The Marshall University Board of Governors was recently granted dismissal of a lawsuit in which it was named defendant. The claim was dismissed because the plaintiff in the case failed to meet the pre-suit notice requirement under the West Virginia code, which requires notice of the claim and relief sought, sent to the defendant by certified mail at least 30 days prior to the filing of the suit. Pre-suit notice is typically not required under West Virginia law, except when the defendant is a healthcare provider or a governmental agency, as in this case.
The case arose out of an interesting fact pattern, whereby one student was attempting to shoot bottle rockets out of his rectum during a fraternity party.
According to the plaintiff, during a house party in May of 2011, one young man became intoxicated, and decided to attempt to “shoot bottle rockets out of his anus on the [fraternity house] deck.” In doing so, he startled the plaintiff, who then jumped backwards, causing him to fall off of the deck of the fraternity house, and becoming injured in the process. He was reportedly lodged between the deck and an air conditioning unit for some period of time. The plaintiff further alleges that there was no railing on the deck at the time of the incident, and that this condition had existed for several months, if not years, prior to the fall.
The suit claims that the fraternity was negligent in failing to provide a safe deck, and that the young man attempting the fireworks was at fault for his actions, which involved consuming alcohol that is known to potentially lead to dangerous activities.
The Alpha Tau Omega Fraternity Inc. of Huntington, W.Va., Richmond Property Group Ltd., Travis Hughes (the man who attempted to shoot the bottle rockets), Marshall University Board of Governors, and Marshall University Interfraternal Council were all named as defendants.
However, the West Virginia Code required the plaintiff to provide the president of the university and the West Virginia Attorney General’s Office with notice of his claim and the relief sought in writing by certified mail at least 30 days before filing suit, which was not done, according to the motion to dismiss that the court subsequently granted. However, the failure affects the claim only insofar as it is related to the university as a governmental entity, and therefore does not affect the claim against the other defendants. The lawsuit seeks compensatory damages.
In addition to demonstrating a case with both negligence and premises liability components, it is also a great illustration the need to hire a law firm that knows the relevant procedural requirements for your personal injury lawsuit. It is unfortunate that a failure to file a pre-suit notice preempted this plaintiff from seeking compensation from some of the defendants who may have ultimately been held responsible.
If you or a loved one has suffered a personal injury, your first step is to contact an experienced personal injury law firm in the Washington D.C. area to discuss your potential legal claim. The knowledgeable attorneys at Lebowitz & Mzhen Personal Injury Lawyers have many years of experience in working with individuals and families who have suffered as a result of the personal injury or wrongful death of a loved one. Our dedicated attorneys have represented families who have suffered from wrongful deaths caused by car accidents, medical malpractice, premises liability and other traumatic events. If you believe that your loved one died because of the wrongful or negligent actions of another, please contact the personal injury attorneys at Lebowitz & Mzhen by calling 1-800-654-1949 or by visiting our website, in order to schedule your initial free consultation.
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