United States District Court, N.D. West Virginia
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.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT TYLER
JOHNSON'S MOTION FOR SUMMARY JUDGMENT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
parents filed this civil action on behalf of Kevin's
estate against Johnson, Peacock, Chandler. 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.
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).
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 ...