Bates v. Vasquez ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
EDWIN H. BATES, JR.,
Plaintiff,
C.A. No. N14C-09-230 VLM
TINA M. VASQUEZ and EDWIN
VASQUEZ,
\/\2\/\/&/\/&/&/§/§/\,/
Defendants.
EMEMQRANDUM QP;NIQN AND QRDER_
Submitted: August 19, 2016
Decided: August 23, 2016
Upon Consideration of Defendants ’
Motz``onfor Summarj) Judgment, GRANTED.
Gary S. Nitsche, Esquire, Wilmington, Delaware, Attorney for the Plaintiff.
Brian Thomas McNelis, Esquire, D0ver, Delaware, Attorney for the Defendants.
MEDINILLA, J.
INTRODUCTION
Defendants Tina and Edwin Vasquez moved this Court pursuant to Superior
Court Civil Rule 56 to grant summary judgment in their favor on Plaintiff s claims.
Plaintiff Edwin H. Bates, Jr. opposes, as to Edwin Vasquez.l Af``ter consideration
of the parties’ submissions and review of the oral arguments presented on August
19, 20l6, for the reasons stated below, remaining Defendant’s Motion for
Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This is a personal injury matter that arises from an alleged assault on
residential property owned and occupied by Tina and Edwin Vasquez. Plaintiff
Edwin H. Bates, Jr. ("Plaintiff’) alleges that on October 6, 2012, he was assaulted
by now-dismissed Defendant Ernesto Miranda ("Miranda") in their home.z
Defendant Edwin Vasquez ("Defendant") lives immediately next door to
Plaintiff. Plaintiff was hosting a party for his son’s 10"`` birthday at his home; on
the same day, Defendant was hosting a barbecue at his home.3 Plaintiff was
-' Plaintiff offered no argument his Response as to Defendant Tina Vasquez. Accordingly, this Court
issued its bench ruling and granted summary judgment in favor of Ms. Vasquez on August 19, 2016.
Therefore, the only remaining Defendant is Edwin Vasquez.
2 A Partial Stipulation of Dismissal was filed by the parties on April 14, 20l6, after they were unable to
secure service of process upon Ernesto Miranda. lt is believed he is no longer in the United States and no
further information is available regarding his whereabouts, despite the parties’ attempts to locate him.
3 Pl.’s Dep. at 29:17-30:1, Ex. 4 to Defs.’ Mot. Summ. J.; Def.’s Dep. at 15:14-18, Ex. l to Defs.’ Mot.
Summ. J.
trying to stop the altercations between these two men and soliciting apol0gies f``rom
each in an effort to keep the peace.
Even when viewing all facts and reasonable inferences in a light most
favorable to Plaintiff, he fails to provide any genuine issue of fact to support his
theory that any exception to the Delaware Premises Guest Statute applies to his
cause of action. Defendant has met his burden under Superior Court Civil Rule 56
and summary judgment is appropriate.
IT IS SO ORDERED that Defendant’s Motion for Summary Judgment is,
herebyg,; GRANTED.
oc: Prothonotary
cc: Gary S. Nitsche, Esquire (via File & Serve)
Brian Thomas McNelis, Esquire (via File & Serve)
ll
invited by Defendant to the barbecue, both orally and by being "waved over."4 No
evidence was provided of any payment or compensation regarding his`` attendance
at Defendant’s event; it is undisputed that Plaintiff was a social guest only, a social
invitee of Defendant.§
Plaintiff testified that there must have been an assault based on an injury to
his eye, despite also testifying that he had no recollection of what happened.é He
had no information as to how or why he was struck, or by whom.7 Plaintiff only
learned that he was struck by Miranda after reading the police report, in which
Defendant identified Miranda as the person who caused Plaintiff’s injury.$
Plaintiff admits he was drinking alcohol and relies solely on the version of
the facts detailed in Defendant’s testimony to support his case.g The undisputed
facts are that Defendant saw Plaintiff hit Miranda fz``rst, at which point Defendant
went over to them and told them to stop fighting.lo He also separated them and
_z_- 1:-__=.
