Supreme Court Win

Bailey & Wyant PLLC's Martinsburg Equity Member, James W. Marshall, III and Charleston Associate, Adam K. Strider

Bailey and Wyant successfully defended dismissals from the Circuit Court of Mineral County West Virginia in the new supreme court opinion ____ v. ____. The Petitioner asserted claims for malicious prosecution, abuse of process and civil conspiracy against the Grant County Prosecutor and Hampshire County Prosecutor. The Circuit Court dismissed the claims pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure finding that even if the petitioners allegations were true, which the prosecutors denied, they were entitled to prosecutorial immunity.  

Trial Victory for Wheeling

Wheeling Equity Member, Mark A. Kepple

Mark A. Kepple, Esq. a member of the Wheeling Office, along with Joseph G. Nogay, Esq. of Selitti Nogay & Nogay successfully defended a commercial claim for various economic damages against a commercial tenant and prevailed on the company’s counter-claim assertion of unpaid rent. The matter was pending in the Circuit Court of Marion County – Business Court Division. 

After a 3 day trial, the Court granted Mr. Kepple’s client’s claim of relief that it was entitled to past years rent payments along with a determination that future rent payments are to be made. A formal damages hearing is set for December 15, 2023. See: American Bituminous Power Partners, LP, v. Horizon Ventures of West Virginia, Inc. pending before the Honorable Judge Michael Lorensen at Case no. CC-24-2018-C-130.  

Summary Judgment and Dismissal

Charleston's Of Counsel, William E. Murray and Associate, Jaden P. Rhea

Bailey & Wyant PLLC's Of Counsel, William E. Murray and Associate, Jaden P. Rhea, of the Charleston office, obtained summary judgment on behalf of several correctional officer defendants at Western Regional Jail in Mays v. Aldridge, et al., No. 3:22-cv-00319 (S.D. W. Va. 2022). The pro se Plaintiff alleged Defendants failed to protect him from an attack and assault by other inmates in violation of the Eighth Amendment of the United States Constitution.

The Southern District of West Virginia granted summary judgment for the defendants and dismissed the case finding that there was no evidence that the correctional officers knew of and disregarded an excessive risk to Plaintiff’s health and safety prior to the attack. 

2023 WVSOM's Wild West Benefit

Managing Member Charles R. Bailey and Mrs. Peggy Bailey

The firm of Bailey & Wyant PLLC has a strong interest in, and annually supports the West Virginia School of Osteopathic Medicine. This year's theme was a Wild West Benefit to raise funds for student scholarship, and honored "Buffalo" Bob Foster, D.O., who recently retired and was an educator at WVSOM for over 40 years.

Keeping you in the Know

Charleston Associate, Samuel M. Bloom

Case law update:   Proximate Cause and Intervening and Superseding Cause.

The article for this month focuses on a recent Opinion from the Supreme Court of Appeals of West Virginia that was published on November 8, 2023. In Boyce v. Monongahela Power Co., et al., the Plaintiff was an employee of Lowes who was making a residential delivery when he encountered overhead communication lines that his truck could not clear. He attempted to move the communication lines by climbing on top of his truck and wrapping shrink wrap around the communication lines. However, the lines were close to an energized electrical line and Plaintiff electrocuted himself. Plaintiff suffered severe injuries as a result.

The lower court ultimately granted summary judgment in favor of all the defendants, finding that Plaintiff’s actions were negligent and served as the only proximate cause of the incident and his resulting injuries.  Further, the lower court held that even if there was a genuine issue of material fact present that would normally preclude the grant of summary judgment, Plaintiff’s actions constituted an intervening and superseding cause of the incident and injuries

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Plaintiff appealed the decision after a Rule 59(e) motion was denied. On appeal, the Plaintiff argued that proximate cause, foreseeability, and intervening cause involves questions of fact that should be decided by a jury, not the court. The Supreme Court of Appeals of West Virginia disagreed with Plaintiff.

In its Opinion, when discussing proximate cause, the Supreme Court of Appeals found that the defendants could not reasonably foresee that a truck driver without any training in the electrical field would climb on top of a truck, shrink-wrap communication lines, and contact an energized electrical line. The Court specifically emphasized that Plaintiff’s “intentional actions that resulted in his injuries could not have been reasonably anticipated by the [defendants].” As for its discussion of intervening and superseding causes, the Court stated that all of Plaintiff’s actions were intentional and willful and because it was not reasonably foreseeable that Plaintiff would climb on top of his truck, apply shrink wrap to the communication lines, and contact the energized electrical line that was approximately 20’6” above the ground, Plaintiff’s actions were clearly intervening and superseding acts breaking the chain of causation in the immediate matter. Thus, the Court has provided further delineation as the causation necessary to establish a valid negligence claim. 

Bailey & Wyant Sponsors Training Session

Bailey & Wyant PLLC Sponsors Training Session for Kanawha County Emergency Ambulance Authority

Bailey & Wyant PLLC sponsored a training session at the Kanawha County Emergency Ambulance Authority, held by LSU NCBRT/Academy of Counter-Terrorist Education providing a Department of Homeland Security (DHS) certified course.

As a founding member of the National Domestic Preparedness Consortium (NDPC), LSU NCBRT/ACE serves as a DHS/FEMA training partner and provides certified training to emergency responders under the Homeland Security National Training Program. The NDPC is a partnership of public and private organizations, the majority academic, committed to serving emergency first responders by providing quality, cost-effective counter-terrorism training.

This course teaches participants how to create effective training plans for their agencies and jurisdictions. By evaluating their abilities to meet their emergency operations plan (EOP) using traditional and national preparedness tools, participants will know how prepared do they need to be, how prepared are they, and how to prioritize efforts to close the difference.

Agencies that plan and train together are much better equipped to successfully respond together. In this course, participants learned a Jurisdiction Training Assessment Process in which an integrated assessment team created a jurisdictional profile and evaluates their abilities to meet their EOP. Participants are then able to identify and catalog training gaps and identify ways to close them by prioritizing training efforts, developing improvement plans and implementing a course of action.