Opinion
C.A. No. 08C-08-008 MJB.
Submitted: January 15, 2010.
Decided: April 12, 2010.
Upon Defendant's Motion for Summary Judgment. GRANTED.
Michael I. Silverman, Esq., Silverman McDonald; Wilmington, Delaware. Attorney for Plaintiff.
Daniel A. Griffith, Esq., Whiteford Taylor Preston, LLC; Wilmington, Delaware. Attorney for Defendant.
OPINION AND ORDER
INTRODUCTION
Before the Court is Defendant City of Newark's ("Newark") Motion for Summary Judgment. In this case, Zachery Feeney ("Plaintiff") was injured when a parking lot gate struck him as he was entering a public parking lot in Newark. At the time, Plaintiff was standing in a bucket extending from, and connected to, his employer's vehicle. Plaintiff alleges that he was injured because Newark operated the gate in a negligent manner and failed to warn Plaintiff of any possible danger associated with the gate. This Court holds that there is no evidence that Newark operated the gate in a manner that was negligent, or that Newark assumed any duty to Plaintiff that was breached. Therefore, Newark's Motion for Summary Judgment is GRANTED.
FACTS
While there are some disputes of fact, reserved for trial, for purposes of this Motion, these facts are either agreed or are uncontested.
At the time of the incident, the entrance to the lot was controlled by an electronic gate, which was adjacent to the booth where the cashier, Delores Smith, was seated. Prior to the accident, Mr. Callahan spoke to Ms. Smith, advising her that they needed to enter the lot. Because his truck was so high, he was unable to reach the mechanism to lift the gate. Ms. Smith pressed the button to open the gate and allow the truck to pass through. As the bucket truck proceeded through the entrance, the gate came down, causing injuries to the Plaintiff.
Callahan Dep. 15:19-21, October 26, 2009.
Plaintiff subsequently brought this action against Newark alleging that Ms. Smith, Newark's employee, was negligent in her operation of the parking lot gate in a manner causing it to strike Plaintiff and that Newark failed to warn Plaintiff of the existing danger.
PARTIES' CONTENTIONS
Defendant denies that it was negligent in any way. The Defendant contends that, even assuming Ms. Smith pressed the button to raise the electronic gate, she did nothing beyond pressing the same button that any driver entering the lot would press to raise the gate. Defendant contends that it is misleading for Plaintiff to claim that Ms. Smith could manually operate the gate, and there are no facts in the record to support the assertion that Ms. Smith had a greater control of the gate than the Plaintiff could have exercised on the date of the accident. Defendant also contends that Newark did not have a duty to advise all persons entering through the gate that the gate would not stay up indefinitely, as it is a matter of common knowledge that a gate that is raised will descend. It is Defendant's position that to impose such a duty on all owners of parking lots with automatic gate entrances would be nonsensical.
There was a warning on the gate itself that no pedestrians, motorcycles, or bicycles were to enter using the gate and that the moving arm could cause bodily harm or vehicle damage.
Plaintiff argues that Newark's employee was negligent in the operation of the parking lot gate, claiming that the cashier had a duty to prevent the gate from closing on Plaintiff, having undertaken to manually operate the gate mechanism so that the truck could pass through. Plaintiff also contends that the cashier must have seen Plaintiff and failed to warn him of the existing danger that the gate may not remain open. Plaintiff claims there are genuine issues of material fact which preclude this Court from granting summary judgment regarding both what the cashier did and the failure to warn.
In a later submission, dated March 18, 2009, Plaintiff classifies the existing danger as a "potentially defective condition" on the premises of the Defendant, noting that the City has a duty to warn its business invitees of such defective conditions pursuant to DiOssi v. Maroney, 548 A.2d 1361 (Del. Supr. 1988). There is no evidence that suggests that the gate was defective in any manner. Indeed, it appears the gate worked exactly as it was intended.
STANDARD OF REVIEW
The standard for granting summary judgment is high. Summary judgment may be granted where the record shows that there is no genuine issue of material as to any material fact and that the moving party is entitled to judgment as a matter of law. "In determining whether there is a genuine issue of material fact, the evidence must be viewed in a light most favorable to the non-moving party." "When taking all of the facts in a light most favorable to the non-moving party, if there remains a genuine issue of material fact requiring trial, summary judgment may not be granted." "Nor will summary judgment be granted if, upon an examination of all the facts, it seems desirable to inquire thoroughly into them in order to clarify the application of the law to the circumstance." Discovery has been completed in this case, and the facts are known.
Mumford v. Miller Concrete, Inc. v. Burns, 682 A.2d 627 (Del. 1996).
