November 12, 2014
JEROME REVELL and SALLY J. REVELL Plaintiffs,
ARCHIE E. SIMMONS JR., and STAR PROPERTY MANAGEMENT, LLC Defendants.
Date Submitted: August 13, 2014
On Defendant's Motion for Summary Judgment. GRANTED.
Gary S. Nitsche, Esq. and Eileen McGivney, Esq. Weik, Nitsche, Dougherty & Galbraith, Wilmington, Delaware 19899. Attorneys for the Plaintiffs.
Joel H. Fredricks, Esq. Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, DE 19899. Attorney for Defendants.
Calvin L. Scott Judge.
Before the Court is Defendants Archie E. Simmons, Jr. ("Mr. Simmons") and Star Property Management LLC's ("Star") (collectively, "Defendants") Motion for Summary Judgment. The Court has reviewed the parties' submissions. For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED.
On March 13, 2013, Plaintiffs Jerome Revell ("Mr. Revell") and Sally Revell ("Mrs. Revell") (collectively, "Plaintiffs") filed this action against Defendants alleging personal injuries sustained by Mr. Revell after he slipped on water leaking from the ceiling in the bathroom of his residence on December 30, 2011. The complaint stated that Mr. Revell fell at 904 N. Madison Street, Apartment 1, Wilmington, Delaware 19801. On July 15, 2013, Defendants answered the Complaint and denied Plaintiffs' allegation that Mr. Simmons owned the Madison Street Property. On October 9, 2013, in response to an interrogatory, Defendants again denied owning the property.
The Court issued Trial Scheduling Order stated that the deadline to file motions to amend was February 28, 2014 and the parties scheduled the depositions of Mr. Simmons and Plaintiffs for February 26, 2014. In early February, Plaintiffs' counsel contacted defense counsel to confirm that Mr. Simmons was denying ownership of the property where the incident occurred and to request that defense counsel provide the identity of owner.
As a result of discovery and depositions, it is undisputed that Defendants have never owned or managed the property located at 904 N. Madison Street in Wilmington, Delaware. For this reason, on March 10, 2014,  Plaintiffs filed a motion seeking to amend their complaint to remove Simmons from the lawsuit, identify a different address for the alleged slip-and-fall, and add a separate defendant as the owner of the new address.Based on the unduly delayed filing and Plaintiffs' inexcusable neglect, this Court denied Plaintiffs' motion to amend their complaint on June 30, 2014.
Defendants assert that there is no genuine issue of material fact in dispute because it is undisputed that Defendants never owned or managed the 904 N. Madison Street residence. Moreover, the Court denied Plaintiffs' motion to amend the complaint to change the location at which the alleged injury occurred. Thus, Defendants owed Plaintiffs no duty because there is no nexus between Defendants and the location where Mr. Revell was allegedly injured.
Plaintiffs argue that there is a genuine issue of material fact because there are factual disputes as to whether Simmons owned the property where the alleged injury occurred and whether Simmons had knowledge of the incident. Plaintiffs now claim that Mr. Revell was injured at 418 E. 11thStreet, Apartment A, Wilmington, Delaware 19801, which is owned by Mr. Simmons' umbrella company, Owl's Nest Properties, LLC. Moreover, Plaintiffs argue that Simmons had knowledge of a lease agreement between Simmons and Mrs. Revell at this location. Therefore, Plaintiffs argue that Simmons was on notice of the proper address of the alleged incident.
Standard of Review
The Court may grant summary judgment if "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 party is entitled to summary judgment as a matter of law." The moving party bears the initial burden of showing that no material issues of fact are present. Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute. In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving party. "Summary judgment will not be granted when a more thorough inquiry into the facts is desirable to clarify the application of the law to the circumstances."
Negligence is not presumed. Summary judgment should be granted if the plaintiff cannot establish the elements necessary for his negligence claim. To survive a motion for summary judgment, the plaintiff must prove the presence and breach of a duty owed by the defendant, which is the proximate and legal cause of the plaintiff's injury.
Here, Plaintiffs claim that Defendants' negligence was the proximate cause of Mr. Revell's injuries, asserting that Defendants owed Plaintiffs a duty because the 904 N. Madison Street residence was owned by Simmons and managed by Star. However, it is now undisputed that Defendants have never owned or managed the 904 N. Madison Street residence at which Mr. Revell claims to have been injured. Thus, Plaintiffs have failed to prove the elements necessary for a negligence claim because Defendants did not owe any duty to Mr. Revell. For this same reason, Defendants have satisfied their burden of showing that, based on the pleadings, depositions and discovery, there is no genuine issue of material fact in dispute.
