Submitted: January 18, 2017
Defendant's Motion for Summary Judgment. GRANTED.
Defendant's Motion to Compel. DENIED AS MOOT.
Defendant's Motion in Limine to Admit Photographs of
Whirlpool as it Appeared on the Date of the Alleged Incident.
DENIED AS MOOT.
Defendant's Motion in Limine to Preclude any Evidence of
Subsequent Remedial Measures. DENIED AS MOOT.
Boyle, Esquire, Law Office of Leo J. Boyle, Wilmington,
Delaware, Attorney for Plaintiff.
H. Kaplan, Esquire, Marshall Dennehey Warner Coleman &
Goggin, Wilmington, Delaware, Attorney for Defendant.
Richard R. Cooch, R.J.
the Court is Defendant Jewish Federation of Delaware,
Inc.'s Motion for Summary Judgment. This personal injury
action arises out of Plaintiff Charles Armstrong's
alleged slip and fall while descending into a "hot
tub" on Defendant's property. In its
Motion, Defendant argues that summary judgment is appropriate
because Plaintiff has failed to establish, through expert
opinion, what duty Defendant owed Plaintiff, and whether
Defendant breached a potential duty owed to Plaintiff.
negligence complaint against Defendant focuses on two
components of Defendant's hot tub: the handrails and the
steps. First, Plaintiff's complaint contends that
Defendant negligently maintained the handrails leading down
into the hot tub. Second, Plaintiffs complaint asserts that
Defendant was negligent in "[f]ail[ing] to install a
non-slip surface on the stainless steel steps used to exit
and enter the whirlpool."
Court finds that Plaintiff has failed to establish a
prima facie case of negligence against Defendant,
warranting summary judgment in favor of Defendant. Plaintiff
has not produced an expert opinion regarding the applicable
standard of care with respect to either the handrails or the
steps. The standards of care applicable in this case are
"beyond the ken of the average juror,
" and therefore an expert's opinion is
necessary to inform the jury of such standards of care. The
Court also finds that Plaintiffs purported Rule 26(b)(4)
expert disclosure is both untimely and substantively
deficient. Accordingly, as Plaintiffs have failed to
establish a prima facie case of negligence at this
juncture, Defendant's Motion for Summary Judgment is
II. FACTS AND PROCEDURAL HISTORY
has moved for summary judgment under Delaware Superior Court
Civil Rule 56. When reviewing a motion for summary judgment,
the factual record, "including any reasonable inferences
to be drawn therefrom, must be viewed in the light most
favorable to the nonmoving party." Accordingly, the
facts and inferences appear to the Court, set forth in a
light most favorable to Plaintiff, as follows:
September 23, 2013, Plaintiff was visiting the Jewish
Community Center ("JCC") in Wilmington and entered
the hot tub. Plaintiff held onto the handrail and descended
the steps while facing forward. When Plaintiff stepped onto
the third step, he slipped and fell onto his right side,
injuring his left shoulder, right thigh, and his right hip.
complaint alleged that Defendant's negligent maintenance
of the hot tub caused Plaintiff's injuries by:
a) Fail[ing] to install a non-slip surface on the stainless
steel steps used to exit and enter the [hot tub];
b) Fail[ing] to foresee the danger that wet, stainless steel
steps present when they are not covered with non-slip
c) Fail[ing] to warn bathers that the steps were not covered
with non-slip material and that the steps therefore presented
a safety hazard;
d) Install[ing] an insufficient handrail that did not meet
the standard of care;
e) Fail[ing] to manage the [hot tub] properly.
December 21, 2015, the Court issued a Trial Scheduling Order.
Pursuant to that order, Plaintiff's expert reports or
Superior Court Civil Rule 26(b)(4) disclosures were due on
May 20, 2016. Defendant's expert reports or Rule 26(b)(4)
disclosures were due August 22, 2016. A discovery cut-off
date was set for October 14, 2016, and the Court set October
31 as the deadline for dispositive motions.
