 563, 567

(W. Va. 1983).
While the issue of duty is one of law for the court, Aikens v.
Debow, 541 S.E.2d 576, 580 (W. Va. 2000), “the court must leave
room for the fact-finder to determine the issue of foreseeability.”
Marcus, 736 S.E.2d at 370.

The court must determine “in general

terms whether the type of conduct at issue is sufficiently likely
to result in the kind of harm experienced based on the evidence
presented,”

while

considering

the

the

jury

likelihood

“has
or

the

more

specific

foreseeability

of

job

the

of

injury

sustained under the particular facts of the case in order to decide
whether the defendant was negligent in that his or her conduct fell
within the scope of the duty defined by the court.”

Id. at 370-71.

Thus, “[w]hen the facts are in dispute, the court identifies the
existence

of

evidentiary

the

duty

finding.”

conditioned

upon

Id.

(internal

at

371

the

jury’s

possible

quotation

marks

omitted) (alteration in original).
The plaintiffs allege Johnson was negligent in instigating a
fight with Peacock and Chandler.

Johnson argues that it was not

foreseeable that his comment to Peacock would result in Peacock and
Witty “stalking” him and Kevin and ultimately assaulting them.

12

Thus, the question is whether a reasonable person in Johnson’s
position would have known or should have known that his insults and
arguing could lead to a fight in which Kevin would be injured.
First, this Court notes that the record is filled with
conflicting evidence as to what Johnson said to Peacock, whether
Johnson or Kevin continued the argument as they walked back to the
Wheeling Jesuit University campus, how the fight started, and what
specifically happened during the fight. This conflicting testimony
presents a host of credibility issues that this Court may not
determine on summary judgment.
(4th Cir. 1991).

Gray v. Spillman, 925 F.2d 90, 95

Further, questions of who insulted whom, who

continued the argument, and how the young men came to physically
fight all bear on the foreseeability issue.
Second, taking the evidence in the plaintiffs’ best light, not
only did Johnson insult Peacock, he continued to do so as he and
Kevin

walked

back

to

the

Wheeling

Jesuit

University

campus.

Johnson’s continued insults and arguing “baited” Peacock and Witty
into following him and Kevin, increasing the likelihood of a
physical confrontation.

With these facts, a reasonable jury could

conclude that a reasonable person in Johnson’s position would know
or should know that insulting Peacock and continuing to argue with
him created an unreasonable risk of physical confrontation that
could result in Kevin being injured.

13

Nevertheless, Johnson argues that he did not have a duty to
protect Kevin from the deliberate criminal conduct of Chandler and
Peacock.

He relies on Miller v. Whitworth, 455 S.E.2d 821 (W. Va.

1995), in which the West Virginia Supreme Court of Appeals stated
that “[g]enerally, a person does not have a duty to protect others
from the deliberate criminal conduct of third parties.”
825.

Id. at

However, the court went on to explain that “a person usually

has no duty to protect others from the criminal activity of a third
party because the foreseeability of risk is slight, and because of
the social and economic consequences of placing such a duty on a
person.”

Id.

Later, in Marcus v. Staubs, 736 S.E.2d 360 (W. Va.

2012), the court characterized its statement in Miller as dicta and
explained that a duty to protect may arise “where (1) there is a
‘special relationship’ which gives rise to a duty or (2) ‘when the
person’s affirmative actions or omissions have exposed another to
a foreseeable high risk of harm from the intentional misconduct.’”
Id. at 369-70.
The evidence, taken in the plaintiffs’ best light, shows that
Johnson’s affirmative actions exposed Kevin to a foreseeably high
risk of being assaulted and battered.

As discussed more fully

below in the context of proximate causation, a reasonable jury may
find that the fight, including Chandler and Peacock’s “deliberate
criminal conduct,” was a foreseeable result of Johnson’s insult to
and continued antagonization of Peacock.

14

Johnson further argues that his insult to Peacock did not
constitute “fighting words” such that it was not reasonable to
expect a fight.

However, the fighting words doctrine applies in

determining whether speech is protected under the Free Speech
Clause of the First Amendment, not negligence law.

See e.g.,

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992).

The

question here is whether Johnson’s insults and arguments could
foreseeably lead to a fight, not whether Johnson’s statements
constitute protected speech.
This Court conditionally finds that Johnson owed Kevin a duty
of care to not instigate the fight, conditioned upon the jury’s
findings of fact regarding the circumstances leading up to the
fight and regarding the foreseeability of Kevin’s injuries.
2.

