Helm v. 206 Massachusetts Avenue,LLC

IN THE SUPREIVIE COURT OF THE STATE OF DELAWARE
GAIL HELM and SCOTT HELM, §
§ No. 146, 2014
Plaintiffs Below, §
Appellants, §
§
V. § Court Below: Superior Court
§ of the State of Delaware, in and
206 MASSACHUSETTTS . § for Kent County,
AVENUE, LLC, and GALLO §
REALTY, INC. § CA. No. Kl2C-03—Ol4 RBY
§
Defendants Below, §
Appellees. §
Submitted: October 29, 20 4
Decided: December 19, 2 4
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
Upon appeal from Superior Court. REVERSED and REMANDED.
Patrick C. Gallagher, Esquire, Curley & Benton, LLC, Dover, Delaware, Attorney
for Gail Helm and Scott Helm, Plaintiffs Below, Appellants.
Susan L. Hauske, Esquire and Robert D. Cecil, Jr., Esquire (argued), Tybout,
Redfearn & Pell, Wilmington, Delaware, Attorneys for 206 Massachusetts Avenue
LLC, Defendant Below, Appellee.
James D. Griffin, Esquire, Griffin & Hackett, P.A., Georgetown, Delaware,
Attorney for Gallo Realty, Inc., Defendant Below, Appellee.
HOLLAND, Justice:
This appeal relates to a personal injury action that was filed in the Superior
Court by the Plaintiffs Below/Appellants, Gail Helm and Scott Helm. The
Appellants rented a beach house located at 206 Massachusetts Avenue, Lewes,
Delaware (the “Property”), for a week in July 2010. On July 10, 2010, as Gail was
descending the stairs from the second floor to the first floor of the Property, she
fell and sustained injuries. In their Complaint, Gail sought to recover damages
based on claims of negligence and breach of contract against both Gallo Realty,
Inc., the agent who rented the Property to the Helms, and 206 Massachusetts
Avenue, LLC, the owner of the Property. Scott Helm asserted an additional claim
for loss of consortium. The Superior Court, granted both of the Defendants’
Motions for Summary Judgment.
Superior Court Decisions
The Appellee Gallo Realty, Inc. (“Gallo”) filed a Motion for Summary
Judgment based on two grounds. First, Gallo asserted that it was not exercising
control over the Property, but was merely acting as the agent for the Property
owner. Second, Gallo argued that the indemnification provision of the rental
contract shielded it from liability. The Appellee 206 Massachusetts Avenue, LLC
(the “LLC”), the Property owner, also filed a Motion for Summary Judgment. It
argued that Gail primarily assumed the risk of her fall based on her deposition
testimony and was more than fifty percent negligent as a matter of law. It also
distinction between the concepts became important.22 In Fell v. Zz'math,23 the
Superior Court addressed the distinction between primary and secondary
assumption of risk in the context of Delaware’s comparative negligence statute.
Relying upon our holding in Bib and adopting the definitions set forth in Prosser
and Keeton on the Law of Torts, the Superior Court explained that primary
assumption of risk involves the express consent to relieve the defendant of any
legal duty of care, and secondary assumption of risk consists of voluntarily
encountering a known risk which is out of proportion to the advantage gained.24 In
Koutoufaris, this Court held that the explanation of the distinction between primary
and secondary assumption of risk in Fell was a correct statement of Delaware
law.25
Following the enactment of Delaware’s comparative negligence statute, the
distinction between primary and secondary assumption of risk became meaningful.
Delaware courts have been called upon frequently to address the parameters of
each of those concepts. It is now settled in Delaware that primary assumption of
risk is implicated when the plaintiff expressly consents “to relieve the defendant of
an obligation of conduct toward him, and to take his chances of injury from a
22 Koutoufaris, 604 A.2d at 398.
23 Fell v. Zimath, 575 A.2d 267 (Del. Super. Ct. 1989).
24 Koutoufaris, 604 A.2d at 397-98 (citing PROSSER AND KEETON ON THE LAW OF TORTS § 68, at
48 (15th ed. 1984)).
