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Foreman v. Two Farms, Inc.

Superior Court of Delaware, Kent

August 16, 2018


          Submitted: July 27, 2018


          Jeffrey J Clark Judge

         On this 16th day of August 2018, having considered Defendants Two Farms, Inc. and Moores Lake Shopping Center, LLC's (hereinafter collectively "Defendants") motion for summary judgment, and Plaintiff Betty Foreman's (hereinafter "Ms. Foreman's") response in opposition, it appears that:

         1. On February 28, 2015, Ms. Foreman allegedly slipped and fell on ice and snow located on a sidewalk at a Royal Farms location owned and operated by Defendants. Ms. Foreman sues Defendants, claiming they permitted snow and ice to remain on the sidewalk for an extended period of time. She also separately claims Defendants failed to warn her of the allegedly dangerous condition.

         2. Here, Defendants move for summary judgment, arguing that that the snow and ice constituted an open and obvious danger and that they had no duty to warn business invitees of the dangerous conditions or to keep the premises reasonably safe.[1] In support of this motion, Defendants primarily rely on a photograph showing the icy conditions and witness testimony confirming the visible presence of ice and snow. They argue that the evidence of record would require any reasonable jury to conclude that the dangerous conditions on that day were open and obvious. Ms. Foreman counters that the allegedly open and obvious nature of the conditions of the premises is an issue for the jury, and that summary judgment is not appropriate because a reasonable jury could conclude that Defendants (1) breached their duty to warn her and (2) in any event, breached their duty to keep the premises reasonably safe.

         3. 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.[2] The Court must view the evidence in the light most favorable to the non-moving party.[3] The burden of proof is initially on the moving party.[4] 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.[5] 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 reasonable jury.[6]

         4. Delaware courts follow Section 343 of the Restatement (Second) of Torts, which recognizes a landowner's liability for physical harm to a business invitee only if the landowner:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b)should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c)fails to exercise reasonable care to protect them against the danger.[7]

         5. Under Delaware law, to prevail on a negligence claim, a plaintiff must prove: (1) that defendant owed plaintiff a duty and (2) the breach of such a duty proximately caused plaintiff's injury.[8] When the parties include a landowner and a business invitee, the landowner has a duty to warn a business invitee about a condition that poses an unreasonable risk of harm if the landowner knows or should have known of that condition.[9] Separately, a landowner has the duty to keep premises reasonably safe for business invitees.[10] An "open and obvious danger" has been described as one that "create[s] a risk of harm that is visible, . . . is a well-known danger, or what is discernible by causal inspection . . . to those of ordinary intelligence."[11] There is no duty to warn business invitees of an open and obvious danger.[12] Generally, whether a dangerous condition exists and whether the danger was apparent to the plaintiff are questions for the jury.[13] But in "very clear cases" this is not so.[14]

         6. In Woods v. Prices Corner Shopping Center Merchants Ass'n, a plaintiff slipped and fell on ice and snow in the parking lot of the Prices Corner Shopping Center.[15] It snowed three times in the week before her fall.[16] Temperatures were in the 0 to 10 degrees Fahrenheit range and the shopping center took no effort to remove ice and snow.[17] In denying a defense motion for summary judgment, the Delaware Superior Court recognized that a business owner's duty to keep its business premises safe includes keeping it safe from natural accumulations of ice and snow.[18] In doing so, the Woods court explicitly adopted the "Connecticut Rule" approach that is reflected in Section 343A of the Restatement (Second) of Torts, [19] which provides that:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.[20]

         Comment (f) to that section further provides that a landowner or occupier should expect harm to an invitee where:

the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in ...

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