OCEAN CITY—The remaining defendant in a civil suit filed in federal court by a plaintiff impaled in the chest by a flying umbrella on the beach in June 2018 this week filed a motion to dismiss the case.
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 year, however, a U.S. District Court judge granted the Town of Ocean City’s motion to dismiss the case against city, leaving the beach rental franchisee was the only remaining defendant. Last week, 85 N’ Sunny, through its attorneys, filed a motion to dismiss the case entirely, pointing to a couple of pillars in the plaintiff’s case.
“The plaintiff cannot meet her burden of proof to show negligence on the part of 85 N’ Sunny,” the motion reads. “To meet her burden of proof, the plaintiff must show 85 N’ Sunny’s actions, or inactions, were the proximate cause of her injuries. There is no evidence in the record to establish by a preponderance of the evidence why the umbrella came out of the sand, which is critical to the analysis of causation.”
The defendant’s motion to dismiss asserts there is no evidence to support the umbrella that impaled the plaintiff was installed improperly.
“The operator’s employee testified she properly installed the umbrella hours before the incident,” the motion reads. “No other witnesses testified as to the umbrella installation. In fact, no one else witnessed the umbrella installation. As such, plaintiff cannot meet her burden to prove the umbrella was improperly installed.”
Perhaps the most critically, the defendant asserts in the motion to dismiss the franchisee was never under any advisement of a wind advisory which would lead the operator to close all umbrellas. According to the motion to dismiss filed this week, the plaintiff’s friends who accompanied her on the beach that day described the conditions as “breezy” and “nothing out of the ordinary.”
“Further, 85 N’ Sunny was not on notice of any dangerous condition that would have caused the umbrella to become dislodged from the sand,” the motion reads. “The crux of the plaintiff’s claims, according to the amended complaint, is there was a wind advisory in effect at the same time of the incident and, as a result, 85 N’ Sunny failed to appreciate the wind conditions and failed to close the beach umbrella that struck the plaintiff. There is no evidence there was a wind advisory in effect at the time of the incident that would have required the operator to close beach umbrellas.”
The motion points out employees and 85 N’ Sunny, and most of the beach rental franchisees, undergo 15 hours of training before starting the job, including 12 classroom hours and three on the beach. Employees, including the one on the beach on the day of the incident, have been properly trained in how best to plant umbrellas securely in the sand. They are also taught to learn the particular traits of the beach on which they will work and to consult regularly with the Beach Patrol on changing conditions.
According to the motion to dismiss, in a typical scenario, after a customer rents an umbrella and the attendant installs it, the attendant is responsible for monitoring it and advising customers not to move it without assistance. However, customers often move the umbrellas themselves throughout the day. The attendant is also responsible for removing unattended umbrellas when he or she notices they are unattended. On busy summer days, the attendant will likely re-rent the umbrellas still out on the beach to another customer.
Around 3:15 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.
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 outlines the timeline of the incident and the injuries and suffering Mendygral allegedly did and continues to endure.
