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Donovan v. Wawa, Inc.

Superior Court of Delaware

October 17, 2017

LISA DONOVAN, Plaintiff,
v.
WAWA, INC., a foreign corporation, Defendant.

         On Defendant Wawa, Inc.'s Motion for Summary Judgment. DENIED.

         On Plaintiff's Motion to Compel Discovery. GRANTED IN PART.

         On Defendant's Motion for Protective Order. DENIED.

          ORDER

          Calvin L. Scott, Jr. Judge.

         Plaintiff, Lisa Donovan ("Plaintiff"), filed a premises liability action on May 6, 2016 arising out of an alleged slip and fall in Defendant Wawa, Inc.'s ("Defendant") parking lot on June 5, 2014. Plaintiff alleges that she slipped and fell on "hoagie guts, " or discarded pieces of a sandwich. There are numerous motions before the Court. This Order addresses Defendant's Motion for Summary Judgment and Plaintiff's Response in Opposition, Plaintiff's Motion to Compel, and Defendant's Response in Opposition and Motion for Protective Order.

         I. Defendant's Motion for Summary Judgment and Plaintiff's Response in Opposition.

         Defendant filed a Motion for Summary Judgment[1] on May 18, 2017. Defendant conceded in its Motion that Plaintiff was on the parking lot as a business invitee, and that the duty to a business invitee is to "exercise due care to keep the property in a reasonably safe condition as to any condition which is known to the business operator or which should have been known in the exercise of reasonable care or diligence."[2] Defendant alleges that pursuant to this standard, it allows Defendant a "reasonable opportunity to correct the condition after discovery or the time when it 'reasonably' should have been discovered."[3] Defendant also argues that Plaintiff's allegations of negligence are specific, highly technical, and clearly beyond the knowledge of the average person. Defendant argues that failing to identify a liability expert is fatal to Plaintiff's case because an essential element of the negligence suit, proximate cause, cannot be established without an expert. Defendant contends that Plaintiff's claims are "directed towards establishing the standard to which Defendant should be held" which is Defendant's "own standard, rather than a generic or universal standard of retail safety and management set forth by a retained expert." On the other hand, Plaintiff argues that an expert is unnecessary because the need to sweep up trash in a parking lot is something all laypersons understand. Plaintiff argues that this case is "nearly identical" to Hazel, and Defendant has also failed to meet its burden to produce evidence demonstrating there are no genuine issues of fact.

         "It is well established under Delaware law that as a general rule the standard of care applicable to a profession can only be established through expert testimony. An exception to this rule exists, however, when a professional's mistake is so apparent that a layman, exercising his common sense is perfectly competent to determine when there was negligence."[4] The Supreme Court in Hazel explained:

In an action for personal injuries resulting from a defendant's breach of its "duty to keep the [ ] store premises in a reasonably safe condition for the use of the [ ] customers, the plaintiff must show that (1) there was an unsafe condition in the defendant's store (2) which caused the injuries complained of, and (3) of which the storekeeper had actual notice or which could have been discovered by such reasonable inspection as other reasonably prudent storekeepers would regard as necessary. Conversely, a defendant moving for summary judgment has the burden of producing evidence of necessary certitude demonstrating that there is no genuine issue of fact relating to the question of negligence and that the proven facts preclude the conclusion of the negligence on its part.[5]

