OCEAN CITY- Ocean City late last week was dismissed as a defendant in a civil suit filed last June in federal court by a plaintiff 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, referred to simply as “Sunny” in court documents. The suit seeks damages in excess of $75,000 against each of the named defendants.
Last week, however, a U.S. District Court judge granted the Town of Ocean City’s motion to dismiss the case against the city with conditions. In its motion to dismiss, Ocean City asserted two essential arguments. U.S. District Court Judge Ellen Hollander dismissed the case against Ocean City, although the case against “Sunny” remains open. In her memorandum in support, the judge pointed out the two essential pillars of Ocean City’s motion to dismiss.
“Ocean City advances two principal arguments in support of dismissal,” the memorandum reads. “First, Ocean City contends that it owed no duty of care to plaintiff under the Maryland Code. This statute is known as the ‘recreational use statute,’ although the parties do not refer to it by that name. Second, it contends the plaintiff’s claim is barred by the doctrine of governmental immunity.”
The judge’s memorandum asserts the plaintiff failed to make a connection between the town and the beach stand owner and operator.
“But, the plaintiff does not allege any facts concerning the relationship between Ocean City and Sunny,” the memorandum reads. “Moreover, she clearly alleges that it was Sunny that owned the beach umbrella and was responsible for its care, supervision and maintenance. And, she does not allege that Sunny was an employee or agent of Ocean City.”
The judge’s memorandum in support of the town’s motion to dismiss asserts the governmental immunity statute applies in the case.
“A municipality such as Ocean City is entitled to governmental immunity in negligence actions when the conduct on which the suit is based is governmental, not proprietary,” the memorandum reads. “In its regulation and maintenance of the Ocean City beach, Ocean City is engaged in a governmental act, not a proprietary one.”
In the suit, the plaintiff alleges the Town of Ocean City had a duty of care to protect users of the beach, but the judge’s opinion asserts while the town is responsible for regulating and maintaining the public beach, it is just that, public, and the recreational use statute applies.
“Although the Court has not identified any governmental immunity cases in Maryland specifically involving a beach, it is well established that governmental immunity applies to injuries ‘within’ the boundaries of a public park, swimming pool, or similar area where the local government’s maintenance obligation is governmental in nature,” the memorandum reads. “And, it appears undisputed that, in its operations relating to the Ocean City beach, Ocean City acts for the public benefit, health, and welfare, without private interest or for profit.”
The judge’s memorandum points out the plaintiff’s complaint does not name any individual named defendants.
“The amended complaint is completely vague as to any actions or omissions by Ocean City or any of its employees related to the incident,” the memorandum reads. “The suit alleges generically that Ocean City failed to warn against windy conditions, without specifying any facts that indicate the extent or nature of the wind conditions or that they were outside the norm for a beach.”
The memorandum points out by any definition, the beach in Ocean City is recreation area open to the public.
“Ocean City contends that the recreational use statute applies to the Ocean City beach and eliminates any legal duty, and thus any liability, Ocean City might have to plaintiff,” the memorandum reads. “It asserts that ‘the Ocean City Beach is, and was at the relevant time, open to the general public for recreational purposes and for no charge.’”
For those reasons, the judge dismissed Ocean City as a defendant in the case.
“In sum, plaintiff does not allege facts sufficient to state a claim that Ocean City breached its duty of care, as limited by the recreational use statute,” the memorandum reads. “And, plaintiff’s bald and conclusory assertions as to Ocean City’s willful misconduct do not alter this conclusion. Therefore, even if plaintiff were permitted to amend her Complaint so as to address the issue of governmental immunity, this would not allow the Complaint to survive a motion to dismiss.”
The judge’s order dismissing Ocean City from the case comes with conditions. The case against the beach stand operator remains open. The plaintiff has leave to file a second amended complaint naming individual defendants within 21 days of the judge’s order. If an amended complaint is not filed within 21 days, the judge will dismiss count one of the suit.
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 a rental umbrella and sent it tumbling down the beach where it impaled Mendygral.
