Opinion
No. 98C-01-232 JEB.
Submitted: December 17, 1999.
Decided: April 20, 2000.
Defendants' Motions for Summary Judgment — Motions Granted in Part and Denied in Part —
Daniel P. Bennett, Esquire, 716 Tatnall Street, P.O. Box 2034, Wilmington, DE. 19899-2034, Attorney for Defendants Brandywine Innkeepers Limited Partnership, Radisson Hotels Corporation and Radisson Hotels International, Inc.
Francis J. Jones, Esquire 222 Delaware Avenue, P.O. Box 2306, Wilmington, DE. 19899 Attorney for Defendant Concord Mall Partnership.
Joseph J. Rhoades and W. Christopher Componovo, Esquires 1225 King Street, 12th Floor, Wilmington, DE. 19801, Attorneys for Plaintiffs.
OPINION
Plaintiff Andrea Kovach walked down a snow and ice-covered bill to reach her car in the parking lot below. As she descended the slippery slope, Ms. Kovach lost her footing, fell down, and injured herself Ms. Kovach sued defendants on both sides of the bill for negligence. This is the Court's decision on pending Motions for Summary Judgment filed by each of the defendants. Because the Court finds that Defendant Brandywine Innkeepers Limited Partnership owed a duty to use reasonable care in clearing snow and providing Ms. Kovach with safe egress from its hotel, which is a fact question for the jury, and that the remaining Defendants did not breach any duty of care owed to Ms. Kovach, the Motions are DENIED in part and GRANTED in part.
I. FACTS
On February 16, 1996, Plaintiff Andrea Kovach was to attend a seminar at the Radisson Hotel Wilmington ("Hotel") located directly adjacent to the Concord Mall ("Mall") on Route 202. Ms. Kovach parked in the Concord Mall parking lot, mistakenly believing that she had parked in the Hotel's parking lot.
At the time of the accident, the Mall and the Hotel were separated by a grassy median which, at the point closest to Route 202, gently sloped upward at the Mall property line and leveled off at the Hotel parking lot. The median strip had no steps or manmade walkway across it. Hotel guests did not have permission to park in the Mall parking lot in order to use the Hotel facilities.
It was snowing the day Ms. Kovach pulled into the Mall lot. She walked up and over the snow-covered median, crossed the Hotel parking lot, and entered the Hotel. She attended the seminar, which ended early around 4 p.m. due to worsening weather conditions and heavy snowfall. Ms. Kovach exited the Hotel and walked across the Hotel parking lot. She stepped onto the curb at the edge of the Hotel parking lot, intending to walk down the snow-covered median to her car below. As she descended the slope, she slipped and fell on the snowy, icy surface and fractured her right ankle.
Moving for summary judgment are defendants Brandywine Innkeepers Limited Partnership ("Brandywine"), doing business as Radisson Hotel Wilmington ("Hotel"), Radisson Hotel Corporation and Radisson Hotels International, Inc. (collectively "Radisson"), and Concord Mall Partnership.
II. STANDARD OF REVIEW
The Court may grant summary judgment if it concludes that "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." The moving party bears the initial burden of showing that no material issues of fact are present. Once such a showing is made, the burden shifts to the nonmoving party to demonstrate that there are material issues of fact in dispute. In considering a motion for summary judgment, the Court must view the record in a light most favorable to the nonmoving party. The Court's decision must be based solely on the record presented and not on all evidence "potentially possible."
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979).
Id. at 681.
Burkhart, 602 A.2d at 59.
Rochester v. Katalan, Del. Supr., 320 A.2d 704, 708 (1974) (citing United States v. Article Consisting of 36 Boxes, D. Del., 284 F. Supp. 107 (1968), aff'd, 415 F.2d 369 (3d Cir. 1969)).
III. DISCUSSION
The central issues before the Court are: (1) Do any of the defendants owe a legal duty to warn or protect Ms. Kovach of any dangers on the median strip? (2) If any of the defendants owe Ms. Kovach a legal duty, do genuine issues of material fact exist as to the proper performance of that duty?In order to be held liable for negligence, the defendants had to have been under a legal obligation, or duty, to safeguard Ms. Kovach from the risk of harm which caused her injuries. In an action for negligence, it is for the court to ascertain whether as a matter of law a duty exists between the parties.
Bryant v. Delmarva Power and Light Co., Del. Super., C.A. No. 89C-08-070, 1995 WL 653 987, at *2, Babiarz, 1. (Oct. 2, 1995) (citing Murphy v. Godwin, Del. Super., 303 A.2d 668, 674 (1973) and Rosenblatt v. Exxon Co., Md. Ct. App., 642 A.2d 180, 188 (1994)).
