Submitted: March 10, 2017
Defendant's Renewed Motion for Summary Judgment. Granted.
Nicholas H. Rodriguez, Esquire of Schmittinger and Rodriguez,
P.A., Dover, Delaware, attorney for Plaintiff.
Jessica T. Tyler, Esquire of Marshall Dennehey Warner Coleman
& Goggin, Wilmington, Delaware; attorney for Defendant.
S. Thompson, Esquire and William A. Crawford, Esquire of
Franklin & Prokopik, Wilmington, Delaware; attorney for
Intervenor, Cincinnati Insurance Co.
WILLIAM L. WITHAM. JR. RESIDENT JUDGE
consideration of Defendant Speedway LLC ("
Speedway")'s Renewed Motion for Summary Judgment,
Plaintiff Michael Laine's Opposition, Intervenor The
Cincinnati Insurance Companies ("Cincinnati")'s
Opposition, and Speedway's Response, it appears to the
facts and evidence remain essentially unchanged from the
Court's ruling on Speedway's earlier
motion. Mr. Laine slipped and fell on ice on the
premises of Speedway's predecessor around 7:15 a.m. on
January 10, 2014. The only evidence is that the ice Mr. Laine
fell upon was formed during a rain event that began several
minutes before 7:00 a.m.
Earlier in this case, Speedway moved for summary judgment
based on the application of the continuing storm doctrine.
The Court denied that motion with leave to re-file at the
close of discovery, allowing the parties additional time to
discover evidence relating to whether a storm event was
ongoing at the time of Mr. Laine's fall.
Discovery has now closed, and Speedway has filed a renewed
motion for summary judgment which is opposed by Plaintiff.
Cincinnati Insurance Company, the personal injury protection
carrier that covered the vehicle Mr. Laine was operating
before his fall, moved to intervene, which was granted, and
Cincinnati filed its opposition to Speedway's motion.
Speedway filed a response to that opposition.
Speedway argues that, as a matter of law, it acted reasonably
by waiting until the storm ended to clear the accumulated
snow and ice. It bases this argument on both the continuing
storm doctrine and its contention that "[i]t is
undisputed that Plaintiff. . . slipped and fell on ice that
accumulated during an ongoing weather
Laine responds that there was no "storm" at the
time of his fall because the climatological data shows that
precipitation did not start until 6:58 a.m. He urges the
Court to depart from earlier continuing storm doctrine cases
because in this case Speedway had two employees available to
clear any accumulation.
Cincinnati intervenes to provide expert evidence and argue
that the continuing storm doctrine was inapplicable here