Submitted: December 12, 2017
Plaintiffs Motion for Reconsideration of One Part of the
Court's November 29, 2017 Order and Opinion
Batholomew J. Dalton, Esq., Laura J. Simon, Esq., Dalton
& Associates, Larry E. Coben, Esq., Gregory S. Spizer,
Esq., Anapol Weiss, Attorneys for Plaintiff Scott Barth.
Michael J. Logullo, Esq., Rawle & Henderson LLP Attorneys
for Defendants The East Coast Enduro Association, Inc. and
Delaware Enduro Riders, Inc.
T. Lees III, Esq., Logan & Petrone, LLC Attorneys for
Defendant Blue Diamond, LLC.
HONORABLE MARY M. JOHNSTON JUDGE.
on a Motion for Summary Judgment, this Court dismissed
negligence claims against the Defendants because Plaintiff,
Scott Barth, signed a valid waiver releasing Defendants from
liability. Barth has moved for reargument.
purpose of moving for reargument is to seek reconsideration
of findings of fact, conclusions of law, or judgment of
Reargument usually will be denied unless the moving party
demonstrates that the Court overlooked a precedent or legal
principle that would have a controlling effect, or that it
has misapprehended the law or the facts in a manner affecting
the outcome of the decision. "A motion for reargument
should not be used merely to rehash the arguments already
decided by the court."
contends that reargument is appropriate because the Court
made three factual findings: (1) Defendants advised Barth
that he could inspect the race course; (2) if Barth had asked
to inspect the course, he would have been granted permission;
and (3) if Barth had inspected the course he would have
observed the latent danger created by Defendants'
reckless indifference to rider safety. Barth also argues that
the Court made the legal ruling that Barth had a duty
paramount to that of the property owners to inspect and
locate latent hazards.
contentions misconstrue the Court's opinion and rehash
the arguments already decided by the Court. The Court found
that it was undisputed that Barth never asked for and was not
denied permission to inspect the course. The Court did not
find that Defendants advised Barth to inspect the course.
Rather, the Court ruled that Barth could not circumvent
waiver of liability by claiming ignorance as to his ability
to ask for permission to inspect. Under Devecchio,
which the Court cited in its opinion, a plaintiffs
"failure to apprise himself of, or otherwise understand
the language of a release that he is asked to sign is
insufficient as a matter of law to invalidate the
Court also made no factual findings regarding what could have
happened had Barth asked to inspect the course or what he
hypothetically would have found had he performed an
inspection. The Court instead limited its findings to the
dipositive issue under Devecchio: whether Barth was
denied permission to inspect the course, resulting in
potential invalidation of the release. It is undisputed that
Barth did not ask for permission. Defendants therefore did
not deny him permission. Thus, the holding in
Devecchio simply is not applicable to the facts in
findings do not, as Barth contends, impose a duty on business
invitees to perform an inspection paramount to a property
owner's duty to inspect. The Court only declined to apply
Devecchio's holding when no rule barred Barth
from performing an inspection of the course before the race.
Motion for Reconsideration of One Part of the Court's
November 29, 2017 Order and Opinion is hereby
DENIED. Barth has not demonstrated that the
Court has overlooked ...