John H. Cordrey, Esquire, Cordrey & Clark, Georgetown, Delaware.
Jeffrey M. Austin, Esquire, Wilmington, Delaware.
T. Henley Graves, Judge.
The opinion of the court was delivered by: Graves
This is a personal injury action in which plaintiffs claim damages resulting from plaintiff Margaret T. Jones' slip and fall on defendant's ramp leading from his restaurant. Presently before the Court is the motion of Nicholas Tsoukalas, individually and t/a Topside Restaurant (collectively referred to as "Topside") for summary judgment.
On August 17, 1986, plaintiffs Margaret T. Jones and Milton E. Jones and their houseguests went to the Topside for dinner at around 7:30 p.m. Mrs. Jones had had an alcoholic drink before going to the restaurant.
As the party entered the restaurant, it was not raining.
The diners' waitress was Dawn O'Neal. Mrs. Jones testified that during dinner she had one other alcoholic drink. Ms. O'Neal testified she served Mrs. Jones two alcoholic drinks. In any case, Mrs. Jones consumed at least two alcoholic drinks within a space of three hours.
While the four were having dinner, it began to rain. This rain was a part of "Hurricane Charley". When the diners left after dinner, it was dark and raining.
The door from which the four exited opened onto a porch, and a ramp extended from the porch. Although the Court has pictures of the ramp, it does not have any testimony regarding the ramp's width, length, or degree of incline. The ramp was made of salt-treated lumber. No awning covered the ramp, and abrasive materials or rugs were on the ramp. The ramp did have handrails on both sides of it. Above the door on the ceiling of the porch was a globe light. At the top of the ramp, on both sides, and at the bottom of the ramp, on both sides, were lights. Plaintiffs maintain the lighting was dim. Defendant's testimony was that the lighting provided adequate light all the way down the ramp. There was another exit from the restaurant with steps; however, plaintiffs were not aware of this exit.
Mrs. Jones had previously dined at the Topside and had been on the ramp. She had dined there once or twice in the year preceding her slip and fall. Mrs. Jones was aware of the existence of the handrails; however, she had never used them in the past. She never before had had trouble negotiating that ramp. She does not recall having previously negotiated it in the rain.
Mrs. Jones was wearing leather thongs, which were open shoes with the straps between the toes. They were flat-heeled shoes with composition soles.
Mr. Jones ran ahead to bring the car to the bottom of the ramp because of the rain. Mrs. Jones testified her two friends went ahead of her down the ramp. However, Ms. O'Neal testified Mrs. Jones preceded the two friends.
In any case, Mrs. Jones was hurrying down the ramp due to the rain. She did not use a handrail. Her testimony is:
"I was halfway down the ramp when I either slipped or tripped-it all happened in such a hurry-and I found myself on my back on the ramp."
She cannot testify exactly as to what caused her fall: the slipperiness or an uneven board on which she tripped. No other person witnessed her fall. Plaintiff sustained injuries from this fall.
According to Mrs. Jones, the ramp was slippery and there were some uneven boards. Her husband testified also that the ramp was not a completely even, smooth surface. Ms. O'Neal and Mr. Tsoukalas testified that the boards on the ramp were even. They also testified that the ramp was no more slippery than any other wet surface. Ms. O'Neal testified that a large number of bands came up the ramp with their equipment and the wheels on their equipment never hung on any boards; if the boards had been uneven, the wheels would have hung on them. Mr. Tsoukalas testified that after the accident, he examined the entire ramp to see if the planks were uneven and found nothing was wrong with it.
The restaurant was opened from late May through October, 1984; March through October, 1985; and March through September, 1986. During the peak times of those periods, the restaurant served two thousand patrons per week. To the best of Mr. Tsoukalas' knowledge, during that period no one ever fell going down the ramp or up the ramp. No one complained about anything regarding the ramp or the lighting. Mr. Tsoukalas never made repairs to the ramp.
In moving for summary judgment, the moving party initially bears the burden of showing no issue of material fact exists. Moore v. Sizemore, Del.Supr., 405 A.2d 679 (1979). All facts and inferences are viewed in a light most favorable to the non-moving party. DiOssi v. Maroney, Del.Supr., 548 A.2d 1361 (1988); Allstate Auto Leasing Co. v. Caldwell, Del. Supr., 394 A.2d 748 (1978). Only after a moving party meets his burden does the burden shift to the non-moving party to establish, with specific facts beyond its allegations and pleadings, that a genuine issue of material fact exists. Moore v. Sizemore, supra; Lecates v. Hertrich Pontiac Buick Co., Del.Super., 515 A.2d 163, 165 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986) (interpreting applicable portion of Fed. R. Civ. P., Rule 56 identical to Super. Ct. Civ. R. 56).
The negligence here arises from an alleged breach of a landowner's duty to a business invitee. The Delaware Supreme Court has examined that duty most recently in DiOssi v. Maroney, (supra), at pp. 1365-66:
"In determining the status of occupiers of land in the context of tort claims this Court has traditionally adhered to the definitional classifications of the common law as crystallized in the Restatement (Second) of Torts. (Citations omitted).
§ 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."
Mrs. Jones has alleged two possible causes of her fall: a ramp which was unreasonably slippery when wet or a raised board which could not have been seen in the dim light.