Upon satisfaction of Defendants' burden on summary judgment, the burden shifts to Plaintiffs to rebut such a conclusion and demonstrate that there is any genuine issue of material fact. On summary judgment, the Court may only consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any…" in its determination of whether there are any material factual disputes. The denial of the plaintiff's motion to amend their complaint precludes any assertions in the amended complaint, but not in the original complaint, from becoming part of the record for consideration on summary judgment.
Here, Plaintiffs' argument in opposition to summary judgment has already been rejected by this Court. As previously reasoned, the facts in McClain v. McDonald's Restaurants of Delaware, Inc. are the most analogous to the facts here. In McClain, the personal injury plaintiff moved to amend his complaint to correctly identify the location and name the owner of where his injury occurred, one year after defense counsel's clarification request and plaintiffs counsel's confirmation of the correct location and stipulation to dismissal of all defendants not associated with that location, on the basis that the plaintiff misidentified the location of his injury.Persuaded by the fact that defense counsel had questioned the correct location and that plaintiff's counsel had confirmed that the complaint properly identified the location, the Court found that the plaintiff's failure to amend the complaint was inexcusable neglect and that the record was void of any justification for the delay.
Based on the factual similarities to McClain, this Court did not allow Plaintiffs to amend their complaint in order to identify the East 11th Street Address as the location of the incident or add Owl's Nest as the correct owner due to Plaintiffs' inexcusable neglect. As in McClain, Defendants here also made assertions that should have alerted Plaintiffs of the possibility that they named an incorrect location or owner. In their Answer to Plaintiffs' Complaint in July of 2013, Defendants indicated that they did not own the property contained in the Complaint, and denied ownership again in October of 2013. In McClain, plaintiff's counsel confirmed that the incorrect location was correct; here, in response to Defendants' interrogatory requesting Plaintiffs' prior addresses, Plaintiffs again listed the Madison Street Address. Although Plaintiffs' counsel attempted to determine ownership of the Madison Street Property through an e-mail prior to depositions, Plaintiffs had a lease agreement showing that the proper location was the East 11th Street Address. The Court's finding of inexcusable neglect was further supported by Plaintiffs' failure to timely amend, despite Plaintiffs' counsel's discovery of the correct location before the deadline to file motions to amend.
Despite the fact that this Court has prohibited such an assertion, Plaintiffs impermissibly attempt to introduce this second location for Mr. Revell's alleged injury to demonstrate a material factual dispute as to whether Mr. Simmons owned the property on which the alleged injury occurred. Moreover, in attempting to create this factual dispute, Plaintiffs not only mischaracterize and omit material facts in support of their argument, but entirely omit the original location where Plaintiffs claimed the incident occurred. Accordingly, the Court will not consider Plaintiffs' argument that the alleged injury occurred at a different location as demonstration of a material factual dispute because such a claim is prohibited by previous Court order.
Plaintiffs' only other argument, premised on the first argument, is that Defendants had notice of the proper location of the alleged injury because Mr. Simmons was the sole owner of Owl's Nest and Star, he received notice when Star was served, and the only agreement that he entered into with Mrs. Revell was for the East 11th Street apartment. The Court rejects this argument, again based on its denial of Plaintiffs' motion to amend. Any notice would have been "of a materially different set of operative facts" from the facts alleged at the inception of this suit: Plaintiffs claimed that Mr. Revell fell at a property that neither Mr. Simmons nor his companies owned or managed.
Moreover, Mr. Simmons likely would have been unsuccessful in searching all of the agreements and applications for his properties for Mr. or Mrs. Revell because the rental agreement and application were signed by Mrs. Revell using a different last name, and "Revell" was not mentioned anywhere on either document as her spouse or otherwise. That search would have been further complicated by the fact that the address Mrs. Revell listed in the rental application was not listed in response to Defendants' interrogatory requesting Plaintiffs' prior addresses. For these same reasons, the Court also finds that Defendants could not have known that, but for these mistakes, Owl's Nest would have been named a proper party.
For these reasons, Defendants Archie E. Simmons, Jr. and Star Property Management, LLC's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.