Tryon v. Snowshoe Mountain, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JENNIFER TRYON,
Plaintiff,
v. 	CIVIL NO. 2:24-CV-15
(KLEEH)
SNOWSHOE MOUNTAIN, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR SUMMARY JUDGMENT [ECF NO. 72]
Pending 	before 	the 	Court 	is 	Defendant 	Snowshoe 	Mountain,
Inc.’s 	motion 	for 	summary 	judgment. 	For 	the 	reasons 	discussed
below, the motion is DENIED.
I. 	PROCEDURAL BACKGROUND
The Plaintiff, Jennifer Tryon (“Tryon”), brings this personal
injury 	action 	against 	the 	Defendant, 	Snowshoe 	Mountain, 	Inc.
(“Snowshoe”), 	asserting 	one 	count 	of 	negligence. 	Tryon 	alleges
that 	she 	sustained 	injuries 	during 	a 	mountain 	biking 	accident 	at
Snowshoe. 	Specifically, 	she 	alleges 	that 	Snowshoe 	was 	negligent
with 	respect 	to 	the 	design, 	construction, 	and 	maintenance 	of 	a
bridge on one of its bike trails. 	She seeks compensatory damages,
punitive 	damages, 	costs 	and 	attorney’s 	fees, 	and 	prejudgment 	and
post-judgment 	interest. 1 	Snowshoe 	moved 	for 	summary 	judgment 	on
1 Originally, Tryon also named Alterra Mountain Company U.S., Inc. (“Alterra”)
as a defendant, but Tryon voluntarily dismissed Alterra from the case. 	See ECF
Nos. 8, 9.
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February 	24, 	2026. 	See 	ECF 	No. 	72. 	The 	motion 	is 	fully 	briefed
and ripe for review. 	See ECF Nos. 77, 80.
II. 	UNDISPUTED FACTS
On July 5, 2022, Tryon wrecked her mountain bike on Snowshoe’s
“Easy 	Street” 	bike 	trail. 	Compl., 	ECF 	No. 	1, 	at 	1. 	The 	accident
occurred while she was navigating a downhill “S” curve to the left
onto 	a 	bridge. 	Tryon 	Dep., 	ECF 	No. 	73-1, 	at 	53:16–24. 	The 	bridge
had no railings to prevent riders from going off of its right side.
Compl., 	ECF 	No. 	1, 	at 	¶ 	27. 	It 	had 	begun 	to 	rain, 	and 	the 	bridge
was 	especially 	slick. 	Resp., ECF No. 77, at 2. 	After 	riding 	onto
the 	bridge, 	Tryon 	tried 	to 	steer 	her 	bike 	to 	the 	left 	toward 	the
center 	of 	the 	bridge, 	but 	the 	bike 	did 	not 	respond. 	Tryon Dep.,
ECF 	No. 	73-1, 	at 	53:20–24. 	She 	slid 	off 	of 	the 	right 	side 	of 	the
bridge, falling head-first over her bike into a rock-filled creek
bed. 	Resp., ECF No. 77, at 2. 	Tryon sustained multiple spinal cord
fractures and underwent surgeries. 2 	Compl., ECF No. 1, at ¶¶ 42–43.
Tryon 	had 	previously 	visited 	Snowshoe 	several 	times. 	Tryon
Dep., ECF No. 73-1, at 9:15–20. 	She previously mountain biked on
Easy 	Street 	in 	July 	2020, 	when 	she 	rode 	the 	trail 	one 	time
completely 	and 	a 	second 	time 	partially. 	Id. 	at 	11:9–16. 	During
the 	July 	2020 	visit, 	she 	rented 	bikes, 	a 	helmet, 	a 	jacket, 	chest
2 Tryon states that her injuries are permanent.
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protection, 	and 	other 	equipment 	directly 	from 	Snowshoe. 	Id. 	at
13:2–10. 	She 	also 	executed 	and 	signed 	a 	written 	rental 	waiver.