25 Id
11
known risk arising from what the defendant is to do or leave undone.26 The effect
of a successful primary assumption of risk defense “is that the defendant is relieved
of legal duty to the plaintiff; and being under no legal duty, he or she cannot be
charged with negligence.”27 Thus, where the assumption of risk is of the primary
type, i.e., a bargained-for, agreed-upon shifting of the risk of harm, a plaintiff’s
conduct will constitute a complete bar to recover, as a matter of law, under
Delaware’s comparative negligence statute.28
Conversely, secondary assumption of risk is generally implicated where “the
plaintiff’s conduct in encountering a known risk may itself be unreasonable,
because the danger is out of proportion to the advantage which he is seeking to
obtain[.]”29 The defense does not, however, relieve a defendant of any legal duty
to a plaintiff. The conduct of the plaintiff is instead considered a form of
comparative negligence and recovery is dependent upon the relative fault a fact-
finder attributes to him or her.30 Accordingly, it is now accepted in Delaware that
26 Fell v. Zimath, 575 A.2d 267-68 (Del. Super. Ct. 1989) (quoting PROSSER & KEETON ON
TORTS, §68 at 481 15th ed. 1984)); 57B AM. JUR. 2D Negligence § 1010 (2004) (“Primary
assumption of risk . . . relieves the defendant of any obligation to exercise care for the injured
person’s protection, including situations where an injured person, having knowledge of a hazard,
continued voluntarily to encounter it”).
27 Fell, 575 A.2d at 267, 268.
28 Koutoufaris, 604 A.2d at 398.
29 Fell, 575 A.2d at 268.
3° Storm, 898 A.2d at 883.
12
the concept of secondary assumption of risk is completely subsumed by the
principles of comparative negligence.31
Primary Risk Assumption
The defense of primary assumption of risk is most often applied in cases of
sports-related activities that “involv[e] physical skill and challenges posing
significant risk of injury to participants in such activities, and as to which the
absence of such a defense would chill vigorous participation in the sporting
activity and have a deleterious effect on the nature of the sport as a whole.”32 In
Storm v. NSL Rockland Place, LLC, the Superior Court listed examples of sports
activities where a primary assumption of risk defense would be applicable. These
include:
(1) being a spectator at a sporting event such as a
baseball or hockey game or tennis match where
projectiles may be launched into the audience; (2)
participating in a contact sporting event; (3) bungee
jumping or bungee bouncing; (4) operating a jet-ski, or
engaging in other noncompetitive water sports such as
water-skiing, tubing, or white-water rafting; (5) drag
racing; and (6) skydiving.33
Primary assumption of risk does not apply to the facts in this case. Unlike
someone who gets hit by a hockey puck at an NHL game, a renter who goes down
the stairs to finish the laundry in the evening cannot reasonably be deemed to have
31
Id.
:Storm, 898 A.2d at 883 (internal quotations omitted).
Id.
13
primarily assumed the risk of injury. Gail’s conduct was not analogous to any of
the sports-related activities where that affirmative defense may properly be
invoked. Moreover, Gail never expressly relieved the landlord, the LLC, of a legal
duty nor bargained for a shift of the risk of harm. The Superior Court erroneously
granted the Defendants’ Motion for Summary Judgment on the basis of primary
assumption of risk.
Secondary Risk Assumption
Questions regarding the existence of negligence, including secondary
assumption of risk, must generally be resolved by the trier of fact.34 “Under
Delaware’s former common law contributory negligence standard, only in rare
instances, when the facts permitted reasonable persons to draw but one inference,
was it appropriate for the trial court to enter judgment.”35
Today, under
Delaware’s comparative negligence statute the determination of the respective
degrees of negligence attributable to the parties almost always presents a question
of fact for the jun/.36 Nevertheless in T rieval v. Saba, this Court stated: “[i]n rare
cases, however, where the evidence requires a finding that a plaintiff’s negligence
3“ Trieval v. Sabo, 714 A.2d 742, 745 (Del. 1998).
35 Id. (emphasis added).
36 Id. (emphasis added).
14
exceeded that of the defendant, it is the duty of the trial court, as a matter of law, to
7
bar recovery.”3
The Superior Court concluded that Gail’s negligence constituted
comparative negligence that was greater than 50% as a matter of law and relied
upon our “rare cases” statement in T rieval v. Saba to grant the Defendants’
Motions for Summary Judgment. However, this is not one of those rare cases
contemplated by T rz'eval. Rather, this case is paradigmatic of secondary
assumption of risk. It is similar to the facts and controlled by our holdings in
Koutoufaris v. Dick38 and Spencer v. Well-Mart.39
In Koutoufaris, this Court held that primary assumption of risk was not a
defense to a claim by the employee, who had knowingly walked into a dangerous
parking area after she had completed her work.40 In Koutoufaris, we stated that
“adoption of a comparative negligence standard . . . manifests a legislative
intention . . . to retreat from a system of inflexible and unforgiving rules in favor of
evaluation of the plaintiff’s conduct on a case-by-case basis.”41 We concluded that
the doctrine of secondary assumption of risk was now subsumed within a
comparative fault analysis.42 Therefore, we held that the plaintiff in Koutoufaris