Crain v. A.A.R. Realty Corp., Del. Super., 576 A.2d 688, 692 (1989), aff'd Del. Supr., 571 A.2d 786 (1989);Naidu v. Laird, Del. Supr., 539 A.2d 1064, 1070 (1988).
To resolve the issue of duty, this Court must categorize Ms. Kovach's legal status in relation to the various defendants. In determining a given plaintiff's status, Delaware Courts utilize the classifications set forth in Restatement (Second) of Torts (1965).
Griffiths v. Delmarva Aircraft, et al., Del. Super., C.A. Nos. 95C-11-019, 96C-01-019, 1997 WL 819111, at *2, Lee, J. (Dec. 31, 1997) (Mem. Op.) (citing Johnson v. Westminster Presbyterian Church, Del. Super., C.A. No. 92C-07-251, 1993 WL 389316, at *2, Toliver, J. (Aug. 25, 1993).
Tucker v. Albun, Inc., Del. Super., C.A. No. 97C-04-025, 1999 WL 1241073, at *6, Lee, J. (Sept. 27, 1999) (Mem. Op.); see also DiOssi v: Maroney, Del. Supr., 548 A.2d 1361, 1365-66 (1988); Griffiths at *2; Johnson at *2.
The Restatement (Second) of Torts classifies persons as either Possessors, Trespassers, Licensees, or Invitees. The Restatement defines a Possessor of land as:
(a) a person who is in occupation of the land with intent to control it or
(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
Restatement (Second) of Torts § 328E (1965).
The Restatement defines a Trespasser as "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise."
Restatement (Second) of Torts § 329 (1965).
The Restatement defines a Licensee as "a person who is privileged to enter or remain on land only by virtue of the possessor's consent." There are three types of licensees:
Restatement (Second) of Torts § 330 (1965).
1. One whose presence on the land is solely for his own purposes, in which the possessor has no interest, and to whom the privilege of entering is extended as a mere personal favor to the individual.
2. The members of the possessor's household, and
3. Social guests of the possessor.
Restatement (Second) of Torts § 330 comment h (1965).
The Restatement defines an Invitee as follows:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) 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.
Restatement (Second) of Torts § 332 (1965).
An invitee requires an invitation. The comments instruct that "an invitation differs from mere permission in this: an invitation is conduct which 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."
Restatement (Second) of Torts § 332 comment b (1965).
None of the parties have directly addressed the important issue of Ms. Kovach's status. Ms. Kovach refers to herself as an invitee without further explanation. Concord Mall Partnership suggests that she is a public invitee and not a business invitee. Accordingly, the Court will consider whether each defendant owed Ms. Kovach a duty of care based upon her status, and whether factual issues exist as to the proper exercise of those duties.
A. Defendant Concord Mall Partnership
Defendant Concord Mall Partnership ("CMP"), the owner of the Mall, argues it is entitled to summary judgment because the accident did not occur on Mall owned property, and CMP does not give Hotel patrons permission to park in the Mall lot. Further, CMP argues that they have no duty to warn of open and obvious dangers beyond their property.
Ms. Kovach contends that because CMP was aware that Hotel guests parked in the
Mall lot and walked across the median to get to the Hotel, a duty arose obligating CMP to ensure the safety of anyone traversing the median.
The Court disagrees with Ms. Kovach. She was not a business invitee of CMP. First, there was no conduct on the part of CMP expressing a desire that Ms. Kovach park in the Mall parking lot for the purpose of attending a seminar at the Hotel next door. Second, she had no business interest directly or indirectly connected with the Concord Mall. Likewise, she was not a public invitee of CMP. The distinguishing factor between a licensee and a public invitee as pointed out by the Restatement and the courts is whether the possessor of the property receives any benefit from the use of the property by the putative licensee or public invitee. In Delaware, the rule is clear that if one uses the premises of another for her own benefit, she is a licensee and not an invitee. Ms. Kovach is therefore a licensee as to CMP as she conferred no tangible benefit upon CMP by parking in the Mall parking lot and then promptly leaving the Mall property.
Malin v. Consolidated Rail Corporation, Del. Supr., 438 A.2d 1221, 1225-26 (1981).
Id. at 1226 (citing Slovin v. Gauger, Del. Super., 193 A.2d 452, 460, aff'd Del. Supr., 200 A.2d 565 (1964).
Restatement (Second) of Torts imposes the following duties upon possessors of land to licensees:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.
