PITTSBURGH – A West Virginia resort has denied liability in a wrongful death lawsuit filed by the survivor of a fatal ATV accident in that state, while its co-defendant, a Kentucky retailer of such vehicles, had been dismissed from the case.
Christine O’Keefe (individually and as Administrator of the Estate of Cynthia Fischer, deceased) of Glenshaw first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 15, 2022 versus Rustic Ravines, LLC of Genoa, W.Va. and Premier Powersports Rental, LLC, of Louisa, Ky.
“The instant civil action arose from a fatal ATV rollover that took place on April 25, 2021 at approximately 12:03 p.m. along the Hatfield-McCoy Trails System, located in southwestern West Virginia. The Hatfield-McCoy Trail System which consists of 800 miles of mountainous, rugged trails, wherein ATV accidents involving fatalities and/or serious injuries are known to commonly occur. On that date, decedent and her boyfriend, Ryan Wingerson, were guests and therefore business invitees at Rustic Ravines, which is located near the Cabwaylingo State Park trail head that connects with the Hatfield-McCoy Trails System,” the suit said.
“Rustic Ravines promotes itself as a premier log cabin resort that offers ATV rentals and guided ATV tours of the various trails in the surrounding area. Upon information and belief, Premier Powersports contracted with Rustic Ravines to supply the ATVs and helmets being offered by Rustic Ravines to its guests. Rustic Ravines permits their guests and/or business invitees to purchase trail riding permits, rent ATVs and helmets from Rustic Ravines and/or Premier Powersports for the purpose of riding onto the nearby Hatfield-McCoy Trails System.”
The suit added that Rustic Ravines and Premier Powersports “knowingly and recklessly chose not to provide full-face helmets to Rustic Ravines’ guests, despite having the opportunity to do so”, and on the date in question, the defendants provided “decedent with an ATV that was too large for her weight and height” – and that “neither Rustic Ravines nor Premier Powersports provided any training or warning to decedent and her boyfriend about their helmets, how to operate the ATVs, or about the rules, conditions, and dangers of the Hatfield-McCoy Trails Systems.”
“Specifically, neither Rustic Ravines nor Premier Powersports instructed decedent or her boyfriend about the significance of using four-wheel drive, instead of two-wheel drive high speed, on the rugged trails of the Hatfield-McCoy Trails System. On the above date, decedent and her boyfriend left Rustic Ravines’ property and proceeded to ride ATVs onto the Cabwaylingo Trail within the Hatfield-McCoy Trails System. Decedent and her boyfriend were unfamiliar with the Trails System and were unaware of the slippery, dangerous conditions of the mountainous trails. On the above date and time, decedent operated her ATV up a hill on Trail 82 that had a blind left-hand turn. At that time, the conditions of the trails were slippery due to recent rain,” the suit stated.
“At that time, decedent’s ATV was in two-wheel high gear, but should have been in four-wheel low gear. Decedent’s ATV went up the left hillside, which caused the ATV to flip back and land on decedent in the right eye area, fracturing the skull. Decedent’s right eye area was crushed, which resulted in profuse bleeding from the head, brain matter to leak from the eye socket area, and decedent laboring to breathe. Decedent’s boyfriend attempted to resuscitate her with CPR for several minutes, but he was unsuccessful. Decedent stopped breathing at some point after the crash.”
Defendant Premier Powersports Rental, LLC filed a motion to dismiss the complaint on Nov. 17, countering that the complaint should be thrown out for lack of specific and personal jurisdiction, in addition to improper venue.
In a Dec. 14 filing, the plaintiff brought a cross-motion for venue/jurisdictional discovery, prior to any kind of a ruling on the prior move to dismiss the case.
On Jan. 5, U.S. District Court for the Western District of Pennsylvania Judge Arthur J. Schwab denied the prior dismissal motions without prejudice, and further granted the motion for limited jurisdictional discovery.
Premier Powersports Rental, LLC then filed a renewed motion to dismiss the case on Feb. 10.
“Pursuant to Federal Rule of Civil Procedure 12(b)(2), plaintiff’s complaint should be dismissed for lack of jurisdiction in that Premier is a Kentucky limited liability company, lacks contacts with Pennsylvania and the events giving rise to the cause of action occurred in West Virginia. Therefore, there is insufficient contacts or basis for general or specific jurisdiction to exist in Pennsylvania and this Court,” per their second dismissal motion.
“Moreover, pursuant to Federal Rule of Civil Procedure 12(b)(3), this Court is not the proper venue for this action with respect to Premier. Plaintiff cannot establish that this Court has personal jurisdiction over Premier. Plaintiff also has failed to establish any basis for venue in the Western District of Pennsylvania against Premier. Plaintiff has not made any assertions against Premier that any of its acts or omissions took place in Pennsylvania or that it resided here. Further, plaintiff’s assertion that Premier targeted advertisements to southwestern and western Pennsylvania are false, and, notwithstanding, insufficient to confer jurisdiction on Premier. Premier is not a resident of Pennsylvania and no substantial portion of the events giving rise to plaintiff’s complaint occurred at a time when Premier was subject to personal jurisdiction in Pennsylvania. Therefore, venue is improper in the Western District of Pennsylvania.”
