Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gestwicki v. Pine Woods, Inc.

Superior Court of Delaware

April 23, 2018

PINE WOODS, INC., Defendant.

          Submitted Date: January 25, 2018

         Upon Defendant Pine Woods, Inc. 's Motion for Summary Judgment: GRANTED.

          Peter K. Janczyk, Esquire (argued), Attorney for Plaintiff.

          Gary W. Alderson, Esquire (argued), Attorney for Defendant.




         Before the Court in this premises liability case is Defendant Pine Woods, Inc.'s ("Pine Woods") Motion for Summary Judgment.[1] For the following reasons, Pine Woods' Motion is GRANTED.

         II. FACTS

         On October 2, 2014, Plaintiff Ashley Gestwicki ("Gestwicki") was walking on an unpaved pedestrian pathway ("Pathway")[2] near Pine Valley Apartments.[3] Pine Woods owns Pine Valley Apartments and the property abutting the Pathway.[4] As Gestwicki was walking on the Pathway, a two to three inch "metal post protruding from the ground" caused her to trip and fall.[5]

         Gestwicki alleges that as a result of the fall she sustained serious personal injuries, including, spinal injury, upper and lower extremity injury, radiculopathy, disc herniations, and other permanent injuries.[6] She claims these injuries cause her great pain, inconvenience, anxiety, emotional distress, and work loss.[7]

         Gestwicki claims that Pine Woods knew or should have known that pedestrians regularly travel on its property and the condition of the Pathway created an unreasonably dangerous condition. Gestwicki alleges Pine Woods failed to: maintain the Pathway in a reasonably safe condition to prevent injury; remove the metal post; and properly warn pedestrians.[8] Gestwicki further alleges that Pine Woods was negligent in permitting incompetent agents to inspect the Pathway and failing to properly train its agents to inspect and repair the Pathway.[9]


         For purposes of this motion, Pine Woods concedes that it is the owner of the land abutting the Pathway.[10] Pine Woods argues that under well-established Delaware law it was under no statutory or municipal ordinance mandate to maintain the Pathway, [11] and the metal post that caused Gestwicki to trip and fall was the remnant of a street sign installed, maintained, and controlled by the Delaware Department of Transportation ("DelDOT").[12]

         In response, Gestwicki argues that her Complaint alleges a dangerous condition on the Pathway, not defects of the Pathway, caused her injuries, and therefore the case law relied upon by Pine Woods is inapposite.[13] Gestwicki further argues summary judgment is inappropriate because there are genuine issues of material fact as to whether the Pathway is a "sidewalk" under the" abutting landowner liability rule, "[14] and whether the Pathway was maintained and controlled by Pine Woods.[15]


         Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.[16] The moving party bears the burden of establishing the non-existence of material issues of fact, [17]and the Court must view the record in a light most favorable to the non-moving party.[18] If a motion is properly supported, the burden shifts to the non-moving party to establish the existence of material issues of fact.[19] Summary judgment is inappropriate "when the record reasonably indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances."[20] Negligence actions are not ordinarily disposed of on a motion for summary judgment, [21] however, "[w]hen the record is such that the evidence is so one-sided that one party should prevail as a matter of law, summary judgment is appropriate."[22]

         V. DISCUSSION

         In a premises liability case such as this, a landowner's duty to a plaintiff is a matter of law for the Court to decide.[23] It is well established under Delaware law that an abutting landowner is not liable for injuries caused by the defective condition in a footway, curb area, sidewalk, or highway primarily intended for public use, absent a statutory duty to repair the defect, unless the landowner caused the defect (hereinafter referred to as the "Abutting Landowner Rule" or "Rule").[24]

         In Eck, the plaintiff alleged she was injured when she tripped and fell over a defect in the public sidewalk abutting the defendants' properties. The defendants in Eck moved for summary judgment, arguing they were not liable for injuries resulting from their failure to repair a defect in the sidewalk they did not cause. The Court granted their motion. On appeal, the Eck plaintiffs initially argued that 18 Del.Laws, c. 663 (1889) obligated the defendants to repair the sidewalk, but then conceded in supplemental briefing that the Delaware Supreme Court's decision in Yacucci v. Tenhoopen[25] released the defendants from any duty to repair the defective sidewalk under the 1889 statute because that statute does not apply to the City of Wilmington.[26] After conceding such, the plaintiffs in Eck urged the Supreme Court to adopt the "'modern trend' of imposing liability on an abutting landowner for a pedestrian's injuries from a defective sidewalk even in the absence of a statutory duty of the owner to repair."[27] The Delaware Supreme Court rejected the Eck plaintiffs' argument, holding:

