Moore v. Pettinaro Enterprises, LLC ( 2016 )


Menu:
  •             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    FELAMI A. MOORE and MARVIN                   :
    MOORE,                                       :     C.A. No: K14C-09-013 RBY
    :     In and For Kent County
    Plaintiffs,                    :
    :
    v.                                     :
    :
    PETTINARO ENTERPRISES, LLC,                  :
    BLUE HEN CC, LLC, PETTINARO                  :
    MANAGEMENT, LLC, and M&M                     :
    CONTRACTING,                                 :
    :
    Defendants,                    :
    Submitted: October 26, 2016
    Decided: December9, 2016
    Upon Consideration of Defendant Pettinaro Enterprises, LLC,
    Blue Hen CC, LLC, and Pettinaro Management, LLC’s
    Motion for Summary Judgment
    DENIED
    ORDER
    R. Mark Taneyhill, Esquire, Schwartz & Schwartz Attorneys at Law, Dover,
    Delaware for Plaintiffs.
    David G. Culley, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware for
    Defendants Pettinaro Enterprises, LLC, Blue Hen CC, LLC, and Pettinaro
    Management, LLC.
    Marvin Farlow, M&M Contracting, Pro se.
    Young, J.
    Moore, et. al. v. Pettinaro Enterprises, LLC, et al.
    K14C-09-013
    December 9, 2016
    SUMMARY
    Felami A. Moore and Marvin Moore (Plaintiffs) filed a negligence claim
    against Pettinaro Enterprises, LLC, Blue Hen CC, LLC, Pettinaro Management, LLC,
    and M&M Contracting, LLC. Defendants filed a Motion for Summary Judgment.
    Since there is a genuine issue of material fact as to whether the snow and ice that
    allegedly accumulated on the ground was from prior storms or an ongoing storm,
    Defendants’ Motion for Summary Judgment is DENIED.
    FACTS AND PROCEDURE
    Plaintiffs allege that Felami A. Moore was injured on the morning of Monday,
    January 28, 2013, in a slip and fall in the Blue Hen Corporate Center’s parking lot in
    Dover, Delaware.1 At the time Plaintiff Felami Moore fell, it was snowing outside and
    had been snowing at least since she left her house to get to work at Corporate Kids,
    an entity located within the Blue Hen Corporate Center.
    Defendants assert that there is no evidence indicating that there was any
    precipitation on the ground, from past storms, at the time Plaintiff Felami Moore fell.
    Plaintiffs assert, using a certified weather report, that it snowed 1.5 inches on Friday,
    January 25, 2013. Further, Plaintiffs also contend that Defendants never cleared the
    parking lot in which Plaintiff Felami Moore fell of any snow or ice from any storm.
    Deposition testimony was conflicting as to whether any person agreed to clear the
    area of Blue Hen Corporate Center’s parking lot in which Plaintiff Felami Moore fell.
    Plaintiff Marvin Moore asserts that he has lost spousal consortium as a result of
    1
    This fall happened at some time between 6:50 AM and 7:08 AM. Plaintiffs and
    Defendants disagree as to the exact time Plaintiff Felami Moore fell.
    2
    Moore, et. al. v. Pettinaro Enterprises, LLC, et al.
    K14C-09-013
    December 9, 2016
    Plaintiff Felami Moore’s fall.
    Plaintiffs filed their Complaint on September 11, 2014. On October 11, 2016,
    Defendants filed this Motion for Summary Judgment.
    STANDARD OF REVIEW
    Summary judgment is appropriate where the record exhibits no genuine issue
    of material fact, and the movant is entitled to judgment as a matter of law.2 This Court
    shall consider the “pleadings, depositions, answers to interrogatories, and admissions
    on file, together with the affidavits, if any” in deciding the motion.3 The moving party
    bears the initial burden of demonstrating the nonexistence of material issues of fact;
    the burden then shifts to the nonmoving party to show that there are material issues
    of fact in dispute.4 The Court views the record in the light most favorable to the
    nonmoving party. 5 When material facts are in dispute, or “it seems desirable to
    inquire more thoroughly into the facts, to clarify the application of the law to the
    circumstances,” summary judgment will not be appropriate.6 However, when the facts
    permit a reasonable person to draw but one inference, the question becomes one for
    2
    United Vanguard Fund, Inc. v. Takecare, Inc., 
    693 A.2d 1076
    , 1079 (Del. May 22,
    1997).
    3
    Del. Super. Ct. Civ. R. 56(c).
    4
    Fauconier v. USAA Cas. Ins. Co., 
    2010 WL 847289
    , at *2 (Del. Super. Mar. 1, 2010).
    5
    Moore v. Sizemore, 
    405 A.2d 679
