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Chase v. Wap Cleveland Avenue L.L.C.

Superior Court of Delaware

May 19, 2017

RICHARD CHASE, and his wife, MELANIE CHASE, Plaintiffs,

          Submitted: January 31, 2017

         On Defendants' Motion for Summary Judgment.

          Elizabeth Lewis, Esquire, and Thomas Crumplar, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware, Attorney for Plaintiffs Richard and Melanie Chase.

          Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby, LLP, Wilmington, Delaware, Attorney for Defendants/Third-Party Plaintiffs WAP Cleveland Avenue, LLC and Royal Imports Inc. d/b/a Newark Toyota World.

          Melissa L. Rhoads, Esquire, and Jason J. Cummings, Esquire, Tigh & Cottrell, P.A., Wilmington, Delaware, Attorney for Third Party Defendant, Martin Newark Dealership d/b/a Martin Honda.


          Calvin L. Scott, Jr. Judge.


         Defendant's WAP Cleveland Avenue, LLC (hereinafter "WAP") and Royal Imports Inc. d/b/a Newark ToyotaWorld (hereinafter "Royal") filed a Motion for Summary Judgment on November, 182016. Plaintiffs Richard Chase ("Mr. Chase") and his wife Melanie Chase filed a response on January 31, 2017. Defendant Martin Newark Dealership d/b/a Martin Honda (hereinafter "Martin Honda") did not file a response. A pre-trial conference was held on May 15, 2017. At the pre-trial conference the parties informed the Court that Defendants Nucar Newark Body Shop and Diamond Motor Sports, Inc. were no longer in the case. Further, the parties agreed that the case caption should read "Royal Imports, Inc. d/b/a Newark ToyotaWorld."


         On June 1, 2013, Royal entered into a Parking License Agreement (hereinafter "Agreement") with Martin Honda. Under this Agreement, Martin Honda paid Royal to use a designated portion of property that Royal leases from the WAP. The Agreement allows Martin to store 100 new and/or used cars on the property. WAP is not a party to this agreement. On December 11, 2013, Mr. Chase, a Martin Honda employee, parked his vehicle on the property subject to the Agreement. As he was walking from the lot onto the adjoining public roadway, Christopher Lane, he slipped and fell on ice and snow. The pertinent portion of the Agreement states:

The Fee does not include customary and ordinary costs and expenses associated with the routine maintenance of the Licensed Property, including but not Limited to, costs for debris removal, snow plowing and restriping (collectively, the "Routine Maintenance") which shall be billed by Licensor to Licensee on a quarterly basis and paid by Licensee to Licensor within thirty (30) days of receipt. Any other maintenance, repairs and/or replacements of the Licensed Property that would be characterized as a capital improvement, including, by way of example and not of limitation, resealing and repaving of the Licensed Property, shall be performed by and the responsibility of the Licensor (collectively the "Long Term Maintenance"). Licensor shall provide Licensee with reasonable prior written notice of any Routine maintenance of Long Term Maintenance (collectively, the "Maintenance") to be performed on the Licensed Property, Licensee agrees to reasonably cooperate with Licensor in connection with any Maintenance on the Licensed Property and shall, if necessary in order to accomplish the Maintenance, find reasonable alternative parking arrangements outside of the Licensed Property for the period required to perform any Maintenance.

The lease agreement between WAP and Royal was not proffered during Discovery.

         Parties' Contentions

         Defendants WAP and Royal contend that there is no genuine issue of material fact in this case and summary judgment is appropriate. WAP contends that although they are the owner of the property where Mr. Chase was injured, they were neither the "possessor" nor the "Licensor." WAP also claims that Mr. Chase was on the property for the sole benefit of Martin Honda, not to benefit WAP's business. Similarly, Royal claims that the use of the property solely benefited Martin Honda's business and there is no evidence that Royal "invited" Mr. Chase onto the property. Royal also argues that because Martin Honda is a licensee, Mr. Chase is also a licensee because he was Martin Honda's employee. Royal also claims that the Complaint does not allege willful or wanton conduct on the part of Royal.

         On the other hand, Plaintiffs contend that Mr. Chase is a business invitee because he was rightfully on the lot when he was injured, and both WAP and Royal owed Mr. Chase a duty to exercise reasonable care in making the property safe. Plaintiffs claim that Mr. Chase was a business invitee pursuant to the Restatement (Second) of Torts because Mr. Chase was invited to enter on the land for a purpose directly or indirectly related to the business dealings with the possessor of the land. Plaintiffs claim that this is evidenced by the fact that Martin Honda directed Mr. Chase to park in the designated lot, and Royal received a fee in exchange for allowing Martin Honda to use the property. Plaintiffs argue that pursuant to Section 26-3 of the City of Newark's Municipal Code, the "property owner", in this case WAP, is required "to remove all snow or ice from the sidewalk abutting such property from the time the snow ceases to fall." Plaintiffs also claim that as part of the Agreement between Royal and Martin Honda, Royal was to pay for the snow removal and seek reimbursement from Martin Honda. Finally, Plaintiffs contend that there is an issue of fact as to joint control of the property in question between WAP and Royal. Plaintiffs state that the Agreement between Martin Honda and Royal places responsibility on Royal to take care of snow removal, and then subsequently bill Martin Honda for the removal. However, Plaintiffs claim that the Agreement requires that any inquiries pertaining to the Agreement should be directed to Warren A. Price, the principle of WAP. Because of this clause, Plaintiffs argue that there is an issue regarding joint control of the property. Additionally, Plaintiffs state that Martin Honda had no responsibility for the "Routine Maintenance" or "Long Term Maintenance" pursuant to the Agreement.


         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."[1] The moving party bears the initial burden of showing that no material issues of fact are present.[2]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.[3] In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving ...

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