-4 Pl.’s Dep. at _32:18-34:1 l, Ex. 4 to Defs.’ Mot. Summ. J.
5 See id. at 32-36; Def.’s Dep. at 14:12-14, Ex. 1 to Defs.’ Mot. Summ. J.; Tina Vasquez’s Dep. at
25:12-17, Ex. 2 to Defs.’ Mot. Summ. J.
6 Pl.’s Dep. 45:8-46:11, 47:1-48:24, 50:l6-5l:4, Ex. 4 to Defs.’ Mot. Summ. J.
’ Id. ar 45;6»7, 46;7-8, 51;8-10.
3 14 ar 49;3-7, 54;7-12.
9 Plaintiff concedes that his factual version of the events would not survive a motion for summary
judgment and that only Defendant’s version should be considered in this analysis.
'0 Def.’s Dep. at l9:l-2l, Ex. l to Defs.’ Mot. Summ. J.
``U ar zr)_; 14
told Plaintiff to apologize to Miranda." Defendant further testified that after he
separated them, Plaintiff seemed to walk away and out of the backyard where the
2
barbecue was taking place.] Yet when Defendant turned back around, he saw
Plaintiff approach Miranda, and saw Plaintiff hit Miranda a second time.“
Defendant again broke up the fight and told Plaintiff to apologize.m Defendant
testified that he did not make Plaintiff leave after the assault(s) on Miranda because
Plaintiff had apologized and Miranda did not seem upset.l§ I:Ie further testified that
only "moments" after Plaintiff had assaulted Miranda, Miranda then assaulted
Plaintiff.'é Defendant then made both Plaintiff and Miranda leave."
According to Defendant’s testimony, it was only after Plaintiff attacked
Miranda that Miranda struck Plaintiff.ls According to both Plaintiff and Defendant
(and Tina Vasquez), there were no prior indications of potential problems among
_i ma¢.
‘2 1a ar 20;5-9.
13 Ia'. at 20:4-17. While at oral arguments it was unclear whether Plaintiff hit Miranda once or twice, it
makes no difference for purposes of this analysis.
"‘ ld. ar 20;18-19, 22;1-3.
'51¢ ar22;12_23;10.
"lar. ar23;13-17.
"ld. ar24;24-25;1.
‘8 1a ar 22;7.
any of the party guests which would lead anyone to reasonably anticipate an
assault.'g
Plaintiff`` s Complaint alleges that Defendant was negligent in that he: (l)
allowed the altercation to occur on his property; (2) failed to discover that Miranda
was assaulting Plaintiff on his property; (3) failed to discover that Plaintiff was
likely to be assaulted by Miranda; (4) failed to give adequate warning to Plaintiff
to enable him to avoid the harm; (5) failed to otherwise protect Plaintiff from the
harm; (6) failed to take reasonable measures to stop the altercation before it
escalated and injured Plaintiff; and (7) conspired with Miranda to attack, assault or
otherwise cause harm to Plaintiff.zo There is no count or claim in the Complaint
alleging willful or wanton action on behalf of Defendant.zl
Defendant(s) filed a Motion for Summary Judgment on May l7, 2016, and
filed the Opening Brief on May 25, 2016. Plaintiff filed a Response on June l4,
2016. Defendant(s) filed a Reply on June 28, 20l6. Oral arguments were heard on
August l9, 2()16. Defendant Tina Vasquez was granted summary judgment on the
same day. This Court has considered all of submissions in this case and the matter
is ripe for review.
‘° Pl.’s Dep. ar 54;17-55;13, Ex. 4 to Defs.’ Mot. Summ. J.; Def.’s Dep. ar 17;3_5, 29;3-13, 31;9_13,
Ex. l to Defs.’ Mot. Summ. J.; Tina Vasquez’s Dep. at l4:l l~l7, 18:9-18, Ex. 2 to Defs.’ Mot. Summ. J.
