Dear Counsel:

Following oral argument I informed counsel I was granting Defendant's Summary Judgment Motion due to a failure of proof. This is the written decision I promised you.

This case concerns a fall in the parking lot of Gartside's (Defendant's) place of business that took place on March 7, 2002. Hazel Patterson (Plaintiff) fell in the lot and was injured. Plaintiff argues that the fall was caused by a defect in the parking lot paving and that the defect was hard to see because of poor lighting conditions at the time of the fall. Plaintiff has since passed away without leaving any statements, recorded or otherwise, describing the fall. Plaintiff was being escorted to the car by her sister at the time of the fall, however, Plaintiff's sister cannot offer any testimony regarding why Plaintiff fell. Plaintiff's brother-in-law, also present at the time of the fall, has since stated that Plaintiff was seventy-five years old and was being escorted by her sister because she was not steady on her feet.

In Plaintiff's complaint the allegations as to this issue are as follows:

(5) Because of poor lighting, neither [Plaintiff nor her sister] saw an uneven part of the paved parking lot.

(6) Ms. Patterson tripped on the uneven parking lot breaking her arm.

(7) Defendants failed to provide a safe environment for their business invitee.

The complaint does not allege any specific acts or omissions of negligence on the part of Defend ant, other than stating that there was a defect in the paving and the lighting conditions were poor. When considering a motion for summary judgment under Superior Court Civil Rule 56, the Court's function is to examine the record to determine whether genuine issues of material fact exist. Oliver B. Can non Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973). If after viewing the record in a light most favorable to the non-moving party, the Court finds there are no genuine issues of material fact, summary judgment is appropriate. Id. The Court's decision must be based only on the record presented, including all pleadings, affidavits, depositions, admissions, and answers to interrogatories, not on what evidence is "potentially possible." Rochester v. Katalan, 320 A.2d 704 (Del. 1974). All reasonable inferences must be drawn in favor of the non-moving party. Sweetman v. Strescon Indus., 389 A.2d 1319 (Del.Super.Ct. 1978). Summary judgment will not be granted if the record indicates that a material fact is in dispute or if it seems desirable to inquire more thorougly into the facts in order to clarify the application of law to the circumstances. Ebersole v. Lowengrub, 180 A.2d 467 (Del. 1962).

Rule 56(c) mandates the granting of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and one which that party will bear the burden of proof at trial." Manucci v. The Stop' n'Shop Companies, Inc., 1989 Del. Super. LEXIS 191, at *10 (Del.Super.Ct. 1989). In addition, Courts have held that "where the non-moving party bears the ultimate burden of proof on an issue at trial, the moving party may instead demonstrate that a complete failure of proof concerning an essential element renders all other facts immaterial." Kanoy v. Crothall American Inc., 1988 Del. Super. LEX IS 40 (Del.Super.Ct. 1988). In such cases, there can be no genuine issue of material fact and summary judgment should be entered. 1989 Del. Super. LEXIS 191, at *10.

Generally, negligence cases are not susceptible to summary judgment. Orsini v. K-Mart, 1997 Del. Super. LEXIS 80, at *5 (Del.Super.Ct. 1997); Ebersole, 180 A.2d at 469. Negligence claims a re norm ally left to the jury as they are based on issues of fact. Orsini, 1997 Del. Super. LEXIS 80, at *5. However, when there is but one conclusion that "may be drawn from the facts, summary judgment is approprate even in cases of negligence." Id.

For a plaintiff to survive a defendant's motion for summary judgment, a plaintiff is "required to adequately establish all the elements essential to [her] case that [she] would have the burden of proving at trial." Rayfield v. Power, 2003 Del. LEXIS 586, at *2 (Del. 2003). "[I]n order to prevail on a negligence action, a plaintiff must prove by a preponderance of the evidence that the defendant's action breached a duty of care in a way that proximately caused injury to the plaintiff." Id. Further, to prevail on a claim for premises liability, a plaintiff must establish there was a dangerous or defective condition which caused her injury and that the defendant in the exercise of due care should have known about the condition and corrected it. Collier v. Acme Markets, Inc., 1995 Del. LEXIS 428, at *3 (Del. 1995).

