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denying certification because the decision merely "required the application of a unique set of facts to established principles of negligence law."
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C.A. No. 05C-04-198 RRC.
Submitted: April 4, 2007.
Decided: April 10, 2007.
Upon Plaintiffs' Application for Certification of Interlocutory Appeal.
DENIED.
ORDER DENYING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER
This 10th day of April, 2007, Plaintiffs having made application pursuant to Rule 42 of the Supreme Court for an order certifying an appeal from the interlocutory order of this Court, dated March 22, 2007, granting Moving Defendants Oscar Warrington, III's and Mary Warrington's motion for summary judgment, it appears to the Court that:
1. An interlocutory appeal will be certified by the trial court only where the order satisfies certain threshold requirements. First, the order of the trial court must determine a substantial issue and establish a legal right. Additionally, the order must meet at least one of the following criteria:
Supr. Ct. R. 42(b).
(i) Same as certified question. Any of the criteria applicable to proceedings for certification of questions of law set forth in Rule 41; or
(ii) Controverted jurisdiction. The interlocutory order has sustained the controverted jurisdiction of the trial court; or
(iii) Substantial issue. An order of the trial court has reversed or set aside a prior decision of the court, a jury, or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue and established a legal right, and a review of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; or
(iv) Prior judgment opened. The interlocutory order has vacated or opened a judgment of the trial court; or
(v) Case dispositive issue. A review of the interlocutory order may terminate the litigation or may otherwise serve considerations of justice.
Supr. Ct. R. 42(b)(i)-(v).
Further, the criteria in subsection (i) above are to be read in conjunction with Rule 41(b), which lists the following reasons for accepting certification of questions of law:
(i) Original question of law. The question of law is of first instance in this State;[or]
(ii) Conflicting decision. The decisions of the trial courts are conflicting upon the question of law;[or]
(iii) Unsettled question. The question of law relates to the constitutionality, construction or application of a statute of this State which has not been, but should be, settled by the Court.
Supr. Ct. R. 41(b).
2. The entirety of Plaintiffs' proffered legal basis for certification of this interlocutory appeal is a generalized statement that "[t]he questions and issues before the court relate to an original question of law pursuant to Supr. Ct. R. 41(b)(i)." In response, Moving Defendants contend that "[w]hile the particular application of facts may arguably have been new, the issue of law was certainly not novel."
Pl. Application for Certification of Interlocutory Appeal. at ¶ 4.
Def. Opposition to Interlocutory Appeal. at ¶ 5.
3. This Court agrees with Moving Defendants that its March 22, 2007 did not decide an original question of law. The issue was whether an injury was sufficiently foreseeable to impose a duty on Moving Defendants. The decision, therefore, required the application of a unique set of facts to established principles of negligence law.
See RESTATEMENT (SECOND) OF TORTS § 344, cmt. f (1965) ("Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur."). See also DioOssi v. Maroney, 548 A.2d 1361 (Del. 1988) (stating that "the duty of a commercial business owner under § 344 to a business invitee . . . requires the exercise of ordinary care to reasonably anticipate, and to protect the business visitor from, the likelihood that third persons will pose a danger to the business visitor").
4. Because Plaintiffs do not contend that the interlocutory order satisfied any of the other criteria set forth in Rule 42(b)(i)-(v), it is unnecessary for this Court to analyze the remaining criteria.
For the foregoing reasons, Plaintiffs' Application for Certification of Interlocutory Appeal is DENIED.
IT IS SO ORDERED.