Submitted: July 8, 2014
Upon Consideration of Defendant’s Motion to Dismiss DENIED
Scott E. Chambers, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for Plaintiff
Middletown Farmers Market, LLC, Pro se.
Jeanette L. Waters, Pro se.
Frances Dusell, Pro se.
Jeanette Waters ("Defendant"), one of the defendants in a negligence action brought by Joyce Henry ("Plaintiff"), moves for an order dismissing Plaintiff's Complaint. In the action, Plaintiff alleges, that while attending a community yard sale, Plaintiff sustained injuries to the head caused by a bi-fold table led by a gust of wind. Plaintiff alleges that Defendant was negligent in failing to maintain the area of the community yard sale, which caused Plaintiff's damages. Defendant argues that Plaintiff's Complaint should be dismissed, because Plaintiff's injuries were not severe, and Plaintiff cannot claim negligence for an act of God. Defendant's Motion presents many questions of fact, that cannot be resolved upon a motion to dismiss. Thus, Defendant's Motion to Dismiss is DENIED.
FACTS AND PROCEDURE
Plaintiff is a resident of Middletown, Delaware. Defendant resides in Bear, Delaware. The other defendants in this action are Middletown Farmers Market, LLC,, Moses F. Zook, Dutch Country Farmers Market, and Frances Dusell.
On April 7, 2012, all of the defendants participated in a community yard sale at the Dutch Country Farmers Market. Defendant and Francis Dusell ("Dusell") had their own area set up at the community yard sale, where they sold goods. On the date of the yard sale, weather conditions were evidently very windy. Defendant and Dusell had a bi-fold table in the area where they sold goods. While Plaintiff attended the community yard sale, a gust of wind apparently caused the bi-fold table to lose its grounding, striking Plaintiff in the head, allegedly causing injuries.
On March 4, 2014, Plaintiff filed a Complaint against all of the Defendants in this action. In the Complaint, Plaintiff alleged that the accident was proximately caused by the negligence of the Defendants in that they: a) failed to secure the bi-fold table so that it would not blow about in the wind; b) failed to take other measures to ensure that business invitees would not be struck by the bi-fold table during the event; c) failed to inspect the area to identify the existence of the hazardous condition in light of the windy day; d) failed to adopt and enforce adequate safety standards to ensure that participants in the community yard sale had safely set up their areas, and that items were secure from blowing during the windy conditions; and e) failed to maintain the area of the community yard sale open to business invitees to ensure the reasonable safety of business invitees, such as Plaintiff.
Plaintiff has alleged that she sustained serious temporary and permanent injuries, incurred past medical expenses, and will incur future medical expenses for her scarring, disfigurement, and serious emotional injuries. On June 19, 2014, Defendant filed a Motion to Dismiss the Complaint against her individually. On July 3, 2014, Plaintiff voluntarily dismissed Defendant Moses F. Zook ...