Id. at 18:15–19. 	Generally, she reads those “types of documents”
before signing them. 	Id. at 19:15–21.
In 	July 	2021, 	Tryon 	returned 	to 	Snowshoe. 	Id. 	at 	21:7–12;
59:11–16. 	During the July 2021 visit, she mountain biked on Easy
Street 	one 	time 	completely 	and 	another 	time 	partially. 	Id. 	at
37:5–8. 	Tryon 	rode 	her 	own 	bike, 	but 	she 	rented 	protective 	gear
from Snowshoe. 	Id. at 37:13–17. 	She also purchased lift tickets
for herself and her son. 	Id. at 37:24–38:1.
On July 5, 2022, the day of the accident, Tryon’s lift ticket
was 	attached 	to 	her 	bike. 	Id. 	at 	24:23–25:7. 	Snowshoe 	requires
all 	bikers 	on 	the 	trails 	to 	have 	a 	lift 	ticket. 	Cline 	Dep., 	ECF
No. 	73-1, 	at 	164:5–6. 	The 	front 	of 	the 	lift 	ticket 	advises 	the
ticket 	holder 	to 	read 	the 	“Release 	of 	Liability” 	on 	the 	back 	of
the 	ticket. 	Ticket, 	ECF 	No. 	73-1. 	The 	back 	of 	the 	lift 	ticket
contains the following language in the section labeled “Release of
Liability and Assumption of Risk”:
x 	“I understand and expressly agree that as a
condition 	of 	my 	use 	of 	the 	ski 	area 	and
other 	facilities 	and/or 	participation 	in
recreational activities at Snowshoe Resort,
I 	will 	be 	exposed 	to 	inherent 	and 	other
risks 	and 	dangers 	that 	may
cause . . . serious 	bodily 	injury,
including death.”
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x 	“These 	risks 	include, 	but 	are 	not 	limited
to, 	the 	following: 	collisions 	or 	impacts
with 	natural 	or 	manmade 	objects 	or 	other
persons; 	variations 	in 	terrains; 	extreme
weather 	conditions; 	equipment 	failure;
wildlife; 	hidden 	obstacles; 	and 	all 	other
risks, 	dangers, 	and 	hazards 	associated
with . . . cycling, 	scenic 	lift 	rides 	and
other recreational activities offered year-
round at Snowshoe.”
x 	“I 	therefore 	agree 	that 	the 	use 	of 	this
ticket 	or 	the 	facilities 	at 	Snowshoe
confirms 	absolutely 	my 	agreement 	to 	be
bound by these terms and conditions whether
I 	obtained 	my 	ticket 	myself 	or 	it 	was
provided to me by someone else.”
x 	“For the same reasons, I also agree to make
no claim against Snowshoe Mountain, Inc. or
any 	of 	its 	owners 	or 	employees 	for 	any
injury or harm to me or my property.”
x 	“By 	use 	of 	this 	ticket, 	I 	expressly 	agree
and understand that I have assumed all risks
and 	that 	Snowshoe 	Mountain, 	Inc. 	is
released from any and all liability.”
Release, ECF No. 73-1. 	The bottom of the ticket’s back side states
in 	bold, 	“PLEASE 	READ 	THE 	RELEASE 	OF 	LIABILITY 	AND 	ASSUMPTION 	OF
RISK NOTICE ABOVE.” 	Id. 	The top section of the back side states
in 	bold, 	“PLEASE 	READ 	CAREFULLY! 	USE 	OF 	THIS 	TICKET 	WILL 	AFFECT
YOUR LEGAL RIGHTS.” 	Id.
Tryon does not remember reading the release on the day of the
accident. 	Tryon 	Dep., 	ECF 	No. 	73-1, 	at 	34:8–15. 	She 	agrees,
however, that nothing stopped her from looking at the back of the
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lift 	ticket. 	Id. 	at 	59:7–9. 	She 	is 	also 	an 	experienced 	skier.
Id. at 9:12–13.
