Settlement over leg broken at Clay High kickball game worth $55K

By John O'Brien | Oct 18, 2013

Clay County Courthouse

CLAY – A lawsuit alleging an injured ninth-grader was forced to play kickball and subsequently broke his leg has been settled for $55,000.

Anita Hays, the parent of a minor identified as W.A.H., filed a lawsuit against the Clay County Board of Education. It says her son broke his right femur after being forced to play kickball during physical education class at Clay County High School.

Clay Circuit Court Judge Richard A. Facemire signed a final order approving a settlement on Sept. 3.

“Defendant Clay County BoE knew or should have known a substantial hazard existed with respect to requiring, directing or allowing the Plaintiff’s minor child, W.A.H., to participate in high impact physical education activities, including running and/or playing kickball, which posed a substantial risk to W.A.H. of serious and permanent injuries,” the order says.

The alleged event took place on Nov. 5, 2010.

W.A.H. has physical limitations and has undergone multiple surgeries on his hips and legs, the complaint says. His most recent procedure before the alleged event was in April 2010.

His treating physician provided him with a written excuse that stated he should be excused from high impact activities like running, the complaint says.

“Nevertheless, on Nov. 5, 2010, W.A.H. was required by his physical education teacher to participate in a kickball game as part of his physical education class,” the complaint says.

“While running the bases, W.A.H.’s leg buckled and he suffered a severe fracture of his right femur. Said fracture caused W.A.H. to collapse to the ground.”

As of the date of the order approving the settlement, W.A.H. had incurred medical bills in the amount of $28,835.95, with Public Employees Insurance Agency and Medicaid paying them.

PEIA waived any reimbursement claims, while Medicaid reduced its subrogation lien in half to $2,263.87.

The guardian ad litem appointed to represent W.A.H.’s interests was paid $1,800, and the law firm Kesner & Kesner of Charleston was awarded attorneys fees of $18,333 and costs of $5,658.02.

The remaining $28,745.11 was distributed to Hays, who was ordered to deposit it into a bank. W.A.H. will be able to control the funds when he is no longer a minor.

From the West Virginia Record: Reach John O’Brien at

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