IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION
Civil Action No. 1:17-cv-60

J.E., by and through his Guardians

)
ad Litem, Robert Elliott and )
Wendy Elliott, and ROBERT )
ELLIOTT and WENDY ELLIOTT, )
individually, )
)
)
Plaintiffs, )
) COMPLAINT
v. ) (Jury Trial)
)
SUGAR MOUNTAIN RESORT, )
INC. )
)
Defendant. )
_______________________________)

Plaintiffs, by and through counsel, complaining of the Defendant, allege and

say:

NATURE OF THE ACTION

1. This action arises out of personal injuries resulting from the negligence of

Defendant Sugar Mountain Resort, Inc. (hereafter Defendant or "Sugar

Mountain") in connection with a ski lift accident involving the minor Plaintiff

J.E. (hereafter J.E. or Minor) on February 14, 2016.

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 JURISDICTION AND VENUE

2. The Plaintiff J.E. is less than 18 years of age, a minor under the law, and a

resident of Tennessee. The Plaintiffs Robert Elliott and Wendy Elloitt are the

natural parents of J.E., and they are both residents of Tennessee. The

Plaintiffs Robert Elliott and Wendy Elliott have moved the Court for

appointment as Guardians ad Litem for J.E. The Plaintiffs Robert Elliott and

Wendy Elliott bring claims individually on their own behalf, and as

representatives on behalf of Plaintiff J.E.

3. Defendant Sugar Mountain is a corporation, incorporated under the laws of

the State of North Carolina, with its principal office and place of business in

Avery County, North Carolina, with the capacity to sue and be sued.

4. The Court has original jurisdiction over this action based on complete

diversity of citizenship between Plaintiffs and Defendant and the amount in

controversy of J.Es claim, without interest and costs, exceeds the sum or

value as specified by 28 U.S.C. 1332; furthermore, the Court has

jurisdiction over the claims of Plaintiffs Wendy Elliott and Robert Elliot

either as supplemental jurisdiction pursuant to 28 U.S.C. 1367, or because

their claims, without interest or costs, may exceed the sum or value as

specified by 28 U.S.C. 1332.

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5. Defendant Sugar Mountain is the owner and operator of a ski area resort

business, including chair lifts, known as Sugar Mountain Resort, located on

property within Avery County, North Carolina.

6. At the time of injury to the Minor, as alleged herein, he was a customer and

lawfully on the premises of the Sugar Mountain Resort, which was operated

by Defendant.

7. Venue is proper in this District pursuant to 28 U.S.C. 1391(a).

FACTUAL ALLEGATIONS

8. On February 14, 2016, the Plaintiff J.E. was a customer of Defendant,

snowboarding at Sugar Mountain Resort. At all relevant times, Plaintiff J.E.

was both a "Passenger" and "Skier" as defined by N.C.G.S.A. 99C-1(2) and

(6), and an invitee to the Defendants premises.

9. At all relevant times, Defendant was a "Ski Area Operator" as defined by

N.C.G.S.A. 99C-1(5).

10. On or about 4:30 pm on February 14, 2016, J.E. boarded the G.W. or

Gunters Way chairlift. The G.W. lift was a two-person, fixed grip

chairlift. J.E. was an intermediate level skier; however, February 14, 2016

was the first time he tried snowboarding.

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11. At the said time he boarded the G.W chairlift, the chairlift was operating

and open to the Defendants customers, including J.E., and he boarded the

chairlift alone.

12. Once J.E. reached the unloading area at the top for the G.W. lift, he yelled

for assistance from the Defendants lift attendant/operator; however, the

attendant/lift operator was inside the lift hut or was otherwise unavailable,

and did not notice J.E. or respond to him. J.E. decided to download on the

lift and unload at the base of the lift.

13. Unbeknownst to J.E., before he reached the unloading area at the top of the

slope, the Defendants lift attendant/operator had prematurely initiated the

daily closing protocol for the lift including removing the safety gate from the

lift, which gate would automatically stop the lift if a passenger or skier did

not disembark at the top.

14. When J.E. reached the top of the lift, he remained in the chair and did not

unload, however, there was no safety gate to automatically trigger a stop of

the lift. Consequently, J.E. rode the G.W. lift around the bullwheel and began

to ride back down the mountain.

