Opinion
C.A. No. 03C-12-015 WLW.
Submitted: January 30, 2006.
Decided: February 22, 2006.
Upon Defendant's Motion for Summary Judgment. Denied.
Wayne N. Elliott, Esquire and D. Benjamin Snyder, Esquire of Prickett Jones Elliott, P.A., Dover, Delaware; attorneys for the Plaintiff.
Nicholas E. Skiles, Esquire and Jennifer S. Naylor, Esquire of Swartz Campbell, LLC, Wilmington, Delaware; attorneys for the Defendant.
ORDER
The defendant, Dewey Beach Enterprises, Inc., doing business as The Rusty Rudder ("Rusty Rudder"), has filed a petition seeking summary judgment pursuant to Superior Court Rule 56. This case involves a plaintiff who alleges he sustained serious injury after falling off a dock on the defendant's premises. For the following reasons, the motion for summary judgment is denied.
Facts
On July 4, 2003, Plaintiff docked a boat at The Rusty Rudder dock in the early evening and went into The Rusty Rudder bar with his girlfriend to have a drink. At around 9:30 p.m., after dark, he went out to help a friend dock his boat. The Plaintiff alleges that poor lighting and the condition of boards on the dock caused him to fall and land in the water, resulting in severe injuries including multiple fractures to both ankles and a shattered right fibula.
The Defendant is seeking summary judgment and argues that the Plaintiff's decision to walk backward on a narrow dock in conditions in which Plaintiff, himself, describes as "pitch black" constitutes the proximate cause of his injury. Thus, according to the Defendant, the Plaintiff should be barred as a matter of law from recovering from The Rusty Rudder.
Standard of Review
Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On a motion for summary judgment, the Court examines the record to determine whether any material issues of fact exist. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Super. Ct. Civ. R. 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
Discussion
The Defendant argues there is a dispute of fact as to the condition of the Rusty Rudder's dock boards at the location and time of Plaintiff's fall. Additionally, there is a dispute as to visibility, specifically illumination, when the incident happened. The Defendant argues, however, that there is no dispute that at the time Plaintiff fell, he was walking backward on the dock while attempting to tie a docking boat to the dock. Thus, the Defendant argues, the Plaintiff was more than 50 percent responsible for his injuries. Therefore, according to the Defendant, secondary assumption of the risk applies, barring the Plaintiff from recovery against the Defendant and entitling the Defendant to summary judgment. The Defendant cites the cases of Trievel v. Sabo and Patton v. Simone in support of this proposition.The Plaintiff argues, however, that the Court should not grant summary judgment for the Defendant because to do so the Court would have to find that the Plaintiff was negligent and that his negligence was greater than that of the Defendant — two questions that involve jury questions. Additionally, the Plaintiff argues that when the evidence is viewed in a light most favorable to the non-movant — in this case the Plaintiff — there is more than sufficient evidence upon which a reasonable jury could conclude the Plaintiff was not negligent or, in the alternative, that if the Plaintiff was negligent his negligence does not exceed that of the Defendant. The Plaintiff also cites the cases relied on by the Defendant in support of his argument that summary judgment would be inappropriate in this case.
While the Trievel case affirmed the trial court's dismissal of a wrongful death case at the close of plaintiff's evidence at trial, the Supreme Court also held "questions as to the existence of negligence are reserved for the trier of fact." Additionally, the Court stated only "rare cases" would trigger a trial court's duty, as a matter of law, to bar recovery. The facts in Trievel are factually distinguishable from the facts in this case. In Trievel, the plaintiff, who was riding a bicycle, was under a duty to exercise reasonable care for her own safety just as the defendant was obligated to proceed through the intersection with caution, observe the speed limit and keep a proper lookout. Evidence presented at trial demonstrated that the plaintiff passed through a highway "stop" sign and a sign that mandated traffic go to the right. The plaintiff was struck by the defendant, who was driving a car, after pedaling in front of an oncoming car and then into the left passing lane of traffic, directly in front of the car driven by the defendant. During the trial, none of the seven witnesses testified that the defendant was speeding or doing anything other than traveling normally in the lefthand passing lane. No one implicated the defendant. Additionally, in the Patton case, this Court stated that although the record indicated that the plaintiff assumed the risk of the open elevator shaft, in which he fell to his death, the question of the plaintiff's degree of secondary assumption of the risk should be a jury question.
Trievel, 714 A.2d at 745.
In viewing the facts of this case in a light most favorable to the Plaintiff, it is clear summary judgment should not be granted. A material fact is in dispute and that is whether the Plaintiff while walking backward on the dock was (a) negligent in causing his injury and (b) if he was so negligent, whether that negligence was any greater than that possibly being attributed to the Defendant. In this case, other facts that relate to the case are at issue, namely whether the boards on the dock were in poor condition and whether lighting on the dock was insufficient. Unlike the case in Trievel in which all witnesses appeared to agree that the defendant did nothing improper, the facts present in this case indicate a dispute regarding the condition of the boards as well as the lighting. Additionally, the facts present here do not rise to the level of "rare case" that might invoke the Court's duty, as a matter of law, to bar recovery. Therefore, because there are material facts at issue, summary judgment is inappropriate and the Defendant's motion is denied.
IT IS SO ORDERED.