IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RICHARD CHASE, and his wife, )
MELANIE CHASE, )
)
Plaintiffs, )
v. ) C.A. No. N15C-10-162 CLS
WAP CLEVELAND AVENUE, )
L.L.C., ROYAL IMPORTS INC. )
d/b/a NEWARK TOYOTAWORLD )
)
Defendants/Third-Party Plaintiffs, )
v. )
MARTIN NEWARK DEALERSHIP, )
INC., d/b/a MARTIN HONDA, )
)
Third Party Defendant. )
Submitted: January 31, 2017
Decided: May 19, 2017
On Defendants‟ Motion for Summary Judgment.
DENIED.
ORDER
Elizabeth Lewis, Esquire, and Thomas Crumplar, Esquire, Jacobs &
Crumplar, P.A., Wilmington, Delaware, Attorney for Plaintiffs Richard and
Melanie Chase.
Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires &
Newby, LLP, Wilmington, Delaware, Attorney for Defendants/Third-Party
Plaintiffs WAP Cleveland Avenue, LLC and Royal Imports Inc. d/b/a
Newark Toyota World.
Melissa L. Rhoads, Esquire, and Jason J. Cummings, Esquire, Tigh &
Cottrell, P.A., Wilmington, Delaware, Attorney for Third Party Defendant,
Martin Newark Dealership d/b/a Martin Honda.
SCOTT, J
Background
Defendant‟s WAP Cleveland Avenue, LLC (hereinafter “WAP”) and Royal
Imports Inc. d/b/a Newark ToyotaWorld (hereinafter “Royal”) filed a Motion for
Summary Judgment on November, 18 2016. Plaintiffs Richard Chase (“Mr.
Chase”) and his wife Melanie Chase filed a response on January 31, 2017.
Defendant Martin Newark Dealership d/b/a Martin Honda (hereinafter “Martin
Honda”) did not file a response. A pre-trial conference was held on May 15, 2017.
At the pre-trial conference the parties informed the Court that Defendants Nucar
Newark Body Shop and Diamond Motor Sports, Inc. were no longer in the case.
Further, the parties agreed that the case caption should read “Royal Imports, Inc.
d/b/a Newark ToyotaWorld.”
Facts
On June 1, 2013, Royal entered into a Parking License Agreement
(hereinafter “Agreement”) with Martin Honda. Under this Agreement, Martin
Honda paid Royal to use a designated portion of property that Royal leases from
the WAP. The Agreement allows Martin to store 100 new and/or used cars on the
property. WAP is not a party to this agreement. On December 11, 2013, Mr.
Chase, a Martin Honda employee, parked his vehicle on the property subject to the
Agreement. As he was walking from the lot onto the adjoining public roadway,
Christopher Lane, he slipped and fell on ice and snow. The pertinent portion of the
Agreement states:
The Fee does not include customary and ordinary costs and expenses
associated with the routine maintenance of the Licensed Property,
including but not Limited to, costs for debris removal, snow plowing
and restriping (collectively, the “Routine Maintenance”) which shall
be billed by Licensor to Licensee on a quarterly basis and paid by
Licensee to Licensor within thirty (30) days of receipt. Any other
maintenance, repairs and/or replacements of the Licensed Property
that would be characterized as a capital improvement, including, by
way of example and not of limitation, resealing and repaving of the
Licensed Property, shall be performed by and the responsibility of the
Licensor (collectively the “Long Term Maintenance”). Licensor shall
provide Licensee with reasonable prior written notice of any Routine
maintenance of Long Term Maintenance (collectively, the
“Maintenance”) to be performed on the Licensed Property, Licensee
agrees to reasonably cooperate with Licensor in connection with any
Maintenance on the Licensed Property and shall, if necessary in order
to accomplish the Maintenance, find reasonable alternative parking
arrangements outside of the Licensed Property for the period required
to perform any Maintenance.
The lease agreement between WAP and Royal was not proffered during
Discovery.
Parties’ Contentions
Defendants WAP and Royal contend that there is no genuine issue of
material fact in this case and summary judgment is appropriate. WAP contends
that although they are the owner of the property where Mr. Chase was injured, they
were neither the “possessor” nor the “Licensor.” WAP also claims that Mr. Chase
was on the property for the sole benefit of Martin Honda, not to benefit WAP‟s
business. Similarly, Royal claims that the use of the property solely benefited
Martin Honda‟s business and there is no evidence that Royal “invited” Mr. Chase
onto the property. Royal also argues that because Martin Honda is a licensee, Mr.
