Borrack v. Charles D. Reed, M.D.

53 So.3d 1253 (2011)

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Nature of the Case

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Facts

The parties were dating at the time of this incident and had traveled to West Virginia to allow P an opportunity to meet D's family. Unbeknownst to P, D planned to play a trick on P to induce her to jump off a very high cliff into the lake. While hiking up to the top of the cliff on the lake, P repeatedly advised D that she was not comfortable with the climb and was afraid to descend alone. D refused to accompany her to the bottom, continuing instead to the top. D encouraged her to continue by telling her that the view from the top is something that he used to share with his deceased brother, and now wanted to share with her. Being too afraid to descend on her own, P continued to the top of the cliff. Once there she became too frightened to look over the edge and turned to try to descend. While she was not looking, D jumped off the cliff into the water below. When P turned to ask him to leave, he was nowhere to be found. P yelled to the bottom where D's nephew was in the water to find out what happened to D. D's nephew stated that he did not know where D was and that she should jump to find him. In an effort to save D, P jumped off the cliff into the water below and was severely injured when she landed. P sued D claiming that D had created a risk and owed a legal duty to lessen the risk. D moved to dismiss the complaint in that he had no legal duty to prevent or stop P from jumping into the lake. The court granted D's motion to dismiss with prejudice. P appealed.