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Lehner v. Dover Downs, Inc.

Superior Court of Delaware, Kent

May 24, 2018

Gnei Lehner
v.
Dover Downs, Inc.

          Submitted: May 16, 2018

          Jeffrey J. Clark Judge.

         Dear Ms. Lehner and Mr. Logullo:

         This is the Court's letter order providing its decision and reasoning regarding Defendant Dover Downs, Inc.'s (hereinafter "Dover Downs's") summary judgment motion. At the outset, after reviewing the videotape showing Ms. Lehner's fall, the Court recognizes that Ms. Lehner suffered a serious fall while at Dover Downs. Ms. Lehner has appeared before the Court several times and the Court does not question her motives or her good faith belief that Dover Downs is responsible for her injuries. She has been both professional and persistent in advancing her claims without an attorney. Equally throughout the pretrial process, counsel for Dover Downs interacted patiently and professionally with Ms. Lehner.

         Apart from these observations, the Court must apply well settled legal principles when deciding Dover Downs's motion for summary judgment. After a careful review of the record, the Court finds that although Ms. Lehner believes a defect in the carpet outside her hotel room caused her to fall, there is no admissible evidence of record supporting that conclusion. For that reason and those that follow, Dover Downs's motion for summary judgment must be granted.

         The Parties Claims and the Facts of Record

         Ms. Lehner tripped and fell while exiting her room at the Dover Downs Casino Hotel on December 27, 2013[1]. In her complaint, she alleged (1) that her hotel room door pushed her while she exited her room with her luggage, and (2) she tripped on the hallway carpet. Ms. Lehner also asserted in her complaint that Dover Downs's failure to properly maintain the hotel room door and hallway carpet caused her fall. Dover Downs moves for summary judgment alleging that Ms. Lehner did not identify what was unsafe about the hotel room door or the carpet outside it.

         In response to Dover Downs's motion for summary judgment, Ms. Lehner now identifies a single alleged defect, rather than the two separate defects asserted in her complaint. Namely, she opposes Dover Downs's motion by focusing only on the carpet alleging that her "foot got caught [on the carpet that was] sticking up . . . that should be flat on the ground."

         Both Dover Downs and Ms. Lehner submitted deposition testimony where she discussed her fall. The deposition testimony establishes that Ms. Lehner cannot describe, based on personal knowledge, an alleged defect in the carpet. She had entered and exited the room several times during her stay, and testified that she noticed no defect. After she fell, she also testified that she did not see the carpet and accordingly could not identify or describe a defect that caused her to fall.

         Ms. Lehner primarily opposes Dover Down's motion by offering what the Court considers to be an affidavit submitted for summary judgment motion purposes.[2] Although the affidavit is not notarized, in light of Ms. Lehner's pro se status and the fact that the document attests that its contents are true, the Court will consider it as an affidavit submitted in support of her position. In that affidavit, Ms. Lehner alleges that the carpet was "sticking up, " and that the carpet "caught her foot."

         Dover Downs argues that she references no evidence of record that the carpet was defective, and that she testified that both before and after the fall, she saw no carpet defect. Dover Downs further argues that her allegation in her response/affidavit is merely a conclusion that there must have been something wrong with the carpet because she fell. In addition to submitting her deposition testimony, taped statement, and a video showing the fall from a distance, Dover Downs submitted deposition testimony from two employees who testified that they inspected the area after her fall and observed no defects. Specifically, the employees testified that they looked for rips, tears, bumps or lumps in the carpet where she fell, but they found none.

         Standard for Summary Judgment

         Summary judgment is appropriate only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.[3] The Court must view the evidence in the light most favorable to the non-moving party.[4] The burden of proof is initially on the moving party.[5] However, if the movant meets his or her initial burden, then the burden shifts to the non-moving party to demonstrate the existence of material issues of fact.[6] The non-movant's evidence of material facts in dispute must be sufficient to withstand a motion for judgment as a matter of law and sufficient to support the verdict of a rational jury.[7]

         In this matter, Ms. Lehner's submitted a written response to the motion in what was most close in form to an affidavit.[8] After the summary judgment burden shift, the non-moving party seeking to meet her burden by affidavit, may offer affidavit(s) based upon "personal knowledge, [and] set forth such facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated therein."[9] Mere conclusions stated in an affidavit where all evidence of record ...


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