January 27, 2014
PAMELA PANANSEWICZ and JOHN PANANSEWICZ, her husband, Plaintiffs,
WILLIAM B. JENNINGS and KIMBERLY M. JENNINGS A/K/A KIMBERLY M. SMITH Defendants.
Date Submitted: October 23, 2013
On Defendants' Motion for Summary Judgment.
On Plaintiffs' Motion for Summary Judgment.
Daniel D. Martin, Esq., Daniel D. Martin & Associates, Wilmington, Delaware 19806. Attorney for Plaintiffs.
Arthur D. Kuhl, Esq., Reger Rizzo & Darnall LLP, Wilmington, Delaware 19801. Attorney for Defendants.
Calvin L. Scott Judge
Defendants William Jennings ("Defendant-husband") and Kimberly Jennings ("Defendant-wife") move for summary judgment on claims arising from Pamela Panansewicz's ("Plaintiff-wife") fall from wooden stairs attached to the deck of a home that she and John Panansewicz ("Plaintiff-husband") rented from Defendant-husband. The Court has reviewed the parties' submissions. For the following reasons, Defendants' motion is GRANTED, in part, and DENIED, in part, and Plaintiffs' Counter-motion for summary judgment is DENIED.
On July 1, 2010, Plaintiffs signed a lease to a property owned by Defendant-husband located at 334 Dillwyn Drive in Newark, Delaware. Plaintiffs moved in on July 9, 2010. On the evening of July 20, 2010, Plaintiff-wife fell while using wooden stairs attached to the deck in order to take her dog for a walk. Plaintiff-wife placed her right foot onto the first tread from the ground and the tread "bowed and tilted and [her] foot slid backwards in between the steps." Although Plaintiff-wife did not know whether the tread detached, Plaintiff felt as though it "lifted up."
Prior to signing the lease, Plaintiffs visited the property three times. On the first visit, Plaintiff-wife informed Defendant-husband that the tread was "wobbly" or "not completely solid." According to Plaintiff-wife, Defendant-husband stated that he "knew that the deck was in bad repair and that he would get it fixed when he got back from vacation." Plaintiff-husband also observed that the steps were "rotting and in disrepair" and "loose."
As owner, Defendant-husband assumed sole responsibility for making repairs on the property. Defendant-husband made no repairs to the deck or stairs prior to Plaintiff-wife's fall. After Plaintiff-wife's fall, Defendants inspected the stairs. Defendant-husband stated that he observed no problems with the stairs, other than the fact "that they had no backs."
Plaintiffs filed this suit for negligence, alleging that "the steps, among other defects, were improperly installed and maintained, uneven and had no backing that would prevent such an injury." Plaintiffs asserted that Defendant-husband breached his duty to maintain the premises in a reasonably safe condition, allowed a dangerous condition to exist on the property, failed to repair the dangerous condition, and that Defendants knew or should have known of the dangerous condition. Plaintiffs claimed that Defendant-wife was also negligent based on her management of the property and that Defendant-husband was liable for her negligence based on respondeat superior. Plaintiffs also claimed that Defendants acted with gross or wanton negligence by having knowledge of the defect, yet allowing it to persist.
Defendants counterclaimed for indemnification or contribution from Plaintiff-husband, alleging that Plaintiff-husband's negligence proximately caused injury to Plaintiff-wife. Defendants asserted that Plaintiff-husband
(a)failed to identify the alleged defective condition;
(b)failed to warn Plaintiff Pamela Panansewicz of the a claimed defective condition; [and]
(c)failed to provide the defendant with written notice of the claimed defect [.]
Defendants moved for summary judgment on several grounds. First, Defendants argue that, without expert opinion, Plaintiffs cannot show that a defect existed which could have given rise to a duty to repair. Second, Defendant-husband had no notice of the alleged defect. Third, Defendant-husband had no duty to inspect because Plaintiffs were in full possession of the home for over a week before the incident. Fourth, Plaintiffs failed to present facts to support of their claims of gross or wanton conduct. Lastly, Defendants argue that Defendant-wife bears no liability because she was not the owner or landlord and she had no legal obligations to Plaintiffs.
Plaintiffs responded to Defendants' motion by arguing that the facts, viewed in a light favorable to Plaintiffs, show that Defendants had a duty to repair the steps and that issues of fact exist as to whether a defective condition existed and whether Defendants had notice. In addition, Plaintiffs argue that expert testimony is not required to show that a defective or dangerous condition existed in this case. Plaintiffs also moved for summary judgment for Defendants' counterclaim against Plaintiff-husband.
Standard of Review
A motion for summary judgment may not be granted unless "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 and that the moving part is entitled to summary judgment as a matter of law." First, the moving party must show that there are no issues of material fact present.Then, the burden shifts to the nonmoving party to show that issues of material fact exist. The Court must view the facts in the light most favorable to the nonmoving party.
