Mendygral v. Mayor & City Council of Ocean City

• Decision Date: 13 January 2022
• Docket Number: Civil Action ELH-21-1381
• Court: U.S. District Court — District of Maryland
• Parties: JILL MENDYGRAL, Plaintiff, v. MAYOR AND CITY COUNCIL OF OCEAN CITY, et al.. Defendants.

JILL MENDYGRAL, Plaintiff,
v.
MAYOR AND CITY COUNCIL OF OCEAN CITY, et al.. Defendants.

Civil Action No. ELH-21-1381

United States District Court, D. Maryland

January 13, 2022

MEMORANDUM OPINION

ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

In this tort case, plaintiff Jill Mendygral filed suit against the Mayor and City Council of Ocean City (“Ocean City”)^[1] and 85 N. Sunny, LLC (“Sunny”), to recover damages for an injury she sustained in 2018, while on the beach in Ocean City, Maryland.^[2] ECF 1 (the “Complaint”); ECF 7 (the “Amended Complaint”). In particular, on the first day of her summer vacation, plaintiff was injured when a beach umbrella owned by Sunny became dislodged, flew into the air, and then stabbed plaintiff in the chest. Plaintiff underwent emergency surgery to dislodge the umbrella.

Count I of the Amended Complaint, lodged against Ocean City, alleges “Respondeat Superior/Negligence/Premises Liability.” Id. ¶¶ 20-26. In Count II, lodged against Sunny, plaintiff alleges “Respondeat Superior/Negligence/Premises Liability.” Id. ¶¶ 27-32. Plaintiff seeks “damages in excesses” of $75, 000 against both Ocean City and Sunny each, “individually and/or jointly and severally.” Id. ¶¶ 26, 32.

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Sunny has answered the Amended Complaint. ECF 9. But, Ocean City has moved to dismiss the claims against it, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). ECF 15. The motion is supported by a memorandum. ECF 15-1 (collectively, the “Motion”). Plaintiff opposes the Motion (ECF 16), supported by a memorandum. ECF 16-1 (collectively, the “Opposition”). And, Ocean City has replied. ECF 17 (the “Reply”).

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion, without prejudice.

I. Factual Background^[3]

Plaintiff is an adult resident of Pennsylvania. ECF 7, ¶ 1. On or about July 22, 2018, she was lawfully on the beach in Ocean City, in the vicinity of 54th Street, “enjoying her first day of vacation.” Id. ¶ 10; see id. ¶¶ 8, 9. The Complaint states that “a wind advisory” was in effect at the time. Id. ¶¶ 24(e); 30(e).

According to plaintiff, “suddenly and without warning, a beach umbrella . . . became dislodged from the sand and [flew] into the air, violently stabling Plaintiff in her chest.” Id. ¶ 10. Sunny owned the umbrella, and Sunny was responsible for its care, supervision, and maintenance. Id. ¶¶ 4, 11. In addition, plaintiff alleges that both defendants were “responsible for the care of the beach, ” individually and through their agents, servants, and/or employees, “including adequately monitoring the forecast and wind gusts and folding umbrellas in the downward position so they are unable to become dislodged from the sand, ensuring the safety of those lawfully using the

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beach, including Plaintiff.” Id. ¶ 13. Further, she asserts that defendants knew of the dangerous condition and failed to warn plaintiff and others, invitees, of the hazardous condition on the beach. Id. ¶¶ 24, 30.

Following the occurrence, plaintiff was rushed to the hospital via helicopter, “where she underwent emergency surgery to remove the umbrella that had stabbed her and became lodged in her chest.” Id. ¶ 11. Plaintiff contends that, “[a]s a direct and proximate result” of the “negligence, carelessness, recklessness, and/or willful acts and omissions” of the defendants, she has suffered multiple “severe and permanent injuries.” Id. ¶ 15; see also id. ¶¶ 16-19. These include a chest wound, resulting in permanent disfigurement of plaintiff's chest; radiating back pain; gross hematuria; pelvic pain; recurring numbness in her right arm and hand; fevers; adjustment disorder; anxiety; and depression. Id. ¶¶ 15, 19.

Count I alleges that Ocean City, individually and by and through its agents, servants, and/or employees, acting within the scope of their employment, owed a duty to plaintiff as a member of the public using a beach for recreational purposes. Id. ¶ 21.^[4] Further, she asserts that Ocean City, individually or vicariously, breached this duty by “willfully failing to guard and/or warn against” a number of dangerous conditions, uses, and activities related to the beach, and this “negligence and willful misconduct” was the direct and proximate cause of plaintiff's injuries. Id. ¶¶ 22, 23.

The Amended Complaint enumerates a series of alleged examples of Ocean City's misconduct. Id. ¶ 24. Distilled to their essence, plaintiff alleges that Ocean City knew that a “dangerous and hazardous condition” existed by leaving beach umbrellas opened on the beach during unsafe wind conditions, and failed to warn about the risk or take necessary precautions. Id. In addition, plaintiff alleges that Ocean City “[w]illfully fail[ed] to inspect the beach while a wind

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advisory was in effect.” Id. ¶ 24(e). Count II levies a similar set of accusations against Sunny. Id. ¶¶ 27-32.

Additional facts are included, infra.

II. Standard of Review

In their briefing, the parties primarily focus on the Rule 12(b)(6) standard for failure to state a claim. Ocean City has also moved to dismiss pursuant to Rule 12(b)(1), relating to dismissal for lack of subject matter jurisdiction, based on governmental immunity. See ECF 15-1 at 2 n.1.

To be sure, the Fourth Circuit and a number of judges in this District have held that assertions of sovereign immunity are properly addressed under Rule 12(b)(1). But, sovereign immunity is not at issue here.^[5] Therefore, I shall focus on Rule 12(b)(6).

A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain a “short

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and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .” (citation omitted)); see also Paradise Wire & Cable, 918 F.3d at 317; Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per curiam). But, mere “‘naked assertions' of wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted).

In other words, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. “[A]n unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

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In reviewing a Rule 12(b)(6) motion, “a court ‘must accept as true all of the factual allegations contained in the complaint,' and must ‘draw all reasonable inferences [from those facts] in favor of the plaintiff.'” Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019) (alteration in Retfalvi) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, “a court is not required to accept legal conclusions drawn from the facts.” Retfalvi, 930 F.3d at 605 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards, 178 F.3d at 243)...