In negligence cases, the Court instructs the jury that the mere fact that an accident occurred is not proof of defendant's negligence. White v. Clark, 1998 WL 960735 (Del.Super.Ct. 1998). Further, the doctrine of res ipsa loquitor, which allows a plaintiff to prove negligence through circumstantial evidence, does not relieve a plaintiff from proving a defendant's negligence. 1997 Del. Super. LEXIS 80, at *11. A plaintiff still has the ultimate burden of proving a causal connection between an act by the defendant and the plaintiff's accident. Id. at *12.

In the past, parties have used experts to provide relevant, reliable and helpful testimony in negligence cases when the facts themselves cannot be adequately presented to the jury or when the testimony will assist the jury in understanding or determining a fact at issue. Minner v. American Mortg. Guar. Co., 791 A.2d 826, 843 (Del.Super.Ct. 2000); Del. R. Evid. 702. See Robelen Piano Co. v. Di Fonzo, 169 A.2d 240, 246 (Del. 1961). Courts regularly allow and encourage the use of experts to testify about poor lighting conditions or unreasonably dangerous conditions in parking lots. See Ward v. Shoney's, Inc. 2002 Del. Super. LEXIS 143 (Del.Super.Ct. 2002), rev'd and remanded 817 A.2d 799 (Del. 2003); Robinson v. Western International Hotels Company, 170 Ga. App. 812 (Ga.Ct.App. 1984); Wolter v. Chicago Melrose Park Associates, 386 N.E.2d 495 (Ill.App.Ct., 1979). See also McCune v. Meijer, Inc., 402 N.W.2d 6, 7 (Mich.Ct.App., 1986).

The problem with the case before the Court is that neither directly or indirectly is there sufficient proof for this case to go to a jury. In considering whether Defendant was negligent, the Court must view the evidence most favorably from Plaintiff's point of view. For Defendant to prevail at this stage, Defendant must show that there are no facts or inferences from which a finding of negligence could be based. Defendant has done so.

Plaintiff makes general allegations of negligence but has failed to provide evidence to back up her claims. Plaintiff has provided no evidence that the lighting provided in the parking lot was insufficient or poor, but merely contends that it is so. There has been no offer of proof or evidence proven by an expert that the lighting was unreasonable or defective. No witness testimony has been offered to support the claim that Plaintiff fell because of an unevenness in the parking lot surf ace. There is absolutely no evidence that either Plaintiff or her sister did or did not see an allegedly uneven part of the paved lot. We do not know what they saw or did not see. There is no way to know exactly why she fell.

The photograph in the pleadings purports to show a slight unevenness in the height between the two sections of asphalt paving. However, the surface appears to be no different than any other parking lot where the paving equipment puts down row after row of asphalt. The photograph does not establish that the parking lot was in a dangerous or defective condition. Plaintiff has no witness or expert to establish that any unevenness in the pavement, if in fact there is any at all, was a dangerous or defective condition that could be a tripping hazard. Potter v. Zorensky, 508 S.W.2d 21 (Mo.Ct.App. 1974).

In summary, Plaintiff's case fails because there is nothing in the record from which a jury could decide what caused Plaintiff to fall. Further, Plaintiff has failed to show a dangerous or defective condition existed either by way of the lighting or the pavement. Additionally, the case fails because we do not know nor will the jury be able to know why she fell. Was she just unsteady on her feet and lost her balance? Did she trip on the pavement? Did she see the pavement? Was she even looking at the pavement? Plaintiff's contention is that she fell, therefore the parking lot was not level, therefore Defendant was negligent. This by itself cannot withstand the requirements of a negligence suit.

Thus, Summary Judgment is granted, as there is a failure of proof of any negligence on the part of Defendant.

IT IS SO ORDERED