Opinion
C.A. No. 06C-05-004-RFS.
Submitted: August 16, 2007.
Decided: August 29, 2007.
Upon Defendant Damar, Inc.'s Motion for Summary Judgment.
Denied.
Kathleen M. Jennings, Esquire, Oberly, Jennings Rhodunda, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Bruce C. Herron, Esquire, Akin Herron, P.A., Wilmington, Delaware, Attorney for Defendant, Damar, Inc.
Louis J. Rizzo, Esquire, Reger Rizzo Kavulich Darnall, LLP, Wilmington, Delaware, Attorney for Defendant, The Porch Inc. t/a The Back Porch Café
MEMORANDUM OPINION
This is the Court's decision on Damar Inc.'s ("Damar") Motion for Summary Judgment with respect to its cross-claim against co-defendant The Porch Incorporated t/a The Back Porch Café (the "Restaurant"). For the reasons set forth herein the Motion is denied.
STATEMENT OF FACT
Keith Fitzgerald (" Fitzgerald") is the owner and operator of a restaurant known as The Back Porch Café. The Restaurant is located at 59 Rehoboth Avenue, Rehoboth Beach, Delaware 19971. The building in which the Restaurant is located is owned by Damar.
At all relevant times, there was a binding Lease Agreement in place between Damar and the Restaurant. The Lease Agreement originated on November 1, 1983 by and between the Restaurant and Damar, or their predecessors. The Lease Agreement contained, in part, the following provisions:
November 1, 1983 is listed as the commencement date on the Lease Agreement provided to this Court as Exhibit A of Defendant, The Porch Incorporated t/a The Back Porch Café`s Response to Defendant, Damar, Inc.'s Motion for Summary Judgment. The Court will use this date as the date of contract since no other date has been provided and the specific date is not crucial to the Court's reasoning.
5. Care of Premises
. . .
(a) Tenant shall not perform any acts or carry on any practices which may injure the building or be a nuisance or menace to other tenants, employees, occupants, and patrons in the shopping center. Tenant, at Tenant's expense, shall keep the premises under its control, and the sidewalks and common areas adjacent to the premises clean and free from rubbish and dirt at all times. . . .
(b) . . . Tenant shall not make any changes (eg. [sic] structural, renovations, improvements, additions, deletions, plumbing, electrical, etc.) in the demised premises (or elsewhere) without the written consent of the Landlord.
. . .
6. Tenant Obligations and/or Restrictions
. . .
(b) . . . (1) Maintenance, Protection, and Preservation of the Rental Unit, Appurtenances, and Property of Which the Rental Unit Is A Part. (A) Landlord shall keep the foundation, the outer wall and the roof of the building, which houses the demised premises in good repair, except that the Landlord shall not be called upon to make any such repairs or improvements occasioned by the act (prior to or during the term(s) of this lease) of negligence of Tenant, its agents, employees and all persons in or about the demised premises at the Tenant's invitation or consent, except to the extent that Landlord is reimbursed therefore under any policy of insurance permitting waiver of subrogation in advance of loss. Landlord shall not be called upon to make any other improvements or repairs of any kind in, around, or under the premises, and said premises shall at all times be kept in good order, condition and repair at Tenant's expense, and shall also be kept in a clean, sanitary and safe condition in accordance with the laws of the State of Delaware, and inaccordance with all directions, rules and regulations of any Health Officer, Fire Marshall, Building Inspector, or other proper officers or any governmental agencies having jurisdiction over the demised premises, at the sole cost and expense of the Tenant, and Tenant shall comply with all requirements of law, ordinances and otherwise, touching said premises.
. . .
10. Covenant to Hold Harmless
(a) Landlord shall be defended and held harmless by Tenant from any liability for damages to any person or any property in or upon the demised premises (and any other areas or property Tenant agrees to maintain, clean, supply that is adjacent to the demises [sic] premises, or property of which the rental unit is a part, and appurtenances thereto) including the person and property of the Tenant, and its employees and all persons in the building, or upon the alley ways or sidewalks at Tenant's invitation or with Tenant's consent.
Ex. A. of Def., The Porch Inc. t/a The Back Porch Café `s Resp. to Def., Damar, Inc.'s, Mot. for Summ. J. at 7, 8-9, 14.
On January 1, 2004 an Addendum to the Lease Agreement ("Addendum") was entered. The Addendum amended and extended the original Agreement. The Addendum provided in part that "[a]ny capital repairs, improvements or modifications to the Tenant's leased space must be approved by the Landlord. Once approved by Landlord, Tenant shall be responsible for all expenses associated with such capital repairs, improvement or modifications including all material and labor costs." Ex. A of Def., The Porch Inc. t/a The Back Porch Café `s Resp. to Def., Damar, Inc.'s, Mot. for Summ. J. at 20.
