A U.S. magistrate judge for the Western District of North Carolina, Asheville Division, has granted a South Carolina couple the go-ahead to continue pursuit of their lawsuit against Beech Mountain Resort.
The case stems from an injury sustained by the wife in January 2011. She alleges she suffered a traumatic brain injury when a heavy block of ice and snow fell onto her head from the roof of the resort, which is about two hours outside of Asheville.
She and her husband filed a lawsuit, Palacino v. Beech Mountain Resort, Inc., alleging the resort was negligent and seeking compensatory and punitive damages.
Defense, meanwhile, shot back that plaintiffs had no proof of causation between the reported ice-falling incident and plaintiff’s alleged head injury or that defendant had breached any required duty it had to protect business invitees. Further, defendant asserted plaintiff did not exercise ordinary care and reasonable diligence in order to minimize her damages.
These points were made in a request for summary judgment.
While the judge did find in favor of the defense insofar as the punitive damages were concerned (punitive damages are reserved for cases in which defendants deserve to be punished for egregious acts), he did not dismiss the case altogether, as defense requested.
The judge stated that claims for negligence and loss of consortium (the latter brought by plaintiff’s husband) would still be allowed to proceed to trial.
Further, he sanctioned the attorney representing the defense with a $1,000 fine for failing to conduct a proper review of her client’s insurance policies. The ski resort had made a disclosure to their attorney that they had a $1 million general insurance policy. However, the resort apparently a $10 million umbrella policy. For a full year while the case was pending, plaintiffs proceeded without this knowledge. It wasn’t until the defendants finally disclosed it that the attorney disclosed it to the court – and thus, the plaintiffs. Because the attorney provided the information to the court once she had it, the judge believed the failed disclosure to be unintentional.
However, the judge declined to grant attorney fees and costs to plaintiffs for this, saying the harm caused to them by this had been overstated. Plus, the insurer of the umbrella policy and the general insurance policy were one in the same, so it wasn’t necessary for plaintiffs to refile against a brand new defendant.
Plaintiffs are asking the court for at least $150,000 in damages.
At any ski resort, it’s fair for participants to assume a fair amount of inherent risk in the activity, and many resorts require patrons to sign a waiver of liability to this effect. However, it’s unlikely many of these waivers indemnify resorts from “blocks of ice and snow falling on one’s head.” More likely, they shield resorts from injuries that may be inherent to skiing.
At its heart, this is a premises liability case, and the question will be whether the resort owed a duty of care to ensure patrons walking near its building should have expected to be able to do so without objects falling from overhead.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Palacino v. Beech Mountain Resort, Inc., Dec. 11, 2015, U.S. District Court for the Western District of North Carolina, Asheville Division
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