United States District Court, N.D. West Virginia
THOMAS F. O'BOYLE, Plaintiff,
BENCHMARK CONFERENCE CENTERS OF WEST VIRGINIA, d/b/a STONEWALL RESORT, Defendant.
MEMORANDUM ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 21]
S. KLEEH UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Summary Judgment
of Defendant Benchmark Conference Centers of West Virginia,
d/b/a Stonewall Resort (“Stonewall Resort”) [Dkt.
No. 21]. Plaintiff, Thomas F. O'Boyle
(“O'Boyle”), filed a response in opposition
to the motion [Dkt. No. 24], and Defendant filed a reply
[Dkt. No. 26]. The matter is now ripe for decision. For the
reasons stated, the Defendant's motion is
FACTUAL AND PROCEDURAL BACKGROUND
O'Boyle resides at 107 Hoodridge Drive, Pittsburgh,
Pennsylvania 15228 [Dkt. No. 1 at ¶ 1]. Defendant
Stonewall Resort is a West Virginia limited liability company
that is duly organized and existing under the laws of West
Virginia with an office and/or place of business located at
940 Resort Drive, Roanoke, West Virginia 26447 [Id.
at ¶ 3]. The Benchmark Management Company, LLC, a Texas
limited liability company, is the sole member of Stonewall
Resort [Id.]. This matter is before the Court on
complete diversity of citizenship between Plaintiff and
Defendant, pursuant to 28 U.S.C. § 1332 [Id.].
July 9, 2017, through July 13, 2017, O'Boyle was a patron
of Stonewall Resort [Dkt. No. 22 at 1]. On July 10, 2017,
while a guest at Stonewall Resort, O'Boyle was riding a
Specialized Roubaix road bicycle on the resort premises when
he hit a speed bump which caused him to lose control of his
bicycle and crash [Dkt. No. 24 at 1-2]. O'Boyle was
thrown over his bicycle's handlebars and skidded down the
road on the right side of his body [Id. at 2].
O'Boyle sustained injuries as a result of the crash,
including a gash on his right leg which removed the skin from
his knee to his ankle [Id.]. Plaintiff also received
injuries to his solar plexus, resulting in bruising to his
stomach and torso, as well as his elbow [Id.].
O'Boyle alleges that the crash was so violent that his
specialized bicycle was a total loss [Id.]. He
further alleges that the replacement value of his bicycle is
$3, 800 [Id.].
claims that the speed bump at issue was a worn, hard plastic
barrier that was secured in place with bolts [Id. at
2]. O'Boyle further claims that the speed bump was
steeply angled on each side [Dkt. No. 1 at ¶12].
Plaintiff's expert witness, Ronald W. Eck, P.E., Ph.D.,
is an expert on matters related to roadways and traffic
control devices, and explained the difference between a speed
bump and a speed hump as follows:
[A speed bump is] a raised pavement area across a roadway and
generally has a height of three to six inches with a length
of one to three feet [. . .] [Speed bumps] cause significant
driver discomfort at typical residential speeds and generally
result in vehicles slowing to 5 mph or less at the bump [. .
.] [I]n general, bicycles, motorcycles, and other vehicles
with rigid or near-rigid suspension systems are more
susceptible to damage and a loss of control from bumps than
vehicles with flexible suspensions.
In contrast to a bump, a speed hump is a raised area in the
roadway pavement surface extending transversely across the
travel way. They normally have a maximum height of 3 to 4
inches with a travel length of approximately 12 feet. Within
typical residential speed ranges, humps create a gentle
vehicle rocking motion that causes the driver some discomfort
and results in most vehicles slowing to 15 mph or less at
each hump [. . .] [S]peed humps represent a lesser risk to
vehicles with rigid or near-rigid suspensions than do speed
[Dkt. No. 24 at 2].
to O'Boyle, the Defendant had no signage on the road or
next to the road to warn of the speed bump [Dkt. No. 1 at
¶ 13]. Plaintiff also alleges that on its website and
elsewhere, Stonewall Resort references biking as one of its
main recreational activities to be enjoyed by guests of the
resort, and that it was foreseeable that patrons would be
biking on the road where speed bumps were placed
[Id. at ¶ 15].
his bicycle crash on July 10, 2017, O'Boyle returned to
the resort lobby to seek medical attention [Dkt. No. 24 at
3]. The resort did not have a medical professional available,
provided no medical assistance to the Plaintiff, and did not
have a first aid kit available for guests [Id.].
O'Boyle used the resort shuttle to return to his cottage
and tend to his own injuries [Id.]. Plaintiff claims
that his injuries were significant and that he sought medical
treatment at a nearby urgent care facility in Weston, West
Virginia [Id.]. At the urgent care facility,
O'Boyle was prescribed antibiotic by the physician on
duty and directed to follow up with his doctor
14, 2017, O'Boyle was treated by his hematologist, Dr.
Robert Volkin of UPMC [Id.]. Volkin examined
Plaintiff's swollen right leg and ordered a Venous
Doppler Test to check for blood clots [Id.; Dkt. No.
1 at ¶ 19]. The test showed a partially occlusive
thrombus in the right popliteal vein which Plaintiff claims
developed as a result of the injury he sustained to his leg
at Stonewall Resort [Dkt. No. 24 at 4]. Plaintiff also
alleges that Volkin informed him that he will likely have
chronic blood clotting issues for the rest of his life, and
that he was prescribed Xarelto, a medication which causes
severe side effects [Id.]. According to Plaintiff,
his leg wound took approximately six (6) weeks to heal and
caused him considerable pain and suffering [Id.].
February 26, 2018, Plaintiff filed the Complaint in this
matter alleging negligence against Defendant [Dkt. No. 1].
O'Boyle asserts that Defendant failed to properly and
safely maintain the resort for use by guests, customers, and
business invitees; installed a needless and dangerous speed
bump on the property of the resort and created a dangerous
condition; failed to warn guests, customers, and business
invitees of the dangerous condition with signage on the road
or next to the road which would have marked the presence of a
dangerous speed bump, in violation of the Federal Highway
Administration's Manual on Uniform Traffic Control
Devices (“MUTCD”); caused O'Boyle severe and
serious injuries; failed to have a medical professional
and/or first aid kit available to guests; and failed to
provide assistance to Plaintiff following his injuries
[Id. at ¶ 28].
Stonewall Resort denies that it was negligent and contends
that it maintained the premises in a safe condition for its
guests [Dkt. No. 3 at ¶¶ 20, 21]. With its motion
for summary judgment, Stonewall Resort further contends that
Plaintiff cannot prevail on his negligence claim because the
speed bump that allegedly caused O'Boyle to crash his
bicycle is “entirely within the purview of” West
Virginia's “Open and Obvious Doctrine, ” and
his claim is “barred by law” [Dkt. No. 22 at 5].
Defendant asserts that the open and obvious doctrine is