IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LARRY WASHINGTON, )
)
Plaintiff, )
v. ) C.A. No. N18C-06-189 CEB
)
SARAH PERRINE, )
)
Defendant. )
Submitted: April 5, 2021
Decided: April 27, 2021
MEMORANDUM OPINION
Defendant Sarah Perrine’s
Second Motion for Summary Judgment.
GRANTED.
Bayard J. Snyder, Esquire, SNYDER & ASSOCIATES, P.A., Wilmington,
Delaware. Attorney for Plaintiff.
Matthew E. O’Byrne, Esquire, CASARINO CHRISTMAN SHALK RANSOM &
DOSS, P.A., Wilmington, Delaware. Attorney for Defendant.
BUTLER, R.J.
FACTUAL AND PROCEDURAL BACKGROUND
In late September 2017, the Plaintiff was riding a motor scooter towards his
residence at 3841 Evelyn Drive, located in an unincorporated area of New Castle
County.1 A vehicle drove up behind Plaintiff, causing the Plaintiff to swerve up onto
the sidewalk adjacent to Defendant’s home.2
Plaintiff hit an uneven section on the sidewalk.3 The scooter’s front wheel
stopped abruptly and Plaintiff was thrown forward off the scooter.4 Plaintiff landed
on tree roots.5 Plaintiff suffered numerous injuries and has filed suit against
Defendant, the landowner abutting the sidewalk on which he was injured.6
ISSUES RAISED
Defendant moved for summary judgment, arguing that Plaintiff was negligent
when he chose to drive his motorized scooter onto a sidewalk he knew was defective,
and did so in violation of motor vehicle statutes 21 Del. C. § 4198N(a) and (c).
Defendant claimed that this was contributory negligence and Defendant is therefore
entitled to summary judgment. Plaintiff responded that contributory negligence was
a fact question.
1
Def.’s Mot. for Summ. J. Ex. A, ¶¶ 3-4.
2
Id. at Ex. C, 129:1-3.
3
Id. at Ex. A, ¶ 5.
4
Id.
5
Id. ¶ 7.
6
Id. ¶¶ 7-8.
1
After argument, the Court asked the parties for further briefing concerning the
Defendant’s duty, if any, to maintain the sidewalk in good repair. The parties
dutifully briefed this issue and the Court finds that this issue is indeed case
dispositive.
STANDARD OF REVIEW
The Court will grant summary judgment where “there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter
of law.”7 The moving party bears the initial burden of showing that the undisputed
facts make judgment appropriate.8 If the burden is satisfied, the burden shifts to the
non-moving party to demonstrate that there are material issues of fact that must
proceed to trial.9
ANALYSIS
The Plaintiff’s theory of the case begins with the proposition that the
Defendant is liable for the cracked sidewalk adjoining Defendant’s property. Not
surprisingly, this is not the first Plaintiff to make a claim for damages resulting from
a sidewalk mishap.
While we might reach even further back, since at least 1938, Delaware courts
have ruled consistently that “in the absence of a statute or ordinance changing the
7
Super. Ct. Civ. R. 56(c).
8
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
9
See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
2
rule, an abutting owner is not liable for injuries resulting from his failure to repair a
defect in a sidewalk which he has not caused.”10 The 1959 Shreppler v. Mayor and
Council of City of Middletown11 opinion involved a claim that tree roots on the
property adjoining the sidewalk caused Mrs. Shreppler to trip on the sidewalk. The
Court held that in the absence of a statute or “special situation” imposing a duty on
the abutting landowner, one is not liable for injuries caused by defects in the
sidewalk abutting their land. As to the tree roots, the Court said, “they were Nature’s
work concerning which the landowner had no duty.”12
Some 50 years later, Eck v. Birthright of Delaware,13 was another lawsuit
against an abutting landowner over a defective sidewalk. The Delaware Supreme
Court, recognizing the “settled Delaware law” that refused to impose liability on
adjoining landowners, specifically refused to adopt the “modern trend” and affirmed
the judgment that there was no liability for the defendant landowner.14
10
Massey v. Worth, 197 A. 673, 675 (Del. Super. 1938) (citing Cooley on Torts §
452 (4th ed. 1932); Elliott on Roads and Streets § 898; Hanley v. Fireproof Bldg.
Co., 186 N.W. 534, 535 (Neb. 1922)).
11
154 A.2d 678 (Del. Super. 1959).
12
Id.at 680 (citing Sand v. City of Little Falls, 55 N.W.2d 49, 52 (Minn. 1952);
Winston v. Hansell, 325 P.2d 569, 471 (Cal. Dist. Ct. App. 1958); Rose v.Slough, 92
N.J.L. 233, 236 (N.J. 1918)); accord Davis v. Golden, 1992 WL 114115, at *1 (Del.
Super. May 15, 1992) (no liability for the alleged heaving of underground water
lines that caused a crack in the sidewalk).
13
559 A.2d 1227 (Del. 1989).
14
Id. at 1228.
3
As against the remarkably consistent case law, Plaintiff argues that after the
incident giving rise to this claim, the homeowner’s insurance company insisted that
she repair the sidewalk. But Plaintiff is unable to advance his argument further. Not
only is the repair not at issue in the litigation (perhaps if repairs had been undertaken
negligently, there would be more to think about), but also “subsequent remedial
measures” by the landowner may well be inadmissible at trial in any event.15
Likewise, Plaintiff’s protestations that the homeowner was aware of the
problematic sidewalk and that it was used by neighbors on scooters is unavailing.
Plaintiff says such evidence may show a “conscious indifference” to the plight of
those transiting the sidewalk. But indifference – conscious or otherwise – is not the
same as a duty to make the sidewalk safe. Indeed, Defendant has appended the
property description, showing that the sidewalk was not even part of the demised
premises to which she was deeded.
Finally, Plaintiff argues that it is the Defendant’s burden to prove the absence
of a duty to repair the sidewalk, thus making the existence of a duty a fact question
that survives summary judgment. To the contrary, the existence of a duty by the
defendant is a core requirement of a tort plaintiff’s proof. Plaintiff’s failure to
demonstrate such a duty cannot mean that Defendant must prove its absence at trial.
Rather, it is the Court’s “duty” to grant judgment to the defense.
15
See D.R.E. 407.
4
Accordingly, Defendant’s second motion for summary judgment is
GRANTED.
IT IS SO ORDERED.
Charles E. Butler, Resident Judge
5