HUNTINGTON -- CSX Transportation has asked to remove a case involving a Putnam County tennager who was struck and killed while walking home on railroad tracks after school to federal court.
Jacob Dwayne Ball, 16, died Jan. 29, 2012, when he was struck by a train on CSX tracks just across W.Va. 34 from Hurricane High School. His father and admistrator of the estate, Richard Dwayne Ball, filed the wrongful death lawsuit Jan. 30 in Putnam Circuit Court against CSX, the City of Hurricane and the Putnam County Board of Education.
On March 27, CSX filed a motion in federal court in Huntington to move the case there. CSX says it should be in federal court because the amount in question exceeds $75,000 and that the parties are from different states.
In the complaint filed by Huntington attorneys Robert L. Massie and Kelly Calder Mowen of Nelson Mullins, CSX also claims that the City of Hurricane and the Putnam school board were fraudulently joined in the case, and, thus, their consent is not required for removal.
The City of Hurricane, in fact, already had filed an answer to the original complaint in Putnam Circuit Court claiming it was not responsible for the teen's death. That was filed Feb. 28 by Johnnie E. Brown of the Charleston law firm of Pullin, Fowler, Flanagan, Brown & Poe PLLC.
In the original complaint, Richard Dwayne Ball says his son suffered physical pain, emotional distress and mental anguish and suffering before dying as a result of his injuries.
“Plaintiff’s decedent was walking near Hurricane High School and in proximity of railroad tracks which was the usual, regular and customary path of travel for Plaintiff’s decedent and other Hurricane High School students and members of the general public,” the complaint states. “As Plaintiff’s decedent was so walking, he was struck from behind by a CSX train which he could not hear, because as is customary for school students of this age, he was wearing headphones. …
“Despite the nuisance created by this area of track, there were not adequate warnings or barriers present to deter students/pedestrians from walking along the tracks.”
The original complaint, filed by Guy R. Bucci and D. Blake Carter Jr. of Bucci, Bailey & Javins, also says the walking area was “abnormally and unusually dangerous” because of high traffic volumes, use by school children, fast moving train movements with school children walking and limited sight distances.
Richard Ball claims CSX “failed to use ordinary care to give a warning reasonably sufficient” to students walking, failed to maintain warning devices, failed to emit the required audible warning signal and failed in other safety meaures.
He claims the City of Hurricane and the Putnam County Board of Education owed a duty to provide for safe access and safe travel in the area.
The estate seeks damages for sorry, mental anguish, solace, society, companionship, comfort, guidance, kindly offices and advice of Jacob Ball. It also seeks damages for the reasonably expected loss of income of Jacob Ball as well as services, protection, care and assistance provided to him and expenses for the care, treatment and hospitalization of Jacob Ball from the fatal injuries.
It also joint and several compensatory and punitive damages for the physical pain, emotional distress and mental anguish suffered by Jacob Ball before his death as well as attorney fees, court costs, pre- and post-judgment interest and other relief.
West Virginia Southern District case number 3:14-cv-13369; Putnam Circuit Court case number 14-c-23