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Sweiger v. Delaware Park L.L.C.

Superior Court of Delaware

December 3, 2013

Audrey E. Sweiger
Delaware Park, L.L.C. & Delaware Racing Ass'n d/b/a Delaware Park,

Date submitted: October 8, 2013

Upon Defendants’ Motion for Summary Judgment.

Dear Counsel:

Before the Court is Defendants’ Delaware Park, L.L.C. and Delaware Racing Association d/b/a Delaware Park (“Defendants’”) Motion for Summary Judgment against Plaintiff Audrey E. Sweiger (“Plaintiff”). For the reasons that follow, Defendants’ Motion is DENIED.


This Motion stems from an incident which occurred on the evening of January 13, 2010. On that date, Plaintiff, an eighty-one-year-old woman, visited Defendants' establishment and was present in Defendants' casino at about 6:20 p.m. Plaintiff claims that she left the casino area and entered an adjacent glass-enclosed alcove, which Plaintiff believed to be a smoking room. Plaintiff then attempted to re-enter the casino through a different entrance and in doing so, walked into a unmarked glass window and fell to the floor. Plaintiff suffered bodily injuries as a result. Other glass windows within the wall contained decals, but the one into which Plaintiff walked did not.

Standard of Review

Summary judgment will be granted only if the moving party, who bears the initial burden, can establish that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.[1] The Court examines all of the evidence, and the reasonable inferences therefrom, in the light most favorable to the non-moving party.[2] Using this lens, only if the moving party establishes that no factual questions indeed exist does the burden shifts to the non-moving party to establish the existence of such factual questions which must "go beyond the bare allegations of the complaint."[3]


Parties' Contentions

Defendants argue that this Court should grant summary judgment in their favor because Plaintiff cannot make out a prima facie case of negligence. Specifically, Defendants contend that they did not owe Plaintiff a duty to warn her of the existence of the glass window. For support, Defendants cite Talmo v. Union Park Automotive, in which the Delaware Supreme Court affirmed this Court's granting summary judgment against a plaintiff who also brought suit against a business after walking into a plate glass window on the business's premises.[4] Defendants also submit that Plaintiff cannot distinguish her case from Talmo because in that case, the Court held that a business owner does not owe a business invitee a duty to warn of the existence of a glass window, even if the window at issue was improperly lit. Further, Defendants argue that Plaintiff's attempt to distinguish her case from Talmo on the presence of her expert, Julius Pereira ("Pereira"), is futile because the Talmo holding did not hinge on the absence of a plaintiff's expert. Defendants also assert that Plaintiff's claim regarding the improper lighting around the glass window at the time of her injury is a baseless allegation because her expert, Pereira, a licensed architect, has not opined on the quality of the lighting at the time of the injury, did not analyze the lighting at the site of the injury, and has not discussed any relevant lighting standards.

Defendants also argue that Pereira may not attest to the existence of Defendants' legal duty in tort because, as this Court held in Brown v. Dover Downs, Inc., the Court, and not a plaintiff's expert, determines the existence of a legal duty.[5]The falsity in Plaintiff's denial that she is using Pereira to establish such a duty is apparent from her citing him as the only evidence establishing a dangerous condition. Defendants also stress the clear factual similarities between Brown and this case, such as the Brown plaintiff's failed attempt, like the attempt of Plaintiff in this case, to use her advanced age as a way to argue for the existence of a heightened duty.

Plaintiff principally argues that the glass window at Defendants' establishment constituted a dangerous condition, that Defendants knew or should have known of this condition, and that Defendants breached a standard of care by not affixing some kind of warning on the glass or providing proper lighting in the alcove. Plaintiff submits that her case differs from Talmo because the Talmo plaintiff walked into the window "during the daytime in a fully lit showroom, " as opposed to during the nighttime in a "dimly lit alcove from a more brightly lit casino floor."[6] This, plus the lights and distractions from the casino on the other side of the glass, makes the question of whether a warning was warranted one for the jury. Additionally, Plaintiff notes that in Talmo, summary judgment was appropriate because the Plaintiff in that case, unlike the Plaintiff in this case, did not present any expert testimony.[7]

Plaintiff denies using Pereira to create the existence of a legal duty; rather, she argues that Delaware law clearly establishes a business owner's duty to warn a business invitee of dangerous conditions.[8] She also distinguishes this case from Brown because, as she claims, the Court in Brown relied, in part, on a Kentucky appellate decision that rejected the creation of a per se dangerous condition without "produc[ing] evidence of any type of industry standard, statutory law, or common-law rule that could arguably reflect a duty on the part ...

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