Opinion
C.A. No. 06C-02-193-JEB.
Submitted: May 30, 2007.
Decided: October 20, 2008.
Defendants' Motion for Summary Judgment. Motion Granted.
Plaintiff's Motion to Amend the Complaint. Motion Denied.
Michael J. Hood, Esquire, Wilmington, Delaware. Attorney for Plaintiff Maryellen Bogert.
Stephen P. Casarino, Esquire, Wilmington, Delaware. Attorney for Defendants John and Joan Eisenhardt.
OPINION
This is the Court's decision on a motion for summary judgment filed by Defendants John L. Eisenhardt and Joan Eisenhardt ("Defendants" or "the Eisenhardts"). Plaintiff Maryellen Bogert fell on the sidewalk in front of Defendants' house located in the Town of Elsmere ("the Town"). She filed a Complaint in simple negligence and negligence per se under the Town's International Property Maintenance Code ("Code"). Defendants argue that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. The Court agrees, and the motion for summary judgment is granted. No negligence claim exists for this scenario at common law, as explained in Burns v. Boudwin. As to an actionable claim for negligence per se, there is no language in the Code creating a cause of action against a landowner for damages suffered by a third person as a result of the landowner's violation of a provision of the Code.
282 A.2d 620, 621 (Del. 1971).
On February 20, 2004, Plaintiff, who is a home healthcare nurse, was visiting a patient at 1303 Cypress Avenue in Elsmere, Delaware. She parked her car and proceeded down the sidewalk toward the patient's home. As she walked past Defendants' residence at 1305 Cypress Avenue, she allegedly tripped on an upraised slab of sidewalk, which caused her to fall and injure herself. She filed a Complaint alleging negligence in failing to maintain the sidewalk and failing to adhere to certain provisions of the Code.
A motion for summary judgment will not be granted unless, after viewing the facts in the light most favorable to the non-moving party, the Court concludes that there are no genuine issues as to any material fact. A summary judgment motion will be granted only if there is no reasonable hypothesis upon which the plaintiff may recover.
Guy v. Judicial Nominating Committee, 659 A.2d 777, 780 (Del. 1995).
Vanaman v. Milford Memorial Hospital, Inc., 272 A.2d 718, 720 (Del. 1970).
The parties agree that the case is governed by the provisions of the International Property Maintenance Code ("Code"), which was in effect in the Town of Elsmere at the relevant time. The parties have agreed that under the common law the Complaint does not raise an actionable claim in negligence, and they restrict their arguments to the claim of negligence per se under the Code. Defendants argue that they cannot be held liable for Plaintiff's alleged damages because they did not receive notice from the Town of a violation of the Code and that the Code does not set forth a specific standard of conduct constituting negligence per se. Plaintiff responds that notice is not a precondition for a Code violation and that the open and notorious condition of the sidewalk was a violation per se.
In Delaware, an abutting land owner is not liable for injuries caused by defects in the sidewalk unless a statute imposes a duty to repair or the land owner is proven to have caused the defect. Eck v. Birthright of Delaware, 559 A.2d 1227 (Del. 1989).
Under the Code, "[a]ll sidewalks, walkways, stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair and maintained free from hazarded conditions." Code § 302.3. The Code also requires the Town to give written notice to a landowner who is in violation of a property ordinance. Code § 106, 107. Defendants argue that they were not given notice of a violation and therefore had no duty to repair any portion of the sidewalk. Plaintiff does not dispute whether Defendants received notice, but argues instead that the Code does not make repair of a defect a precondition for a violation of a Code provision and that the sidewalk defect was open and notorious.
On the record presented to the Court, nothing in the Code creates a cause of action for negligence per se for Code violations, with or without notice. This Court has previously stated that "an ordinance requiring lot owners to keep the side walks free from snow and ice and imposing a penalty for the failure to do so imposes no civil liability n the lot owner in favor of a third person injured by reason of violation of the ordinance." The Court concludes that the Complaint has not raised an actionable claim for negligence per se and that Defendants' motion for summary judgment must be granted.
The record is silent as to the Town's home rule Charter and whether provisions of such Charter would impact the outcome of this action. See Schadt v. Latchford, 843 A.2d 689 (Del. 2004) (holding that because City of Wilmington Charter mandates that the City repair and maintain City-owned sidewalks adjacent to private property, the City ordinance transferring that duty to private property owners was inconsistent with express terms of the Charter and was an improper delegation of the City's duty).
Lemos v. Willis, 2003 WL 168638, at *2 (Del.Super.) (quoting Burns v. Boudwin, 282 A.2d 620, 621 (Del. 1971)), aff'd 858 A.2d 955 (Del. 2004).
Plaintiff asks to amend the Complaint to include a claim for nuisance per se, if the Court find no basis for her negligence claim. However, the same rationale would defeat a claim for nuisance because the Code does not create such an actionable claim. The motion to amend the Complaint is denied. It Is So ORDERED.