Prior 	to 	Tryon’s 	accident, 	Snowshoe 	had 	placed 	mesh 	on 	the
Easy 	Street 	bridge. 	Id. 	at 	53:20–22. 	The 	mesh 	serves 	two
purposes: (1) it provides traction, and (2) it serves as a visual
guide on where the riders should be. 	Cline Dep., ECF No. 73-1, at
117:13–17. 	Snowshoe’s bike crew also travels the trails daily to
inspect the course, including the bridges. 	Id. at 67:2–7. 	A more
detailed inspection is done biweekly. 	Id. at 72:14–18.
Tryon 	is, 	and 	was 	before 	the 	accident, 	the 	Chief 	Pharmacy
Officer of Henry Ford Health. 	Tryon Dep., ECF No. 73-1, at 135:16–
17. 	In 	that 	role, 	she 	is 	“responsible 	for 	making 	sure 	that
medications 	are 	accessible, 	affordable, 	safe, 	and 	optimized 	for
patients 	across 	the 	care 	delivery 	network.” 	Id. 	at 	135:20–22.
Tryon has continued working since the accident. 	Id. at 136:2–6.
III. DISPUTED FACTS
There 	appears 	to 	be 	a 	possible 	dispute 	as 	to 	whether 	Tryon
signed 	a 	waiver. 	Regardless, 	however, 	the 	waiver 	(if 	it 	exists)
is 	unavailable. 	Tryon 	testified 	that 	she 	rented 	equipment 	from
Snowshoe 	for 	herself 	on 	the 	day 	of 	the 	incident. 	Id. 	at 	99:2–4.
Snowshoe’s 	Director 	of 	Risk 	and 	Business 	Operations, 	Preston
Cline, 	testified 	that 	at 	Snowshoe, 	downhill 	mountain 	biking
equipment cannot be rented without first signing a rental waiver.
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Cline 	Dep., 	ECF 	No. 	73-1, 	at 	174:12–18. 	Tryon 	does 	not 	recall
completing a waiver agreement at the rental facility in July 2022.
Tryon 	Dep., 	ECF 	No. 	73-1, 	at 	106:5–19. 	Rental 	waiver 	agreements
were completed for the others in her group: Brant Tryon, Sam Tryon,
Sophia 	Tryon, 	and 	Noah 	Jennings. 	Id. 	at 	95:15–23; 	104:1–8.
Snowshoe, 	however, 	has 	been 	unable 	to 	locate 	a 	release 	signed 	by
Tryon on July 5, 2022. 	Cline Dep., ECF No. 77-10, at 179:17–20.
There also appears to be a dispute as to whether any similar
incidents 	have 	occurred 	on 	the 	Easy 	Street 	bridge. 	Snowshoe
asserts 	that 	prior 	to 	Tryon’s 	accident, 	no 	other 	incidents 	where
a 	rider 	lost 	control 	and 	veered 	off 	the 	Easy 	Street 	bridge 	were
reported 	either 	verbally 	or 	in 	an 	incident 	report. 	Cline 	Dep.,
ECF No. 73-1, at 177:6–13. 	Tryon claims that on July 24, 2021, a
13-year-old boy sustained a right hip contusion and a left forearm
fracture when he went off of the right side of the bridge. 	Incident
Report, 	ECF 	No. 	77-6. 	Tryon 	also 	claims 	that 	on 	June 	21, 	2022,
another 	13-year-old 	boy 	went 	off 	of 	the 	right 	side 	of 	the 	bridge
and sustained a closed head injury resulting in retrograde amnesia.
Incident 	Report, 	ECF 	No. 	77-7. 	A 	Snowshoe 	employee 	also 	recalls
an adult rider going off of the right side of the bridge. 	Daniels
Dep., ECF No. 77-5, at 36:20–38:6.
