Submitted: January 31, 2017
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.
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
L. Scott, Jr. Judge.
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."
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
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
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.
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 ...