WEST VIRGINIA RECORD

PARKERSBURG -- The owners of a skating rink are fighting a Marietta, Ohio, man's attempts to include them as defendants in his lawsuit.

Hershel E. Kimes Jr. and Mark Kimes claim they should not be included as defendants in Jared Myers' lawsuit against Skate Country. The Kimes say they in no way contributed to Myers' injuries when he fell on a raised threshold while attempting to enter the skate floor and should not be held liable for the incident despite the fact they own the rink.

"Under West Virginia law an officer or a corporation may not be personally liable for the corporation's torts unless he directed, sanctioned, or participated in the wrongful acts," the Kimes' motion to dismiss states. "The allegations in Plaintiff's Complaint do not set forth facts which support that either Herschel E. Kimes or Mark Kimes participated or sanctioned any of the negligent acts alleged to have caused Plaintiff's fall."

In his complaint originally filed in Wood Circuit Court, Myers claims he suffered serious and permanent injuries on March 9, 2008, when he fell to the ground because of a raised threshold at the entrance and exit point to the skating rink.

In addition to his injuries, Myers sustained mental anguish, lost wages, lost his earning capacity and lost his capacity to enjoy life, according to his complaint.

He blames the Kimes and Skate Country for failing to provide a clearly marked threshold stripping, for failing to hire and provide adequate maintenance personnel to replace or repair the threshold strip, for failing to supervise its employees, for failing to provide proper signage in and around the area of the threshold stripping warning Myers of the raised area, for failing to provide a safe access to the rink, for failing to eliminate the threshold and for failing to eliminate the stepped up effect of the threshold. Myers also says the defendants negligently failed to place a gradually ramped threshold in their rink, failed to provide a safe handrail, failed to keep a record of falling accidents due to the threshold and failed to address the problems caused by the raised threshold.

In his complaint, Myers seeks compensatory, general and punitive damages, plus pre- and post-judgment interest, costs, attorneys' fees and other relief the court deems just.

The Kimes and Skate Country say the case belongs in U.S. District Court for the Southern District of West Virginia because Myers, an Ohio resident, resides in a different state than the West Virginia-based Kimes and Skate Country and because Myers is seeking more than $75,000.

Myers will be represented by James A. Villanova and Michael E. Metro of Villanova Law Offices in Pittsburgh.

The Kimes and Skate Country will be represented by Macel E. Rhodes of Zimmer Kunz in Morgantown.

U.S. District Court case number: 6:10-cv-232