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IV. 	STANDARD OF REVIEW
Summary 	judgment 	is 	appropriate 	if 	“there 	is 	no 	genuine
dispute 	as 	to 	any 	material 	fact 	and 	the 	movant 	is 	entitled 	to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions
on 	file, 	together 	with 	the 	affidavits, 	if 	any, 	which 	it 	believes
demonstrate 	the 	absence 	of 	a 	genuine 	issue 	of 	material 	fact.”
Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	323 	(1986) 	(internal
quotation marks omitted). 	“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party,
there 	is 	no 	genuine 	issue 	for 	trial.” 	Matsushita 	Elec. 	Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and internal quotation marks omitted).
“When 	the 	moving 	party 	has 	carried 	its 	burden . . . , 	its
opponent 	must 	do 	more 	than 	simply 	show 	that 	there 	is 	some
metaphysical 	doubt 	as 	to 	the 	material 	facts.” 	Id. 	at 	586
(citations 	omitted). 	Rather, 	the 	court 	must 	ask 	“whether 	the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as 	a 	matter 	of 	law.” 	Anderson 	v. 	Liberty 	Lobby, 	Inc., 	477 	U.S.
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242, 	251–52 	(1986). 	At 	its 	core, 	the 	summary-judgment 	process
examines whether a trial is needed. 	See id. at 250.
V. 	DISCUSSION
Snowshoe 	argues 	that 	Tryon 	executed 	a 	lift 	ticket 	agreement
wherein she agreed to release Snowshoe from liability and assumed
the 	risks 	of 	the 	mountain 	biking 	trail. 	In 	the 	alternative, 	if
the 	Court 	does 	not 	dismiss 	Tryon’s 	sole 	claim, 	Snowshoe 	argues
that 	the 	record 	contains 	no 	evidence 	that 	it 	acted 	with 	the
requisite conduct to warrant punitive damages. 	Finally, Snowshoe
also 	alternatively 	argues 	that 	Tryon 	is 	precluded 	from 	claiming
lost 	future 	earnings 	because 	she 	has 	not 	submitted 	expert
testimony. 	The Court disagrees with all three contentions.
A. 	Under 	the 	circumstances, 	Tryon 	did 	not 	expressly 	and
clearly 	agree 	to 	accept 	the 	risk 	of 	harm 	arising 	from
Snowshoe’s negligent or reckless conduct.
Generally, pre-injury exculpatory releases are disfavored and
strictly construed against the party seeking a release. 	See Krazek
v. Mtn. River Tours, Inc., 884 F.2d 163, 165 (4th Cir. 1989) (“As
a 	general 	rule 	of 	contract 	law, 	contracts 	releasing 	a 	party 	from
liability 	resulting 	from 	his 	own 	negligence 	are 	looked 	upon 	with
disfavor 	and 	are 	strictly 	construed 	against 	the 	releasee.”).
Still, 	the 	Supreme 	Court 	of 	Appeals 	of 	West 	Virginia 	“has 	long
held 	that 	waivers, 	also 	known 	as 	exculpatory 	agreements, 	are
normally 	upheld 	when 	they 	are 	freely 	entered 	into 	by 	parties 	of
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equal 	bargaining 	power, 	so 	long 	as 	they 	do 	not 	violate 	a 	public
interest or conflict with an applicable safety statute.” 	Lutz v.
Turner 	Broad. 	Sys., 	Inc., 	187 	F. 	Supp. 	3d 	706, 	712 	(N.D.W. 	Va.
2016) 	(citing 	Murphy 	v. 	N. 	Am. 	River 	Runners, 	Inc., 	412 	S.E.2d
504, 509 (W. Va. 1991)). 	Specifically, the Supreme Court has held
that “in the absence of an applicable safety statute, a plaintiff
who 	expressly 	and, 	under 	the 	circumstances, 	clearly 	agrees 	to
accept 	a 	risk 	of 	harm 	arising 	from 	the 	defendant’s 	negligent 	or
reckless 	conduct 	may 	not 	recover 	for 	such 	harm, 	unless 	the
agreement 	is 	invalid 	as 	contrary 	to 	public 	policy.” 	Murphy, 	412
S.E.2d at 508–09 (emphasis modified).