Restatement (Second) of Torts § 342 (1965); see Griffiths at *2; Maher v. Voss et al. Del. Supr., 98 A.2d 499, 504 (1953) (holding that the owner or occupier of land owes a duty to not willfully or wantonly injure or knowingly expose the licensee to traps or hidden dangers); Schorah v. Baltimore and Ohio R.R. Co., D. Del., 596 F. Supp. 256, 260 (1984); DiSabatino Bros. Inc. v. Baio, 366 A.2d 508, 510 (1976).
However, the above duties refer to licensees injured on the land of the possessor, not on property neighboring the possessor's land. Delaware courts have established that an owner or possessor of land does not have a duty to business and public invitees to warn them of open and obvious dangers on adjacent land. The duty owed to warn licensees of the same dangers can be no greater.
Coleman. et al. v. National Railroad, et al., Del. Super., C.A. No. 89C-MY-2, 1991 WL 113332, at *2, Babiarz, J. (June 18, 1991) (citing Niblett v. Pennsylvania, Del. Super., 158 A.2d 580 (1960) andRocci v. United States, D. Del., 988 F. Supp. 971 (1988)).
Coleman at *2.
Ms. Kovach exceeded the scope of any license she had as a licensee with CMP when she parked her car CMP's lot and then immediately left CMP's property. CMP was no longer obligated to shield her from harm. Therefore, CMP is not liable for Ms. Kovach's injuries.
Summary judgment is granted as to Defendant Concord Mall Partnership.
B. Defendant Radisson Hotels Corp. and Radisson Hotels International, Inc. Motion
Defendant Radisson Hotels Corp. and Radisson Hotels International, Inc. (collectively "Radisson") move for summary judgment, contending that they are not proper parties to this lawsuit. The Radisson defendants contend that they are not liable for Ms.
Kovach's injuries because Radisson has a license agreement with Brandywine for the operation and maintenance of the Hotel on Route 202, and the allegations in the complaint relate to the maintenance of the Hotel grounds which are within the exclusive control of Brandywine under the license agreement.
Ms. Kovach alleges that Radisson should not be dismissed from the suit because it "held itself out to plaintiff as being the owner/occupier of the hotel" and that a license agreement between Radisson and Brandywine "does not affect Radisson's duty to plaintiffs."
The Court disagrees with Ms. Kovach. It is a true statement that Radisson holds itself out as the owner of the Hotel. Radisson owns the Hotel. Radisson leases and licenses the Hotel to Brandywine for operation. However, neither party addresses the critical question of what duty Radisson, as a commercial lessor, owes to Ms. Kovach based upon her status on the Hotel property.
The Court finds that Ms. Kovach was a business invitee of the Hotel. She had a business interest in attending a work-related health seminar at the Hotel. The Hotel undoubtedly profited in some way from the seminar being held on its grounds, and by extension, indirectly profited from Ms. Kovach's presence at the Hotel.
"At common law, a property owner owed to a business invitee . . . the duty to make the premises reasonably safe." This is still the rule in Delaware. However, where an owner relinquishes possession and actual control of the property to another entity, the owner ceases to have a duty to exercise reasonable care in maintaining safe premises. One such instance is a landlord-tenant situation, where an owner leases a commercial unit to a tenant who conducts a business on the premises. In this context, actual control amounts to "actual management of the leased premises." Thus, the owner/landlord will not be considered to have actual control of the premises if he reserves only some limited rights, such as the right to inspect.
DiOssi, 548 A.2d at 1365-66 (citing Hamm v. Ramunno, Del. Supr., 281 A.2d 601 (1971)).
See Orsini v. K-Mart Corp., Del. Super., C.A. No. 95C-07-146, 1997 WL 528034, at *2, Quillen, J. (Feb. 25, 1997).
See Argoe v. Commerce Square Apartments Limited Partnership. et al., 745 A.2d 251, 254-55 (1999) (citing Craig v. A.A.R. Realty Corp., Del. Super., 576 A.2d 688, 692 (1989), aff'd Del. Supr., 571 A.2d 786 (1989)).
See Argoe, 745 A.2d at 255; Craig, 576 A.2d at 695; Lewis v. Route 13 Outlet Market Inc., Del. Super., Civ. A. No. 94C-05-008, 1995 WL 654070, at *2, Lee, J. (Oct. 26, 1995).
See Argoe, 745 A.2d at 255 (quoting Craig, 576 A.2d at 696).
See Argoe, 745 A.2d at 255; (citing Craig, 576 A.2d at 695).
Under the terms of the license agreement between Radisson and Brandywine, the operation and safe maintenance of the Hotel was the sole duty of Defendant Brandywine as the licensee of the Hotel. Any alleged breach of this duty to make the Hotel property safe is attributable to Brandywine, the licensee/lessee in the agreement, and not to Radisson, the licensor/lessor. Radisson's reservation of some limited rights in the license agreement with Brandywine, including the right to inspect, does not amount to actual control of the Hotel premises. There is no evidence that Radisson had actual control over the leased Hotel property, including the median slope. Radisson had no duty of care to ensure the safety of Ms. Kovach on the Hotel's property, and therefore Radisson is not liable for Ms. Kovach's injuries.
