Opinion
C.A. No. 04C-02-260 SCD.
Submitted: September 12, 2005.
Decided: September 30, 2005.
ORDER
Upon consideration of the defendant's Motion for Summary Judgment, plaintiff's response thereto, and the record in this case, it appears that:
(1) This personal injury accident arises from a slip and fall allegedly sustained by the plaintiff in a Genuardi's Family Market on May 19, 2002.
(2) The plaintiff was walking past an ice machine at the time of the incident. She allegedly fell in front of the ice machine. She claims an injury to her knee.
(3) The defendant has filed a motion for summary judgment. A motion for summary judgment may only be granted where there are no genuine issues of material fact and 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 the light most favorable to the non-moving party.
Merrill v. Crothall-American, Inc., 606 A.2d 96 (Del. 1992).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
(4) In order to survive summary judgment plaintiff must show there was a condition in the defendant's store of a dangerous or defective nature. Defendant asserts that the plaintiff has failed to identify a breach of duty by Genuardi's, its agents or employees, thus failing to sufficiently establish the existence of an element essential to her case. The testimony offered at the arbitration hearing by the plaintiff supports the defendant's argument. The plaintiff testified that she does not know what caused her fall.
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) cert. denied, 504 U.S. 912 (1992); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Def.'s Mot. Summ. J. at 1-3.
See Arbitration Transcript, attached to Defendant's motion for summary judgment. Testimony was given by plaintiff at an Arbitration hearing on November 16, 2004:
Q: And could you tell the Arbitrator what happened on that day?
A: Basically I was at the store shopping like I normally do. I went back — I was at a register but I went back to go back to get some whipped cream. I was walking by the ice machine and I slipped and fell.
Q: Did you notice anything on the floor while you were walking?
A: It was a rug there like a real, real thick rug.
Q: Do you know how you slipped?
A: No. I just slipped and fell walking past the machine.
* * *
Q: This rug that you're talking, could you describe it?
A: It was like a, I don't know if it was a commercial rug. It was real, real thick. It was just sitting there on the floor by the ice machine.
Q: Were you — was the rug involved in your fall do you know?
A: I'm not sure. I wasn't really — I didn't pay the rug any attention. I just walked by like normally shopping and I slipped and fell.
Q: What did you slip on?
A: I don't know. I slipped on — when I landed I was on the rug so I guess the rug would have been involved in it.
* * *
Q: When you tripped how did you trip? Did you catch your foot on the rug or did you slip on your heel? Did you turn your ankle? How exactly did you fall? A: I feel forward because I fell on my knee.
Q: Right. But what caused that fall? What caught? Did something catch?
A: It must have been the rug because I feel forward when I fell.
Q: Right. But did your foot catch on the rug?
A: I guess the front part of my foot would have because I fell forward.
* * *
Q: I think your testimony when Mr. Ramunno asked you what caused your fall I believe you testified that you didn't know. Do you know today what caused your fall?
A: No.
(5) It is clear a customer is entitled to assume a store floor is safe to walk upon and free from obstacles or defects which might cause a dangerous condition. It is equally clear the plaintiff has failed to provide evidence that the defendant's action breached a duty of care in a way that proximately caused her injury.
Howard v. Food Fair Stores, 201 A.2d 638, 642 (Del. 1964).
Brown v. Gartside, 2004 WL 2828061 (Del.Super.) (citing Rayfield v. Power, 2003 Del. LEXIS 586).
(6) There are no issues of material fact. There is nothing in the record to indicate a dangerous or defective condition caused plaintiff to fall.
WHEREFORE, Genuardi's motion for summary judgment is GRANTED.
IT IS SO ORDERED.