Garvin v. Wilcox Landscaping

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
HELENA GARVIN )
Plaintiff,
Vv. C.A. No. NI8C-02-072 CEB
WILCOX LANDSCAPING,
Defendant.
Submitted: June 13, 2019
Decided: September 27, 2019
ORDER
Upon Consideration of Defendant’s
Motion for Summary Judgment.
GRANTED.
This 27" day of September 2019, upon consideration of Defendant’s Motion
for Summary Judgment, it appears to the Court that:
1. This is a personal injury action in which the Plaintiff alleges that she
suffered injuries as a result of a fall she took outside an office building in Newark,
Delaware.
2. Defendant is the contractor whose responsibilities included snow and
ice removal from the sidewalks around the building.' Plaintiff alleges that Defendant
' Defendant’s Motion for Summary Judgment at 1.
was negligent by not removing accumulated ice and snow from the sidewalk.” She
alleges that Defendant’s negligence caused her slip and fall and resultant injuries."
3. As developed in discovery, on February 15, 2016, the Plaintiff heard
from a co-worker that it was icy outside. She went to her car to allow it a few
minutes to warm up before ending her shift at 9 pm.’ As Plaintiff exited the front of
the building, at or around 8:50 pm, she felt that it was raining.® She also noticed ice
on the sidewalk.’ Upon taking a few steps out of the building, she slipped, fell and
after a brief period of unconsciousness, was awakened by the rain hitting her face.®
Plaintiff's own weather data shows a continuous period of light snow, fog and
freezing rain from mid-morning until late night on the evening Plaintiff fell.’
* Complaint at 1.
3 Td.
* Deposition of Helena L. Garvin, at 65.
> Id. at 56, 57.
° Id. at 65 (Q: It was actively raining when you went outside, right?
A: Yes.
Q: Was it actively raining when you fell?
A: Yes.).
"Td. at 66.
8 Id. 67.
” Plaintiff's Response, Ex. B.
4. A commercial party generally has an affirmative duty to make its
premises safe for business invitees.'° A business owner must also keep the premises
safe from accumulations of snow and ice.'! The continuing storm doctrine suspends
this duty and permits the owner to wait a reasonable time after the storm ends before
removing ice and snow from an entranceway, platform or steps.'? The policy behind
this exception is that due to rapidly changing weather conditions during a storm, it
is inexpedient and impracticable to take earlier action.’°
5. The Defendant argues that it is entitled to judgment as a matter of law
because the continuing storm doctrine suspended its duty to make the premises safe
until a reasonable time elapsed after the storm ended.'4
6. Plaintiff argues that the continuing storm doctrine only raises contested
issues of fact and the contested facts should be determined by a jury.'° Plaintiff
'° Woods v. Prices Corner Shopping Center Merchants Assoc., 541 A.2d 574, 577
(Del.Super.1988).
'! Monroe Park Apts. Corp. v. Bennett, 232 A.2d 105, 108 (Del. 1967).
'2 See Young v. Saroukos, 185 A.2d 274, 282 (Del. 1962). This Court has previously
surveyed the continuing storm doctrine. See Demby v. Delaware Racing Association,
2016 WL 399136, (Del. Super. Ct. Jan. 28, 2016) and Saienni v. 3 Mill Park Court
LLC, 2016 WL 7105945, (Del. Super. Ct. November 28, 2016).
'3 Td. at 282.
'4 Defendant’s Motion for Summary Judgment at 3:5.
'S Plaintiff's Response at 2.
suggests the storm was not continuous, "there were multiple periods of time when
no precipitation was falling."'© Plaintiff states there were periods of overcast, earlier
in the day, according to the submitted weather report from 6:51 am — 9:51 am."’
7. This Court will grant summary judgment where “there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”'® The moving party bears the initial burden of showing that the
undisputed facts make judgment appropriate.'? Ifthat burden is satisfied, the burden
shifts to the non-moving party to demonstrate that there are material issues of fact
that must proceed to trial.”°
8. Here, Plaintiff testified under oath that it was raining when she exited
the building.?! The weather data submitted by Plaintiff shows freezing temperatures
all day.” Her description of the weather conditions made it clear that she and her
'6 Plaintiff's Response, at 2; Plaintiff's Response Ex. B.
'7 Plaintiffs Response, at Ex. B.
18 Super. Ct. Civ. R. 56(c).
'9 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
20 See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
21 Defendant’s Motion for Summary Judgement Ex. A, at 53:10; 54:6; 65:14; and
68:12.
22 Plaintiff's Response, Ex. B.
co-workers were aware that it was snowing and/or raining most of the day and the
storm had not ceased.”? Plaintiff went outside specifically aware of the continuing
storm in order to warm up her car.** She put on her snow boots to protect from the
accumulated snow and ice.*° Plaintiff's exhibit shows continuous inclement
conditions (various periods of light snow, ice and freezing rain) from 10:51 am and
persisting well after 8:51 pm when Plaintiff fell.2° There are no contested issues of
material fact for a jury to decide. The evidence and deposition testimony show the
storm had not ceased. Defendant’s duty to remove accumulated snow or ice was not
triggered until a reasonable time after the storm abated. Defendant is entitled to
judgment as a matter of law.
2) For the reasons set forth herein, Defendant’s Motion for Summary
Judgment is GRANTED.
IT IS SO ORDERED.
Judge Charles E.
23 Td.
4 Deposition of Helena L. Garvin at 65.
5 Id. at 66.
6 Plaintiff's Response, Ex. B at 2.