Super. Ct. Civ. R. 56(c).
Muggleworth v. Fierro, 877 A.2d 81, 83-4 (Del. Super. 2005).
Gutridge v. Iffland, 889 A.2d 283 (Del. 2005).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
ANALYSIS
To be liable for negligence, a defendant must have been under a duty to protect the plaintiff from the risk of harm that caused the injury. Whether or not such a duty exists, if a certain set of facts are true, is a question of law to be decided by the court. "The court's role, therefore, when determining whether a duty exists is first to study the relationship between the parties and then to determine whether the relationship is of a nature or character that the law will impose a duty upon one party to act for the benefit of another. Specifically, in this case, the Court must determine whether Newark owed a duty to prevent an electronic parking gate from coming down, potentially injuring those entering through it, or to warn those who enter that, although the gate will go up, it will also come down.
Fritz v. Yeager, 790 A.2d 49 (Del. 2002).
Shepard v. Reinoehl, 830 A.2d 1235, 1238 (Del. Super. 2002).
Higgins v. Walls, 901 A.2d 122 (Del. Super. 2005).
To determine whether the Defendant owed a duty to Plaintiff, this Court narrows the analysis to a single inquiry: did the parking lot cashier do anything more than press the electronic button that the driver of the Verizon truck would have pressed if he could reach it? In the cashier's deposition, she states that she never left the booth. In the driver's deposition, he states that he has no recollection whether the cashier ever left the booth. Plaintiff, in his deposition, states that the cashier exited the booth to assist the driver, and pushed the same button that any driver of a vehicle entering the lot would have pushed to operate the gate.
Smith Dep. 24:6-11, October 19, 2009.
Callahan Dep. 21:5-8, October 26, 2009.
Feeney Dep. 56:20-22, October 19, 2009.
Plaintiff's reliance on Jardel Co. v. Hughes and Furek v. University of Delaware is misplaced. In both of those cases, the Court determined that the defendants had recognized a risk, had undertaken conduct which created a duty, and had been negligent in the discharge of that duty. In this case, the Court finds there is no evidence in the record to establish that Newark undertook a duty to the Plaintiff. The only evidence in the record regarding any action by Newark (through its employee) is that the employee engaged in the precise action any person entering the lot would have exercised. That act created no special duty or responsibility to the Plaintiff.
Jardel Co. v. Hughes, 523 A.2d 518, 524 (Del. 1987). In this case, the plaintiff was assaulted in a parking lot known to be a center of frequent criminal activity. The defendants owned the lot and hired security personnel to police the lot. The Supreme Court awarded damages and held that the defendants voluntarily assumed a duty of providing security, the plaintiff relied on the security, and the defendants were thus, "obligated to perform the task in a reasonable manner with a view toward the dangers to which the program was directed."
Furek v. University of Delaware, 594 A.2d 506, 520 (Del. 1991). In this case, the Supreme Court held that a university, having voluntarily undertaken the responsibility to protect students from fraternity hazing rituals, was subject to liability for negligently carrying out such duties.
Finally, Plaintiff further argues that the cashier must have seen him riding in the bucket, and therefore had an obligation to warn him that the gate would disengage and might strike him or that she could not control when the gate would come down. The witness, however, testified in her deposition that she did not recall seeing the bucket on the truck or any person in it and that she did nothing to cause the gate to go down.
Smith Dep.pp26-27, October 19, 2009.
In the instant matter, Newark actually did warn that a danger was presented by the gate for pedestrians, motorcyclists, and bicyclists. A warning illustration was clearly visible on the gate itself. The common factor for each of those categories of persons is the fact that there would be no roof of a car (or a truck) to protect them from injury should the gate disengage, come down, and strike them. Plaintiff clearly meets similar criteria and should have recognized that the gate presented a danger to him. There are no facts in the record to support the assumption of any duty to the Plaintiff beyond that to any other customer. This Court will not impose a duty upon Newark to warn those who enter a public lot with automatic gate entrances that the gate will not stay up indefinitely, and Plaintiff cites no authority for the Court to do so.
Pl.'s Exhibit A, March 3, 2010.
At the February 18, 2010 hearing, the Court determined that these types of electronically gated parking lot entrances are ubiquitous and people know how they work. Specifically, Plaintiff testified that he knew how they worked on the date of the accident:
Q. Had you ever been to parking lots where the gate was an electronic arm —
A. Yes.
Q. — like the one on the date of the accident?
A. Yes.
Q. You had an understanding as to how they operated?
A. Yes. (See transcript of Zachery Feeney's deposition, p. 44-15 to 23)