WEST VIRGINIA RECORD

MOUNDSVILLE – A New Martinsville couple have filed a civil lawsuit stemming from their daughter's 2004 ATV death.

Charles A. McElaney III and Pamela R. McElaney filed the lawsuit last month in Marshall Circuit Court. Listed as defendants are William Forbes, Nationwide Insurance, Phillip Kenneth Slampak and Kristen L. Slampak.

In the complaint, the couple, represented by Scott Depot attorney Eric M. James and Wheeling attorney Leslie Ann James, says Kalya Dian McElaney died on April 20, 2004, as a result of traumatic brain injuries caused by an ATV accident that occurred on April 9, 2004. She was 13 at the time of her death, which was caused by riding on the Honda Four-Trax 300 that flipped.

Forbes, also of New Martinsville, is the owner of the property where the accident took place. The land is located off Route 20 in New Martinsville. Nationwide is Forbes' insurer. The Slampaks, also of New Martinsville, are the owners of the ATV upon which Kayla was riding. They are neighbors of the plaintiffs, and their daughter Kaeli was driving the adult-sized ATV. She also was 13 at the time.

The complaint notes that West Virginia has one of the highest ATV-related death rates in the nation. The Consumer Product Safety Commission says 25 percent of ATV-related deaths occur among children 16 and younger. It also notes that from 1985 to 1997, about two-third of ATV deaths in West Virginia were caused by injury to the head or neck and that a significant portion of ATV fatalities involve victims who were not wearing a helmet.

The complaint also says children "do not possess the physical strength, coordination or judgment necessary to pilot an adult-sized ATV safely. Children who use an adult-sized ATV are twice as likely to be injured as those driving a youth model. ATVs present a significant hazard to children who ride them. ATVs are inherently dangerous instrumentalities."

The counts against Forbes and Nationwide, his insurer at the time, alleges he allowed children "to whom a higher standard of care is owed under West Virginia law" to enter his land and take part in an "inherently dangerous activity."

When he gave children permission to ride recreational vehicles on his property, "he knew or should have known that other children in the neighborhood would thereby utilize his land for recreational purposes, including ATV riding."

The suit alleges Forbes let children of prospective customers use his land "to garner goodwill within the community for the benefit of his business pursuits."

Those business ventures are not spelled out in the suit.

The suit also claims Forbes had a duty to protect children or warn them about the hazards of riding the vehicles on his land or to prevent entry to his land altogether. I also says Forbes had a duty to warn of the inherent dangers of ATV use on his property and to warn of dangerous conditions.

"Sloped areas were not safe for ATV use by children," the suit claims.

The counts against the Slampaks allege they breached their duty of reasonable care and judgment by allowing children under the age of 14 to ride the ATV; failing to provide adequate supervision; failing to provide and/or require appropriate instruction; failing to require safety training classes; failing to require the use of helmets; allowing children to ride an adult-sized ATV; allowing child passengers; and allowing children under 14 to drive and ride an adult-sized ATV.

The McElaneys also claim the Slampaks' actions were gross, wanton and/or willful misconduct and in utter disregard for the safety of children, including Kayla McElaney.

Forbes and the Slampaks also are sued for negligent infliction of emotional distress.

In addition to the emotional distress caused by Kayla's injuries and death, the McElaneys say her injuries were "open, severe and grotesque."

"Plaintiffs observed their daughter and her tragic injuries at the scene of the accident shortly after it occurred," the suit says. "… The parents of a beautiful, intelligent and thriving 13-year-old daughter then had to endure the pain and suffering of having to watch Kayla lay motionless, helpless and in a coma for the ensuing 11 days after the accident.

"Both parents then had to make the agonizing decision to withdraw life support and then watch their 13-year-old daughter die in their arms."

The family, including Kayla's younger brother Charles Albert McElaney IV, also sues for loss of consortium for the loss of Kayla's society, companionship, comfort and love.

The McElaneys seek compensatory damages jointly and/or severally as well as punitive damages to be determined by a jury. They also seek attorney fees, court costs and expenses.

The case has been assigned to Circuit Judge Mark Karl.

Marshall Circuit Court case number: 06-C-99K