WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has upheld a Kanawha County judge's decision to excuse three individuals and an oil and gas company from a lawsuit over a boy's death while riding an all terrain vehicle.

Tammy Conley's son, John Cody, was 13 years old when he rode his ATV onto private property and ran into an unmarked cable that stretched across a road in Logan County. John Cody died as a result of the April 3, 2005 wreck.

On Jan. 27, 2006, Tammy Conley sued Jerry Stollings, Joseph Richards, Steven R. Richards, Cynthia L. Richards, Cabot Oil & Gas Corporation and the state Division of Highways.

Stollings was the owner of the land on which John Cody was riding the ATV, court records say. The Richards were previous owners, and Cabot was permitted to the use the road to access a cathodic protection station that was connected to a pipeline located off Stolling's land.

Cabot also had a key to the lock for the cable, which Joseph and Steven had previously installed to keep trespassers off the land. The cable was strung between two metal posts, court records say, and was secured by the lock.

The DOH successfully moved to be dismissed from the case, arguing that it had abandoned the road in 1995.

The Richards defendants and Cabot all moved for summary judgment, arguing that none of them had any ownership of the land. Joseph conveyed the property to Steven and Cynthia in 1999. Steven and Cynthia sold the property to Stollings in February 2005.

Stollings also filed a motion for summary judgment, but was denied.

On Sept. 18, 2007, Kanawha Circuit Judge Jennifer Bailey Walker granted summary judgment to the Richards and Cabot. Tammy Conley then appealed these decisions.

Conley had argued that summary judgment was improper because there were "genuine issues of material fact" as to the four defendants' possession and control of the land. In relation to Cabot, Conley argued that further discovery would have shown the company owned mineral rights on the land, which the company denied.

In the per curiam opinion filed March 31, the Supreme Court said just because Cabot had a key to the cable, its use of the cable "was nonexclusive and subject to approval by the property owner."

Tom Liberatore, Cabot's vice president and regional manager, testified that Joseph Richards had given an employee a key to the cable in 2003, court records say.

"Contrary to Ms. Conley's assertion, we do not believe that possession of a key to a lock on the cable is sufficient evidence to impose a duty on the part of Cabot to John Cody Conley," the opinion says. "Cabot merely had permission to use the road on which the cable was placed across and to that end, was provided a key for access purposes only."

Regarding the Richards defendants, the court said that the conveyances of the deed clearly showed they lacked any ownership of the land.

Tammy Conley argued that the court erred in ordering a stay on discovery in the case on April 20, 2007. She says that several depositions of Cabot employees were pending at the time of that order and that these depositions would have shown the company owned the mineral rights to the property.

The court said that discovery in the case had already gone on for several months and noted that Liberatore had already given a sworn statement that Cabot did not own the mineral rights to the land. Liberatore stated that the mineral rights belonged to two individuals from Kistler, W.Va.

"If Cabot owned the mineral rights to the subject property as Ms. Conley contends, then she should have been able to submit documentation to that effect as it would be a matter of public record," the court opined. "She failed to do so. Therefore, even if Ms. Conley was given additional time for discovery, she would not be able to produce any evidence to support her assertions with regard to Cabot."

John Einreinhofer represented Tammy Conley. Johnnie Brown and James A. Muldoon represented Cabot. Teresa D. Daniel represented Steven Richards.

Supreme Court case number: 33913