20 See Compl. 11 9, Ex. 3 to Defs.’ Mot. Summ. J.
21 See generally ia’. _
Contentions of the Parties
Defendant argues that Plaintiff’ s claim against him is barred by Delaware’s
Premises Guest Statute (25 Del. C. § l50l). Plaintiff argues that Defendant’s
actions and/or omissions rise to the level of "willful and wanton" conduct, an
exception to the Premises Guest Statute. For the following reasons, this Court
disagrees with Plaintiff and GRANTS summary judgment in favor of Defendant.
STANDARD OF REVIEW
Superior Court Civil Rule 56 mandates the granting of summary judgment
upon a showing by the movant that "there is no genuine issues as to any material
fact and that the moving party is entitled to judgment as a matter of law." 22 "Once
the movant meets its burden, then the burden shifts to the non-movant to
demonstrate sufficiently an existence of one or more genuine issues of material
fact."23 Summary judgment will not be granted if there is a material fact in dispute
or if "it seems desirable to inquire thoroughly into [the facts] in order to clarify the
application of the law to the circumstances."24 In considering the motion, "[a]ll
facts and reasonable inferences must be considered in a light most favorable to the
52 Super. Ct. Civ. R. 56(e).
23 Quality Elec. C0., Inc. v. E. States Const. Serv., Inc., 663 A.Zd 488 (Del_.[. l995). See also Moore v.
Sizemore, 405 A.Zd 679, 681 (Del. 1979); Super. Ct. Civ. R. 56(e).
24 Ebersole v. Lowengrub, l80 A.Zd 467, 470 (Del. l962).
non-moving party."25 However, courts should not "indulge in speculation and
conjecture; a motion for summary judgment is decided on the record presented and
not on evidence potentially possible."%
ANALYSIS
The Delaware Premises Guest-Statute (25 Del. C. § 1501) provides:
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 injuries 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 willful or wanton disregard of the rights of
others.27
The Delaware Premises Guest Statute is a derogation of common law and
must be strictly construed against a defendant seeking its protection.zg Even so,
any party asserting the inapplicability of the Delaware Premises Guest Statute has
the burden of persuasion.zg Plaintiff thus has the obligation to proffer evidence that
he falls under an exception to the Statute. Under Delaware law, a "guest without
';5 Nutl v. A._C. & S. Co., Inc., 512 A.2d 690, 692 (Del. Super. l986).
26 111 re Asbestos Litl``g., 509 A.2d lll6, lll8 (Del. Super. l986) a]j"d sub nom. Nicolet, Inc. v. Nutt, 525
A.2d 146 (Del. 1987).
27 25 Del, C. § 1501 (emphasis added).
28 Stratford Apartments, Inc. v. Fleming, 305 A.2d 624, 626 (Del. 1973). See also Porter v. Delmarva
Power & Lz'ght Co., 547 A.2d l24, 128 (Del. 1988); Higgins v. Walls, 901 A.2d l22, l33 n.39 (Del.
Super. 2005).
” Loper v. sweet 412 A.2d 316,318@@1. 1930).
payment" is akin to a social guest, one who is present by invitation without
economic or business benefit to the host. The essential limit of the status of
"guest" is an invitation, either expressed or implied.30
lt is undisputed that Plaintiff was a social guest upon the property owned and
occupied by Defendant, a "guest without payment" pursuant to 25 Del. C. § 1501.&_=-
Indeed, Plaintiff does not argue that he was not a "guest without payment" under
the Premises Guest Statute. Plaintiff has only pleaded negligence on the part of
Defendant.m Accordingly, Plaintiff’ s cause of action in negligence against
Defendant is clearly precluded by the Premises Guest Statute.32
Plaintiff can therefore only recover as a "guest without payment" under the
Premises Guest Statute "upon proof of an intentional injury or one caused by
33
willful or wanton disregard" of his or her rights. Where the complaint does not
allege any willful or wanton conduct, summary judgment must be granted unless
the plaintiff can produce evidence of such conduct; if such evidence is produced,
the complaint may be amended.34 Plaintiff attempts to re-characterize what are
3.0 Facciol;) v. Facciolo Conslruc.i‘ion C0., 317 A.Zd 27, 28 (Del. 1974).
31 The Complaint only alleges negligence against Defendant(s), while "willful and wanton" conduct is
expressly alleged a ainst Miranda. See Com l. 8, Ex. 3 to Defs.’ Mot. Summ. J.