         In Hazel, the court found that expert testimony was not required when the plaintiff fell in the frozen food aisle of a grocery store because "it is within the common knowledge of a lay jury whether water on the floor, in the aisle of a public grocery store, creates an unsafe condition."[6] Similarly, in Brown, expert testimony was not required as to whether a mop, which caused a child's injuries, was defectively designed because the mop was "so basic that it should be understood by the average juror, and that the average juror should be able to evaluate whether [the] mop was defective."[7] Conversely, in Abegglan, this Court determined that an expert was needed where a plaintiff claimed that a ceiling tile fell on the plaintiff due to an allegedly ill-repaired ice machine, and the tile caused injuries to the plaintiff.[8] This Court noted that "jurors would be unable to sufficiently determine whether there was negligence, " and "a layperson would be unable to form an intelligent judgment, without the aid of an expert, as to whether the repairman's actions fell below the standard of care and caused the ceiling tile to fall or whether the leaking of water prior to the repair caused the tile to fall."[9] Likewise, the court in Vohrer determined that the plaintiff's case was similar to the plaintiff in Abegglan, and different than the plaintiffs in Hazel and Brown, when a plaintiff allegedly received an electrical shock from a stove.[10] The court held that "[w]hile a kitchen stove may be a common household item, the stove's electrical wiring and circuitry, as well as the wiring of the outlet to which the stove is connected, are not matters within the common knowledge of the layperson."[11] Finally in Roberts, a plaintiff sued defendants when he fell off scaffolding at a construction site.[12] This Court held that the plaintiff needed to produce expert testimony on the standard of care at a construction site.[13]The court noted that "a lay jury is not acquainted with routine practices observed at a closed construction site. A lay jury has common knowledge of what conditions are expected and reasonable in a grocery store or when walking down a residential street but the determination of what conditions are expected and reasonable at a closed construction site requires specialized knowledge. Without an expert to explain the routine practices and acceptable conditions at a closed construction site, where trade persons are trained to work in and around precarious conditions, the jury would be left to speculate as to the standard of care."[14]

         Based on the arguments before the Court, the Court finds that an alleged slip and fall on "hoagie guts" reflects the holdings of Hazel and Brown, and is different from Roberts, Abegglan, and Vohrer. Whether Defendant was negligent in cleaning up "hoagie guts" in its parking lot, is within the intelligence of a layperson. As this Court stated in Roberts, a lay jury has common knowledge of what conditions are expected and reasonable in a grocery store or when walking down a residential street. A splattered hoagie in the parking lot of a Wawa is no different than water on the floor in a grocery store. Thus, lay jury has common knowledge of what conditions are expected and reasonable in a convenience store parking lot, and Plaintiff does not need an expert to testify to the standard of care. Additionally, Defendant has not met its burden demonstrating that there are no genuine issues of material fact. However, the Court finds that Plaintiff's allegation in ¶5(m) requires expert testimony. The allegation states that Defendant was negligent in that it "failed to maintain the premises up to the applicable codes and regulations." The court finds that this is outside the common knowledge of the lay jury. Defendant's Motion for Summary Judgment is hereby DENIED.

         II. Plaintiff's Motion to Compel, Defendant's Opposition to Plaintiff's Motion to Compel, and Defendant's Motion for Protective Order.

         Defendant filed a Motion to Quash Discovery on May 18, 2017. Plaintiff filed a Motion to Compel Discovery on June 5, 2017. Subsequently, Defendant filed a Response in Opposition to Plaintiff's Motion to Compel, and its own Motion for a Protective Order. In this Response, Defendant withdrew its Motion to Quash. Plaintiff's Motion to Compel states that Plaintiff filed her Second Request for Production on December 21, 2016, a request to depose Defendant supervisor Leah "Renee" Lust on May 12, 2017, and First Requests for Admission, Second Set of interrogatories and Third Request for Production on May 16, 2017. Plaintiff states that counsel notified Defendant on May 16 that Defendant had failed to file a response to Plaintiff's Second Request for Production, and Defendant's counsel did not respond.

         Defendant argues that there is sufficient good caused for the Court to deny Plaintiff's Motion to prevent an undue burden or expense upon Defendant, and additionally grant Defendant's Motion for Protective Order. Additionally, Defendant argues that without an expert, Plaintiff will not obtain relevant information for use at trial. Specifically, Defendant argues that Plaintiff's requests are irrelevant and subject to privilege under Delaware Rules of Evidence 507. Additionally, Defendant states that all discovery regarding the store surveillance system is irrelevant, untimely, and moot because Defendant conceded it will not oppose a potential spoliation instruction. Finally, Defendant contends that Plaintiff has conducted extensive discovery in this case, which includes depositions of six ...


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