Murphy v. Woods ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MARY E. MURPHY, Individually )
)
Plaintiff, )
)
v. )
) C.A. No. N21C-04-024 CLS
CARILLON WOODS, LLC, a )
Delaware ATLANTIC )
MANAGEMENT, LLC, a Delaware )
limited liability company )
)
Defendants. )
Date Submitted: April 18, 2022
Date Decided: May 16, 2022
Upon Defendant’s Motion for Summary Judgment. DENIED.
ORDER
James P. Hall, Esquire, Phillips, McLaughlin & Hall, P.A., Wilmington, Delaware,
19806, Attorney for Plaintiff, Mary E. Murphy.
Kristen S. Swift, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby,
LLP, New Castle, Delaware, 19720, Attorney for Defendants, Carillon Woods,
LLC and Atlantic Management, LLC.
SCOTT, J.
1
INTRODUCTION
Before the Court is Defendants Carillon Woods LLC and Atlantic
Management LLC’s (“Defendants”) Motion for Summary Judgment (“Motion”).
Upon consideration of the Motion and Plaintiff Mary E. Murphy’s (“Ms. Murphy”)
response, Defendants’ Motion is DENIED for the following reasons.
BACKGROUND
Ms. Murphy signed a lease with Carillon Woods LLC (“the Complex”), which
ran from 12/4/19 to 11/30/20. This case stems from personal injuries sustained from
tripping over a raised sewer cover in the Complex parking lot when Ms. Murphy
was unloading groceries. At the time of her injury, the Complex parking lot was
under active construction and being repaved. In addition, it rained heavily the night
before, it was raining heavily at that time she returned home, and approximately four
(4) inches of water had accumulated in the parking lot.
The lease Mr. Murphy and the Complex entered into contained a New
Construction Addendum1 and further contained an additional release (“general
1
Pertinent language contained in addendum: “Tenant hereby releases Landlord
from any claim, damage, loss, cause of action or liability related to construction
noise, personnel, equipment, debris and materials present at the apartment
complex.”
2
release”) which protected Defendants from “all loss or damage to Tenant’s person .
. .” caused by Defendants absent gross negligence or willful misconduct.2
PARTIES’ ASSERTIONS
In their Motion, Defendants, citing Delaware caselaw, argue Ms. Murphy
released Defendants from liability for negligence in signing the lease and New
Construction Addendum. Defendants maintain the releases were a bargained-for
signed release that were unambiguous, not unconscionable, not against public policy
and therefore is valid. Additionally, Defendants, again citing Delaware caselaw
asserts Ms. Murphy executed releases show primary assumption of the risk because
she was aware of the risks and relieved the landlord of a legal duty. Defendants
maintain Ms. Murphy may not recover because she expressly assumed the risk of
her injury. Lastly, Defendants argue they have no duty to protect from an open and
2
Pertinent language contained in lease agreement: “1.10 NO LIABILITY FOR
LOSS OR DAMAGE TO TENANT’S PERSON OR PROPERTY; INDEMNITY
TO LANDLORD: Tenant agrees to be solely responsible for all loss or damage to
Tenant’s person or property or to any other person which may be situation in the
Rental Unit during the Term of this Agreement or any renewal or extension
thereof, including any loss by water, fire, or theft in and about the Rental Unit and
storage area; gross negligence or willful misconduct of Landlord, its servants,
agents or employees exempted; and the Tenant agrees to procure adequate content
and liability insurance to afford protection to Tenant against the risks therein
assumed. In addition, Tenant agrees to indemnify and save Landlord harmless from
any and all loss occasioned by Tenant’s breach of any of the covenants, terms and
conditions of this Agreement, or caused by Tenant’s family, guests, visitor, agents
or employee.”
3
obvious danger, i.e., a raised sewer cover because Ms. Murphy knew of the sewer
covers when she moved in.
In response, Ms. Murphy argues the releases Defendants reference are
unenforceable under Delaware’s Residential Landlord-Tenant Code. Further, Ms.