15. When J.E.s particular chair was over a heavily wooded area near lift tower

9, Sugar Mountains employee or employees shut down the lift for the

evening, leaving J.E. stranded on the lift.

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16. At the point where J.E.s chair stopped, he was suspended over 30 feet in the

air, in a heavily wooded area not directly over or adjacent to any ski trail. At

the time the lift was shut down, it was snowing, with an ambient temperature

of about 14 degrees Fahrenheit, 3.5 mph winds and a wind chill of

approximately 8 degrees Fahrenheit.

17. J.E. remained stranded on his chair for approximately 2 hours, until 6:30 pm.

As of 6:30 pm, the sun had set, it was still snowing, the wind speed had

increased to 5.8 mph, and the temperature with wind chill had lowered to

approximately 6 degrees Fahrenheit. Throughout this time, J.E. attempted to

yell for help, but no one responded--high winds and snowmaking equipment

positioned on nearby a ski run contributed to the noise as well as the cold

temperatures.

18. At some point after J.E. failed to report back to the base area, J.E.s mother,

Plaintiff Wendy Elliott, reported him missing to Sugar Mountains staff. At

all relevant times, the Sugar Mountain staff failed to initiate a proper rescue

effort in order to locate J.E. Sugar Mountain employees were dismissive and

did not exercise reasonable diligence in immediately initiating a rescue effort,

but rather speculated that J.E. probably wondered off the ski slopes or trails.

Once a rescue effort was initiated, the Sugar Mountain staff failed to search

the G.W. lift or consider the possibility that J.E. was stranded on the lift.

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19. After several hours, J.E. became concerned about his ability to survive on

the chairlift overnight in such harsh conditions. He was also becoming

sleepy, and afraid he would fall asleep and either freeze or fall out of the

chair. In an effort to survive, J.E. took off his snowboard, crawled over the

edge of the chair, grasped a metal bar below the chair, hung from the bar, and

then let go, falling over 30 feet to the frozen ground below.

20. The fall fractured J.E.s right heel bone (calcaneus) and his right wrist. The

force of the fall also rendered J.E. unconscious for some period of time. When

he regained consciousness, J.E. crawled with significant pain approximately

200 yards out of the heavily wooded area via a service road to the adjoining

Gunthers Way ski run. He then crawled another 300 yards down the

Gunthers Way ski run to the lighted terrain park area which had since re-

opened for night skiing. Ultimately, J.E. was found in the terrain park by two

members of the public who called ski patrol and otherwise facilitated his

rescue.

21. J.E. was eventually evacuated from Sugar Mountain by ambulance to

Johnson City Medical Center, where he was evaluated and found to have

significant injuries including a comminuted, depressed fracture of the right

calcaneus, a buckle type fracture of the distal radius, an acute fracture of the

tip of the ulnar styloid, and frostbite.

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 FIRST CAUSE OF ACTION

(J.E.s Claim)

22. Plaintiffs incorporate herein by reference the allegations set forth in

paragraphs 1 21 above.

23. At all times relevant herein, Defendants lift attendant/operator, employees

and staff as alleged in this complaint, were employees and/or agents of the

Defendant, acting within the scope and course of their employment, agency

and authority and in the furtherance of Defendants business, such that their

acts or omissions as alleged herein are imputed to Defendant under the

doctrine of respondeat superior.

24. Alternatively, at all times relevant herein, the lift attendant/operator,

employees and staff as alleged in this complaint, were apparent employees

and/or agents of the Defendant, acting within the scope and course of their

apparent employment, agency and authority and in the furtherance of

Defendants business, such that their acts or omissions as alleged herein are

imputed to Defendant under the doctrine of respondeat superior.

25. Defendant Sugar Mountain had a duty to use reasonable care in connection

with the operation of the ski area, including its operation of passenger

tramways such as the G.W. lift, for the benefit and safety of its customers

and those reasonably using the lift. Additionally, Defendant Sugar Mountain

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 had a duty to use reasonable care in connection with its rescue operations and

protocols of missing skier(s) or customer(s).

