JAMES B. JOHNSON and BARBARA JOHNSON, Plaintiffs,
AMERICAN CAR WASH, INC., Defendant.
Date Submitted: April 30, 2014
On Defendant's Renewed Motion for Summary Judgment. GRANTED.
Gary S. Nitsche, Esq. and Samuel D. Pratcher, Esq., Weik, Nitsche & Dougherty, Wilmington, Delaware, 19899. Attorneys for Plaintiffs.
Nancy Chrissinger Cobb, Esq., Law Offices of Chrissinger & Baumberger, Wilmington, Delaware, 19806.
CALVIN L. SCOTT Judge
Before the Court is Defendant American Car Wash, Inc.'s ("Defendant") Renewed Motion for Summary Judgment in this personal injury action arising out of a physical altercation on Defendant's premises. For the following reasons, Defendant's motion is GRANTED.
Defendant's car wash is solely owned by Dwayne "Shorty" Saylor ("Mr. Saylor"). At the time of the incident at issue in this case, the car wash consisted of six bays. Four of the bays were open without any enclosures. Two of the bays had wooden bi-fold doors on one side and plastic flaps on the other.
Plaintiff James Johnson ("Mr. Johnson") worked at the car wash for its previous owner and quit approximately three months after Mr. Saylor purchased the business for reasons related to his pay. Afterward, Mr. Johnson continued to visit the premises on a daily basis. Mr. Johnson visited the car wash in order to wash his car, attempt to rent a portion of the property to run a store, and because he had a lot of friends there. Mr. Johnson intended to open the store with two other individuals, David Keckline and Tony Dolce ("Mr. Dolce"). Mr. Dolce was not employed by Defendant; he owned an ice cream truck.
On April 15, 2010, Mr. Johnson visited the car wash. Mr. Johnson's purpose for visiting the car wash on that day is unclear. In his deposition, Mr. Johnson stated, "I don't know whether it was to vacuum a car, whether it was to say hello to everybody. No particular reason. I didn't have an appointment or anything." Mr. Johnson also stated that he was there to meet with Mr. Dolce. Mr. Johnson was standing outside of one of the bays that had the bi-fold doors, when Mr. Dolce arrived at the car wash and requested to speak with Mr. Johnson. Mr. Johnson agreed to speak to Mr. Dolce and gestured toward the inside of the bay. Mr. Johnson went inside first and Mr. Dolce followed behind him. Then, Defendant's employee, Brandon "Tink" Coates ("Mr. Coates") ran into the bay past both men and closed the doors. Suddenly, without any "conversation" or "anger, " Mr. Dolce reached for one of Mr. Johnson's two knives that he carried holstered on his person and stabbed Mr. Johnson in the chest, armpit and leg. In his deposition, Mr. Johnson testified that he believed Mr. Dolce attacked him because, on one of the days prior to the incident, Mr. Johnson insulted Mr. Dolce.
On October 3, 2011, Mr. Johnson and his wife ("Plaintiffs") filed this suit against Defendant to recover for the injuries Mr. Johnson suffered as a result of Mr. Dolce's attack. Plaintiffs did not file suit against Mr. Dolce. In their complaint, Plaintiffs asserted that, "suddenly and without warning, [Mr. Johnson] was assaulted, battered, and beaten, as a result of Defendant's negligence, thereby causing Plaintiff to sustain significant personal injuries." Plaintiffs attributed Defendant's negligence to its failure to warn, prevent the altercation, provide adequate security, and properly supervise and train its staff and/or security. Defendant moved for summary judgment, arguing that it held no duty toward Plaintiffs because Mr. Johnson was not a business invitee and Defendant lacked notice. Defendant denied any liability based on Mr. Coates' involvement because he was acting outside the course and scope of his employment.
Plaintiffs opposed the motion on several grounds. First, Plaintiffs asserted that Mr. Johnson was in fact a business invitee because he was there to discuss the store and to vacuum his car. Second, Plaintiffs argued that, since discovery was ongoing, summary judgment was not appropriate for the issues concerning notice and whether Mr. Coates was acting outside the scope of his employment. However, Plaintiffs did argue that Mr. Coates' act of closing the door prior to the attack demonstrated that Defendant had notice. Third, Plaintiff's argued that an issue remained as to whether Defendant undertook reasonable steps to make the property safe. On August 21, 2013, the Court issued its decision denying Defendant's motion. The Court stated that Mr. Johnson's purpose for visiting Defendant's car wash was disputed; thus, an issue of fact existed for as to whether Defendant was a business invitee. In addition, based on Mr. Coates' act of closing the door prior to the attack, the Court inferred, in favor of Plaintiffs as the nonmoving parties, that Defendant might have had notice, via Mr. Coates, that Mr. Dolce might attack Mr. Johnson and, thus, found that an issue of fact existed. The Court's overall conclusion was that "the completion of discovery would be useful to the Court on these issues."
Since that decision, the parties have completed discovery on these issues and the only relevant deposition taken was Mr. Saylor's. Mr. Saylor described the premises and testified that he was not on the premises on the date of the incident,  that he had viewed prior interactions between Mr. Johnson ...