Proximate Causation

Johnson argues that any breach of his duty to Kevin was not
the proximate cause of Kevin’s death.

He asserts that the causal

chain was broken by Kevin, Chandler, and Peacock’s intentional
“criminal acts.”

Specifically, he claims that Peacock’s following

of Kevin and him constituted criminal stalking, that Kevin and
Chandler’s physical contacts with each other constituted criminal
battery, and that Chandler committed involuntary manslaughter.
Johnson argues that these actions were intervening causes of
Kevin’s death, absolving him of his negligence.

15

Generally, the “proximate cause of an injury is the last
negligent act contributing to the injury and without which the
injury would not have occurred.”

Sergent v. City of Charleston,

549 S.E.2d 311, 320 (W. Va. 2001). However, “no one defendant need
Louk v. Isuzu Motors, Inc., 479

be the sole cause of the injury.”
S.E.2d 911, 923 (W. Va. 1996).

Where “the negligence of two or

more parties concurred in time and place and the negligence of each
proximately contributed to the resulting harm,” the plaintiff may
recover from each negligent party.
One’s

negligence

may

be

Id.

discharged

if

there

was

some

intervening cause of the plaintiff’s injury. Robertson, 301 S.E.2d
at 569.

The intervening cause “must be a negligent act, or

omission, which constitutes a new effective cause and operates
independently

of

any

other

act,

proximate cause of the injury.”

making

it

and

it

only,

the

Id. (internal quotation marks

omitted). However, “if the intervening cause is one which is to be
reasonably anticipated, the defendant may be liable, for ‘[t]he
risk created by the defendant may include the intervention of the
foreseeable negligence of others.’”

Id. at 570 (alteration in

original).
Johnson argues that another’s intentional criminal conduct is
necessarily an intervening cause, relying on the decisions of the
West Virginia Supreme Court of Appeals in Sergent v. City of
Charleston, 549 S.E.2d 311 (W. Va. 2001), and Yourtee v. Hubbard,

16

474 S.E.2d 613 (W. Va. 1996), and the court’s unpublished decision
in Ayers v. Erie Insurance Company, No. 14-0843, 2015 WL 3675302
(W. Va. June 12, 2015).
proposition

that

a

However, these cases do not stand for the

subsequent

tortfeasor’s

necessarily an intervening cause.

criminal

acts

are

Rather, in each case the court

reinforced the principle that a third party’s negligent, reckless,
intentional, or criminal acts are not an intervening cause if those
acts were reasonably foreseeable at the time of the original
tortfeasor’s negligence.

Id.; Sergent, 549 S.E.2d at 320-21;

Yourtee, 474 S.E.2d at 620-21.
In

Sergent,

the

West

Virginia

Supreme

Court

of

Appeals

concluded that police officers were not liable for the death of a
bicyclist

during

an

unexpected

high

speed

chase

because

the

suspects’ reckless flight was not reasonably foreseeable to the
officers

when

confrontation.

an

undercover

operation

549 S.E.2d at 320-21.

unexpectedly

created

a

Similarly, in Yourtee, the

court concluded that the defendant was not liable where the
plaintiff and a friend stole the defendant’s unlocked vehicle,
taking it for a joy ride, resulting in an accident and the
plaintiff’s death because the thieves’ actions were not reasonably
foreseeable to the defendant at the time he left his vehicle
unlocked.

474 S.E.2d at 620-21.

In Ayers, the defendant was

physically assaulted by her daughter, and when the defendant asked
the plaintiff to call the police, her daughter then attacked the

17

plaintiff.

Id. at *4.

The Court held that the defendant did not

negligently cause the plaintiff’s resulting injuries because her
daughter’s actions were not reasonably foreseeable. Id. In no way
do these cases purport to create a rule that another’s criminal
conduct is necessarily an intervening cause.
As discussed above, a reasonable jury may find that the fight
and Kevin’s resulting injuries and death were foreseeable results
of Johnson’s actions.

Viewing the facts in the plaintiffs’ best

light, a reasonable jury could find that Kevin, Chandler, and
Peacock’s “criminal” acts would foreseeably result from Johnson’s
instigation of the fight.

Further, any contribution Kevin made to

causing the fight is a question of comparative negligence and
apportionment of fault; a factual determination for the jury, which
this Court may not determine based on conflicting evidence. Reager
v. Anderson, 371 S.E.2d 619, 625 (W. Va. 1988).
B.

Post-Fight Negligence
Johnson argues that he was not obligated to assist Kevin in

any way after the fight.