Chase is also a licensee because he was Martin Honda‟s employee. Royal also
claims that the Complaint does not allege willful or wanton conduct on the part of
Royal.
On the other hand, Plaintiffs contend that Mr. Chase is a business invitee
because he was rightfully on the lot when he was injured, and both WAP and
Royal owed Mr. Chase a duty to exercise reasonable care in making the property
safe. Plaintiffs claim that Mr. Chase was a business invitee pursuant to the
Restatement (Second) of Torts because Mr. Chase was invited to enter on the land
for a purpose directly or indirectly related to the business dealings with the
possessor of the land. Plaintiffs claim that this is evidenced by the fact that Martin
Honda directed Mr. Chase to park in the designated lot, and Royal received a fee in
exchange for allowing Martin Honda to use the property. Plaintiffs argue that
pursuant to Section 26-3 of the City of Newark‟s Municipal Code, the “property
owner”, in this case WAP, is required “to remove all snow or ice from the sidewalk
abutting such property from the time the snow ceases to fall.” Plaintiffs also claim
that as part of the Agreement between Royal and Martin Honda, Royal was to pay
for the snow removal and seek reimbursement from Martin Honda. Finally,
Plaintiffs contend that there is an issue of fact as to joint control of the property in
question between WAP and Royal. Plaintiffs state that the Agreement between
Martin Honda and Royal places responsibility on Royal to take care of snow
removal, and then subsequently bill Martin Honda for the removal. However,
Plaintiffs claim that the Agreement requires that any inquiries pertaining to the
Agreement should be directed to Warren A. Price, the principle of WAP. Because
of this clause, Plaintiffs argue that there is an issue regarding joint control of the
property. Additionally, Plaintiffs state that Martin Honda had no responsibility for
the “Routine Maintenance” or “Long Term Maintenance” pursuant to the
Agreement.
Standard
The Court may grant summary judgment if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to summary judgment as a matter of law.”1 The moving party
bears the initial burden of showing that no material issues of fact are present. 2
Once such a showing is made, the burden shifts to the non-moving party to
demonstrate that there are material issues of fact in dispute.3 In considering a
1
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
2
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
3
Id. at 681.
motion for summary judgment, the Court must view the record in a light most
favorable to the non-moving party.4 The Court will not grant summary judgment if
it seems desirable to inquire more thoroughly into the facts in order to clarify the
application of the law.5
Discussion
Under Delaware law, a plaintiff must demonstrate that a particular defendant
owed her a duty of care, breached that duty, and the breach was the proximate
cause of her injuries.6 The Court determines whether a duty exists, and it “is
entirely a question of law, to be determined by the body of statutes, rules,
principles and precedents which make up the law.”7 Generally, landowners have
“an affirmative duty to keep premises safe from hazards of ice-and snow-related
accumulation,” and they are “permitted to await the end of a storm and a
reasonable time thereafter to remove ice and snow from an outdoor entrance walk,
platform, or steps.”8 Pertinent to this case, the City of Newark‟s Code of
Ordinances, Section 26-3(a) provides that the “owner, tenant, or occupant of every
building or lot within the city, or owner, claimant, agent, or person having same in
4
Burkhart, 602 A.2d at 59.
5
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods., Inc., 2006
WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
6
Patton v. 24/7 Cable Co., LLC, 2016 WL 6272552, *2 (Del. Super. Aug. 31, 2016).
7
Id. (citations omitted).
8
Laine v. Speedway, LLC, 2016 WL 5946491, at *2 (Del. Super. Oct. 13, 2016)(citing Cash v. E.
Coast Prop. Mgmt., Inc., 2010 WL 4272925, at *2 9Del. Oct. 29, 2010). The Court notes that
this duty applies to business invitees. See Elder v. Dover Downs, Inc., 2012 WL 2553091, at *4
(Del. Super. July 2, 2012).
charge or control when the same is not tenanted or occupied, or the owner of any
property which is occupied by multiple businesses or multiple dwelling units, shall
remove all snow or ice from the sidewalk abutting such property within 24 hours
from the time the snow ceases to fall.”9 There is no claim under Delaware‟s
continuing storm doctrine in the present case. Rather, the main issue before the
Court is which parties, if any, owed Mr. Chase a “duty” to remove the ice and
snow where Mr. Chase fell. To properly answer this question, the Court must
assess Mr. Chase‟s status on the premises in order to determine the applicable duty
of care. Because there are multiple parties in this action, and each party‟s
relationship to Mr. Chase differs, the Court will assess the Motion per each
Defendant individually.