37 Trieval, 714 A.2d at 745 (emphasis added).
38 Koutoufaris, 604 A.2d at 398.
39 Spencer v. Wal-Mart Stores E, LP, 930 A.2d 881 (Del. 2007).
4° Koutoufaris, 604 A.2d at 393-94. -
41 Koutoufaris, 604 A.2d at 398.
42 Id
15
was not barred from recovery as a matter of law for knowingly walking into a
dangerous parking lot. We also held that the degree of the plaintiff’s secondary
assumption of risk was a question of fact that must be submitted to the jury.43
Similarly, in Spencer, the plaintiff entered a parking lot to go to work.44
Because of melting snow, a stream of water developed in the lot.45 Spencer
claimed she slipped on the ice that formed under the water.46 This Court stated,
“Spencer did not expressly relieve Wal-Mart or any other party to the lawsuit of all
legal duty.”47 Accordingly, we held that there was no primary assumption of risk.48
The issue then became whether Spencer secondarily assumed the risk.49 We noted
that Spencer was familiar with the parking lot, chose not to walk on the sidewalk
and instead walked through a stream of water that had developed.50 We held that
under those circumstances, Spencer’s conduct constituted secondary assumption of
risk.51
This Case
In this case, for the reasons already stated in this opinion, there was no
primary assumption of risk. The record reflects that Gail voluntarily encountered a
43 Id.
44Spencer, 930 A.2d at 883.
461d
461d
“M. at 886.
481d
491d
501d
511d
16
known risk by descending down a dark flight of stairs. As a result, Gail’s decision
to proceed down the dark stairway constituted secondary assumption of risk.
Secondary assumption of risk is the basis for apportionment of fault under the
comparative negligence scheme.52
That determination is almost always fact-
intensive and rarely susceptible to disposition, as a matter of law, through
summary judgment.53 We hold that the percentage of Gail’s negligence, as a result
of her secondary assumption of risk, is a question of fact that must be determined
by the jury.54
Conclusion
The judgments of the Superior Court are reversed and remanded.
52Spencer, 930 A.2d at 885-86.
53 Trieval, 714 A.2d at 745.
54 Spencer, 930 A.2d at 886; Koutoufaris, 604 A.2d at 398.
17
argued that the indemnification clause of the rental contract shielded the LLC from
liability.
Based on the parties’ submissions and oral arguments, the Superior Court
granted both Defendants’ Motions fOr Summary Judgment in separate decisions
dated December 12, 2013.1 The Superior Court held that Gail was more than fifty
percent negligent in causing her injuries as a matter of law and alternatively, that
she primarily assumed the risk of her fall.2 The Appellants filed a Motion for
Reargument asserting that the Superior Court granted summary judgment in favor
of Gallo despite the fact that it never raised the issue of primary assumption of risk
or comparative negligence; that there remained material facts in dispute; that the
Superior Court misapplied precedent in determining that Gail was more negligent
than the LLC and/or Gallo as a matter of law; and that the Superior Court
erroneously dismissed Count II of Appellants’ Complaint regarding the alleged
breach of contract.
The Superior Court denied the Motion for Reargument.3 The Superior Court
ruled that, despite the fact that Gallo never raised the issues of primary assumption
1 Gail Helm and Scott Helm v. 206 Massachusetts Avenue, LLC, and Gallo Realty, Inc., 2013
WL 6591544 (Del. Super. Ct. Dec. 12, 2013); Gail Helm and Scott Helm v. 206 Massachusetts
Avenue, LLC, and Gallo Realty, Inc., 2013 WL 6592203 (Del. Super. Ct. Dec. 12, 2013)
(collectively “Helm I ”).
2 Helm I at 6-7.
3 Gail Helm and Scott Helm v. 206 Massachusetts Avenue, LLC, and Gallo Realty, Inc., CA.
No. K12C-03-014 (RBSO, Order Upon Consideration of Plaintiffs’ Motion for Reargument (Del.
Super. Ct. Feb. 20, 2014) (hereinafter “Helm II”).