On August 7, 2004 Plaintiff was visiting the Restaurant when she suffered injuries allegedly caused when she slipped on a step near the Restaurant's restrooms. A matter of contention between the parties involved here is whether the structural condition of the step itself, or some other facto r caused the fall.
Plaintiff filed her Complaint against both Damar and the Restaurant. Damar included in its Answer a cross-claim against the Restaurant for indemnification arising from their Lease Agreement. On May 15, 2007 Damar filed a Motion for Summary Judgment with respect to its Cross-Claim for Indemnification Against Co-Defendant The Porch Incorporated t/a The Back Porch Café ("Motion"). The Court has received and considered Damar's Motion as well as the Restaurant's Response and Supplemental Response filed on May 31, 2007 and August 16, 2007, respectively.
STANDARD OF REVIEW
Summary judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R . 56(3); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).DISCUSSION
25 Del. C. § 5101(b) provides that "[a]ny rental agreement for a commercial rental unit is excluded from this Code. All legal rights, remedies and obligations under any agreement for the rental of any commercial rental unit shall be governed by general contract principles. . . ." A "commercial rental unit" is defined as "any lot, structure or portion thereof, which is occupied or rented solely or primarily for commercial or industrial purposes." 25 Del. C . § 5141(4). Consequently, the Landlord-Tenant Code does not govern the relationship between the parties. Rather, the language of the Lease Agreement controls.
The revisor's note attached to 25 Del. C. § 5101 provides: "the provisions of this act shall not apply to any rental agreement for a commercial rental unit in effect before the enactment date of this act, nor to any renewal of such rental agreement after such date. . . ." The original Lease Agreement at issue here was set to commence on November 1, 1983. The General Assembly enacted its major revision to the Landlord-Tenant Code in 1996. Before the 1996 revisions, the Landlord-Tenant Code applied to both residential and commercial leases. Consequently, the Landlord-Tenant Code would have applied to the original Lease Agreement. If the current lease was a renewal of the previous lease then the Landlord-Tenant Code would still control. The parties have not made such a contention. Accordingly, the Landlord-Tenant Code does not govern the relevant relationship in this action. Rather, the language of the contract entered between the parties will control.
By the terms of their Lease Agreement the Restaurant was responsible for cleaning and maintaining the rented facility, including the sidewalks and areas adjacent to the facility. The Restaurant, per the terms of the 2004 Addendum, was also responsible for making any capital repairs, improvements or modifications to the Tenant's leased space. This duty is subject, however, to a caveat. Any capital repair, improvement or modification must first be approved by Damar. The only evidence presented to show that the Restaurant discussed the repair of the allegedly faulty step with Damar is found in the following exchange, taking place during the deposition of Leslie Kaplan, the plaintiff's daughter:
Q. And what was said by you and what was said by Mr. Fitzgerald, as best you can recall?
A. There was a discussion about this step being slippery, and he said something to the effect that other people have fallen there, have fallen on that step before, and then he said, I've been asking the landlord to fix that step for years, or maybe it was those stairs for years.
Q. Did he say why he had been asking the landlord to fix the step?
A. Because other people had fallen there.
. . .
Q. And you specifically recall Mr. Fitzgerald remarking on the fact that the step was sloped downward?
A. I specifically remember Mr. Fitzgerald looking at it and indicating after we had a discussion — I don't remember that he said it or that he just acknowledged it to be true, but he looked at it and said something to the effect that — it's not verbatim — something to the effect that other people had fallen on it, and then he said he had asked the landlord to fix it.
Ex. E of Def., The Porch Inc. t/a The Back Porch Café`s Resp. to Def., Damar, Inc.'s, Mot. for Summ. J. (emphasis added).
With no other evidence to guide the Court's reasoning there is insufficient factual information to rule on this matter through the summary judgment process. Delaware courts generally disfavor contract provisions that purport to exonerate a party from liability in matters involving the party's own negligence. Evans v. Manor Park Shopping Center, 1989 Del. Super. LEXIS 36, at *4 (Del.Super. Feb. 10, 1989). In order to accomplish such resolve the contract must "clearly and unequivocally" articulate the intent to afford such immunity, and if a contrary intent can be reasonably inferred, the court will rule against indemnification. Id. The indemnity provision found in the Lease Agreement here does not specifically state that Damar is to be held harmless for its own negligence.
The provision relating to repair requires Damar's consent prior to any work being done. It is unclear at this time if such consent was sought and if so what response was given. For this reason, the Court cannot rule, as a matter of law, that Damar was not negligent, and, consequently, cannot determine whether the indemnity provision would release Damar from liability.
Finally, before any conclusions can be made, a disputed issue of fact must be resolved i.e., was the fall occasioned by a structural defect [its alleged unsafe slope], or a failure to maintain it safely [its alleged slippery condition].
CONCLUSION
Considering the foregoing, Damar, Inc.'s Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.