IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DINAH JONES and WILLIAM )
POTTER, )
)
Plaintiffs, )
)
v.,~ ) C.A. No.: N14C-12-159 PRW
)
CLYDE SPINELLI, LLC, dba )
PINE VALLEY APARTMENTS, )
)
Defendant. )
Submitted: July 8, 2016
Decided: July 8, 2016
ORDER
Upon Defendant Clyde Spinellz`, LLC, dba Pine Valley Apartments’
Motion to Dismiss upon Summary Judgment,
GRANTED.
This Sth day of July, 2016, having considered Defendant Clyde Spinelli,
LLC, dba Pine Valley Apartments’ ("Pine Valley") Motion to Dismiss (for
Summary Judgment) (D.I. 22); the Plaintiffs’ response thereto (D.I. 24); the
parties’ arguments at the hearing of this motion on this date; and the record in this
matter, it appears to the Court that-z
(1) Plaintiffs Ms. Dinah J ones and Mr. William Potter, her husband, filed
a Complaint on December 17, 2014 (D.I. 1), alleging negligence and loss of
consortium against Pine Valley for failing to offer seating to Ms. Jones and Ms.
Dorothy Oberly and for negligent placement of a space heater in Pine Valley’s
office.l
(2) On February 6, 2013, Ms. Jones, l\/lr. Potter, Mr. John Yonker, and
Ms. Oberly, went to pay an overdue rent bill at Pine Valley"s business office.z
They entered through a reception area, then into an inner office where they met
with the apartment complex’s administrative assistant, Ms. Audra Greenlee.3
(3) After a twenty-minute discussion, Mr. Potter and Mr. Yonl33
heater and appreciated its "danger.’ A space heater in the middle of a floor
should be obvious to a person of ordinary care and prudence. After clearly
noticing it, Ms. Oberly could be expected to protect herself against space heater;
and no one would reasonably expect to have to protect Ms. J ones from having to
Ia'. at 30.
at
Id. at 32.
32 H@rzon v. Lempeszs, 1990 WL 990093, ar *1 (Del. com P1. oct 22, 1990), a/j"d sub
nom. Horton v. Lempesis, 1992 WL 19986 (Del. Super. Ct. Jan. 28, l992) (granting summary
judgment for negligence claim where "[n]o reasonable inference can be drawn from the record
that any latent or concealed danger existed").
33 Def.’s Mot. to Dismiss Ex. F, Jones Dep. 33 ("Q. [T]o get from close to Audra
[Greenlee]’s desk to closer to the other desk you would have had to walk around the space
heater? A. We walked past it or behind it.").
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rescue Ms. Oberly from the result of her potential contact with the peril it
represented.34
(12) In short, Pine Valley had no duty to warn or protect Ms. Jones, as a
potential rescuer, (or Ms. Oberly, the actual tripper) from the space heater because
it posed an open and obvious danger. Even under the facts interpreted in the best
light for Ms. Jones, Pine Valley is due judgment as a matter of law and its motion
for summary judgment should be granted.
(l3) Lastly, the Plaintiffs complain also of Ms. Greenlee’s alleged
negligent behavior while the ladies waited. No doubt, taking the evidence in the
light most favorable to Ms. Jones, she and her mother-in-law were offered no seat
34 Polaski v. Dover Downs, Inc., 2012 WL 1413577, at *2-3 (Del. Super. Ct. Jan. 20, 20l2),
cyj"d, 49 A.3d 1193 (Del. 2012) (granting summary judgment because "[a] change in elevation
on this well-lit, defect-free sidewalk leading down to a handicapped ramp is not a dangerous
condition" and the "change in elevation should be obvious to a person of ordinary care and
prudence"); Talmo v. Union ParkAuto., 38 A.3d 1255 (Del. 20l2) (affirming summary judgment
for store where no reasonable jury could find store negligent for plaintiff’ s collision with a
stationary plate glass, floor-to-ceiling window).
Admittedly, Delaware cases involving the "open and obvious" doctrine are limited and
mostly involve curbs, sidewalks, snow, ice, or other "slippery" liquids - distinguishable from the
case here involving an appliance on the ground. But other jurisdictions have granted summary
judgment under similar conditions. See, e.g., Colyer v. Speedway, LLC, 981 F. Supp. 2d 634, 636
(E.D. Ky. 2013) (granting summary judgment because a box - sitting on the floor of a gas station
that plaintiff admitted to have seen prior to her fall and attempted to walk around - was an open-
and-obvious condition); Meader v. Paetz Grocery Co., 147 N.W.2d 21 l, 217 (lowa 1966)
(holding that grocery box placed on the ground with ample room for customers to move around
was an open and obvious danger); Espinoza v. Hemar Supermarket, Inc., 841 N.Y.S.2d 680
(N.Y. App. Div. 2007) (milk crate in grocery store was open and obvious danger); Conrad v.
Sears, Roebuck & C0., 2005 WL 758199, at *4 (Ohio Ct. App. Apr. 5, 2005) (display box was an
open and obvious danger because plaintiff stood next to display for over four minutes, the
plaintiff had an unobstructed view of the display, there was ample space between the plaintiff
and the display, and there were no distractions).
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for the over forty minutes they were in Ms. Greenlee’s office. This was rude, not
negligent, behavior. And this Court may only enforce in a civil negligence action
the rule to be followed by those exercising ordinary care, not the rule of etiquette
followed by those exercising common decency. Thus, this churlish behavior,
while regrettable, is not actionable. The space heater, the alleged "dangerous
condition," was "open and obvious."35 lt was even more so as Ms. Oberly and Ms.
Jones stood by it for the span they did. That Ms. Greenlee allowed them to stand
that long does not convert bad manners to actionable negligence.
(14) Because, for the reasons set forth herein and on the record of the
hearing of this motion, the Court finds that no material issue of fact exists and that
Defendant Pine Valley is entitled to judgment as a matter of law, Pine Valley’s
Motion to Dismiss upon Summary Judgment all claims brought by Ms. J ones and
Mr. Potter is GRANTED.
IT IS SO ORDERED.
PAUL R. WALLACE, .IUDGE
Original to Prothonotary
cc: All counsel via File & Serve
35 Niblett v. Pennsylvania R. Co., 158 A.2d 58(), 582 (Del. Super. Ct. 1960).
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