    , 680 (Del. Aug. 6, 1979).
    6
    Sztybel v. Walgreen, 
    2011 WL 2623930
    , at *2 (Del. Super. June 29, 2011).
    3
    Moore, et. al. v. Pettinaro Enterprises, LLC, et al.
    K14C-09-013
    December 9, 2016
    decision as a matter of law.7
    DISCUSSION
    Defendants argue that this Court should grant their Motion for Summary
    Judgment. They argue that there are no genuine issues of material fact with respect
    to this action. Further, they note that there is no legally sufficient basis for a
    reasonable jury to find them liable for Plaintiffs alleged injuries, were this jury to
    apply the law to these material facts, since Plaintiffs’ slip and fall happened during
    a snowstorm. They assert that a negligence claim to recover for such an injury would
    fail due to the continuing storm doctrine.
    The continuing storm doctrine does not apply to instances where the plaintiff
    is injured as a result of snow or ice from a prior storm. Whether a prior or ongoing
    storm causes snow or ice to accumulate is a material fact in cases involving the
    continuing storm doctrine. Plaintiffs have presented evidence indicating that the snow
    and ice on which Plaintiff Felami Moore slipped may have been from a prior storm.
    Thus, there is a genuine issue of material fact as to whether Plaintiff Felami Moore’s
    fall was caused by snow and ice from a prior storm or an ongoing storm.
    The continuing storm doctrine eliminates a plaintiff’s negligence claim. A
    plaintiff asserts a valid negligence claim when she can prove that the defendant
    caused her injury by breaching a duty that he owed her.8 However, in Delaware, “a
    business establishment, landlord, carrier, or other inviter, in the absence of unusual
    7
    Wootten v. Kiger, 
    226 A.2d 238
    , 239 (Del. 1967).
    8
    Hudson v. Old Guard Ins. Co., 
    3 A.3d 246
    , 250 (Del. Aug. 12, 2010).
    4
    Moore, et. al. v. Pettinaro Enterprises, LLC, et al.
    K14C-09-013
    December 9, 2016
    circumstances, is permitted to await the end of the storm and a reasonable time
    thereafter to remove ice and snow.”9 Thus, when a storm is ongoing, a defendant
    owes a plaintiff no duty to remove ice and snow.
    When the ice or snow on which the plaintiff falls is not as a result of an
    ongoing storm, the continuing storm doctrine does not apply. In Sztybel v. Walgreen
    Co., the defendant filed a motion for summary judgment in a continuing storm
    doctrine case.10 The plaintiff fell during the second in a string of two snowstorms that
    occurred over the course of a week.11 The defendant contended that the plaintiff fell
    on snow from the second snowstorm, whereas, the plaintiff contended that she fell on
    snow from the first snowstorm.12 The court denied the defendant’s motion for
    summary judgment since, on the posture of the record at this point, a reasonable jury
    could infer from the facts that the plaintiff could recover,13 if they determined that
    plaintiff fell on snow from the first snowstorm.14
    In the instant action, Plaintiffs and Defendants disagree over a fact relevant to
    this case’s outcome. If the jury were to determine that snow remained on the ground
    from the January 25, 2013, snow event, then Plaintiffs may have a chance at recovery.
    9
    Young v. Saroukos, 
    185 A.2d 274
    , 282 (Del. Oct. 24, 1962).
    10
    Sztybel, 
    2011 WL 2623930
     at *1.
    11
    Id. at *1-2.
    12
    Id.
    13
    Id.
    14
    Id.
    5
    Moore, et al. v. Pettinaro Enterprises, LLC, et al.
    C.A. No. K14C-09-013 RBY
    December 12, 2016
    However, if the jury were to determine that no snow remained on the ground from the
    January 25, 2013, snow event, or that no snow event occurred on that day, then
    Plaintiffs would be unable to recover. Thus, there is a genuine issue of material fact.
    Defendants’ Motion for Summary Judgment is DENIED.
    CONCLUSION
    Since there is a genuine issue of material fact as to whether the snow and ice
    that allegedly accumulated on the ground was from prior storms or an ongoing storm,
    Defendants’ Motion for Summary Judgment is DENIED. This decision is not
    prejudicial to Defendants’ filing later dispositive motions if appropriate.
    IT IS SO ORDERED.
    /s/ Robert B. Young
    J.
    RBY/lmc
    Via File & ServeXpress
    cc: Counsel
    M&M Contracting (via U.S. Mail)
    Opinion Distribution
    6
    

Document Info

Docket Number: K14C-09-013 RBY

Judges: Young J.

Filed Date: 12/9/2016

Precedential Status: Precedential

Modified Date: 12/9/2016