Further, he argues that his negligence

did not cause Kevin’s death or any physical pain or suffering.
Alternatively, Johnson argues that he is immune from any liability
under West Virginia’s “good Samaritan” statute.
1.

Duty

Johnson argues that he was not obligated to assist Kevin after
the fight.

He relies on West Virginia Code § 17C-4-3, which he

18

argues is the sole statutory authority for finding an affirmative
duty to provide aid.
However, § 17C-4-3 deals with a driver’s duty to provide
information and aid to persons involved in a motor vehicle accident
with the driver.

Clearly, the provision serves to supplement

common law duties to render aid, not to limit them.
As stated above, one whose affirmative conduct creates an
unreasonable risk of harm to another has an affirmative duty of
reasonable care to prevent that harm.
567.

Robertson, 301 S.E.2d at

This includes a duty to aid someone made helpless by the

tortfeasor’s conduct.

See Restatement (Second) of Torts § 322

(1965) (“If the actor knows or has reason to know that by his
conduct, whether tortious or innocent, he has caused such bodily
harm to another as to make him helpless and in danger of further
harm, the actor is under a duty to exercise reasonable care to
prevent such further harm.”).

Thus, if the jury finds that

Johnson’s affirmative conduct created the risk of Kevin’s injuries,
Johnson had an affirmative duty to use reasonable care to prevent
further harm to Kevin after the fight.
2.

Cause of Death

Johnson argues that his post-fight negligence in attempting to
move Kevin did not cause Kevin’s death or any additional pain or
suffering.

He argues that Kevin’s initial fall onto the sidewalk

was sufficient to cause his death such that he did not cause

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further damage by allowing Kevin’s head to hit the ground twice
more.

Specifically, Johnson argues that all “credible” experts

agree that an unbroken fall from standing height onto concrete
would be sufficient to cause a skull fracture, subdural hematoma,
and death.
“[T]he issue of apportionment of negligence or causation is
one for the jury or other trier of the facts, and only in the
clearest of cases where the facts are undisputed and reasonable
minds can draw but one inference from them should such issue be
determined as a matter of law.”

Reager, 371 S.E.2d at 625.

The parties offer competing expert testimony regarding the
cause of Kevin’s death.

Dr. Joseph Burton concluded that Kevin’s

initial fall was sufficient to cause death, ECF No. 134-10 at 9,
while Dr. Wayne Ross and Dr. Jimmie K.A. Smith stated that they
cannot conclude to a degree of medical certainty which blow caused
Kevin’s death.

ECF No. 134-11 at 8.

Clearly, this conflicting

expert testimony presents credibility determinations for the jury.
A reasonable jury could find that the blows to Kevin’s head when
Johnson tried to move him contributed to Kevin’s traumatic brain
injury, making death more likely than it may have been after only
his initial fall.

Thus, summary judgment is not proper as to this

issue.

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3.

Good Samaritan Statute

Johnson alternatively argues that he is immune from any
liability for his attempts to move Kevin under West Virginia’s
“good Samaritan” statute, W. Va. Code § 55-7-15.

Section 55-7-15

provides that “[n]o person . . . who in good faith renders
emergency care at the scene of an accident or to a victim at the
scene of a crime, without remuneration, shall be liable for any
civil damages as the result of any act or omission in rendering
such emergency care.”

W. Va. Code § 55-7-15.

“This statute was designed to encourage those persons owing no
duty to render aid in emergency circumstances. It was not intended
to relieve one of liability for the breach of a pre-existing duty.”
Hovermale v. Berkeley Springs Moose Lodge No. 1483, 271 S.E.2d 335,
341 (W. Va. 1980).

Thus, if the jury finds that Johnson’s

negligence in instigating the fight contributed to Kevin’s injury,
§ 55-7-15 cannot absolve him of his liability for breaching his
duty to prevent further harm to Kevin.
Further,

there

are

genuine

disputes

of

fact

regarding

Johnson’s motives in attempting to move Kevin and whether his
actions constitute a good faith attempt to render “emergency care.”
Hartley’s deposition testimony tends to show that Johnson was more
interested in avoiding trouble with the law or the University than
he was in Kevin’s heath and safety.

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Thus, a reasonable jury could

find that Johnson attempted to move Kevin to avoid personal trouble
rather than to render emergency aid.
IV.

Conclusion

For the above reasons, this Court finds there are genuine
issues of material fact as to Johnson’s liability.

Accordingly,

Johnson’s motion for summary judgment is (ECF No. 133) DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

June 19, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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