g P
32 Stratford Apartments, 305 A.Zd at 626 ("It is evident that it was the legislative intent to protect a
landowner from suits by guests based on simple acts of negligence just as the motor vehicle owner or
operator is protected by the automobile guest statute.").
33 ld, ar 627.
34
clearly allegations of negligence into allegations of "willful and wanton" conduct
in order to take advantage of the exception in the Premises Guest Statute for such
conduct. This Court finds that Plaintiff fails to offer any evidence that would
permit such a re-characterization.
Under Delaware law, negligence is characterized by "carelessness,
thoughtlessness, inattention, inadvertence. Negligence is negative in its character
)35
and implies nonfeasance.’ Conduct which is "willful and wanton" is
distinguished from that which is merely "negligent":
Willful or wanton conduct is outside the domain of
negligence, for the moment the element of willfulness,
actual or constructive enters, the conduct ceases to be
negligent, and assumes the character of maliciousness or
wickedness. Willfulness and negligence are incompatible
terrns. Absence of intent is a characteristic of negligence.
Willfulness cannot exist without purpose or design. The
difference is one of kind, not of degree. There is a clear
distinction between wantonness and negligence, as the
former term includes the elements of consciousness of
one's " " "_"'-_``on of the -'=fii;ar»:iihability of injury to
another, _._ "»``_of the cons_é$<@§nces.%
Accordingly, Defendant’s actions can only be considered "willful and
wanton" if he maliciously or purposely allowed Plaintiff to be injured, or if he had
;5 Gal:rhe_r v._ Davz's, 183 Aj €Zi), 622 (Del. Super. l936), overruled in part on other grounds by Wagner
v. Shanks, 194 A.Zd 701, 706-07 (Del. l963) (claril``ying that "[w]antonness does not necessarily imply
any form of intent to cause the harm which results from some activity. Wanton conduct occurs when a
person, with no intent to cause harm, performs an act which is so unreasonable and dangerous that he
either knows or should know that there is an eminent likelihood of harm which can result.").
36 Gazlegher, 183 A. at 622.
knowledge of the conduct causing harm, realized the probability that another
person would be injured and still disregarded the consequences.”
Plaintiff’s argument is creative. He claims that Defendant failed to do more
to protect Plaintiff from himself-in other words, that Defendant acted willfully
and wantonly because he did not do more to protect Plaintiff from the
consequences of Plaintiff’ s own intoxicated and unprovoked assault. Plaintiff
argues that Defendant’s actions and/or omissions meet the standard of willful and
wanton conduct because he did nothing to remove the threat of harm from the
premises. This Court is not persuaded, especially where the threat of harm was, in
fact, Plaintiff
This Court finds that Plaintiff fails to establish that the conduct of Defendant
meets the definition of "willful and wanton." Even if there had been bad blood
between Plaintiff and Miranda from a prior history, Plaintiff initiated, continued to
provoke and escalated the situation that eventually caused him harm. Plaintiff fails
to establish that Defendant’s knowledge (and disregard) of this "risk" was
established solely based on Defendant witnessing the previous altercations
moments before the injury occurred. This Court is hard-pressed to find
maliciousness or wickedness in his conduct where he was serving as a mediator,
-``;;Id. See also Jara'el C.'o., Inc. _v. Hughes, 523 A.Zd 518, 531 (Del. 1987) ("It must be shown that the
precise harm which eventuated must have been reasonably apparent but consciously ignored in the
formulation of the judgment.").
10