WAP Cleveland Avenue
The Court is not persuaded by WAP‟s argument that no genuine issue of fact
exists because WAP was neither the “possessor” nor the Licensor. The general
rule concerning leased premises is that “a landowner who has neither possession
nor control of the leased premises is not liable for injuries to third persons.”10
Thus, “a lessor of land is not subject to liability to his lessee or others upon the
land with the consent of the lessee or sublessee for physical harm caused by any
dangerous condition which comes into existence after the lessee has taken
9
See The City of Newark‟s Municipal Code Section 26-3 (emphasis added).
10
Volkswagen of America, Inc. v. Costello 880 A.2d 230, 233 (Del. 2005).
possession.”11 However, “an exception arises, justifying imposition of liability on
an out-of-possession owner, where the owner „retains control of portions of the
land which the lessee is entitled to use‟.”12 Further, “it is necessary to show actual
control because „once a landlord leases property, he generally relinquishes both
control and possession of the leased area to the lessee‟.”13 At this point in the
litigation, when viewing the facts in a light most favorable to Plaintiffs, summary
judgment is inappropriate. Plaintiffs‟ case a very similar to the Delaware Supreme
Court case, Volkswagen of America, Inc. v. Costello.14 In Costello, the plaintiff
worked at Transworld Port and Distribution Services Inc. as an automobile
mechanic.15 Transworld processed and stored vehicles for Volkswagen (“VW”)
imported through the Port of Wilmington.16 VW and Transworld entered into an
agreement that granted Transworld a license to “occupy” the property, and the
agreement stated that VW “owns, leases, or is in possession” of the said property. 17
Subsequently in 1996, VW installed new floors in the area where the plaintiff
worked,18 and in 2001 the plaintiff slipped in a puddle of water on these floors.19
11
Id.
12
Id. at 233 (citing Craig v. A.A.R. Realty Corp., 576 A.2d 688, 694 (Del. Super. 1989)).
13
Id. (citing Argoe v. Commerce Square Apts., Ltd. P’ship, 745 A.2d 251, 255 (Del. Super.
1999)).
14
880 A.2d 230 (Del. 2005).
15
Id. at 231.
16
Id.
17
Id. at 231-32.
18
Id. at 232.
19
Id. at 232.
This Court granted partial summary judgment because it found that “VW did not
actively control the „method and manner of work‟ performed by Transworld,” but
denied the motion on the issues of possession.20 The Supreme Court held the issue
of possession remained a question for the factfinder, and not the trial judge. 21 The
court noted that “[p]ossession and control are related, but nonetheless
jurisprudently distinct concepts,”22 and “it is possible for a landowner to retain
some modicum of possession, but relinquish all control to a lessee or another
party.”23 Here, there are issues of fact as to whether WAP was in actual control of
the property in question. The lease between WAP and Royal was not turned over
during discovery, and the Court is limited to the facts in the record. Under these
set of facts, when viewed in a light most favorable to the Plaintiffs, the Court
cannot determine whether WAP was in actual control of the property. Therefore,
WAP‟s Motion for Summary Judgment is DENIED.
Defendant Royal Imports d/b/a Newark ToyotaWorld
Royal argues that Mr. Chase was a licensee on the property because of the
licensor/licensee relationship established through the Agreement between Royal
and Martin Honda. However, Plaintiffs argue that Mr. Chase was a business
invitee under the Restatement (Second) of Torts because he “was invited to enter
20
Id.
21
Id. at 234.
22
Id. (citations omitted).
23
Id. (citing Argoe, 745 A.2d at 255).
or remain on the land for a purpose directly or indirectly connected with the
business dealings with the possessor of the land.” The Court does not agree with
Plaintiffs‟ assertion. The relationship between Royal and Martin Honda is
established through the “Parking License Agreement.” The licensing agreement
between Royal and Martin is “solely and exclusively for parking for no more than
100 motor vehicles, and for no other purposes whatsoever.” From the outset, there
is an issue of fact whether Mr. Chase was on the property pursuant to the permitted
use under the Agreement. Setting this issue aside, Mr. Chase cannot be classified
as a business invitee of Royal. A licensee is defined as “a person who is privileged
to enter or remain on land only by virtue of the possessor‟s consent."24 An invitee,
on the other hand, is defined in Section 332 of the Restatement as “either a public
invitee or a business visitor.”25 A “business visitor is a person who is invited to
enter or remain on land for a purpose directly or indirectly connected with business
dealings with the possessor of the land.”26 A key distinction pertinent to this case
is the difference between an invitation and permission. The comments of the
Restatement distinguish the terms. Section 332, comment b, states that “[a]n
invitation does not in itself establish the status of an invitee, it is essential to it. An
invitation differs from mere permission in this: an invitation is conduct which
24
Restatement (Second) of Torts § 330.