The initial issue is whether a ramp made of salt-treated lumber exposed to the elements without rugs or abrasive materials placed upon it constitutes a dangerous condition. As explained in Williamson v. Wilmington Housing Authority, Del. Supr., 208 A.2d 304, 306 (1965):
"The question of what constitutes a dangerous condition in a situation of this kind cannot be settled by any formula or hard and fast rule. The existence or non-existence of a dangerous condition must depend upon the facts and circumstances of each case and is generally a question of fact for the jury to determine except in very clear cases."
Since I find the threshold issue of whether the ramp made of salt-treated lumber and not covered by an awning, rug or abrasive material constitutes a dangerous condition is a question for the jury, summary judgment is not appropriate. Id. Defendant's reliance on Hess v. U.S., D. Del., 666 F.Supp. 666 (1987), is misplaced since that case constituted the Federal District Court's decision after a trial without a jury and was not a decision on a summary judgment motion.
Plaintiff alternatively maintains that she tripped on a raised board which she could not see in the dim light. Although pictures of the ramp have been submitted to this Court, I cannot tell from them whether the ramp did or did not have raised boards. Accordingly, I will not consider the pictures in resolving this matter regarding the raised boards. In connection with this alleged caused of the accident, disputes exist as to whether the boards were raised or not and whether the light was dim or not. Such disputed facts require resolution by a jury to determine if a defective condition existed, and thus, summary judgment is not appropriate. Williamson v. Wilmington Housing Authority, (supra).
Defendant argues, as a matter of law, that it should not have known of a dangerous condition, and points to testimony that no accidents had occurred before Mrs. Jones' fall. Although this testimony is admissible at trial upon the laying of a proper foundation, Pippin v. Ranch House South, Inc., Del. Supr., 366 A.2d 1180 (1976) the question of whether the defendant should have known of the dangerous condition is a question of defendant's negligence, and issues of negligence generally are not susceptible of summary adjudication. Ebersole v. Lowengrub, Del.Supr., 180 A.2d 467 (1962). Here, defendant has not clearly shown it could not or should not have known a rain-soaked ramp without an awning overhead or abrasive material underfoot was unreasonably dangerous. Additionally, it has not clearly shown that it could not or should not have known of the existence of a raised board and inadequate lighting. Thus, summary judgment is not appropriate on this issue of knowledge.
Similarly, defendant has not clearly shown placing an awning over the ramp or putting down a rug or abrasive material was an unreasonable requirement for preventing a fall. Thus, defendant is not entitled to summary judgment on the issue of whether it exercised reasonable care protecting against a dangerous condition.
Defendant argues that even if any dangerous condition existed, defendant could reasonably expect the plaintiff to discover or realize that danger, and to protect herself against it. Such a question, however, is "fact intensive and not susceptible to Disposition, as a matter of law, through summary judgment." DiOssi v. Maroney, (supra) at 1368.
Having examined this case in light of the requisite elements set forth in § 343 of the Restatement (Second) of Torts, I now must examine whether Mrs. Jones can show more than a possibility that defendant's negligence caused the accident since she maintains it was due either to her slipping on the unreasonably slippery ramp or to her tripping on a board of the ramp. Although plaintiffs will not be able to prove definitively the actual cause of Mrs. Jones' accident, they, by presenting alternative causes which could be grounds for the defendant's liability, present evidence which removes causation from the realm of speculation and conjecture. Thus, this situation differs from that in Phillips v. Delaware Power & Light Company, Del.Supr., 216 A.2d 281 (1966), where summary judgment was appropriate because plaintiff could show nothing more than a mere possibility of a causal connection between alleged wrongdoing and injuries so that causation would be based upon speculation and conjecture. This case also differs from the cases of Manucci v. The Stop n' Shop Companies, Inc., t/a Bradlees, Del. Super., C.A. No. 87C-JN-21, Hearlihy, J. (May 4, 1989) and Kanoy v. Crothall American, Inc., Del.Super., C. A. No. 85C-OC-9, Bush, J. (February 8, 1988), where summary judgment was granted because the plaintiffs therein were not able to show any defect on the premises caused their fall. See also, Wilson v. Derrickson, Del.Supr., 175 A.2d 400 (1961) (where the granting of a directed verdict was affirmed when plaintiff could not establish defendant negligently permitted an accumulation of an oily substance on the floor).
Instead, this case more closely resembles Dreher v. Kennard Pyle Co., Inc., Del.Super., C. A. No. 82C-SE-40, Poppiti, J. (May 21, 1985) (summary judgment denied), on rehearing, Del.Super., C. A. No. 82C-SE-40 (July 18, 1985) (summary judgment granted), rev., Del.Super., No. 258, 1985, Walsh, J. (December 19, 1985).2 Therein, plaintiff, who slipped and fell on stairs in defendant's stores, alleged numerous possible causes of her fall; and the Superior Court held that material issues of fact concerning the condition of the premises precluded the granting of summary judgment. Similarly, here, the material issues of fact regarding the condition of defendant's premises precludes summary judgment.
For the foregoing reasons, defendant's Motion for Summary Judgment is denied.
IT IS SO ORDERED.
1. The facts are taken from the sworn testimony given at the arbitration hearing in this matter. Although Super. Ct.Civ. R. 56 allows for summary judgment to be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits" show no issue of material fact exists, and does not include testimony taken at arbitration hearings, this Court concludes that sworn testimony taken at an arbitration hearing falls within the type of materials upon which summary judgment may be rendered, and accordingly, entertains the summary judgment motion based on such sworn testimony. [Back]
2. Summary judgment was granted on rehearing on the issue of plaintiff's contributory negligence; however, the Supreme Court reversed the granting of summary judgment on this issue. [Back]