Consol denied it was liable for the allegations of deliberate intent and loss of consortium, according to the June 10 answer.
“Consol denies each and every allegations not specifically admitted … including those contained in the ‘prayer’ clause and its sub-sections …” the answer states.
Consol claims the plaintiffs’ claims are barred by the applicable statute of limitations and the doctrine of laches and that it was not the proximate cause of the plaintiffs’ alleged injuries and damages.
“Plaintiffs’ alleged damages, if any, were the proximate result of the conduct of third parties over whom or which Consol exercises no control,” the answer states. “Consol states that the sole proximate cause or causes of the incident complained of were conditions beyond the control of Consol and for which conditions Consol is not liable as such conditions were not reasonably foreseeable on the part of Consol.”
Consol also argues that the plaintiffs’ claims are barred, in whole or in part, by the plaintiffs’ own fault and/or negligence and the plaintiffs’ express and/or implied assumption of the risks, if any, inherent in the coal mining industry.
“Plaintiffs’ claims are barred because plaintiffs have failed to mitigate their alleged damages,” the answer states.
Consol is seeking the plaintiffs’ claims to be dismissed.
Eules Barker was employed at Conosl’s Twin Branch surface mine in Mingo County and on July 8, 2014, he attempted to climb up a ladder mounted on one of the rock trucks, according to a complaint filed March 17 in the U.S. District Court for the Southern District of West Virginia.
Barker and his wife, Michelle Barker, claim the ladder was unsafe and defective, which caused Eules Barker to sustain injuries.
As a direct and proximate result of the defective and unsafe ladder, Eules Barker lost his grip on the right side of the ladder, slipped and was hung from the ladder by his left arm, according to the suit.
The Barkers claim the acts and omissions of the defendants created unsafe working conditions that presented a high degree of risk and a strong probability of serious injury or death.
The defendant had actual knowledge of the existence of the unsafe working conditions and of the high degree of risk and strong probability of serious injury or death presented by the specific unsafe working conditions, according to the suit.
The Barkers claim Eules Barker sustained serious injuries to his arm and it is possible that he will have to undergo left arm amputation in the near future.
Michelle Barker suffered a loss of consortium, according to the suit.
The Barkers are seeking compensatory damages with pre- and post-judgment interest. They are being represented by Brian L. Ooten, Frank Venezia and Benjamin M. Mishoe of Shaffer & Shaffer PLLC.
Consol is represented by Charles Johns and Devon J. Stewart of Steptoe & Johnson.
The case is assigned to District Judge John T. Copenhaver.
U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-02600