Beverly et al v. Sugar Mountain Ski Resort, LLC et al
Filing
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ORDER denying 18 Motion for Summary Judgment. The Court SETS this case for the civil trial calendar beginning September 6, 2016. The Court will enter a separate order setting a date for the pretrial conference. Signed by Magistrate Judge Dennis Howell on 02/29/16. (emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14cv321
DEBRA BEVERLY and ALTON
BEVERLY,
)
)
)
Plaintiffs,
)
)
v.
)
)
SUGAR MOUNTAIN RESORT, INC., )
and SUGAR MOUNTAIN SKI
)
RESORT, LLC,
)
)
Defendants.
)
____________________________________)
ORDER
Pending before the Court is the Motion for Summary Judgment [# 18].
Plaintiffs brought this action asserting claims for negligence, negligent infliction of
emotional distress, loss of consortium, and for punitive damages. Plaintiff Debra
Beverly now moves for partial summary judgment as to the issue of liability on her
negligence claim. The Court DENIES the Motion for Summary Judgment [# 18].
I.
Legal Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a party is
entitled to summary judgment if the movant “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
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law.” Fed. R. Civ. P. 56(a). The existence of some alleged factual dispute
between the parties will not defeat a motion for summary. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510 (1986); Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003). Rather,
there must be a genuine issue of material fact. Dash v. Mayweather, 731 .3d 303,
310-11(4th Cir. 2013). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248, 106 S. Ct. 2510.
In deciding a motion for summary judgment, the Court need only consider
the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). Rule 56 also requires
that the party cite to the particular part of material in the record. Fed. R. Civ. P. 56
(c)(1). As the advisory committee’s note makes clear, the party referencing the
material is required to cite to the particular part of the material that supports the
party’s factual position. Fed. R. Civ. P. 56(c)(1)(A) advisory committee’s note to
2010 amendment. A party does not satisfy its burden under Rule 56 by generally
citing to an affidavit or deposition without providing a specific citation to the
particular portion of the affidavit or deposition upon which the party relies for its
factual assertion. Fed. R. Civ. P. 56 (c)(1). The Court, however, may in its
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discretion consider other materials in the record, which the parties did not
specifically cite. Fed. R. Civ. P. 56(c)(3).
II.
Analysis1
In order to establish a prima facie case of negligence, a plaintiff must
establish four elements: (1) that the defendant owed plaintiff a duty of care; (2) that
defendant breached that duty; (3) that defendant’s breach of duty was the actual
and proximate cause of plaintiff’s injury; and (4) that plaintiff suffered damage
from the injury. Parker v. Town of Erwin, 776 S.E. 2d 710, 729 (N.C. Ct. App.
2015); Cucina v. City of Jacksonville, 530 S.E.2d 353, 355 (N.C. Ct. App. 2000).
“Owners and occupiers of land have a duty to exercise reasonable care in the
maintenance of their premises for the protection of lawful visitors.” Bolick v. Bon
Worth, Inc., 562 S.E.2d 602, 604 (N.C. Ct. App. 2002); see also Goynias v. Spa
Health Clubs, Inc., 558 S.E.2d 880, 881 (N.C. Ct. App. 2002). In exercising
reasonable care, a landowner may not unnecessarily expose a lawful visitor to the
land to danger and must provide a lawful visitor with a warning of any hidden
hazards of which the landowner has either express or implied knowledge. Bolick,
562 S.E.2d at 604; Waddell v. Metro. Sewerage Dist. Buncombe Cnty.¸699 S.E.2d
1 Rather than separately set forth the factual background, the Court has incorporated the relevant facts into its
discussion of the pertinent legal issues. The Court, however, has not considered those facts that were not supported
by citations to the particular portion of the cited material.
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469, 472 (N.C. Ct. App. 2010). A determination of whether the landowner
exercised reasonable care is “judged against the conduct of a reasonably prudent
person under the circumstances.” Goynias¸558 S.E.2d at 881 (internal quotation
and citation omitted); Cone v. Watson¸736 S.E.2d 210, 212 (N.C. Ct. App. 2012).
A landowner, however, has no duty to warn or protect visitors from dangers
or conditions that are open and obvious. Overton v. Evans Logging, Inc.¸737
S.E.2d 416, 419 (N.C. Ct. App. 2013). Similarly, a landowner is not obligated to
provide a warning to visitors of hazards where the visitor has equal or superior
knowledge of the hazard. Bolick, 562 S.E.2d at 604. But, “’[w]hen a reasonable
occupier of land should anticipate that a dangerous condition will likely cause
physical harm to [a visitor], notwithstanding its known and obvious danger, the
occupier of the land is not absolved from liability.’” Overton, 737 S.E.2d at 419
(quoting Lorinovich v. K Mart Corp., 516 S.E.2d 643, 646 (N.C. Ct. App. 1999)).
Plaintiff D. Beverly contends that there is no question of material fact as to
whether Defendants were negligent in failing to prevent her from slipping on ice
that formed on a deck at Sugar Mountain Ski Resort (“Sugar Mountain”) or were
negligent in failing to warn her of the potential hazard posed by the ice.
Defendant, however, has set forth a number of material facts that are in dispute in
this case that preclude the entry of summary judgment for Plaintiff. For example, a
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genuine question of material fact exists as to whether there was a layer of ice on
the deck that caused Plaintiff D. Beverley to fall. (D. Beverly Dep. 62:7-10; 63:420; 78:1-80:3; Barnett Dep. 68:7-69:13; Bauer Dep. 67:14-69:18.) In addition, a
question of material fact exists as to whether the snow covering the deck over
which Plaintiff decided to walk was a known and obvious danger. Plaintiff knew
the deck was snow covered and proceeded to walk across the deck away from the
railing. (D. Beverly Dep. 49:23-51:23; 76:24-77:6.) While it may be undisputed
that Plaintiff D. Beverly slipped and fell while walking on a deck at Sugar
Mountain, whether or not Defendants were negligent in failing to prevent her from
falling or were negligent in failing to warn her of a potential hazard on the deck are
questions for the jury. Because there is a genuine dispute as to numerous material
facts in this case, summary judgment is inappropriate on Plaintiff D. Beverly’s
negligence claim. The Court, therefore, DENIES the Motion for Summary
Judgment as to the negligence claim [# 18].
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III.
Conclusion
The Court DENIES the Motion for Summary Judgment [# 18]. The Court
SETS this case for the civil trial calendar beginning September 6, 2016. The Court
will enter a separate order setting a date for the pretrial conference.
Signed: February 29, 2016
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