LISA M. YANCY and DOUGLAS YANCY Plaintiffs,
TRI STATE MALL LIMITED PARTNERSHIP, THE ROSEN GROUP, and TOM NGUYEN T/A KIM'S NAIL SALON II Defendants.
Submitted: April 9, 2014
On Defendants Tri State Mall Limited Partnership and The Rosen Group's Motion for Summary Judgment. DENIED.
On Defendant Tom Nguyen T/A Kim's Nail Salon II's Renewed Motion for Summary Judgment. DENIED.
Timothy A. Dillon, Esq., McCann, Schaible & Wall, LLC, 300 Delaware Avenue, Suite 805 Wilmington, Delaware 19801. Attorney for Plaintiffs.
Sandra F. Clark, Esq., Reger Rizzo & Darnall LLP, 1001 Jefferson Street, Wilmington, DE 19801. Attorney for Defendant Tom Nguyen T/A Kim's Nail Salon II.
Thomas J. Gerard, Esq., Marshall, Dennehey, Warner, Coleman & Goggin. Wilmington, DE 19899. Attorney for Defendants Tri State Mall and the Rosen Group.
CALVIN L. SCOTT, J.
Before the Court is Defendants Tri-State Mall Limited Partnership ("Tri-State Mall") and The Rosen Group, Inc.'s ("The Rosen Group") (herein, collectively, "Premises Defendants") Motion for Summary Judgment and Defendant Tom Nyugen T/A Kim's Nail Salon II (herein, the "Nail Salon") Renewed Motion for Summary Judgment. The Court has reviewed the parties' submissions and, for the following reasons, the motions are DENIED.
On the rainy day of June 13, 2009, at about 3:30 p.m., Plaintiff Lisa M. Yancy ("Mrs. Yancy") slipped and fell while on the premises located at 333-401 Naamans Road in Claymont, Delaware. The premises, a shopping center known as the Tri-State Mall, was owned and operated by the Premises Defendants. Mrs. Yancy visited the premises, accompanied by her mother and daughter, Vanessa Yancy, in order to receive a manicure and pedicure from the Nail Salon, which was located inside the Tri-State Mall. While Mrs. Yancy never received a pedicure from this particular nail salon, she had received pedicures about six times before.
After her pedicure was completed, Mrs. Yancy was given an opportunity to allow her nail polish to dry before leaving the Nail Salon. She was wearing a pair of non-textured foam pedicure flip-flops which were provided to her by the Nail Salon. Mrs. Yancy continued to wear the flip-flops because she did not want to smudge her nail polish. After exiting the Nail Salon, Mrs. Yancy slipped and fell on what appeared to be a "hole, " "depression, " or "crack" at the bottom of a blue handicap ramp in the front of the premises. At the time, Mrs. Yancy was not looking down at the concrete because she was looking out toward the parking lot. While Mrs. Yancy was lying on the ground and waiting for an ambulance, an employee from the Nail Salon removed her slippers.
On June 13, 2011, Mrs. Yancy and her husband ("Plaintiffs") filed this action against the Premises Defendants and the Nail Salon. Plaintiffs asserted that Mrs. Yancy was "required to descend a blue-painted handicap ramp which was broken, cracked and uneven and which lacked any rail, texturing or anti-slip strips." Plaintiffs also asserted that the Premises Defendants were negligent in that they failed to properly and reasonably maintain the property, permitted a dangerous condition to exist, failed to exercise reasonable care, and failed to properly and reasonably inspect the premises. Plaintiffs claimed that the Nail Salon negligently "suppl[ied] [Mrs. Yancy] with foam slippers which lacked any type of traction knowing that she would be going outside to her car in heavy rain."
On July 7, 2012, the Nail Salon filed a motion for summary judgment, arguing that it held no duty to protect Plaintiff from the risks associated with wearing the foam flip-flops because such risks are open, apparent, and obvious. The Court denied summary judgment and explained that the Nail Salon may have owed a duty to warn Mrs. Yancy of the risks of wearing the foam flip flops ...