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Johnson v. American Car Wash, Inc.

Superior Court of Delaware, New Castle

August 21, 2013

JAMES B. JOHNSON and BARBARA JOHNSON, Plaintiffs,
v.
AMERICAN CAR WASH, INC., Defendant.

Submitted: May 13, 2013

On Defendant's Motion for Summary Judgment.

Gary S. Nitsche, Esq., Weik, Nitsche & Dougherty, Wilmington, Delaware, 19899. Attorney for Plaintiffs.

Nancy Chrissinger Cobb, Esq., Law Offices of Chrissinger & Baumberger, Wilmington, Delaware, 19806.

ORDER

Calvin L. Scott, Judge.

Introduction

Before the Court is Defendant American Car Wash's ("Defendant") Motion for Summary Judgment. The Court has reviewed the parties' submissions. For the following reasons, Defendant's motion is DENIED.

Background

Plaintiff James B. Johnson ("Mr. Johnson") started working for Defendant for about three months after the business changed hands from another owner. Although he no longer worked there, he continued to visit the property for various reasons, such as visiting friends, using the car wash's amenities, and discussing plans for opening a small store on Defendant's property where he would sell certain car wash related items. Plaintiff had several prior communications with "Shorty", the person who could lease the location for the store on the property, and viewed the lease space with him on April 13, 2010.

On April 15, 2010, Mr. Johnson went to Defendant's property to vacuum his car.[1] Mr. Johnson was standing outside of a car wash bay when Tony Dolce ("Mr. Dolce"), Mr. Johnson's prospective partner for the store business, pulled into the parking lot. Mr. Dolce exited his vehicle, looked at Mr. Johnson and said, "Can I talk to you?" Mr. Johnson said "Sure." Mr. Dolce did not appear angry as he gestured towards the inside of the bay. Then, Defendant's employee, "Tek, " ran into the bay and closed the bay's front and rear garage doors. While the front garage door was still open, Mr. Johnson turned toward the front door, but Mr. Dolce reached for Mr. Johnson's knife which he kept in a holster on his person. Mr. Johnson wrestled with Mr. Dolce, but he was unable to stop him from obtaining the knife. However, Mr. Johnson was able to retrieve another knife that he carried on his person. As he retrieved his knife, Mr. Dolce stabbed him in the chest, pulled the knife out, and attempted to stab him again. Mr. Johnson blocked him with his arm and Mr. Dolce inflicted a seven-to-eight inch cut under Mr. Johnson's left armpit and then stabbed him in his left leg. Mr. Johnson then stabbed Mr. Dolce. Mr. Johnson eventually stumbled, fell, and hit his head on the concrete.

In his deposition, Mr. Johnson stated that he wasn't sure why Mr. Dolce attacked him, but a day or so prior to the altercation, Mr. Johnson insulted Mr. Dolce after he had failed to keep an appointment to discuss the business.

Parties' Contentions

Plaintiffs filed this action in negligence claiming that Defendant breached its duty owed to Plaintiff as a business invitee. Specifically, Plaintiffs claim that Defendant failed to take reasonable measures to prevent the altercation from occurring or escalating, provide adequate security, and properly and reasonably train its staff.

Defendant moves for summary judgment arguing that, as a matter of law, Mr. Johnson was not a business invitee on the date of the incident and that Defendant owed no duty to protect Mr. Johnson from Mr. Dolce's actions. Defendant argues, in the alternative that, assuming an issue of fact exists as to whether Mr. Johnson was a business invitee, Plaintiffs' claims fail not only because there was nothing to put Defendant on notice, but since Mr. Dolce's conduct was superseding criminal activity. Defendant also ...


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