In a March 22 memorandum opinion, Schwab ordered Premier dismissed from the case due to lack of jurisdiction – while simultaneously ruling that Rustic would stay as a defendant.
“Plaintiff’s counsel, through [its owner William Ossie] Lucas, was able to produce Google analytical documentation which showed that 60 percent of defendant Premier’s customers came from outside its ‘immediate area’ and Lucas willingly admitted that he would rent to anyone from Pittsburgh, Pennsylvania. However, neither of these pieces of evidence illustrate how defendant Premier’s ties to the Pennsylvania were ties that defendant Premier itself purposefully forged,” Schwab said.
“Lucas testified that he never even bothered to track where defendant Premier’s ATV and equipment renters hailed from. Simply put – defendant Premier would rent its ATVs to anyone, but does not appear to have deliberately targeted Pennsylvania residents for this purpose. At least no evidence was adduced by plaintiff during the discovery period. Accordingly, because plaintiff proffered no evidence whatsoever illustrating how defendant Premier purposefully availed itself of the privilege of conducting business in Pennsylvania, this Court finds that it does not have jurisdiction over defendant Premier.”
Schwab continued that Rustic had not successfully shown that it should be dismissed from the case for lack of jurisdiction.
“The Court finds that when taken as whole, all of these facts support a finding that defendant Rustic purposefully availed itself of conducting business in the Commonwealth of Pennsylvania. This evidence, taken as a whole, demonstrates how defendant Rustic’s ties to Pennsylvania were ties that defendant itself purposefully forged. Although [its owner Joseph V.] Boffo attempted to claim he did not know that a sizable portion of his trail permit business was emanating from Pennsylvania, this Court finds that defendant knew it had to obtain at least 25 percent of its business from outside the state of West Virginia,” Schwab stated.
“Further, the Court finds that defendant Rustic included directions on its website from nearby cities located in other states, namely Ohio, Pennsylvania and Kentucky for the express purpose of attracting customers from those locations. Given the data that plaintiff was able to adduce during Boffo’s deposition, Defendant Rustic chose to list Pittsburgh as the second out-of-state city for a reason – it is much further from the camp site than Cincinnati, Lexington and Louisville, and it is smaller in population density than Cincinnati, Lexington and Louisville. The Court therefore concludes that Rustic purposefully availed itself of the privilege of conducting business in Pennsylvania. Because this Court concludes that defendant Rustic purposefully forged ties with Pennsylvania, the Court next considers whether plaintiff’s claim arises out of or relates to those purposeful contacts. The simple and short answer here, is ‘yes.”
UPDATE
Rustic answered the complaint on April 5, denying its liability in the events at issue.
“Plaintiff failed to state a claim upon which the requested relief can be granted, as a matter of law. This Court lacks personal jurisdiction over Rustic Ravines. To the extent the ATV was used for a purpose, application, or in an unsafe, or unreasonable manner, other than as intended, or in contravention of any law, regulation, ordinance, common usage, or contrary to best practices, any damages claimed by plaintiffs are not the responsibility of Rustic Ravines. Rustic Ravines disclaimed any express or implied warranties of fitness for a particular purpose; or in the alternative, the implied warranties of fitness for a particular purpose are excluded by the actions of the plaintiff. Any equipment, products or items provided by Rustic Ravines were fit for their intended purpose. No express or implied warranty of fitness for a particular purpose apply to Rustic Ravines based on applicable law,” the answer’s affirmative defenses stated.
“Any warranties relied upon by plaintiff were not assignable as a matter of law and/or were not assigned to plaintiff as a matter of fact. The damages claimed by plaintiffs were caused by parties other than Rustic Ravines. Plaintiff is barred from recovery under Section 402A of the Restatement (Second) of Torts, or under any theory of product liability, because Rustic Ravines is not a seller, manufacturer or designer of any product used by plaintiff. Plaintiff is barred from recovery under Section 402A of the Restatement (Second) of Torts, or under any theory of product liability, because any equipment, products or items allegedly provided by Rustic Ravines were safe for their intended use. Plaintiff is barred from recovery to the extent that any equipment, products or items allegedly provided by Rustic Ravines were misused, changed, altered or modified in any way after they left Rustic Ravines’ control. Rustic Ravines did not owe any duty of care to plaintiff. To the extent Rustic Ravines owed any duty of care to plaintiff, Rustic Ravines did not breach any duty of care owed to plaintiff.”
Rustic added that Fischer assumed the risk of her actions, that she was contributorily or comparatively negligent and that there is no legal basis for the plaintiff to pursue punitive damages in this case, arguing that requests for such damages should be stricken.
For multiple counts of negligence, survival, wrongful death, intentional spoliation, strict liability, breach of implied warranty, and negligent misrepresentation, the plaintiff is seeking compensatory and punitive damages in excess of $75,000, and all other damages allowed under the law.
The plaintiff is represented by Michael P. O’Day of the Law Offices of Michael P. O’Day, in Pittsburgh.
The defendants are represented by Damon R. Thomas, John M. Adkins and Michael R. Proctor of Bowles Rice in Canonsburg and Robert C. James of Flaherty Sensabaugh & Bonasso, in Wheeling, W.Va.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01178
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com