March 18, 2016, Plaintiff filed a response to Defendant's
discovery request, identifying Dr. Bruce H. Grossinger as an
expert witness. In addition to disclosing Dr. Grossinger as
an expert and providing the date of his narrative report,
Plaintiffs filing stated in toto: "Dr.
Grossinger will be an expert medical witness on
behalf of the Plaintiff." No non-medical liability expert
was identified in that filing regarding any aspect of the hot
tub design or its maintenance.
August 17, 2016, Defendant's liability expert, David H.
Fleisher, P.E., prepared an expert report opining on
Defendant's maintenance of the hot tub. In that report,
Mr. Fleisher stated his opinion on whether a duty owed to
Plaintiff was breached, and whether Defendant caused
Plaintiffs fall and subsequent injuries:
• The [Defendant] was not required to change the
stainless steel surface of the hot tub and handrails, as
evidenced by the approved hot tub conditions, documented in
the Public Pool Sanitary Survey Form, dated July 7,
2009 and February 21, 2012.
• [Defendant] did not cause [Plaintiff] to fall in the
• [Plaintiff] fell because he mis-stepped and was
• [Plaintiff] fell because he did not maintain control
of himself while descending the hot tub steps.
• [Plaintiff] should have reached and maintained hold of
at least one handrail at the hot tub steps at the time of
• The [hot tub] was code compliant.
• The diameter, grasp and height of the handrails was
reasonable. The handrails complied with accepted practice.
• [Plaintiff] should have descended the hot tub steps
facing the steps to ensure increased control of his descents,
and increase and support for his feet.
October 20, 2016, Defendant moved to extend expert discovery
and expert disclosure deadlines. In its motion, Defendant
advised the Court that his medical expert's produced his
report on October 14, and that counsel for Defendant
forwarded that report to Plaintiffs counsel. Defendant
advised the Court during oral argument on the motion on
November 15, 2016, that the extension would not have an
impact on Defendant's October 25, 2016 Motion for Summary
Judgment. Although Plaintiff opposed the motion, the Court
granted on November 15, 2016, thus retroactively extending
Defendant's expert disclosure date to October 14 and the
expert discovery cut-off date to December 15.
October 25, 2016, Defendant filed the pending Motion for
Summary Judgment. On November 7, Plaintiff filed a
Supplemental Response to Defendant's First Set of
Interrogatories, identifying Maria Bella as a
"sports/recreation/aquatics expert." Notably,
Plaintiffs deadline for identifying such expert was May 20,
2016. Although the responses to the interrogatories reference
a report and curriculum vitae written by Ms. Bella,
no report or curriculum vitae was ever produced to
Defendant. Plaintiffs counsel did advise, however,
expected that the sports/recreation/aquatics expert would
testify as to the design standards and industry standards of
care for whirlpools and pools. It is expected that the
expert's opinion will state that the handrail was not
long enough. The standards furthermore would be that steel
steps are too slippery for a user entering or exiting the
whirlpool. These steps need to be slip resistant.
Furthermore, the depth and height of the steps were not safe
when taken in to consideration the lack of a slip resistant
surface on the steps.
November 21, Defendant filed a Motion to Compel seeking a
curriculum vitae and an affidavit from Ms. Bella
attesting to the accuracy of Plaintiffs untimely supplemental
response to Defendant's First Set of Interrogatories. On
December 21, Defendant filed a motion in limine to admit
photographs of the hot tub as it appeared on the date of the
incident. On that same day, Defendant filed a second motion
in limine to preclude evidence of subsequent remedial measure
taken by Defendant with respect to the steps of the hot tub.
III. PARTIES' CONTENTIONS
contends that summary judgment should be granted because
Plaintiff has failed to establish a prima facie case
of negligence. First, Defendant contends that "there is
no evidence nor any expert listed to testify that the
handrails to the [hot tub] were
'insufficient.'" Second, Defendant asserts that
"there is neither evidence nor an expert opinion that
Defendant owed a duty to Plaintiff to provide a non-slip
surface in the [hot ...