Submitted: October 25, 2017
Below: Superior Court of the State of Delaware C.A. No.:
appeal from the Superior Court. AFFIRMED.
Nicholas H. Rodriguez, Esquire, Schmittinger & Rodriguez,
P.A., Dover, Delaware, for Appellant, Michael Laine.
Jessica L. Tyler, Esquire, and Sarah B. Cole, Esquire
(Argued), Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware, for Appellee, Speedway, LLC.
STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR,
Justices, constituting the Court en Banc.
Plaintiff/Appellant, Michael Laine, slipped and fell on ice
near a gas pump on the premises of a convenience
store-gasoline station operated by the Defendant/Appellee,
Speedway, LLC ("Speedway") in Dover. He was the
driver of a Modern Maturity Center shuttle bus and slipped
when he stepped off the shuttle to fill its tank with
gasoline. The fall caused him to sustain serious physical
injuries. The ice was caused by a light, freezing rain which
was then falling. Mr. Laine filed suit against Speedway,
alleging that negligence on Speedway's part was the
proximate cause of his injuries. The Superior Court granted
summary judgment for Speedway, holding that under the
continuing storm doctrine Speedway was permitted to wait
until the freezing rain had ended and a reasonable time
thereafter before clearing ice from its gasoline station
surface. There are two questions on appeal. The first is
whether a business owner that remains open during a winter
storm should be able to avail itself of the continuing storm
doctrine at all, that is; whether we should continue to
recognize the doctrine. The second is whether the continuing
storm doctrine applies to the facts of this case. For the
reasons which follow, we have concluded that the continuing
storm doctrine should continue to be recognized and that it
does apply to the facts of this case. The Superior Court is
January 10, 2014, Speedway's convenience store-gasoline
station in Dover opened at 6:00 a.m. Two employees were on
hand, Jessica Lorilla and John Tetuan.
to weather records, rain was falling at 6:54 a.m. The
previous weather reading was taken at 6:20 a.m. and did not
show rain falling. Therefore, it can be inferred that rain
began falling sometime between 6:20 a.m. and 6:54 a.m. The
temperature when those readings were taken was 32 degrees
Fahrenheit. The rain was a freezing rain which continued
throughout the day.
a.m. Ms. Lorilla slipped on ice outside the front door of the
convenience store. She notified Mr. Tetuan, who was to call
the ice and snow removal company used by Speedway. Ms.
Lorilla worked until 11:00 a.m. or 1:00 p.m. and has no
recollection of the ice and snow removal company being there,
but there is a record of an invoice from the company for work
done sometime that day. The two employees took no further
steps concerning ice outside the store.
at 7:05 a.m. Mr. Laine, a shuttle bus driver for Modern
Maturity Center, began driving a shuttle bus from the Center
to Speedway's gasoline station. In his deposition, Mr.
Laine testified that he recalled that the roads from the
Modern Maturity Center to Speedway's property were wet,
and a light rain or drizzle was falling. After stopping the
shuttle bus at a gas pump at Speedway's gas station, Mr.
Laine stepped out, slipped on ice and fell. It is undisputed
that the ice upon which Mr. Laine slipped was caused by the
rain freezing upon contact with the gasoline station surface.
customer reported Mr. Laine's fall to Ms. Lorilla and she
came out to assist him. An incident report prepared that day
records Mr. Laine's fall as occurring at 7:15 a.m. Mr.
Laine carried out his Modern Maturity Center duties for the
rest of that day but later began to feel pain. Ultimately, it
was determined that the fall caused him to suffer serious
physical injuries, and he has not been able to return to
remained open that day, and there is no evidence of
Laine filed suit against Speedway, alleging negligence on its
part for failure to maintain the premises in a reasonably
safe condition, failure to make reasonable inspections of the
premises, failure to warn him of the hazardous conditions
that existed, and failure to remove ice at the pump where he
fell. Speedway filed a motion for summary judgment, arguing
that under the continuing storm doctrine it was permitted to
wait until the freezing rain ended and a reasonable time
thereafter before removing the ice from its premises. The
Superior Court granted the motion, finding that the
continuing storm doctrine was a valid defense to Mr.
Laine's claims of negligence. This appeal followed.
Court reviews de novo the Superior Court's grant
or denial of summary judgment 'to determine whether,
viewing the facts in the light most favorable to the
nonmoving party, the moving party has demonstrated that there
are no material issues of fact in dispute and ...