Opinion
C.A. No. 08C-12-137 PLA.
Submitted: March 18, 2010.
Decided: March 19, 2010.
Upon Defendant's Motion for Summary Judgment.
DENIEDThis 19th day of March, 2010, it appears to the Court that:
1. Plaintiff Mark Alpern ("Alpern") brought this premises liability action against Defendant Big Fish Restaurant Group, LLC ("Big Fish Restaurant Group") after he allegedly fell on a metal pole stuck in the ground outside a side door to property occupied by the Big Fish Grill restaurant and Neva's Café in Rehoboth Beach. Alpern was on the property to deliver bread to Neva's Café, which leased its portion of the property. Alpern filed suit against Big Fish Restaurant Group on the belief that it was the owner-lessor of the entire premises.
2. In its Answer to the Complaint, Big Fish Restaurant Group asserted that Plaintiff had "failed to state a cause of action" against it, but did not specifically articulate the defense it now raises upon summary judgment, which is that the actual owner of the property was another entity known as Bigger Fish, LLC. Bigger Fish, LLC and Big Fish Restaurant Group are both owned by brothers Norman Sugrue, Jr. and Eric Sugrue. In interrogatory responses, Eric Sugrue identified "Bigger Fish, LLC" as the property owner, but these interrogatory responses were not provided to Plaintiff until after the deadline for motions to add a party or amend the Complaint had passed. Both Eric Sugrue's interrogatory responses and a letter sent by Big Fish Restaurant Group's insurer to Alpern, also refer to the Defendant (or to Bigger Fish, LLC) by the moniker "Big Fish Grill." The Sugrues' sister Jennifer Burton, who was an owner of Neva's Café and handled certain clerical matters for her brothers, testified at her deposition that the property was owned by "[m]y brothers who own the Big Fish Grill."
Def.'s Mot. for Summ. J., Ex. A.
Pls.' Resp, Exs. B, E.
Pls.' Resp., Ex. F (Dep. Tr. of Jennifer S. Burton, July 24, 2009), at 6:12-15.
3. Defendant has now moved for summary judgment on the bases that (1) Plaintiff has named the wrong defendant, and (2) regardless of which entity owned the premises, neither Bigger Fish, LLC nor Big Fish Restaurant Group can be held liable for a hazardous condition that existed while lessee Neva Café had possession. In response, Plaintiff argues that summary judgment is inappropriate given the common ownership and locations of Bigger Fish, LLC and Big Fish Restaurant Group, the similar names of those entities, and Defendant's role in perpetuating Plaintiff's mistake as to the proper defendant. Plaintiff urges that the proper resolution to this issue is to permit him to amend the Complaint to name Bigger Fish, LLC. Furthermore, Plaintiff asserts that summary judgment is precluded by a factual dispute as to whether Bigger Fish, LLC had possession and control of the exterior of the premises where the metal pole is located.
4. When considering a motion for summary judgment, the Court examines the record to ascertain whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. Initially, the burden is placed upon the moving party to demonstrate that his legal claims are supported by the undisputed facts. If the proponent properly supports his claims, the burden "shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-finder." Summary judgment will not be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are material facts in dispute or if judgment as a matter of law is not appropriate.
Super Ct. Civ. R. 56(c).
E.g., Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879 (Del. Super. 2005).
Id. at 880.
Id. at 879-80.
5. For the reasons articulated in Alpern's Response, the Court finds Defendant's actions, in a word, "fishy." As the Court noted in Stroik v. Wanamaker, "where the issue is merely of a misnomer, a motion to dismiss or quash service will not be granted in the face of a proposal to amend to correct the defect." The filings submitted by Big Fish Restaurant Group, as well as its insurer's letter and Ms. Burton's deposition, contributed to confusion regarding the name of the entity that owned the premises. Big Fish Restaurant Group participated in this litigation for more than a year before seeking to be dismissed as the wrong party. During that time, not only has Big Fish Restaurant Group failed to explicitly state prior to the instant motion that it believed Bigger Fish, LLC was the correct defendant, but it has not commented as other names have been used, which may have misled Plaintiff into believing that no further inquiry was necessary because Defendant viewed these names as essentially interchangeable. Moreover, Defendant cannot fault Alpern for failing to amend his Complaint when the first clear suggestion that Alpern might have been mistaken as to the proper party name came in a filing made weeks after the deadline for motions to add or amend had passed. Under the circumstances, the Court will deny summary judgment and extend the deadline previously set in the Trial Scheduling Order to entertain Plaintiff's Motion to Amend the Complaint.
315 A.2d 606, 607 (Del. Super. 1974).
See id. (noting that a defendant protesting a proposed name change cannot "hold plaintiffs to a degree of exactitude which it has ignored in its relations").
6. Defendant's second argument in support of summary judgment — that neither Big Fish Restaurant Group nor Bigger Fish, LLC can be liable for an injury allegedly caused by the pole because they were not in possession of the premises — is the subject of a material factual dispute. The lease between Bigger Fish, LLC and Neva Café did not state that Neva Café was responsible for the condition and maintenance of the building's exterior, nor did it permit Neva Café to make exterior changes. Defendant has indicated that the pole was installed by a previous owner, prior to both Bigger Fish, LLC's purchase of the property and Neva Café `s subsequent lease of its portion of the premises. The Court cannot be certain on the facts presented to it that Bigger Fish, LLC did not have control over the area of the premises where Alpern's accident occurred.
Grochowski v. Stewart, 169 A.2d 14 (Del. Super. 1961), cited by Defendant for the proposition that generally "neither the tenant nor his invitees can hold the landlord liable for personal injuries resulting from a defective condition, whether the condition existed at the time of the lease or thereafter," is clear that a landlord is not relieved of liability for hazardous conditions existing on portions of the premises over which it retains control, which is precisely the question at issue here.
7. For the foregoing reasons, Defendant Big Fish Restaurant Group's Motion for Summary Judgment is DENIED. Plaintiff is hereby granted leave for his Motion to Amend the Complaint to be heard beyond the Trial Scheduling Order deadline.
IT IS SO ORDERED.