Opinion
No. 02C-08-225 RRC.
Submitted: February 12, 2004.
Decided: March 10, 2004.
UPON MOTION OF DEFENDANTS CHAUNCEY ANDERSON AND STEPHANIE ANDERSON FOR SUMMARY JUDGMENT.
GRANTED.Elwood T. Eveland, Jr., Esquire, The Eveland Law Firm, Wilmington, Delaware, Attorney for Plaintiff.
Richard D. Abrams, Esquire and Miranda D. Clifton, Esquire, Heckler Frabizzio, P.A., Wilmington, Delaware, Attorneys for Defendants Chauncey Anderson and Stephanie Anderson.
Cynthia G. Beam, Esquire, Reger Rizzo, LLP, Wilmington, Delaware, Attorney for Defendant Prudential, Fox Roach Realtors.
MEMORANDUM OPINION
INTRODUCTION
Pending before this Court is a motion for summary judgment filed by Defendants Chauncey Anderson and Stephanie Anderson ("Andersons") against Plaintiff Gloria M. Lum ("Lum"). This suit stems from personal injuries sustained by Lum as she walked across the Andersons' residential property as a short cut from a public bus stop and stepped into an uncovered sewer flush out pipe on the Andersons' property.
The issue is whether Lum's status was that of a "public invitee," in which case the Delaware Guest Premises Statute, 25 Del. C. § 1501, would not bar her potential recovery, or whether Lum was a trespasser, a guest without payment, or a licensee and is precluded from recovery by § 1501. If Lum is found, as a matter of law, to have been a "public invitee," then the Andersons owed her a duty to have inspected their property and to have made it reasonably safe by repair or to have given her warning of any dangerous conditions. If on the other hand, Lum is found, as a matter of law, to have been a trespasser, a guest without payment, or a licensee, then her injury fell within the scope of § 1501 and the Andersons only owed her a duty not to have acted intentionally or in a wilful or wanton manner. Lum does not assert that the Andersons acted intentionally or in a wilful and wanton manner.
Lum filed a complaint against the Andersons and Prudential, Fox and Roach Realtors ("Prudential, Fox") in August 2002 on the grounds that "[the] Anderson[s] and/or [Prudential, Fox] owned, maintained or controlled" the property where Lum was injured and that "the Defendants [the Andersons and Prudential, Fox] were negligent in a manner causing [her] injury." The Andersons filed a motion to dismiss that was denied by this Court on May 5, 2003. The instant motion for summary judgment was filed after close of discovery.
Pl's Compl. at ¶¶ 2-4,9.
Prudential, Fox had also originally filed a motion to dismiss that was denied. Prudential, Fox then also filed a motion for summary judgment against Lum on the grounds that Prudential Fox was merely the listing real estate agent for the Andersons at the time of the incident and had no control over the property. At oral argument, Lum withdrew her opposition to Prudential Fox's motion and that motion was granted. The Andersons' pending cross-claim against Prudential, Fox for contribution is now mooted by the grant of summary judgment to the Andersons.
This Court finds that Lum was not a "public invitee" and that the Andersons owed her no duty to have inspected their property and to have made it reasonably safe by repair or to have given her warning of any dangerous conditions. The Andersons' motion for summary judgment is GRANTED.
Restatement (Second) of Torts § 343 (1965).
FACTS
On January 29, 2001, Lum walked towards her home at 17 Cromwell Court, located in the Wellington Woods development in New Castle County, from a DART bus stop on Sir Thomas Road at the entrance to the development. Before reaching the intersection of Sir Thomas Road and Cromwell Court, Lum came to a paved alleyway that ran behind Cromwell Court and parallel to it. Lum testified that she periodically used this route as a short cut to her home by walking along the alleyway and then "cut[ting] through someone's backyard." That "someone's backyard" was the Andersons', who owned a home at 14 Cromwell Court. The paved alleyway that ran behind their home was part of a public greenway and not owned or controlled by the Andersons and was adjacent to the rear of their property.Lum alleges that as she was "cut[ting]" through the Andersons' property, she stepped into an uncovered sewer flush out pipe and was injured. Lum alleges that other neighbors also frequently used the Andersons' property as a short cut and that a "path" existed on the property.
In her deposition, Stephanie Anderson testified that she mowed the lawn approximately twice a month between April 2000 and September 2000 and that she had walked around the property approximately "once or twice" between September 2000 and January 29, 2001, when the incident occurred. Stephanie Anderson also testified that she was not aware that the cap was not on the sewer flush out pipe until she received a letter from Prudential, Fox informing her that there was someone claiming to have fallen on her property.
