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Fleischmann v. Blue Surf Condominium, LLC

Superior Court of Delaware

April 8, 2019

Donna Fleischmann
v.
Blue Surf Condominium, LLC

          Philip T. Edwards, Esquire Murphy & Landon

          Shae L. Chasanov, Esquire Swartz Campbell, LLC

         Dear Counsel:

         This is my decision on Defendant Blue Surf Condominium, LLC's Motion for Summary Judgment in this case where Plaintiff Donna Fleischmann fell on the sidewalk after exiting Blue Surfs building. Blue Surf owns a condominium and commercial shop at 98 Garfield Parkway, Bethany Beach, Delaware. The sidewalk adjacent to Blue Surfs building is owned by the Town of Bethany Beach. The Blue Surf building has a Grotto's Pizza inside. Fleischmann and her family ate at Grotto's Pizza on July 29, 2016. After eating, Fleischmann exited the Blue Surf building by going down a set of stairs on the side of the building which allows for ingress and egress out to the sidewalk. As Fleischmann stepped on to the sidewalk from the stairs her foot landed in a "broken concrete hole," causing her to lose her balance and fall. There are two issues before me now. One, whether Blue Surf had a duty to repair the "broken concrete hole" in the sidewalk. Two, whether Blue Surf had a duty to warn Fleischmann of the "broken concrete hole" in the sidewalk.

         Standard of Review

         In a motion for summary judgment, the moving party bears the burden of proving "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.[1] Summary judgment is only appropriate when, after viewing all the evidence in a light most favorable to the nonmoving party, the Court finds no genuine issue of material fact.[2]

         Duty to Repair

         The longstanding rule in Delaware is that an abutting landowner is not liable to pedestrians injured as a result of defects in a sidewalk, absent a statutory duty to repair the defect, unless the landowner caused the defect.[3] Neither exists here. Blue Surf did not cause the defect in the sidewalk. Blue Surf also does not have a statutory duty to repair the defect in the sidewalk. Flesischmann argues that since Section 20.3 of the Bethany Beach Town Charter requires a landowner to pay for the cost of repairing sidewalks, the landowner essentially has a duty to repair them. That is not a correct reading of the entire section. Section 20 clearly makes the town responsible for repairing the sidewalks and authorizes the town to hire contractors to do the actual repairs. Section 20 also establishes a procedure to pass the town's cost of repair on to the property owners. There is a meaningful difference between a "duty to repair" and a "duty to pay." Blue Surf has the latter, not the former.

         I will grant Blue Surfs Motion for Summary Judgment on the "Duty to Repair" issue.

         Duty to Warn

         It is also a longstanding rule in Delaware that a property owner owes a business invitee a duty to provide safe ingress and egress, including a duty to warn or protect against hazards on adjacent property.[4] Since the concrete defect was, as best as I can tell at this point, within a few feet of Blue Surfs building and in the area of ingress or egress to Blue Surfs building, I conclude that it is reasonable to impose a duty to warn of the "broken concrete hole" upon Blue Surf. Obviously, there comes a point where the defect would be too far away from Blue Surfs building so as to not require a warning. That does not appear to be the case here. Finally, the issue of the obviousness of the defect cannot be resolved at this time. In reaching this decision, I have concluded that the two longstanding rules impose separate and distinct obligations on landowners.

         I will deny Blue Surf Condominium, LLC's Motion for Summary Judgment on the "Duty to Warn" issue.

         Defendant Blue Surf Condominium, LLC's Motion for Summary Judgment is ...


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