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Kesting v. Delaware Hotel Associates, L.P.

Superior Court of Delaware, New Castle

March 31, 2014

FRANK KESTING Plaintiff,
v.
DELAWARE HOTEL ASSOCIATES, L.P., Defendant.

Date Submitted: December 16, 2013

Joseph J. Longobardi, III, Esquire, Longobardi & Boyle, LLC, Attorney for Plaintiff.

Kimberly Meany, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Attorney for Defendant.

OPINION

Vivian L. Medinilla Judge

INTRODUCTION

This is a slip-and-fall case brought by Plaintiff Frank Kesting ("Plaintiff") against Defendant Delaware Hotel Associates, L.P. ("Defendant"). Before this Court is Defendant's Motion for Summary Judgment. Defendant argues that summary judgment should be granted because Plaintiff has not made a sufficient showing as to Defendant's duty, an essential element of this case.[1] Plaintiff's counterarguments are insufficient because he has not provided the Court with any evidence indicating that Defendant had ownership, possession or control over the location of the injury. Therefore, Defendant's Motion for Summary Judgment is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 2009, Plaintiff slipped and fell on a pile of wet leaves located at the entrance to a driveway intersecting with Peach Tree Road in Claymont, Delaware. The driveway was not owned by Defendant. The driveway, which leads to a group of parcels collectively known as Brandywine Corporate Center ("BCC") is mostly privately owned. Defendant owns 630 Naamans Road, one of the four BCC parcels. However, the entrance to the driveway, adjacent to the Peach Tree Road sidewalk where Plaintiff fell, is a Delaware Department of Transportation ("DelDOT") public right-of-way.

Defendant's parcel does not abut Peachtree Road.[2] However, when Defendant purchased 630 Naamans Road, it was also granted a non-exclusive easement on the BCC driveway. Defendant's obligations as to the easement, including various responsibilities related to repair and upkeep of the BCC driveway, are set forth in the January 19, 1989 Supplement to Declaration ("SD").

Plaintiff filed a Complaint in the Court of Common Pleas on December 2, 2011 and an Amended Complaint on April 17, 2012. This matter was transferred to this Court on July 17, 2012. Defendant filed a previous Motion for Summary Judgment on September 10, 2012. On November 29, 2012 this Court denied Defendant's Motion without prejudice and recommended that the parties obtain certain title and conveyance documents and a surveyor's report regarding the location of the incident.

Attaching the recommended documents, Defendant filed this Renewed Motion for Summary Judgment on October 1, 2013, and an Opening Brief on October 31, 2013. Plaintiff filed a Brief in Support of Plaintiff's Opposition to Defendant's Motion on November 27, 2013. Defendant filed a Reply Brief on December 9, 2013. A hearing on the matter was held before this Court on December 16, 2013.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that 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."[3] In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving party[4] and the moving party bears the initial burden of establishing that material facts are not in dispute.[5] If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted.[6] If, however, material issues of ...


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