Defs' Mot. for Sum. J. at Ex. B (Stephanie Anderson Dep. at 20-21).
Defs' Mot. for Sum. J. at Ex. B (Stephanie Anderson Dep. at 22).
Plaintiff has adduced no evidence that the Andersons took any affirmative steps to invite the public onto their property. There is also no evidence that the Andersons had tried to prevent the public from using their property as a short cut. There were no signs posted by the Andersons warning the public against trespassing and there was no evidence that the Andersons took any steps to physically block access to their land with a fence or other type of barrier.
Neither party has directed the Court to any evidence from Chauncey Anderson on the issues presented in this litigation.
Lum testified at her deposition that she used the Andersons' property as a short cut because she had seen other people use the property in that manner. She testified, however, that she had never spoken to the Andersons or even knew "what they look[ed] like." Lum asserts that the Andersons had occasionally waved to her nephew, Preston Lum, as he was cutting across their property as a shortcut between the bus stop and his home.
Pl's Resp. at Ex. B (Gloria M.Lum Dep. at 16).
Defs' Mot. for Sum. J. at Ex. A (Gloria M.Lum Dep. at 18).
Pl.s Resp. at ¶ 11.
Preston Lum testified that he also had used the Andersons' property as a short cut to and from the bus stop on Sir Thomas Road and had seen other members of the public do the same. He testified that neither of the Andersons nor any owners of nearby properties told him not to cross their properties. Preston Lum asserted that he had seen the Andersons several times while cutting through their property and that he had briefly greeted them and that they responded in kind. He testified that "[t]here [was] no sign that says you can't cross the [Andersons'] property."
Pl's Resp. at Ex. B (Peston Lum Dep. at 25-26).
Id. at 33-34.
Pl's Resp. at Ex. B (Preston Lum Dep. at 15).
Preston Lum further testified at his deposition that he was aware of the open sewer flush out pipe, which he referred to as a "ditch," prior to his aunt stepping into the pipe. When asked by counsel how many times he had seen the open pipe, Preston Lum replied, "I couldn't be specific because I don't count how many times I've walked past there, but you notice . . . if you walk past, you notice." He testified that he had told his aunt "you better watch yourself . . . there's a ditch in that yard." He further stated that after he told his aunt about the "ditch," it "was kind of like a joke . . . [i]t was nothing to get serious — real serious about . . . [i]t was just joking about it afterwards."
Defs' Mot. for Sum. J. at Ex. C (Preston Lum Dep. at 9-10).
Id.
Id. at 26.
Defs' Mot. for Sum. J. at Ex. C (Preston Lum Dep. at 26-27).
STANDARD OF REVIEW
Summary judgment is granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. When the moving party makes this initial showing, the burden then shifts to the non-moving party to demonstrate that there are material issues of fact. The Court must view the facts in a light most favorable to the non-moving party. In resisting a motion for summary judgment, the non-movant's evidence of material facts in dispute "must be sufficient to withstand a motion for directed verdict [ i.e., a motion for judgment as a matter of law] and support the verdict of a reasonable jury." If the summary judgment movant does not bear the burden of proof at trial, "the movant's burden to show presumptive entitlement to summary judgment is satisfied if the movant points to the absence of any factual support for an essential element of plaintiff's claim." All reasonable inferences must be drawn in favor of the non-moving party.CONTENTIONS OF THE PARTIES
The Andersons argue that 25 Del. C. § 1501 bars Lum's claim, contending that Lum does not meet the legal standard of an invitee, specifically, a "public invitee." The Andersons assert that under § 1501 they have no liability to Lum, who entered their property as either as a trespasser, a guest without payment or a licensee, unless their conduct was intentional or they acted in wilful or wanton manner. The Andersons further argue that they did not owe Lum a duty to have inspected their property and to have made it reasonably safe by repair or to have given her warning of any dangerous conditions because Lum was not a "public invitee."Lum, however, argues that she was a "public invitee" and that her action is not barred by § 1501 because, she claims, she was "invited" to use the Andersons' property as a short cut. Lum maintains that the Andersons owed her a duty to have inspected their property and to have made it reasonably safe by repair or to have given her warning of any dangerous conditions. Lum does not contend that the actions of the Andersons were intentional, or wilful or wanton. Lum concedes that if she had a status other than that of a "public invitee" at the time of her fall, then her action against the Andersons fails.