Summary judgment is granted as to the Radisson defendants.
B. Defendant Brandywine's Motion
Defendant Brandywine, the licensee and operator of the Hotel, moves for summary judgment, alleging that no genuine issues of material fact exist and judgment is appropriate as a matter of law for several reasons. First, Brandywine alleges that it has no duty to remove snow from a grass embankment. Second, Brandywine argues that they took reasonable steps to make the premises safe for invitees from natural snow and ice accumulations. Third, Brandywine alleges that it had no duty to warn of open and obvious dangers. Fourth, Brandywine alleges that Ms. Kovach's negligence is greater than any negligence on the part of Brandywine, or that she assumed the risk of her injuries.
Ms. Kovach points to evidence in the record that Brandywine knew of the practice of Hotel patrons parking in the Mall lot and walking up the grassy slope to access the Hotel, and that prior to Ms. Kovach's accident, Hotel representatives had approached the general manager of the Mall to request that a sidewalk be installed across the grassy median. Ms. Kovach argues that this knowledge confers a duty upon Brandywine to make the grassy slope safe for foot traffic, and that genuine issues of fact exist as to the proper discharge of this duty.
The Court agrees with Ms. Kovach that summary judgment is premature at this juncture.
Ms. Kovach was a business invitee of Brandywine for the purpose of attending a seminar at the Hotel facilities maintained by Brandywine. As a business visitor or invitee of Brandywine, Ms. Kovach was entitled to expect that the premises would be free of any dangerous condition known or discoverable by the possessor of the land. The Restatement (Second) of Torts § 343 (1965) establishes the necessary elements to impose liability:
DiOssi, 548 A.2d at 1366.
§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Thus, Brandywine owed a duty of reasonable care to Ms. Kovach to maintain the Hotel premises in a reasonably safe condition, or to warn her of any latent or concealed dangers. Under Delaware law, this duty includes the duty to provide business invitees with safe ingress and egress, and to keep the premises reasonably safe from the hazards associated with natural accumulations of ice and snow. Whether Brandywine's was reasonable in performing its duty to Ms. Kovach is a factual question for the jury to decide, especially in light of Brandywine's prior knowledge that its guests habitually traveled across the grass median.
Wilmington Country Club v. Cowee, Del. Supr.,___ A.2d ___, No. 51, 2000, 2000 WL 287642, at *3 (March 14, 2000) (citing Coleman at *2).
Woods v. Prices Corner Shopping Center, Del. Super. 541 A.2d 574, 577 (1988).
Woods, 541 A.2d at 577.
Brandywine also claims that, as a matter of law, it did not have any duty to warn Ms. Kovach of the peril of negotiating a snowy hill because such a danger is open and obvious, and it is assumed that a reasonable person would have discovered the dangerous condition or appreciated the risks involved. This argument begs the question.
The Court finds that a reasonable issue exists as to whether the snow-covered gradient, slightly sloping in the area where Ms. Kovach attempted to cross, was an "open and obvious" danger, and is therefore a disputed material fact to be resolved by a jury. Likewise, Brandywine's contentions that Ms. Kovach's comparative negligence is greater than any negligence by Brandywine or that Ms. Kovach assumed the risk of her injuries are fact intensive issues and are not susceptible to disposition at the summary judgment stage.
Wilmington Country Club, at *3 (citing Playtex FP. Inc. v. Columbia Casualty Co., Del. Supr., 622 A.2d 1074, 1076 (1992)).
DiOssi, 548 A.2d at 1368 (1988) (holding that issues of assumption of risk are factual questions for a jury) (citing Binsau v. Garstin, Del. Supr., 177 A.2d 636, 639 (1962)); (Trievel v. Sabo, Del. Supr., 714 A.2d 724, 745 (Aug. 3, 1998) (holding that comparative negligence usually presents a question of fact for the jury).
Summary judgment is denied as to Defendant Brandywine.
IV. CONCLUSION
For the foregoing reasons, Defendants' Concord Mall Partnership, Radisson Hotels Corp. and Radisson Hotels International, Inc. Motions for Summary Judgment are GRANTED, and Defendant Brandywine Innkeepers Limited Partnership's Motion for Summary Judgment is DENIED.
IT IS SO ORDERED. ______________________ John E. Babiarz, Jr.
FN13. Koutoufaris v. Dick, Del. Supr., 604 A.2d 390, 402 (1992).