3
of the risk or comparative negligence, under Superior Court Rule 56, the court was
permitted to look at pleadings, depositions, answers to interrogatories, and
admission on file to determine whether Gallo was entitled to judgment as a matter
of law.4 The Superior Court also noted that at oral argument on the Motion for
Summary Judgment, Gallo’s counsel argued that Gail caused her own injuries
without objection from Appellants. In denying the Motion for Reargument, the
Superior Court summarily dismissed the Appellants’ breach of contract claim
because it held that it was nothing more than an alternative count to recover for
Gail’s personal injuries.5
Issues 0n Appeal
The Appellants raise three issues in this appeal. First, they contend that the
Superior Court erred in granting the Defendants’ Summary Judgment Motions on
the issue of primary assumption of risk and comparative negligence as a matter of
law. Second, the Appellants submit that the Superior Court erred in holding that
the indemnification clause provision in the lease protected either Defendant from
liability. Third, the Appellants argue that the Superior Court erred in granting
summary judgment to the Defendants on the breach of contract claim.
We have determined that the Superior Court erroneously applied both the
doctrine of primary assumption of risk and the doctrine of comparative negligence
4 Helm II at pp. 3-4.
5 Helm 11 at pp. 4-5.
as a matter of law. The record reflects that the Superior Court never specifically
based its decision on the indemnifiCation clause. The Superior Court’s initial
ruling in favor of both Defendants was only on the negligence claims.6 Therefore,
because the indemnification clause references by the Superior Court were dicta, we
do not address that issue in this appeal.
In denying the Appellants’ Motion for Reargument, the Supreme Court
characterized the contract claim “as an alternative theory to recover for personal
injuries suffered as a result of [Gail’s] own negligence.” The record reflects that
the Superior Court’s dismissive rulings on the Appellants’ contract claim were
cursory and inextricably intertwined with its erroneous rulings on the negligence
claims. Accordingly, the contract claim will not be addressed in this appeal. All
of the judgments of the Superior Court must be reversed.
Facts
On March 4, 2010, Plaintiff Gail Helm signed a Residential Lodging
Agreement with Gallo to rent the Property located at 206 Massachusetts Avenue,
Lewes, Delaware for one week starting on July 10, 2010. On the afternoon/early
evening of July 10, 2010, the Helms arrived at the Property. Scott unloaded their
6 In Helm II, the Superior Court stated that it granted both Defendants’ Motions for Summary
Judgment “because it determined that [Gail’s] assumption of the risk was greater than that of
either Defendant.” ‘
5
belongings from the car while Gail visited with her family who had arrived at the
Property earlier in the day.
Gail learned from her family, however, that the Property was not clean when
her other family members had arrived. The floors were dirty and the house
smelled of urine. Gail investigated and discovered that the rugs in the upstairs
bathrooms were the source of the smell. She took the rugs down the stairs at
approximately 8:00 pm. while it was still daylight and put the rugs in the washing
machine located on the first floor. She then went back upstairs.
Between 11:00 pm. and midnight, Gail went to take the rugs out of the
washer and place them in the dryer. While walking downstairs, she attempted to
turn on the light in the foyer at the bottom of the stairs but there was no light
switch at the top of the stairs to control the light in the foyer on the first floor at the
bottom of the steps. The second floor light was angled away from the bottom of
the stairway and therefore it was very dark at the bottom of the steps. None of her
relatives were on the first floor.
Gail noticed that the stairwell was very dark and acknowledged at her
deposition that as she stood at the top of the stairs, before descending, she
“definitely saw a safety issue.” She acknowledged that she “knew it was unsafe
when [she] looked down [the stairs]? Nevertheless, she thought she could handle
it. She did not ask anyone for assistance. She also claimed that there were no
flashlights provided in the rental unit, but admitted that no one ever looked for one
until after she fell.
As she descended, Gail recalled that the banister on the right side of the
stairs curled near the bottom of the steps, so she moved to the right side of the
stairs and used the banister to guide her down the remainder of the stairs. When
she began to feel the banister curl, she cautiously felt with her left floor to make
sure that she was on the last step. Believing she was at the bottom, she put her
weight down on her foot, but it was not the last step and her left foot rolled over
the edge of the stair. She attempted to grab the handrail, but she could not grasp it,
allegedly due to its shape and size.
Gail then fell down the few remaining stairs and into the wall at the bottom
of the stairs. Her family heard her fall and came to see what happened. She was
taken by ambulance to Beebe Medical Center and was ultimately diagnosed with
three broken bones in her left foot and a Lisfranc injury.
