CHARLESTON – A lawsuit regarding a man's injury at a state park has turned into a debate whether the plaintiff properly notified the leader of the state Division of Natural Resources before the case was filed.
Steven and Amber Viars filed their complaint in Kanawha Circuit Court against the West Virginia Division of Natural Resources doing business as Chief Logan State Park and Chief Logan Authority Inc. In its motion to dismiss the complaint, the DNR says the plaintiffs failed to properly comply with the 30-day advance notice required when filing a lawsuit against a state agency.
According to the Viars’ complaint, the married couple visited the state park June 17, 2018. Steven Viars says he was injured by the diving board that the defendants had allowed to become dangerous by failing to maintain and inspect the board. He says he landed on his head while using the diving board, causing severe injuries and permanent scarring.
Steven Viars seeks compensatory damages for lost wages, medical expenses, past and future medical bills, permanent injuries and scarring, emotional distress and loss of enjoyment of life.
Amber Viars seeks damages for loss of consortium, including her husband’s inability to perform certain tasks of repair and maintenance on their home and automobiles, to take her on trips and to engage in sexual intercourse as he had done before the accident.
In its July 14 Motion to Dismiss, the DNR says the plaintiffs didn’t file pre-suit notice with either the DNR or the state Attorney General. Answering back August 10, the plaintiffs say notice was given and included documentation. They say the Motion to Dismiss should be withdrawn.
However, in an August 12 response to that answer, the DNR again says the case should be dismissed because it says the “chief officer of the government agency and the attorney general” must be provided notice. The DNR says DNR Director Stephen McDaniel was not served.
“Claimant chose to send their attempted notices to ‘Chief Logan State Park …’ and ‘West Virginia State Parks, Attention Chief Logan State Park …,’” the August 12 response states. “Both of these attempts fall far short of the statutory requirement and fail to meet the perquisite notice required by West Virginia Code … before a lawsuit can be filed.”
The couple is being represented by Charleston attorney D. Adrian Hoosier II. The DNR is being represented by former state Supreme Court Justice Brent Benjamin and David E. Schumacher with Bailey & Wyant in Charleston. The case has been assigned to Circuit Judge Tera Salango.
Kanawha Circuit Court case number 20-C-468