Restatement (Second) of Torts § 343 (1965).
DISCUSSION
In Delaware, property owners' liability is predicated on the status of the injured party relative to the property and to the landowners and is governed by 25 Del. C. § 1501, commonly referred to as the Guest Premises Statute. Section 1501 states,
no person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injures or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others.
Section 1501 has been read by the Delaware Supreme Court as including not only trespassers and guests without payment but is "intended to include the category of `licensee' within the term `guest without payment' . . . [and] . . . construing the term `guest without payment' to include all licensees." 25 Del. C. § 1501 "insulates a [private] landowner from liability in ordinary negligence to a trespasser, licensee, or guest without payment who sustains injury on the host's premises and requires a showing of wilful or wanton disregard of the rights of others before liability will be imposed upon a defendant."
Acton et. al. v. the Wilmington and Northern RR Co. et al., 407 A.2d 204, 206 (Del. 1979); Paris v. Precision Auto Services, Inc., 1981 Del. Super. LEXIS 774 at 2 (Del.Super.Ct.) (holding that a mere licensee is subject to the limitation imposed by 25 Del. C. § 1501); cf. Shorah v. Baltimore and Ohio RR Co., 596 F. Supp. 256 (D. Del 1984) (holding that under Delaware law an owner of commercial or industrial property owes a licensee more protection than a guest without payment or trespasser). Delaware case law under 25 Del. C, § 1501 holds that a trespasser, a guest without payment and licensee on residential property are all prevented from bringing an action against a landowner for injuries that result from the owner's actions unless the actions were intentional or wanton or wilful. This Court need not determine which category may apply to Lum, given her concession that if she is not a "public invitee," she has no claim against the Andersons, whatever her other legal status.
Anderson 1982 Del. Super. LEXIS 979 at 1-2; Stratford Apt., Inc. v. Fleming, 305 A.2d 624, 626 (Del. 1973) (holding that "[i]t is evident that it was the legislative intent to protect a landowner from suits by guests based on simple acts of negligence" with the Guest Premises Statute).
In Moyer v. Grier, the Superior Court read 25 Del. C. § 1501 as "involving two levels of analysis: first, whether the [injured party] is the type covered by the statute and second, whether the owner's or occupier's conduct rises to the level of being intentional or wilful and wanton." Wilful or wanton, as used in 25 Del. C. § 1501, refers to "outrageous conduct . . . [resulting from] an evil motive or reckless indifference," and that "each requires that the defendant foresee that his unacceptable conduct threatens particular harm to the plaintiff." In determining whether the injured party is the type covered by the statute, the Supreme Court has approved of the Superior Court's applicability of the Restatement (Second) of Torts' definitions of "trespasser," "licensee" and "invitee," respectively.
Moyer v. Grier, 1989 Del. Super. LEXIS 522 at 4 (Del.Super.Ct.)
Moyer, 1989 Del. Super. LEXIS 522 at 6 (quoting Jardel Co. et. al. v. Hughes, 523 A.2d 518, 529-530 (Del. 1987)); Malin v. ConRail Corp., 438 A.2d 1221, 1223 (Del. 1981) (holding that "a reading of the Caine case demonstrates that this Court for the purposes of the Premises Guest Statute accepted the classifications in Restatement (Second) Torts (1965)").
Caine v. New Castle County, et. al., 379 A.2d 1112, 1114-1115 (Del. 1977) (quoting Restatement (Second) of Torts §§ 329, 330, 332).
Restatement (Second) of Torts § 332 defines an invitee as either a "business invitee" or a "public invitee." Comment a to § 332 describes "invitee" as a "word of art, with a special meaning in the law." The Restatement defines invitees as "limited to those persons who enter or remain on land upon an invitation that carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the land and make it safe for their reception." "Public invitees" are members of the population who enter land for a purpose for "which the land is held open to the public, as opposed to "business invitees" who enter the land for a purpose connected with the business of the possessor."
Restatement (Second) of Torts § 332 cmt. a (1965).
Id.
Id.
Restatement (Second) of Torts § 343 defines the duty owed by an owner of land to a "public invitee." Section 343 states:
A possessor of land is subject to liability for physical harm caused to his[her] 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 discovery or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect against the danger.
Comment b states that "[o]ne who holds his[her] land open for the reception of invitees is under a greater duty in respect to its physical condition than one who permits the visit of mere licensee." A "public invitee", according to the Restatement, "is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein."
Restatement (Second) of Torts § 343 cmt. d (1965).
