Dismissal Obtained

Bailey & Wyant PLLC's Equity Member, John P. Fuller and

Of Counsel, Josef A. Horter

Equity Member, John P. Fuller and Charleston's Of Counsel, Josef A. Horter obtained a dismissal of the WVDCR in a case pending before the Circuit Court of Kanawha County, West Virginia.

The Plaintiff had alleged that the WVDCR was liable to him for failing to recalculate his release date after he had been released from custody. The Court found that the WVDCR was afforded qualified immunity and not subject to suit by the Plaintiff for the claims asserted in the Complaint. 

DTCWV Fall Edition

Managing Member Charles R. Bailey and Editor-in-Chief of the 2023 Fall Edition of the DTCWV's Defender.

Click the link to view: DTCWV Defender Fall

Presentation on Use of Video

Charleston's Equity Member, John P. Fuller

Earlier this month, Equity Member, John P. Fuller of the Charleston office, along with Associate Samuel M. Bloom, attended a seminar for Corrections Leadership. Mr. Fuller provided a presentation on the Use of Video in Correctional Litigation.

Keeping you in the Know

Charleston Associate, Samuel M. Bloom

Case law update: Foreseeability and Negligence

The article for this month focuses on a recent decision coming from the Intermediate Court of Appeals. In Linzy v. Beckley Galleria, Inc., et al., the Plaintiff appealed an Order from the circuit court dismissing his claims against the defendant movie theatre. In the case, the Plaintiff was at Marquee Cinemas Galleria 14 in Beckley, West Virginia on the night of May 30, 2020, performing burnouts in a friend’s pickup truck. At the time, the global, COVID-19 pandemic was in full effect and the movie theatre was effectively closed down due to being a non-essential business. Predictably, the Plaintiff was injured while performing burnouts.

Specifically, the Plaintiff was thrown from his friend’s truck, resulting in serious injuries and a prolonged period in the hospital. Thus, the Plaintiff brought suit against the movie theatre alleging two counts: negligence and negligent hiring, training, retention, and supervision. It was Plaintiff’s position that the movie theatre was aware of local teenagers using the parking lot as a late-night hangout spot and that, therefore, the movie theatre had a duty of care to employ security personnel to protect persons on the premises, maintain a lookout and monitor for dangerous activity, and implement safety measures. The movie theatre argued in response that the series of events leading to Plaintiff’s injuries were not reasonably foreseeable. The lower court agreed and dismissed the case.

The Intermediate Court of Appeals ultimately agreed, as well. On appeal, the Plaintiff raised six different assignments of error, but the Intermediate Court of Appeals only addressed one: whether the movie theatre owed any duty to Plaintiff. In concluding the circuit court got it right, the Intermediate Court of Appeals stated that “a reasonable person would not foresee a need to hire security personnel to monitor a parking lot to ensure an individual does not harm himself by falling from the back of a pickup truck while the truck is performing a burnout,” and that, “during the relevant events, due to a global pandemic, the theater was closed as a nonessential business, and members of the public were subject to a stay-at-home order; with that in mind, we decline to proclaim [Plaintiff’s] actions were reasonably foreseeable under these circumstances.”  Importantly, the Court stated that to arrive at any other conclusion would require the movie theatre to otherwise become an insurer for the Plaintiff. 

2023 in Review, and What a Year it has Been

Throughout the year of 2023, Bailey & Wyant, PLLC has maintained a national presence whether it be in person or virtual, presenting with peers across the country.

Dedication to our Community and our Clients

Dismissals for the West Virginia Board of Pharmacy

Bailey & Wyant PLLC's Equity Member, Justin C. Taylor secured complete dismissals for the West Virginia Board of Pharmacy with respect to numerous NAS (Neonatal Abstinence Syndrome) Baby cases in the opioid litigation. These lawsuits involved claims brought by the guardians of individuals who allegedly suffer from the effects of "NAS" purportedly caused by exposure to opioids during their birth mothers' pregnancies.

Promotion and Growth in 2023

And finally, Bailey & Wyant, PLLC welcomed 3 new Associates to the firm; Calvin Tomblin (Charleston), Isabella Ortiz (Wheeling) and Taylor Giles (Martinsburg).

Calvin Tomblin is an Associate in Bailey & Wyant, PLLC’s Charleston, West Virginia office. He attended West Virginia University for both his undergraduate degree and law school degree. During law school Calvin interned with Fairmont State University’s General Counsel office and the Preston County Public Defender’s office. During his last year, he served as a student attorney for the West Virginia Innocence Project Clinic at WVU Law.

Isabella Ortiz attended West Virginia University and graduated cum laude in 2019 with a Bachelor’s of Science in Journalism. Isabella earned her J.D. in 2023 from West Virginia University College of Law where she graduated Order of the Barristers and with a pro bono distinction. Isabella is originally from Fredericksburg, VA and currently resides in Wheeling. 

Taylor Giles was born and raised Charleston, West Virginia. During his time at West Virginia University in both his undergraduate studies and law school, he was heavily involved in the Boy Scouts of America. Taylor was a freelance journalist covering breaking news and wrote over 500 articles published worldwide while attending law school. He also served as a student attorney in the WVU College of Law Veterans Advocacy Clinic during his last year of law school. Taylor previously served as a summer clerk in Bailey & Wyant PLLC’s Martinsburg office and returns as an Associate. He lives in Charles Town, West Virginia.