“In 	order 	for 	an 	express 	agreement 	assuming 	the 	risk 	to 	be
effective, it must appear that the plaintiff has given his or her
assent 	to 	the 	terms 	of 	the 	agreement.” 	Id. 	at 	510. 	When 	the
agreement 	is 	prepared 	by 	the 	defendant, 	“it 	must 	appear 	that 	the
terms 	were 	in 	fact 	brought 	home 	to, 	and 	understood 	by, 	the
plaintiff, before it may be found that the plaintiff has agreed to
them.” 	Id. 	“[T]o relieve a party from liability for his [or her]
own negligence by contract, language to that effect must be clear
and 	definite.” 	Id. 	(citation 	omitted). 	It 	must 	be 	evident 	that
the terms of the agreement were “intended by both parties to apply
to 	the 	particular 	conduct 	of 	the 	defendant 	which 	has 	caused 	the
harm.” 	Id. 	“[A] 	general 	clause 	in 	a 	pre-injury 	exculpatory
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agreement or anticipatory release purporting to exempt a defendant
from 	all 	liability 	for 	any 	future 	loss 	or 	damage 	will 	not 	be
construed 	to 	include 	the 	loss 	or 	damage 	resulting 	from 	the
defendant’s 	intentional 	or 	reckless 	misconduct 	or 	gross
negligence, 	unless 	the 	circumstances 	clearly 	indicate 	that 	such
was the plaintiff’s intention.” 3 	Id.
The Court, like the parties, has not located a West Virginia
case 	recognizing 	the 	enforceability 	of 	a 	pre-injury 	exculpatory
release that was not signed by the party against whom enforcement
was sought. 	See, e.g., Addis v. Snowshoe Mtn., Inc., No. 12-1537,
2013 WL 6152356, at *2 (W. Va. Nov. 22, 2013) (memorandum decision)
(signed form entitled “RELEASE AND AGREEMENT NOT TO SUE”); Krazek,
884 	F.2d 	at 	164 	(signed 	document 	entitled 	“Raft 	Trip 	Release 	and
Assumption 	of 	Risk”); 	Lutz, 	187 	F.Supp.3d 	at 	709 	(signed 	form
entitled “Participant Waiver and Release”).
Here, although the language on the ticket is clear, the Court
finds 	that 	Tryon’s 	acceptance 	of 	it 	was 	not 	express. 	Tryon 	was
3 	It 	is, 	of 	course, 	well-established 	under 	West 	Virginia 	law 	“[t]hat 	an
acceptance may be effected by silence accompanied by an act of the offeree which
constitutes a performance of that requested by the offeror[.]” 	First Nat’l
Bank of Gallipolis v. Marietta Mfg. Co., 153 S.E.2d 172, 176 (W. Va. 1967).
“Where the offeree exercises dominion over things which are offered to him,
such 	exercise 	of 	dominion 	in 	the 	absence 	of 	other 	circumstances 	showing 	a
contrary intention is an acceptance.” 	Id. at 176–77. 	Indeed, “[b]oth the offer
and acceptance may be by word, act or conduct that evince the intention of the
parties 	to 	contract.” 	New 	v. 	GameStop, 	Inc., 	753 	S.E.2d 	62, 	70-71 	(W. 	Va.
2013). 	The 	requirement 	of 	“express” 	acceptance 	here, 	however, 	is 	more
demanding.
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never 	“brought 	home 	to” 	the 	terms 	of 	her 	lift 	ticket, 	and 	it 	is
not clear, given the record, that she understood them. 	Given that
pre-injury exculpatory releases are generally disfavored under the
law, 	the 	Court 	will 	not 	uphold 	the 	release 	here, 	where 	the 	terms
are 	included 	in 	a 	lift 	ticket 	that 	was 	not 	read 	by 	Tryon 	and 	was
not signed.