Although an invitation "does not in itself establish the status of an invitee, it is essential to it." In Malin, the Supreme Court quoted Comment b to § 332, finding that "an invitation is conduct which justifies others in believing that the possessor desires them to enter the land" In Anderson, the Superior Court held that the desire or willingness of the possessor to receive a person should be analyzed according to what a reasonable person would understand as expressed by the words or other conduct of the possessor.
Restatement (Second) of Torts § 332 cmt. a (1965).
Restatement (Second) of Torts § 332 cmt. b (1965).
The Restatement differentiates between an invitation and permission. Comment b to § 332 states that "mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, as stated in § 330, but it does not make that visitor an invitee." Evaluating Comment b to § 332, the Malin court held that "a person who is simply permitted to use land open to the public for his own purposes is not a `public invitee'". An invitation involves more than the fact that the land is open to the public or that they are "merely tolerated", but rather that the public is expected and desired to come.
Malin, 438 A.2d at 1226 (quoting Restatement (Second) of Torts § 332 cmt. b (1965)).
Paris, 1981 Del. Super. LEXIS at 4-5. The Paris court cited the example in Restatement (Second) Torts § 332, cmt. d that "when a landowner tacitly permits boys to play ball on his vacant lot they are licensees only, but if he installs playground equipment and posted signs saying that the lot is open free to all children, then there is a public invitation."
Comment a to § 332 states that "[a] common form of invitation is preparation of the land for the obvious purpose of receiving the visitor and holding it open for that purpose." A member of the public who enters the land for the purpose that it is being held open to the public is an "invitee." Caine and Malin have been said to "suggest that the visitor's purpose in entering the subject premises must be appropriate to and coincide with the public purpose to which the property seemingly avails itself." Determining "public invitee" status is not dependant on public ownership of the land and "it is immaterial that the visitor does not pay for [his/her] admission, or that the possessor's purpose . . . is not a business purpose."
Restatement (Second) of Torts § 332 cmt. a (1965).
Restatement (Second) of Torts § 332 cmt. a (1965).
Anderson, 1982 Del. Super. LEXIS at 7.
Malin, 438 A.2d at 1223.
Restatement (Second) of Torts § 332 cmt. d (1965).
Viewing the facts in the light most favorable to Lum and with all reasonable inferences drawn in her favor, this Court finds that Lum was not a "public invitee." Therefore, the Andersons did not owe Lum a duty to have inspected their property and to have made it reasonably safe by repair or to have given her warning of any dangerous conditions. The evidence is uncontroverted that Lum was using the Andersons' property for her own purpose, a short cut between her home and a public bus stop. There is no evidence that the Andersons had "prepared the land" or "held it open" in any way to invite the public to use their property as a short cut. There is no evidence that the Andersons had a desire to have the public enter their land
Lum's assertions that the Andersons had occasionally waved to her nephew, that they had acknowledged his presence on their property and that they were aware of other people using the property merely establishes that the Andersons permitted use of their land for the visitors' own purposes and not for any purpose desired by the Andersons. These facts do not make Lum a "public invitee."
Lum also asserts that a "path" existed across the Andersons' property that was created by people using the premises as a short cut. However, even assuming a "path" existed, there was no evidence presented that the Andersons had created a physical "path." There is no evidence of the Andersons "preparing the land" to receive the public or desiring or willing the public to come upon their land for any purpose that they had sought or provided. The facts set forth by Lum show only that, at most, the Andersons knew that neighbors occasionally used their property as a short cut, which is not sufficient to make Lum a "public invitee."
American Heritage Dictionary defines "path" as:
path n. 1. A track or way made by footsteps. 2. A road or track made for a particular purpose: a bicycle path. 3. The route or course along which something moves: the path of a hurricane. American Heritage Dictionary 909 (2nd College ed. 1991). This Court concludes that, to the extent any "path" existed over the Andersons' property, such "path" was a "route or course along which [a person] moves" as opposed to a "road or track" because the Court was not able to discern any physical evidence of a "path" from the photographs submitted, nor was there any testimony of any physical evidence of a "path."
This Court finds for the foregoing reasons that Gloria M. Lum was not a "public invitee" and that the Andersons did not owe her a duty to have inspected their property and to have made it reasonably safe by repair or to have given her warning of any dangerous conditions. Her action against the Andersons is barred by 25 Del. C. § 1501.
CONCLUSION
There are no material facts in dispute and the Andersons are entitled to judgment as a matter of law. The Andersons' motion for summary judgment is GRANTED.