26. Defendant Sugar Mountain breached its common law duties of reasonable

care and was negligent, including but not limited to, in the following ways:

a. Failure of the Defendants unloading area lift attendant/operator to

respond to a passengers calls for assistance;

b. Failure of the Defendants unloading area lift attendant/operator to

maintain a proper lookout and otherwise oversee the unloading area as

passengers disembarked or reached the top of the slope;

c. Failure to have a safety gate in place during operation of the lift while

being used by skiers or customers;

d. Removing the safety gate prior to the lift being closed to Defendants

customers and/or the general public;

e. Failure to check for skiers or passengers and assuring that no one was

remaining on the lift before closing the lift for the night;

f. Failure to initiate and perform procedures or measures to assure that no

one was remaining on the G.W. lift before closing the lift for the night;

g. Failure to initiate a prompt and/or reasonably thorough rescue efforts,

including checking all closed lifts, once a skier or customer is reported

missing in adverse weather conditions.

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27. Defendant Sugar Mountain breached its statutory duties of reasonable care

for the safety of its skiers and passengers, including J.E., and was negligent

per se.

28. Pursuant to N.C.G.S.A. 99C2(a), Defendant Sugar Mountain was

responsible for the maintenance and safe operation of any passenger

tramway in his ski area. . . and [for] insur[ing] that such is in conformity

with the rules and regulations prescribed and adopted by the North Carolina

Department of Labor pursuant to G.S. 95120(1) as such appear in the North

Carolina Administrative Procedures Act.

29. Consistent with N.C.G.S.A. 99C2(a), the North Carolina Department of

Labor has adopted the American National Standards (ANSI) Safety

Requirements for Aerial Passenger Tramways:

CAC 15 .0205 TRAMWAY REQUIREMENTS

(a) The construction, operation and maintenance of all passenger tramways

shall conform to the rules in this Section and the B77.1 American

National Standards Safety Requirements for Aerial Passenger Tramways,

which is hereby incorporated by reference. This incorporation includes

subsequent amendments and editions of this Code.

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30. Under North Carolina law, Defendant Sugar Mountain had a legal duty to

comply with the American National Standards (ANSI) Safety Requirements

for Aerial Passenger Tramways, including but not limited to the following:

a. Operator and attendant work positions shall be located to provide visual

surveillance of the station and the line in the vicinity of the station. . .

The operator shall be located where they can observe the aerial lift in

operation. (ANSI B-77 4.1.5 Provisions for operating personnel);

b. On lifts using chairs, an automatic stopping device beyond each

unloading area shall be installed. The device shall automatically stop

the aerial lift in the event a passenger rides beyond the intended point

of unloading. (ANSI B-77 4.2.3.2 Stop Gates);

c. Fixed grip aerial lifts shall be operated by trained and competent

personnel, and the owner shall be responsible for their supervision and

training. Procedures for loading and unloading passengers, including

passengers with common adaptive equipment, shall be included in the

training. . . All personnel shall practice good housekeeping, with

particular emphasis on avoiding the development of any condition that

might contribute to personal injury. Personnel shall comply with the

operational rules and safety regulations of the specific aerial lift. (ANSI

B-77 4.3.2 Operation / Personnel).

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 d. The duties of the operator shall be as follows: a) to assume responsible

charge of the aerial lift; b) to assign and supervise all attendants on

his/her aerial lift . . . d) to advise the supervisor of any condition or

occurrence that may adversely affect the safety of the operation. (ANSI

B-77 4.3.2.3.2 Operator)

e. The duties of the attendant shall be as follows: a) to maintain orderly

passenger traffic conditions within his/her area of jurisdiction; b) to

advise and assist passengers, as required; c) to maintain surveillance of

his/her area of jurisdiction. The operator shall be advised of any unusual

or improper occurrences. Should a condition develop in which

continued operation might endanger a passenger, the attendant shall

stop the aerial lift immediately and advise the operator. (ANSI B-77

4.3.2.3.3 Attendant)

f. Procedures shall be established for terminating daily operations in such

a manner that passengers will not be left on the aerial lift after it has

been shut down. Loading ramps, as required, shall be closed and so

marked. (ANSI B-77 4.3.2.5.8 Termination of daily operations)

31. Pursuant to N.C.G.S.A. 99C3, "A violation of any responsibility placed

on the skier, passenger or ski area operator as set forth in G.S. 99C2, to the

extent such violation proximately causes injury to any person or damage to

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 any property, shall constitute negligence on the part of the person violating

the provisions of that section."

