Read the attached civil complaint. Discuss three tort defenses that you think have the best chance of working for the defendants. Explain why using IRAC analysis. NOTE: In law, a defense trumps a claim, even if the plaintiff proves that the claim is valid. Basically, it doesn't matter if the plaintiff has proven the allegations as true, because the defense is a legal reason why the defendant isn't liable. When discussing defenses, assume that the facts as alleged are true and the claim really happened. Don't argue that the plaintiff cant prove the claim. Argue that the defense applies even if the claim is true.

IN THE CIRCUIT COURT OF CABELL COUNTY, WEST VIRGINIA FACTUAL BACKGROUND LOUIS HELMBURG, III, 5. On May 1, 2011, at approximately 1:30 a.m., there were several persons present Plaintiff, on the outside deck of the ATO fraternity house located on 5" Avenue in Huntington. The ATO Civil Action No. J Q-C-51 had a "house party," and various persons, including Defendant Hughes and Plaintiff, congregated The Honorable 7s/PAUL 1, FARRELL at the ATO house. Several of the people in attendance at said house party were under the legal THE ALPHA TAU OMEGA FRATERNITY INC., OF HUNTINGTON, WEST VIRGINIA, drinking age, including Defendant Travis Hughes. Most of the persons in attendance at said a Fraternal Organization, and TRAVIS HUGHES, house party were also consuming alcohol with the full knowledge and consent of the ATO FILED ADELL CHANDLER 2012 JAN 23 P 1: 42 Defendants. CABELL CO., WV CIRCUIT CLERK fraternity. COMPLAINT 6. Upon information and belief, Defendant Hughes was an ATO fraternity member THE PARTIES on May 1, 2011. 1. Plaintiff, Louis Helmburg, III, has been a resident of Huntington, West Virginia 7. Plaintiff was also present, along with his girlfriend, at the ATO house on May 1, at all times relevant hereto. 2011 at the aforementioned time. 2. Defendant, The Alpha Tau Omega Fraternity Inc., of Huntington, West Virginia, 8. Defendant Hughes was highly intoxicated on this date and time, and decided in (hereinafter "ATO") is a fraternal organization, which has owned a dwelling house on Marshall his drunken stupor that it would be a good idea to shoot bottle rockets out of his anus on the University Campus in Cabell County, West Virginia at all times relevant hereto. ATO deck, located on the back of the ATO house. 3. Upon information and belief, Defendant, Travis Hughes, has been a resident of 9. Upon information and belief, there were several other ATO fraternity members on Huntington, West Virginia at all times relevant hereto. the deck at the time of this incident, including one or more officers of the fraternity. Plaintiff and JURISDICTION & VENUE his girlfriend were also present on the ATO deck. 4. This court has personal jurisdiction over Defendants, ATO and Travis Hughes, . Defendant Hughes placed a bottle rocket in his anus, ignited the fuse, but instead in that both are believed to be residents of Cabell County, West Virginia. This court has subject of launching, the bottle rocket blew up in Defendant's rectum, and this startled plaintiff and matter jurisdiction over plaintiff's claim, in that it arose under and is governed by West Virginia caused him to jump back, at which time he fell off of the ATO deck, and he became lodged substantive law. This court has venue over this matter, in that plaintiff's claim arose in Cabell between the deck and an air conditioner unit adjacent to the deck. County, West Virginia.11. There was no railing on said deck at the time of the incident. Upon information COUNT III-NEGLIGENCE PER SE vs. DEFENDANT HUGHES and belief, the lack of a railing had existed for at least several months, if not years, before the 18. Defendant Hughes also owed plaintiff and others on the ATO deck a duty of care incident. Upon further information and belief, the deck never had a railing when it was installed, not to drink under age, or to fire bottle rockets out of his anus. or any time thereafter. The subject deck was approximately 3-4 feet high. 19. Defendant Hughes breached this duty when he both drank under age, which 12. The subject deck was in the exclusive custody, maintenance and control of the violated the law, and attempted to fire a bottle rocket out of his anus while under the ATO fraternity at all times relevant hereto. influence. The act of firing a bottle rocket, within Huntington City Limits, was also a crime. COUNT I NEGLIGENCE PER SE vs. ATO 20. Said breaches were a direct and proximate cause of plaintiff's damages, including Per the applicable BOCA building codes, and City of Huntington building codes, pain and suffering, lost time from baseball with the Marshall University Baseball team, lost the deck in question should have had a railing, which comported with said codes. earning capacity, medical expenses, and other damages. 14. The lack of a railing constituted negligence per se, in that the ATO violated the COUNT IV-COMMON LAW NEGLIGENCE VS. DEFENDANT HUGHES applicable building codes when it failed to construct and/or maintain a railing on its deck. 21. Defendant Hughes also owed plaintiff and others on the ATO deck a common law 15. Plaintiff asserts that the lack of a railing was a direct and proximate cause of his duty to use reasonable care on the ATO deck, which he clearly did not do under the injuries, which include pain and suffering, lost time from baseball with the Marshall University circumstances, which exposed him and others, such as plaintiff, to the very foreseeable risk of Baseball team, lost earning capacity, medical expenses, and other damages. injury. COUNT II-COMMON LAW NEGLIGENCE vs. ATO COUNT V-ULTRAHAZARDOUS ACTIVITY (STRICT LIABILITY) 16. ATO owed plaintiff a duty to provide a safe deck, including a railing, and also to 22. Plaintiff asserts that the activity of underaged drinking and firing bottle rockets provide a safe place, which included a duty to supervise its guests and its own fraternity out of one's own anus constitutes an "ultra-hazardous" activity which exposes both of these members, such as Defendant Hughes, and other under age persons, from consuming alcohol on defendants to strict liability. its premises, which leads to stupid and dangerous activities, such as shooting bottle rockets out of 23. Plaintiff accordingly asserts a claim against both of these defendants, individually one's own anus. and jointly and severally, for damages including pain and suffering, lost time from baseball with 17. ATO breached said duty as aforesaid, and said breach was the proximate cause of the Marshall University Baseball team, lost earning capacity, medical expenses and other plaintiff's injuries, including pain and suffering, lost time from baseball with the Marshall damages. University Baseball team, lost earning capacity, medical expenses, and other damages.PRAYER FOR RELIEF Plaintiff, Louis Helmburg, III, by counsel, requests the Court to enter a judgment against each defendant individually, and jointly and severally, for compensatory damages as set forth in his Complaint, as well as costs, attorney fees, pre-judgment and post-judgment interest. PLAINTIFF DEMANDS A TRIAL BY JURY. Respectfully Submitted, LOUIS HELMBURG, III, By Counsel: Timothy P. Rosinsky, Esq. (WVSB # 5645) Rosinsky Law Office, L.C. 641 6* Street Huntington, WV 25701 (304)523-2409