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Bautista LeRoy Resolves Pedestrian Train Collision In West Virginia For A Confidential Amount

Westmoreland Park off Vernon St. in Huntington, West Virginia was much like other parks. It had basketball courts, tennis courts and soccer fields. It had restrooms. It had a gazebo with picnic benches and a barbeque grill. It also had a playground area next to the gazebo, complete with swings, a “slicky-slide,” “monkey bars,” and a little merry-go-round. Residents held children’s birthday parties, anniversaries and weddings there. Kids played there after school and practiced soccer there with their teammates. People walked their dogs there. The nearby church, Westmoreland Baptist, had picnics there for the congregation. Westmoreland Park was centrally located between a residential and a commercial area and had facilities for people of all ages.

Unlike other parks, however, the southern border of Westmoreland Park was a set of railroad tracks.  The tracks existed there long before the 80’s when Westmoreland Park was built.  The tracks consisted of two mainline tracks that were used by many as 38 eastbound and westbound trains per day. The trains carried cargo such as coal and chemicals. The trains were also authorized to travel as fast as 79 mph through the area, and the speed limit on intersecting Vernon St., a busy thoroughfare, was 45 mph. There was nothing between those tracks and Westmoreland Park except a row of bushes. And the picnic area with the gazebo and the BBQ grill were in the southeast corner within feet of the tracks and the Vernon St. railroad crossing. So was the playground.

What’s more, there was a worn “well-known path” through the brush line in this area. It was covered with gravel, large enough for upright adults to walk through, and led directly to the tracks. Spanning from the edge of the grass in the picnic area to the ballast of the tracks, the path was no longer than the length of a small car. The path was inviting to children, who could crawl up and through it in a blink. The path had been there for decades and got “bigger and bigger” over the years. Park visitors had, in fact, been using the path regularly for as long as residents could remember. Employees of the Coyne textile plant just on the other side of the tracks, for example, crossed it regularly to get to and from the picnic area to have lunch or take a smoking break.

On Saturday morning, September 19, 2009, Summer Reynolds, nearly 13 years old at the time, and four of her cousins made their way to Westmoreland Park. All of them lived near the Park, and the trip was something the group did on a frequent basis. Once they got there, they played soccer. Unfortunately, they played the game in the grass next to the gazebo and the playground, and someone kicked the ball through path and on to the railroad tracks. The five of them went through the path to get the ball, but only four of them returned. Summer was struck by a 30 mph freight train. A video from the train reportedly showed Summer walking on the tracks for an inordinate amount of time as the train was blaring its horn behind her.

Summer was found unconscious, bleeding from the head, face down on the tracks. She was rushed by ambulance to the Cabell Huntington Hospital as a Priority 1 trauma patient. There, the physicians diagnosed her with multiple trauma including a traumatic brain injury with subdural hemorrhage, right open femur shaft fracture, closed right acetabular fracture, bilateral occipital fracture, a scalp wound, post-concussive syndrome, amnesia, right optic nerve damage, and multiple abrasions. She spent most of her 9-day stay at Cabell Huntington in surgery and various levels of altered consciousness with repetitive speech in the intensive care unit. On September 27, 2009, she was discharged with a wheelchair and a walker. She was non-weight bearing for several months, had to be homeschooled and was held back a school grade. She would continue to exhibit cognitive deficits from her brain injury in addition to a myriad of physical limitations caused by her orthopedic injuries.

Summer sued GHPRD in the Circuit Court of Wayne County for compensatory damages on premises liability grounds in 2011, claiming GHPRD was negligent for failing to put up a fence or other appropriate physical barrier between Westmoreland Park and the tracks. Her case hinged on the breach of industry safety standards. According to the public playground safety standards promulgated by the United States Consumer Product Safety Commission, an “impenetrable” barrier was needed to prevent children from leaving the grounds and running out into traffic. The American Society for Testing and Materials standard, F-2049, was more particular. F-2049 considered the proximity to “railroad tracks” a “serious and life-threatening hazard” that required a metal fence.

A number of depositions, including those of local witnesses, park district employees, the Plaintiff and Plaintiff’s park safety expert, Thom Thompson, had been conducted and the parties were preparing for trial when GHPRD moved for summary judgment. Its gist was that GHRPD was entitled to governmental immunity because the barrier at issue was a “natural condition of unimproved property.” Like many states, West Virginia had in place a statute, W. Va. Code § 29-12A-5(a)(7), that immunized public park districts from lawsuits under such conditions.

Plaintiff countered that Westmoreland Park — from the facilities such as the gazebo and swing set down to the choice of the topiary and the placement of the gravel on the worn path — was entirely designed, approved and/or constructed by GHPRD and its agents. She also pointed out that all of the state courts which granted immunity pursuant to similar statutes involved remote and uncontrollable conditions as active sand dunes in the 1,500 acre wilderness area at Pismo Beach, sandbars in the San Lorenzo River 200 ft. from the beach, a rock formation in the Pacific Ocean off Pearl Beach, and falling rocks in a geological cave. See, Bartlett v. State of California, 199 Cal.App.3d 392 (1988), Rombalski v. City of Laguna Beach, 213 Cal. App. 3d 842, 261 (1989); Winterburn v. City of Pomona, 186 Cal.App.3d 878 (1986).

The trial court denied the summary judgment motion and GHPRD immediately appealed. Because the issue involved governmental immunity, GHRPRD was entitled to interlocutory relief. The West Virginia Supreme Court ordered the parties to brief the issue. After the parties submitted the briefs, however, the Court did not issue a ruling. Instead, the Court set the appeal for oral argument in mid-September, 2015. By procedural rule, the Court’s actions automatically stayed the litigation, and the jury trial, which was also scheduled to begin mid-September, was indefinitely postponed.

According to Plaintiff’s attorney, Daniel L. Allen of Kansas City firm Bautista LeRoy LLC, “Though interpretation of the statute was an issue of first impression there, the Court’s actions and request for oral argument were a bit of a surprise. We were eager to try the case, but it was difficult for anyone to predict what would happen.” Prior to the oral argument at the West Virginia Supreme Court, the parties settled the matter at mediation for a confidential amount. “A special thanks goes to our co-counsel at Vital & Vital LLC, Matt Vital and Matt Oliver, without whom we couldn’t have achieved that result.”

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