Murphy argues even if the releases were enforceable, it would not release
Defendants from liability under this circumstance. Ms. Murphy asserts the lease
does not establish she primarily assumed the risk of tripping on a sewer cover
because she did not expressly relieve Defendants from liability for injuries arising
out of a raised and unmarked sewer cover in the parking lot. Lastly, Ms. Murphy
maintains the raised sewer cover is not an open and obvious danger because it was
not a danger that could be seen with the amount of water present at the time of the
incident. Additionally, Ms. Murphy cites to Delaware caselaw to establish that the
question of whether a danger was apparent to a plaintiff, if a dangerous condition
exists are questions for the jury and if a danger is open and obvious are questions for
the jury.
STANDARD OF REVIEW
Under Superior Court Rule 56, 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
4
and that the moving party is entitled to summary judgment as a matter of law.”3 The
moving party bears the initial burden of showing that no material issues of fact are
present.4 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.5 In considering a
motion for summary judgment, the Court must view the record in a light most
favorable to the non-moving party.6 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.7
DISCUSSION
The Court finds there are genuine issues of material fact present.
In support of Defendants position that Ms. Murphy released Defendants from
their own negligence is permissible under Delaware laws, Defendants cited Ketler
v. PFPA, LLC.8 Ketler is distinguishable from the facts before this Court as the
release in Ketler released defendants from their own negligence associated with
plaintiff using a fitness club.9 Ketler does not relate to landlord tenant relationships.
3
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
4
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
5
Id. at 681.
6
Burkhart, 602 A.2d at 59.
7
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).
8
132 A.3d 746 (Del. 2015).
9
Id. at 747.
5
Section 5301(a)(3) of Title 25 of the Delaware Code prohibits a landlord from
requiring a tenant, in a rental agreement, to exculpate or limit its liability for a
violation of the Residential Landlord Tenant Code or to require a tenant to indemnify
the landlord for any such liability or its related costs.10 If a provision violates Section
5301(a), it is unenforceable.11 Additionally, the statute provides that if a landlord
attempts to enforce a provision that he knows violates Section 5301(a), the tenant is
entitled to bring an action to recover three months’ rent and the costs of the suit,
excluding attorneys' fees.12
Defendants attached the lease agreement and argued the New Construction
Addendum and the general release explicitly limits their liability for any loss by fire,
water, theft, negligence, or construction and requires Ms. Murphy to indemnify it in
the event that any covenants are breached. These provisions, which were directly
relied on for the basis of Defendants’ Motion, are in violation of 25 Del. C. §
5301(a)(3), making them unenforceable. Therefore, Defendants may be liable for
any negligence for failure to maintain a safe common area, i.g., a parking lot.
Further, Defendants rely on the enforceability of releases in arguing Ms.
Murphy assumed the risk, citing Helm v. 206 Massachusetts Avenue, LLC.13 There
10
25 Del. C. § 5301(a)(3).
11
Id. § 5301(b).
12
Id.
13
107 A.3d 1074 (Del. 2014).
6
is no similarity between Helm and this case, as the plaintiff in Helm fell down dark
stairs in a Lewes, Delaware one week vacation rental and would have been barred
from recovery if she had “expressly relieved the landlord of a legal duty.”14 The
facts of Helm are distinguishable from the ones before us because Helm involves a
nonrenewable seasonal rental of less than 120 days in the Lewes and Rehoboth
Hundred.15 This means the landlord/tenant relationship in Helm was not governed
by the Delaware Landlord Tenant Code as such rental agreements are excluded by
the code.16 Because the relationship between Defendants and Ms. Murphy is
governed by the Delaware Landlord Tenant Code, making the releases
unenforceable, the argument that Ms. Murphy assumed the risk because of the
releases is moot.
In addition to this Court finding there are genuine disputes of material fact as
to whether Defendants are liable, this Court has held, except in very clear cases, a
question of whether a danger is open and obvious is ordinarily a question of fact for
the jury.17 Based on the testimony and evidence relied upon for the Motion for
14
Id. at 1080.
15
Id. at 1076.
16
25 Del.C. § 5102.
17
Foreman v. Two Farms, Inc., 2018 WL 3949294, at *2 (Del. Super. Aug. 16,
2018).
7
Summary Judgment, a jury could reasonably find the sewer cover was not an open
and obvious danger. Summary Judgment is improper.
CONCLUSION
For the foregoing reasons, Defendants Motion for Summary Judgment is
DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
8