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Armstrong v. Jewish Federation of Delaware, Inc.

Superior Court of Delaware

April 3, 2017


          Submitted: January 18, 2017

         On Defendant's Motion for Summary Judgment. GRANTED.

         On Defendant's Motion to Compel. DENIED AS MOOT.

         On Defendant's Motion in Limine to Admit Photographs of Whirlpool as it Appeared on the Date of the Alleged Incident. DENIED AS MOOT.

         On Defendant's Motion in Limine to Preclude any Evidence of Subsequent Remedial Measures. DENIED AS MOOT.

          Leo J. Boyle, Esquire, Law Office of Leo J. Boyle, Wilmington, Delaware, Attorney for Plaintiff.

          Gary H. Kaplan, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware, Attorney for Defendant.


          Richard R. Cooch, R.J.


         Before 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"[1] 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.

         Plaintiffs 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."[2]

         The 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, "[3] 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 GRANTED.


         Defendant 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."[4] Accordingly, the facts and inferences appear to the Court, set forth in a light most favorable to Plaintiff, as follows:

         On 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.

         Plaintiff's 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 material;
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.[5]

         On 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.

          On 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."[6] No non-medical liability expert was identified in that filing regarding any aspect of the hot tub design or its maintenance.

         On 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 hot tub.
• [Plaintiff] fell because he mis-stepped and was inattentive.
• [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 this incident.
• 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.[7]

         On 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.

         On 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.[8] Plaintiffs counsel did advise, however, that he

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.[9]

         On 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.


         A. Defendant's Contentions

         Defendant 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.'"[10] 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 ...

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