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Figaniak v. Fraternal of Owl's Home Nest

United States District Court, N.D. West Virginia

June 19, 2017

THOMAS G. FIGANIAK and VALERIE A. FIGANIAK, as Administrators of the Estate of Kevin Figaniak, Plaintiffs,
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.



         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. ECF No. 138-1 at 3. 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. ECF No. 138-3 at 6; 138-7 at 3-4. 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 6, 8. The young men then began trading insults and arguing. Id. at 5, 9. 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. ECF No. 138-3 at 9. However, the young mens' argument continued. 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. Id. at 5-6, 8-9; ECF No. 138-7 at 6. 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 Locust Avenue in a residential neighborhood. ECF No. 138-2 at 3; 138-3 at 12. Chandler testified in his deposition that he attempted to end the confrontation. ECF No. 134-4 at 8; 138-2 at 3. Witty testified in his deposition that Kevin seemed intent on fighting. ECF No. 138-7 at 6. Kevin then pushed Chandler. ECF No. 138-2 at 4; ECF No. 138-7 at 6-7. Chandler responded by punching Kevin on the chin. 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. Chandler testified that he tried to pull Peacock off of Johnson. ECF No. 138-2 at 5. However, Peacock denies this. 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. 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.” ECF No. 138-3 at 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 Virginia and continued drinking. Id. at 9.

         After Witty and Peacock fled, Johnson knocked on the doors of nearby houses. ECF No. 138-5 at 5. Robert Hartley (“Hartley”) awoke and answered. Id. 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. Id. at 6. Hartley refused, and his neighbor then called 9-1-1. 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 3-4. However, Johnson was unable to lift Kevin beyond a sitting position and Kevin slipped from Johnson's grip. ECF No. 138-1 at 12; ECF No. 138-4 at 5. Kevin fell to the left into the grass and “kind of face planted into the grass next to his legs.” 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. ECF No. 138-4 at 3. 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. ECF No. 138-5 at 3-4. 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.” Id. Kevin was placed on life support and transferred to UPMC Presbyterian Hospital in Pittsburgh, Pennsylvania but died the next day. Id. at 5, 8.

         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.

         Kevin's parents filed this civil action on behalf of Kevin's estate against Johnson, Peacock, Chandler.[1] The plaintiffs allege negligence, wrongful death, and 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 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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. See Celotex, 477 U.S. at 322-23. “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Moreover, “[t]he nonmoving party cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (internal quotation marks omitted). The nonmoving ...

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