Kyla Asbury Jun. 12, 2013, 10:52am
HUNTINGTON - The Marshall University Board of Governors has been dismissed as a defendant in a lawsuit involving a student attempting to shoot bottle rockets out of his anus at a fraternity party.
Louis Helmburg III sued 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 after he was injured when he attended a fraternity party on May 1, 2011.
West Virginia Code required Helmburg 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 he failed to do, according to an Order Granting Marshall University Board of Governors' Motion to Dismiss filed March 14.
Helmburg "failed to satisfy the pre-suit notice requirement mandated by W.Va. Code...and, therefore, the Court is expressly prohibited from asserting personal jurisdiction over defendant Marshall University Board of Governors," the motion states.
"Further, it is hereby ordered that plaintiff's causes of action against the other defendants in this matter shall be unaffected by the dismissal granted this day in favor of defendant Marshall University Board of Governors."
At about 1:30 a.m. on May 1, 2011, the fraternity was having a house party both Louis Helmburg III and Hughes were attending, according to a complaint filed Jan. 23, 2012, in Cabell Circuit Court.
Helmburg, who played for Marshall University’s baseball team at the time but wasn't on the Thundering Herd's 2013 roster, claimed Hughes became intoxicated and attempted to “shoot bottle rockets out of his anus on the ATO deck.”
When doing so, Hughes startled Helmburg, who then jumped back and fell off of the deck of the fraternity house and was injured, according to the suit. He was lodged between the deck and an air conditioning unit.
Helmburg claimed there was no railing on the deck at the time of the incident.
The lack of railing had existed for at least several months, if not years, before the incident, according to the suit.
Helburg claimed the fraternity was negligent in failing to provide a safe deck and that Hughes was at fault for consuming alcohol “which leads to stupid and dangerous activities.”
Helmberg is seeking compensatory damages with pre- and post-judgment interest. He is being represented by Timothy P. Rosinsky of Rosinsky Law Office LC.
Marshall University Board of Governors was represented by Andrew P. Ballard of Campbell Woods PLLC.
ATO and Richmond Properties are being represented by Joseph Selep if Zimmer Kunz PLLC.
The case has been assigned to Circuit Judge Paul T. Farrell.
Cabell Circuit Court case number: 12-C-57