32. Defendant Sugar Mountain violated each of the above American National

Standards (ANSI) Safety Requirements for Aerial Passenger Tramways as

alleged in paragraph 30 (including subparts) above.

33. Defendants violation of the above American National Standards (ANSI)

Safety Requirements for Aerial Passenger Tramways was the proximate

cause of the personal injuries sustained by J.E.

34. The Defendants breach of its duty to use reasonable care was the proximate

cause of the personal injuries sustained by J.E.

35. As a direct and proximate result of the negligence of the Defendant, both

under common law and by statute, J.E. faced a near death experience and

sustained a traumatic fall of over 30 feet to frozen ground causing a

comminuted, depressed fracture of his right heel bone (calcaneus) and injury

to his ankle, a buckle type fracture of his wrist (fracture of distal radius and

an acute fracture of the tip of the ulnar styloid), closed head injury rendering

him unconscious, said physical injuries requiring medical treatment at

Cannon Memorial Hospital, Johnson City Medical Center and Erlanger

Medical Center in Chattanooga, Tennessee, including surgical repair on

February 26, 2016, of the calcaneus fracture, followed by a lengthy course of

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 physical therapy, and he suffered frostbite from the extended exposure to the

cold, and his injuries have caused J.E. to suffer and he is expected to continue

to suffer in the future, great physical pain of body and severe mental anguish

of mind, and he has been prevented from conducting his usual activities of

daily living, including limiting his ability to play sports, and upon

information believed, his heel bone and ankle injuries and the symptoms

caused by these injuries are progressive and permanent in nature, and he will

continue to have physical pain and mental suffering, loss of use of parts of

his body and disfigurement regarding his right lower extremity, potential loss

of earning capacity and medical expenses in the future, as well as mental

anguish from the experience itself, all to his damage for personal injury in an

amount to be determined by a jury, but is well in excess of Seventy-five

Thousand Dollars ($75,000), without interest and costs.

SECOND CAUSE OF ACTION

(Parents Claims)

36. Plaintiffs incorporate herein by reference the allegations set forth in

paragraphs 1 35 above.

37. As a direct and proximate result of the negligence of the Defendant, both

under common law and by statute, Plaintiffs Wendy Elliott and Robert

Elliott, as parents of J.E., have incurred and may continue to incur in the

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 future during J.E.s minority, economic losses, including hospital and

medical expenses, charges for physicians services and examinations, clinic

visits, physical therapy, radiographic studies, and travel and other related

expenses for the treatment of their minor sons injuries as alleged herein,

These damages are all caused by the injuries J.E. sustained as a direct and

proximate result of the Defendants negligence and negligence per se, all to

their damage in an amount to be determined by a jury.

DEMAND FOR JUDGMENT

WHEREFORE, Plaintiffs pray and demand judgment against Defendant as follows:

1. Plaintiff J.E. have and recover against Defendant compensatory damages in a

fair sum, which is greatly in excess of $75,000:

2. Plaintiffs Wendy Elliott and Robert Elliott have and recover against

Defendant compensatory damages in a fair sum;

3. In addition to compensatory damages, Plaintiffs have and recover interest and

costs;

4. For trial by jury on all issues so triable;

5. For attorneys fees, if appropriate; and,

6. For such other and further relief as the Court deems just and proper.

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This the 28th day of February, 2017.

CLONINGER, BARBOUR, SEARSON,

JONES & CASH, PLLC

s/John C. Cloninger
John C. Cloninger
N.C. State Bar No. 9752
21 Battery Park Ave., Suite 201
Asheville, NC 28801
Telephone: (828) 252-5555
Facsimile: (828) 232-9158
jack@lawyersasheville.com

Attorneys for Plaintiffs

Xc

(Motion Pro Hac Vice to be filed)

Christopher Koupal
2300 15th Street, Suite 200
Denver, Colorado 80202
Phone: 720-638-9424
Fax:303-964-1900

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