SUPERIOR COURT
OF THE
STATE OF DELAWARE
JOHN A. PARKINS, JR. NEW CASTLE COUNTY COURTHOUSE
JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801-3733
TELEPHONE: (302) 255-2584
March 1, 2017
Katherine L. Hemming, Esquire Eric S. Thompson, Esquire
Lundy Law Franklin & Prokopik
1600 Pennsylvania Avenue, Suite C 300 Delaware Avenue, Suite 1210
Wilmington, Delaware 19806 Wilmington, Delaware 19801
Michael F. Duggan, Esquire Adrienne M. McDonald, Esquire
Marks, O’Neill, O’Brien Silverman McDonald & Friedman
Doherty & Kelly, P.C. 1010 North Bancroft Parkway
300 Delaware Avenue, Suite 900 Suite 22
Wilmington, Delaware 19801 Wilmington, Delaware 19805
Re: Andrea Ridgeway
v. Acme Markets, Albertsons LLC,
Fox Run SC, LLC and Cipolloni Brothers, LLC
C.A. No. N16C-10-183 JAP
Dear Counsel:
Now before the court is the joint motion of Acme Markets and Fox Run to
dismiss Plaintiff’s claims against Acme and Albertsons.
According to the complaint, Plaintiff slipped and fell on some ice while
visiting the Acme at Fox Run Shopping Center on February 6, 2014. Acme and
Fox Run seek dismissal of Plaintiff’s claims against Acme and Albertsons on
the basis that under the terms of the Lease Agreement between Acme and Fox
Run, Fox Run undertook responsibility for removal of ice and snow from the
shopping center. The moving parties recite “there is no dispute over
responsibility for maintenance of the parking lot being the responsibility of Fox
Run,” and assert that “entities not parties to the Lease do not have standing to
contest the provisions of the contract.”
Moving Defendants’ argument fails because Acme’s duty of care to
Plaintiff is independent of any contractual relationship it may have with its
landlord. Acme owed a common law duty of care to its customers to keep its
premises safe. More than fifty years ago the Delaware Supreme Court
described it this way:
The defendant as a storekeeper owes a duty to the
public to see that those portions of its premises
ordinarily used by its customers are kept in a
reasonably safe condition for their use. In the
performance of this duty a storekeeper is charged with
responsibility for injuries which are caused only by
defects or conditions of which the storekeeper had
actual notice or which could have been discovered by
such reasonable inspection as other reasonably
prudent storekeepers would regard as necessary.1
A private agreement between Acme and Fox Run cannot alter the duty Acme
owes to its customers. It may well be (and indeed Fox Run seems to concede)
that Acme has a valid claim for indemnification against Fox Run. But that does
not change the fact that Acme owes a duty of care to its customers.
In a footnote the moving parties question why Albertsons is a party to
this case. The complaint alleges that Albertsons owns Acme Markets, Inc., but
it does not set forth any discernable theory why this makes Albertsons liable.
1 Howard v. Food Fair Stores, New Castle Inc., 201 A.2d 638, 640 (Del. 1964).
2
The court will not dismiss the claim against Albertsons on this theory because
it was not fairly presented. The mere appearance in a footnote does not suffice.
However, Plaintiff may wish to rethink its decision to include Albertsons as a
defendant.
For the foregoing reasons, the motion to dismiss is DENIED.
Very truly yours,
John A. Parkins, Jr.
oc: Prothonotary
3