I. Defendants' Motion for Summary Judgment
To prevail on a claim of negligence against a landlord, the plaintiff must show that the landlord breached a duty and that the breach was a proximate cause of the plaintiffs' injury. In Delaware, a landlord has a duty "to maintain the premises in a reasonably safe condition and to undertake any repairs necessary to achieve that end." A landlord's duty to repair is contingent upon whether a defective condition existed and whether the landlord was aware of or could have discovered a defect through reasonable inspection. However, a landlord will not be held liable for "physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession."
An issue of fact exists as to whether the steps were in a defective condition. Defendants have pointed to some deposition testimony indicating that that there were no problems with the steps prior to Plaintiff's fall.Nevertheless, Plaintiff-wife stated that the steps were "loose, " "wobbly, " or "not completely solid" as of the first visit to the property. Therefore, Plaintiffs have submitted sufficient evidence to avoid summary judgment on the issue of a defective condition.
While it is the jury's role to determine issues of negligence, Delaware courts have granted summary judgment where plaintiffs have failed to produce expert opinion when issues involving the standard of care, defects, or proximate cause relate to matters outside the common knowledge of the jury. For example, in Polaski v. Dover Downs, a plaintiff who fell from a curb asserted that a casino installed a defected curb. In holding that summary judgment was appropriate due to the lack of expert testimony, the Supreme Court explained that "although general negligence claims do not require expert testimony and can be evaluated by a layperson, design defect claims rely on facts beyond a layperson's knowledge."
In Cruz v. G-Town Partners, L.P., a plaintiff tenant alleged that she was injured when her bathroom sink detached from the wall. Although the plaintiff retained an expert, the expert could not render an opinion as to the cause of the sink's fall because certain photographs of the sink were not available for his review. This Court stated:
the proper installation, maintenance, and repair of a wall mounted sink is beyond the ken of an average juror, as it requires an understanding of and familiarity with the structural and mechanical requirements for a properly mounted sink. Although most or all jurors may observe and use bathroom sinks on a daily basis, the intricacies and nuances of proper and secure wall mounting is a technical issue that requires an expert explanation and opinion…
However, in a negligence case based on a loose handrail and faulty door frame, this Court held that expert testimony was not required because issues relating to the faulty door frame and loose handrail were not "beyond the understanding of the typical jury..."
Based on the Court's review of the relevant case law, the Court finds that expert testimony is not required to establish the general condition of the steps. In other words, Plaintiffs do not need an expert to show that the steps were "loose, " "wobbly" or otherwise in a state of disrepair. Such issues are not beyond the common knowledge of jury. However, the Court notes that, in Plaintiffs' complaint, Plaintiffs state that "the steps, among other defects, were improperly installed and maintained, uneven and had no backing that would prevent such an injury." Plaintiffs stated in their response to Defendants' motion that their complaint "makes no reference to applicable building codes, building practices or construction of the stairs themselves…" Since Plaintiffs assert that the construction of the stairs is not part of the complaint, the Court will not address the issue of whether expert opinion is required on the construction or installation of the stairs.
An issue of fact exists as to whether Defendants were aware or should have been aware through reasonable inspection of the defective condition of the stairs. Plaintiff-wife stated in her deposition that she informed Defendant-husband about the condition of the stairs on the first visit, prior to the signing of the lease. However, Defendant-husband stated that he was not aware of any problems with the stairs prior to Plaintiff-wife's fall. Such inconsistencies show that an issue of fact exists.
Defendants' reliance on Sanchez v. Longwood Gardens, Inc., for their argument that they had no duty to inspect because Plaintiffs were in possession of the home for over a week before the incident is misplaced. In Sanchez, this Court held that a property owner did not have a continuing duty to inspect the premises once they had been rented to a third party for a private event. Such a holding is in apposite to the facts of this case. As stated above, the landlord is not responsible for "physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession." This rule applies unless the owner "retains control of portions of the land which the lessee is entitled to use." Issues of fact exist as to whether the condition existed prior to the date that Plaintiffs took possession and whether Defendant-husband retained any control of the property by assuming responsibility for repairs. Therefore, summary judgment is denied on this issue.
In response to Defendants' motion, Plaintiffs failed to address Defendants' argument that Plaintiffs did not present facts supporting their claims for willful or wanton conduct. Upon reviewing the record, the Court agrees that there are no facts suggesting that Defendants' conduct demonstrated a "'conscious indifference' or 'I don't care' attitude.'" Therefore, summary judgment is appropriate on this issue. Plaintiffs also failed to address Defendants' argument that Defendant-wife was not the owner of the home or that she had any other legal obligations to Plaintiffs.Consequently, summary judgment is granted in favor of Defendant-wife.
II. Plaintiffs' Counter-motion for Summary Judgment
Plaintiffs move for summary judgment on Defendants' claim that Plaintiff-husband breached his duty to repair the steps. However, Defendants did not allege in their counterclaim that Defendant-husband had a duty to repair the steps. Thus, Plaintiffs' counter-motion for summary judgment is DENIED.
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED, in part, and DENIED, in part, and Plaintiffs' Counter-motion for Summary Judgment is DENIED.
IT IS SO ORDERED.