25
Restatement (Second) of Torts § 332(1).
26
Restatement (Second) of Torts § 332(b).
justifies others in believing that the possessor desires them to enter the land;
permission is conduct justifying others in believing that the possessor is willing
that they shall enter if they desire to do so. Any words or conduct of the possessor
which lead or encourage the visitor to believe that his entry is desired may be
sufficient for the invitation.”27
Comment (e) of the Restatement suggests that there are two forms of
“business visitors.”28 The first type “includes persons who are invited to come
upon the land for a purpose connected with the business for which the land is held
open to the public, as where a person enters a shop to make a purchase, or to look
at goods on display.”29 The record before the Court suggests that Mr. Chase does
not fall into this category of business invitee as he is an employee of Martin
Honda, and was not on the land for a purpose connected with Royal‟s business.
The second type of business visitor under the Restatement “includes those who
come upon the land not open to the public, for a purpose connected with business
which the possessor conducts upon the land, or for a purpose connected with their
own business which is connected with any purpose, business or otherwise, for
27
Restatement (Second) of Torts § 332 cmt (b). See also Malin v. Consolidated Rail. Corp., 438
A.2d 1221, 1224 (Del. 1981); Lum v. Anderson, 2004 WL 772074, at *4-5 (Del. Super. Mar. 10,
2004).
28
See Restatement (Second) of Torts § 332 cmt (e). The Court notes that Delaware courts refer
to business visitors as “business invitees.”
29
Id.
which the possessor uses the land.”30 For example, “a truck driver from a
provision store who enters to deliver goods to a private residence is a business
visitor; and so is a workman who comes to make alterations or repairs on land used
for residence purposes.”31 Delaware law suggests that the “distinguishing factor
between a licensee and an invitee is whether the possessor of the property receives
any benefit from the use of the property by the licensee or the public invitee.”32
Similarly, “[a]nother key factor in evaluating whether or not a party is an invitee or
a licensee is if their status on the possessor‟s property is related to possessor‟s
business on that property.”33 The Court finds that Mr. Chase was not a business
invitee of Royal. Royal does not confer a benefit from the use of the property by
Mr. Chase, and there are no facts in the record to indicate that he was on the
property for a reason related to Royal‟s business. However, there are multiple
issues of fact in this case. First, it is an issue of fact as to whether Royal was the
“possessor” of the property where Mr. Chase was injured. Although Royal gave
Martin Honda a license34 to enter the property in question through the agreement, a
30
Id. (emphasis added).
31
Id.
32
Short-Karr v. RB Gyms, Inc., 2015 WL 7776734, at *3 (Del. Super. Nov. 20, 2015)(citations
omitted).
33
Id. (citing Davenport v. D & L Construction, LLC, 2015 WL 4885069, at *3 (Del. Super. Aug.
14, 2015)).
34
“A license amounts to a permissive use granted by the owner of a property to another which is
terminable at the will of the owner.” Kuhns v. Bruce A. Hiler Delaware QPRT, 2014 WL
1292860, n. 187 (Del. Ch. Mar. 31, 2014)(citing Coker v. Walker, 2013 WL 1858098, at *3 (Del.
Ch. May 3, 2013)).
question of fact exists whether Mr. Chase was on the property within the permitted
scope of the Agreement. Finally, Under Delaware common law, “the duty owed
by industrial and commercial owners and occupiers of land to trespassers and
guests without payment,” also known as a licensee, is “to refrain from willful or
wanton conduct.”35 However, in the present case, the Agreement sets forth the
terms regarding duty to remove snow and the City of Newark requires that the
“owner, tenant, or occupant . . . shall remove all snow or ice from the sidewalk
abutting such property.” Thus, there is an issue of fact as to which party, pursuant
to the agreement, and the city ordinance, was responsible for the removal of ice
and snow on the property. For the aforementioned reasons, Royal‟s Motion for
Summary Judgment is hereby DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
35
Simpson v. Colonial Parking, Inc., 36 A.3d 333, 335 (Del. 2012)(citation omitted).