The long-standing rule in Delaware...has been that an abutting landowner is not liable to pedestrians injured as a result of defects in a sidewalk, absent a statutory mandate to repair or prove that the landowner caused the defects. We decline to reverse this line of cases. Under this settled Delaware law, Superior Court was required to grant defendants' motion because, as a matter of law, defendants did not have a duty to repair the public sidewalk abutting their properties absent notice from the Department of Licenses and Inspection, 2 Wilm. C. § 45-15, and because plaintiffs produced no evidence that the defendants caused the defects.[28]

         The Abutting Landowner Rule applies here because Gestwicki alleges that, "while walking on the pathway"[29] in a clear zone within a public right-of-way, she tripped on and fell over a metal post that was "'protruding from the ground causing a tripping hazard."[30] The term "clear zone" is defined as the total roadside border area within a right-of-way, starting at the edge of the pavement and continuing for a distance of 10 feet perpendicular to the pavement edge.[31] Pictures attached to Pine Woods' Motion, which were taken by Gestwicki and Pine Woods, show the sign remnant to be within inches of the roadway's pavement edge.[32] Thus, Gestwicki was injured while walking in a clear zone within a public right-of-way at the time she was allegedly injured.

         There is no evidence that Pine Woods was under any statutory or municipal ordinance mandate to maintain the clear zone within a public right-of-way running along its premises, [33] and there is no evidence that Pine Woods caused any defect in the Pathway.[34] The evidence is undisputed that the metal post that caused Gestwicki to trip and fall was a remnant of a street sign installed and controlled by DelDOT.[35]

         The facts here are akin to those found in Kesting v. Delaware Hotel Associates, L.P.[36] In Kesting, the plaintiff slipped and fell on a pile of wet leaves located at the entrance to a driveway intersecting with a public road.[37] That area was a DelDOT public right-of-way.[38] Consequently, the Court in Kesting held that the defendant owed no duty as to the plaintiffs claims.[39] Similar to the plaintiff in Kesting, Gestwicki tripped and fell in a clear zone within a public right-of-way.[40]The Rule applies to clear zones within public right-of-ways as part of the public domain.

         Although the Rule applies, where an abutting landowner "uses the sidewalk to his individual advantage, or interferes with the sidewalk in such a way as to interfere with the rights of pedestrians thereon, he must use reasonable care to see that such use does not render the sidewalk unsafe or dangerous."[41] This was exactly the case in King v. Swanson, where the plaintiff slipped and fell on the sidewalk in front of the defendant's laundromat.[42] While operating the laundromat, the defendant dragged large baskets filled with clothing across the sidewalk and snow, creating the slippery and dangerous condition that injured the plaintiff.[43] The verdict was in the plaintiffs favor and the appellate court affirmed that judgment.[44] The facts in King are inapposite to the undisputed facts here because there is no evidence that Pine Woods used the Pathway to its advantage or interfered with the Pathway in any way.

         In an attempt to avoid summary judgment, Gestwicki disputes certain factual allegations, but none of those factual disputes is material. Gestwicki argues a material issue of fact exists as to whether the sign remnant was on or o/the Pathway in an effort to avoid application of the Rule.[45] In doing so, Gestwicki relies on Finn v. City of Philadelphia, a Pennsylvania Supreme Court premises liability case that held there was a distinction between "on" and "of when interpreting a Pennsylvania law.[46] But Finn is not applicable because the Abutting Landowner Rule is derived from nearly a century of Delaware common law and expressly applies to defects in sidewalks or footways[47] And, in any event, the record establishes the remnant was in the Pathway.[48]

         In further support of her "on-of' argument, Gestwicki argues that Russel v. S&S Mgmt, Inc., a case involving a business invitee's slip and fall, controls.[49] In Russel, the plaintiff slipped and fell in a landscaped area at the base of an exit ramp leading out of a restaurant located inside a shopping center.[50] The defendant, S&S Management, Inc. ("S & S"), leased the building in which the restaurant was located, from the owner, First State Plaza, Associates, L.P. ("First State").[51] When S&S argued that it owed no duty to the plaintiff, the Court considered whether the ramp and area where plaintiff fell were places over which First State had control and whether they constituted a "common area" for which First State was solely responsible for under the lease.[52] The Court also considered whether the area in which the plaintiff incurred her injuries was part of the premises which S&S could have reasonably expected the restaurant's patrons to use.[53] The Court found that First State assumed a duty to maintain the ramp and landscaped area based on deposition testimony that First State often sent a person to the shopping center to remove dangerous conditions.[54] The Court in Russel held that "[t]he issue of whether or not the ramp and landscaped area in which Plaintiff fell constitute[d] a 'common area' as defined by the Lease Agreement, [was] an issue upon which reasonable minds could differ."[55]

         The facts here are nothing like those in Russel. There is no lease here. Pine Woods never assumed a duty to remove DelDOT's sign remnant. Gestwicki does not allege that she was a tenant or business invitee of Pine Valley Apartments. And the Pathway is located in a clear ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.