B. 	Given 	Tryon’s 	production 	of 	evidence 	that 	others 	have
fallen 	off 	the 	Easy 	Street 	bridge, 	it 	is 	premature 	to
dismiss a claim for punitive damages.
Under West Virginia law,
An award of punitive damages may only occur in
a 	civil 	action 	against 	a 	defendant 	if 	a
plaintiff establishes by clear and convincing
evidence 	that 	the 	damages 	suffered 	were 	the
result of the conduct that was carried out by
the 	defendant 	with 	actual 	malice 	toward 	the
plaintiff 	or 	a 	conscious, 	reckless 	and
outrageous indifference to the health, safety
and welfare of others.
W. Va. Code § 55-7-29(a).
As discussed, Snowshoe bike crews travel the trails daily to
inspect 	aspects 	of 	the 	course, 	including 	the 	bridges, 	and 	a 	more
detailed inspection is done biweekly. 	Moreover, mesh is put down
on 	the 	bridges 	to 	provide 	additional 	traction 	and 	to 	create 	a
visual guide as to where the riders should be on the bridge. 	Those
facts weigh against an award of punitive damages. 	Tryon, however,
has 	produced 	evidence 	of 	other 	instances 	of 	individuals 	falling
off 	of 	the 	bridge: 	that 	on 	July 	24, 	2021, 	a 	13-year-old 	boy
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sustained 	a 	right 	hip 	contusion 	and 	a 	left 	forearm 	fracture 	when
he went off of the right side of the bridge (Incident Report, ECF
No. 77-6), and that on June 21, 2022, another 13-year-old boy went
off 	of 	the 	right 	side 	of 	the 	bridge 	and 	sustained 	a 	closed 	head
injury 	resulting 	in 	retrograde 	amnesia 	(Incident 	Report, 	ECF 	No.
77-7). 	A Snowshoe employee also recalls an adult rider going off
of 	the 	right 	side 	of 	the 	bridge. 	Daniels 	Dep., 	ECF 	No. 	77-5, 	at
36:20–38:6. 	The 	jury 	could 	rely 	on 	these 	instances 	to 	award
punitive 	damages 	based 	on 	a 	“conscious, 	reckless 	and 	outrageous
indifference 	to 	the 	health, 	safety 	and 	welfare 	of 	others.”
Accordingly, 	granting 	summary 	judgment 	with 	respect 	to 	punitive
damages would be inappropriate at this time.
C. 	Because expert testimony on lost future earnings is not
required in every case, it is premature to preclude Tryon
from claiming lost future earnings at this stage.
In 	Jordan 	v. 	Bero, 	the 	Supreme 	Court 	of 	Appeals 	wrote 	that
“impairment 	of 	earning 	capacity 	is 	an 	item 	of 	permanent 	damages
which . . . must be proved to a reasonable degree of certainty; it
cannot be left to sheer speculation or surmise.” 	210 S.E.2d 618,
637 	(W. 	Va. 	1974). 	Years 	later, 	in 	Adkins 	v. 	Foster, 	it 	found
that the issue of diminished earning capacity should not have been
submitted 	to 	a 	jury 	because 	the 	plaintiff 	“presented 	significant
evidence 	of 	permanent 	injury 	but 	failed 	to 	present 	evidence 	of
future economic ramifications of the injury to a reasonable degree
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MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR SUMMARY JUDGMENT [ECF NO. 72]
13
of 	certainty.” 	421 	S.E.2d 	271, 	277 	(W. 	Va. 	1992). 	The 	Adkins
Court 	relied 	on 	Howard 	v. 	Sanborn, 	a 	South 	Dakota 	case 	in 	which
the court found that “where there is no expert testimony on present
value, ‘the jury must have some direction to help it intelligently
reduce the award to present value.’” 	Id. at 735 (citing Howard v.
Sanborn, 483 N.W.2d 796, 801 (S.D. 1992)). 	The Supreme Court noted
that 	the 	lack 	of 	expert 	testimony 	on 	the 	issue 	of 	present 	value
damages 	can 	lead 	to 	“confusion 	and 	guess-work 	verdicts.” 	Id.
