OCEAN CITY — Ocean City late last week filed a motion to dismiss a civil suit filed in federal court in early June impaled in the chest by a flying umbrella on the beach in July 2018.
In July 2018, Pennsylvania resident Jill Mendygral was impaled in the chest by a rented beach umbrella that had become dislodged from the sand and thrown through the air by a wind gust. In June, Mendygral, through her attorneys, filed a civil suit in U.S. District Court alleging negligence against the two named defendants, the town of Ocean City and the beach equipment rental company 85 N Sunny, LLC. The suit seeks damages in excess of $75,000 against each of the named defendants.
Around 3:10 p.m. on July 22, 2018, Ocean City first-responders were dispatched to the beach at 54th Street after a gust of wind dislodged an unattended rental umbrella and sent it tumbling down the beach where it impaled Mendygral. The point of the wood-shaft umbrella hit the victim, who was sitting in a beach chair, and pierced her skin in the upper left chest below the collarbone. Ocean City Beach Patrol Surf Rescue Technicians (SRTs) quickly responded and, with the help of bystanders, secured the blowing umbrella while the first SRT on the scene began rendering aid and keeping the victim calm.
Ocean City Fire Department and EMS personnel arrived quickly and took over first-aid measures. Ocean City Fire Department personnel cut the umbrella’s wooden pole to facilitate taking the victim from the beach to awaiting paramedics. The victim was transported from the beach by Ocean City EMS and was transported to a designated medevac pad at 32nd Street via ambulance.
She was transferred to the Maryland State Police medevac helicopter and taken to now-TidalHealth Peninsula Regional Medical Center in Salisbury, where she underwent emergency surgery. The suit filed last week outlines the timeline of the incident and the injuries and suffering Mendygral allegedly did and continues to endure.
The suit against Ocean City asserts a single claim of negligence against the town, alleging Ocean City knew or should have known a dangerous condition existed on the beach and that the rented open umbrella was subject to the forces of the wind, and that the town failed to warn her of the potentially dangerous conditions.
Last Friday, the town, through its attorney, filed a motion to dismiss the case against it, asserting the complaint lacks any cognizable claim against Ocean City. The motion to dismiss also evokes the doctrine of governmental immunity as a reason to dismiss the suit against the town.
The motion to dismiss cites the town’s “beach reserve” zoning district, which defines the beach as a natural recreational resource of public significance,” for example. The motion to dismiss also cites the Natural Resources article of the Maryland Code.
“Based on the allegations of the complaint, and accepting them as true for the purposes of this motion to dismiss, Ocean City can have no liability to the plaintiff because the plaintiff was using the Ocean City beach for recreational purposes at the time of the occurrence, the Ocean City beach is, and was at the relevant time, open to the general public for recreational purposes and for no charge, and, consequently, by statute and as a matter of law, Ocean City did not owe the plaintiff any duty of care or duty to warn in regard to the subject umbrella or the allegedly windy conditions, even accepting as true that those things constituted dangerous conditions at the time,” the motion reads.
The motion to dismiss the suit asserts while Ocean City does own, operate and maintain the public beach, that relationship is a governmental function and not proprietary.
“Accepting as true the allegations of the plaintiff’s complaint, and construing the complaint in a light most favorable to the plaintiff, she alleges vaguely that Ocean City was negligent in its ownership, operation and maintenance of the beach, by failing to prevent or warn as to the subject umbrella being blown by the wind and causing injury to the plaintiff,” the motion to dismiss reads. “Such a claim, if otherwise legally tenable under tort law, which it is not, is plainly barred by the doctrine of governmental immunity as a matter of law.”
Because the Ocean City beach is an open public area for recreational use at no charge, the town owed no duty of care to the plaintiff injured by the umbrella, the motion to dismiss asserts.
“The beach is a recreational area open to the public at no charge,” the motion to dismiss reads. “Ocean City’s regulation and maintenance of the beach is for the benefit, enjoyment and welfare of the public and is sanctioned by legislative authority,” the motion reads. “The beach is not a public way, a street, road, or sidewalk, and, like any other public park or pool, the beach’s ownership, maintenance or operation is plainly a governmental, as opposed to a proprietary function.”