Assumption of Risk
Primary and Secondary
In Delaware, assumption of risk has historically been divided into two
categories: “primary assumption of risk” (where the plaintiff expressly relieves the
defendant from all legal duty) and “secondary implied assumption of risk” (where
the plaintiff deliberately and unreasonably chooses to encounter a risk created by
another’s breach of duty).7
When a defendant invokes the affirmative defense of primary assumption of
risk, the trial judge must evaluate the Viability of the defense as part of its duty
analysis because primary assumption of risk “obviates the duty owed by the
998
defendant. A finding by the trial judge that a plaintiff expressly assumed a risk
in a manner that would implicate primary assumption of risk constitutes a finding
that the defendant owed no duty to the plaintiff.9 If the defendant establishes that it
owed no duty to the plaintiff, it is entitled to summary judgment as a matter of
law.10
The distinction between the doctrines of primary assumption of risk and
secondary assumption of risk has not always been legally significant. Prior to
1984, Delaware applied traditional common law contributory negligent standards
and barred a plaintiff’s recovery if the defendant established any contributory
negligence on the part of the plaintiff.11 Under traditional notions of contributory
negligence, any assumption of risk by the plaintiff would operate to bar his or her
7 Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992) (citing Bib v. Merlonghz', 252 A.2d 548,
550 (Del. 1969)).
8 Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 880 (Del. Super. Ct. 2005) (quoting Croom
g2. Pressley, 1994 WL 466013, at *5 (Del. Super. Ct. Jul. 29, 1994)).
Id. A
101d
11
recovery, regardless of whether it was “primary” or “secondary.”12 In Bib v.
Merlonghi,13 a traditional common law negligence action, this Court stated, “[w]e
think it makes little difference in the present case whether the defense is called
assumption of risk or contributory negligence or given no title at all; this is one of
those cases whether the two theories overlap.14
Assumption of Risk
Comparative Negligence Statute
In 1984, Delaware enacted a modified comparative negligence statute, 10
Del. C. § 8132. That statute provides:
In all actions brought to recover damages for negligence
which results in death or injury to person or property, the
fact that the plaintiff may have been contributorin
negligent shall not bar a recovery by plaintiff or his legal
representative where such negligence was not greater
than the negligence of the defendant or the combined
negligence of all defendants against whom recovery is
sought, but any damages awarded shall be diminished in
proportion to the amount of negligence attributed to the
plaintiff.
Pursuant to Delaware’s modified comparative negligence . statute, if the
plaintiff’s contributory negligence is 50% or less, the plaintiff is permitted to
recover, although the recovery is reduced proportionally.15 If the plaintiff’ s
12 Id. ; see Koutoufaris, 604 A.2d at 397.
13 252 A.2d 548 (Del. 1969).
14 Id. at 550; see also Koutoufaris, 604 A.2d at 397.
‘5 Culver v. Bennett, 588 A.2d 1094, 1098 (Del. 1991).
9
contributory negligence is 51% or greater, however, it is an absolute bar to
recovery according to the Delaware statute.16
Delaware’s modified comparative negligence statute requires a jury to
apportion the degree of liability between the parties to a negligence action in terms
of percentages.17 As an initial matter, liability in negligence will first depend upon
whether the defendant was under a legal obligation, or duty, “to protect the
plaintiff from the risk of harm which caused his injuries.”18 The determination of
whether a duty exists is a question of law to be decided by the trial judge.19 If the
trial judge concludes that the defendant owed no duty of care to the plaintiff at the
time his or her injuries were sustained, the defendant is entitled to summary
judgment as a matter of law.20
In Bib, this Court recognized that it was not necessary in a common law
negligence action to distinguish between primary and secondary assumption of risk
because either constituted an absolute bar to recovery.21 With the General
Assembly’s enactment of Delaware’s comparative negligence statute, however, the
16 Id
17 Id
18 Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2002).
19 Id; see also Butler v. Newark Country Club, Inc, 2005 WL 2158637, at *3 (Del. Super. Ct.
Aug. 29, 2005) (“The existence of a duty is a pure question of law appropriate for summary
judgment”); Shepard v. Reinoehl, 830 A.2d.1235, 1238 (Del. Super. Ct. 2002) (“Whether or not
a duty of care exists . . . is a question of law to be decided by the Court”).
20 Kananen v. Alfred I. DuPont Inst. of the Nemours Found, 796 A.2d l, 7 (Del. Super. Ct.
2000).
21 See Bib, 252 A.2d at 550.
10