Betner v. Grayling Corp. ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHIRLY BETNER, )
)
Plaintiff, )
)
v. ) C.A. No. N16C-08-069 CLS
GRAYLING CORP. d/b/a CHILI’S )
RESTAURANT )
)
Defendants. )
)
)
Submitted: February 8, 2018
Decided: March 9, 2018
On Defendant’s Motion for Summary Judgment.
DENIED.
ORDER
This 9th day of March, 2018, upon consideration of Grayling Corp. d/b/a
Chili’s Restaurant (“Defendant”) Motion for Summary Judgment, and Shirley
Betner’s (“Plaintiff”) Response, it appears to the Court that:
1. On or about September 5, 2014 Plaintiff was a visitor a Defendant’s restaurant
located in Wilmington, Delaware.
2. Plaintiff claims while walking in Defendant’s restaurant she slipped and fell
on “a wet greasy substance” like a “goo” on the floor of the restaurant.
3. Plaintiff filed a Complaint on August 8, 2016, claiming that she suffered
injuries from the fall. Defendant filed a Motion for Summary Judgment on
October 5, 2017. Plaintiff filed a response on November 28, 2017.
Subsequently on December 28, 2017 Defendant filed a Letter with this Court
requesting the opportunity to submit a Reply to Plaintiff’s Response. 1 The
Court denied Defendant’s request.
4. Defendant claims that Plaintiff cannot demonstrate that there was a dangerous
or defective condition on the floor at the time she fell. Defendant argues that
there is “no evidence of any defect” and that Plaintiff “merely speculates the
floor had what looked like a ‘film’ on it, and that film looked like candlewax
from afar.” Additionally, Defendant argues that Plaintiff failed to show
Defendant had notice of any dangerous condition.
5. Plaintiff argues that summary judgment is not appropriate at this stage as there
are genuine issues of material fact in dispute and it is for the jury, not the
judge, to make factual determinations.
1
Defendant’s counsel requested the opportunity to reply to Plaintiff’s Response for
three reasons: 1) on the grounds that Plaintiff mischaracterized Plaintiff and her
husband as elderly; 2) that Plaintiff misstated prior testimony; 3) Plaintiff misstated
the law on summary judgment. The Court denied Defendant’s request to file a Reply
because the Court is aware of the applicable standard on a motion for summary
judgment, and the Court did not take the Plaintiff’s age into consideration when
determining its ruling on this Motion. Additionally, the Court used the deposition
transcripts attached by Defendant in deciding this Motion. The Court asks the parties
to be cognizant of their citations to the record and the applicable law in the future.
6. The Court may grant summary judgment if “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.” 2 The
moving party bears the initial burden of showing that no material issues of
fact are present.3 Once such a showing is made, the burden shifts to the non-
moving party to demonstrate that there are material issues of fact in dispute.4
In considering a motion for summary judgment, the Court must view the
record in a light most favorable to the non-moving party.5 The Court will not
grant summary judgment if it seems desirable to inquire more thoroughly into
the facts in order to clarify the application of the law.6
7. In negligence cases it is imperative to determine the status of the individual
on the premises in order to assess the duty owed to the plaintiff. Here, Plaintiff
was a business invitee. “Generally, a landowner has a duty to exercise
reasonable care in keeping its premises safe for the benefit of business
2
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
3
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
4
Id. at 681.
5
Burkhart, 602 A.2d at 59.
6
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods.,
Inc., 2006 WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
invitees.”7 Additionally, “[w]hen a business invitee brings a negligence action
for personal injuries sustained while on a business’ premises, he or she must
demonstrate three elements: (1) there was an unsafe condition in the
defendant’s store (2) which caused the injuries complained of, and (3) of
which the storekeeper had actual notice or which could have been discovered
by such reasonable inspection as other reasonably prudent storekeepers would
regard as necessary.”8
8. Defendants claim that Plaintiff’s case fails because she has not demonstrated
that there was an unsafe condition and Defendant had notice of the unsafe
condition. The Court disagrees with Defendant’s argument. When viewing
the evidence in a light most favorable to Plaintiff, there are genuine issues of
fact as to a dangerous condition. In Plaintiff’s deposition, when asked what
caused the fall, she states: “The area where I walked was greasy. I slipped. I
felt something oily as I hit the floor. I could feel that on my hand, but I did
slip, and I felt the oil of the slipperiness where I fell.” Additionally, when
asked if there was any residue from the “goo” on her clothing, she stated it
was on her pants and shoes. Plaintiff’s husband also testified that he saw his
7
Laine v. Speedway, LLC, 2018 WL 315584 (Del. Jan. 8, 2018)(citing Hamm v.
Ramunno, 281 A.2d 601, 603 (Del. 1971)).
8
Balzereit v. Hocker’s SuperThrift, Inc., 2012 WL 3550495, at *1 (Del. Super. July
24, 2012).
wife fall and that the floor was “gooey” and there “was some kind of residue
on it.” There are sufficient facts for a reasonable jury to conclude that there
was a dangerous condition on the floor, and thus summary judgment is
inappropriate as to this argument.
9. Defendant also argues that Plaintiff cannot show that the alleged dangerous
condition could have been discovered by a reasonable inspection. Defendant
argues that Plaintiff has introduced no evidence to suggest that Defendant had
any knowledge or should have known that the floor was slippery, and there
were no reports of the condition prior to Plaintiff’s fall. On the other hand,
Plaintiff argues that the accident was near other employees because the
hostess lead Plaintiff and her husband into the unsafe condition.
10. The Court is not persuaded by Defendant’s argument. As it is Defendant’s
burden on this motion to show that there are no genuine issues of fact,
Defendant has not met its initial burden. Defendant’s motion merely repeats
that Plaintiff provided no evidence as to notice or reasonable inspection. The
Court finds that it is an issue of fact as to whether Defendant had actual notice
of the alleged goo on the floor, or that it could have been discovered by such
reasonable inspection as other reasonably prudent storekeepers would regard
as necessary. Plaintiff’s husband stated in his deposition that after his wife fell
he noticed the floor was “greasy.” After the fall he noticed that it “was a filthy
restaurant” and it was “dimly lit, and the floor was gooey and greasy.”
Plaintiff’s husband also stated that Plaintiff fell as the hostess was taking them
to be seated. Plaintiff herself states that after she fell “she could see the
imprints of the people’s shoes” once she looked down at the floor. Based on
these facts a jury could infer that Defendant, a restaurant, could have
discovered the condition through a reasonable inspection. Therefore,
summary judgment is not appropriate.
11. As to Defendant’s lost wages or loss of earning capacity argument, Plaintiff
states that she is not claiming any lost wages or loss of earning capacity at this
time, and therefore that portion of Defendant’s motion is moot. For the
foregoing reasons, Defendant’s Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.