(citing Howard, 483 N.W.2d at 801-02). 	The Adkins Court, however,
also recognized that “expert economic evidence may not be necessary
in every case[.]” 	Id. at Syl. Pt. 4.
The following year, in Liston, the Supreme Court wrote,
Where a plaintiff wishes to quantify the loss
of 	earning 	capacity 	by 	placing 	a 	monetary
value on it, there must be established through
expert testimony the existence of a permanent
injury, 	its 	vocational 	effect 	on 	the
plaintiff’s 	work 	capacity, 	and 	an 	economic
calculation 	of 	the 	monetary 	loss 	over 	the
plaintiff’s work-life expectancy reduced to a
present day value.
Syl. 	Pt. 	2, 	Liston 	v. 	Univ. 	of 	W. 	Va. 	Bd. 	of 	Trs. 	ex 	rel. 	W. 	Va.
Univ., 438 S.E.2d 590 (W. Va. 1993). 	The Liston Court explained,
What 	emerges 	from 	our 	cases 	is 	that 	loss 	of
earning 	capacity 	can 	be 	proved 	in 	two 	ways.
The first step in either approach is that the
plaintiff 	must 	establish 	that 	there 	exists 	a
permanent injury which can be reasonably found
to 	diminish 	earning 	capacity. 	The 	plaintiff
may 	then 	rely 	on 	lay 	or 	the 	plaintiff’s 	own
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DENYING MOTION FOR SUMMARY JUDGMENT [ECF NO. 72]
14
testimony 	to 	acquaint 	the 	jury 	with 	the
injury’s impact on his or her job skills. 	When
this 	is 	done, 	the 	jury 	may 	assess 	a 	general
amount 	of 	damages 	for 	diminished 	earning
capacity[.]
Id. at 594 (citations omitted). 	The Supreme Court later held that
to determine impairment of earning capacity, it is necessary only
to consider “the extent and permanency of the injury; the type of
future 	employment, 	if 	any, 	in 	which 	the 	injured 	plaintiff 	could
engage; and the difference between the amount plaintiff would have
earned 	if 	the 	injury 	had 	not 	occurred 	and 	the 	amount 	plaintiff
would be able to earn after having suffered the injury.” 	Craighead
v. Norfolk & Western Ry. Co., 475 S.E.2d 363, 373 (W. Va. 1996).
Here, Tryon has not disclosed any experts on economic damages.
Tryon 	is 	the 	Chief 	Pharmacy 	Officer 	at 	Henry 	Ford 	Health 	and 	is
“responsible 	for 	making 	sure 	that 	medications 	are 	accessible,
affordable, 	safe, 	and 	optimized 	for 	patients 	across 	the 	care
delivery network.” 	Tryon Dep., ECF No. 73-1, at 135:20–22. 	Tryon
had 	aimed 	to 	become 	the 	CEO 	of 	American 	Society 	Health 	System
Pharmacists 	but 	alleges 	that 	she 	is 	no 	longer 	capable 	because 	of
the accident. 	Id. at 136:19–24; 143:20–24. 	At this stage, given
that expert testimony is not necessary in every case, it would be
premature 	to 	grant 	summary 	judgment 	with 	respect 	to 	future
earnings. 	Without 	expert 	testimony, 	Tryon 	may 	not 	be 	able 	to
“quantify the loss of earning capacity by placing a monetary value
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MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR SUMMARY JUDGMENT [ECF NO. 72]
15
on 	it,” 	Liston, 	438 	S.E.2d 	at 	594, 	but 	she 	may 	still 	be 	able 	to
seek “a general amount of damages for diminished earning capacity,”
consistent with Liston and Adkins.
VI. 	CONCLUSION
For the reasons discussed, the motion for summary judgment is
DENIED in its entirety [ECF No. 72].
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: June 16, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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