Opinion
C.A. No. S08C-09-017 RFS.
Submitted: December 4, 2009.
Decided: December 21, 2009.
Upon Defendant's Motion for Summary Judgment. Denied.
Andrea G. Green, Esquire, Doroshow, Pasquale, Krawitz Bhaya, Millsboro, DE.
Timothy S. Martin, Esquire, White and Williams LLP, Wilmington, DE.
Dear Counsel:
Pending before me is a motion for summary judgment filed by Defendant Wilson Baker, Inc., a corporation which owns a business where Plaintiff Larry Mitchem was allegedly injured during a snowstorm. After reviewing the record, I find that Defendant's motion must be denied.
Standard of Review. On a motion for summary judgment, the moving party bears the burden of showing that no material issues of fact are present. If this burden is met, the burden shifts to a nonmoving party to establish the existence of material issues of fact. After viewing the evidence in a light most favorable to the non-moving party, the Court must determine whether issues of material fact exist. If they do exist, the motion must be denied.
Meth v. A. H. Bull Co., 2000 WL 1211149 (Del. Super.).
Hart v. Resort Investigations Patrol, 2004 WL 2050511 (Del. Super.).
Facts. The Complaint asserts that on February 13, 2007, at approximately 6:00 p.m., Plaintiff was a business invitee at the Exxon Station located at the intersection of Route 113 and Route 16 in Ellendale, Delaware. The Exxon is a business owned and operated by Defendant. Plaintiff further asserts that as he was walking through the parking lot he slipped on an icy patch and fell, resulting in multiple personal injuries. Plaintiff alleges that Defendant was negligent in permitting a dangerous condition to exist in an area where customers were likely to be walking and in failing to warn customers of the dangerous condition.
Issues. In the motion for summary judgment, Defendant argues that it had no duty to warn customers or to remedy the snowy or icy conditions until the storm subsided. Defendant also argues that the parties agree as to the stormy weather at the time of the accident. Defendant is correct as to the former proposition and incorrect as to the latter, as explained below. Discussion. A business owner may wait until a storm is over before removing ice and snow from the business premises. In Woods v. Prices Corner Shopping Center, this Court held that a business owner has an affirmative duty to keep the premises safe from hazardous conditions, but that the owner may await the end of the snowfall and a reasonable time afterward to create safe conditions. In Young v. Saroukis, this Court observed that the authorities are in agreement on the rule that the owner of a business may wait until the end of a storm and a reasonable time thereafter to remedy the danger of ice and snow. In Kovach v. Brandywine Innkeepers Limited Partnership, this Court stated that a landowner's duty to make premises safe is ongoing but that waiting until the precipitation subsides is reasonable conduct on the part of a landowner during a snowstorm.
541 A.2d 574 (Del. Super. 1988).
185 A.2d 274 (Del. Super. 1962).
2001 WL 1198944 (Del. Super.).
Thus the law is clear, but the facts of this case are not. Defendant asserts that the parties agree that the alleged accident occurred during a snowstorm, and in fact, some of Plaintiffs' proffered evidence comports with this assertion. However, Plaintiffs have produced a report prepared by an expert climatologist who stated that on the day of the incident there was "light freezing rain with mist briefly between 12:30 p.m. and 2:15 p.m., at 3:37 p.m. and again from 5:06 through 6:33 p.m."
Plaintiffs emphasize that the total recorded precipitation during this period was a trace, an amount less than 0.01 inch of precipitation, according to the climatologist. Thus, Plaintiffs have presented evidence establishing questions about the weather on the day in question and the conditions on the business premises at the time of the incident. Viewing the facts from a light most favorable to Plaintiffs, the Court finds that there are material facts in dispute as to the weather and the probable condition of the Exxon premises at the time Plaintiff Larry Mitchem allegedly fell and injured himself.
For these reasons, Defendant's motion for summary judgment is DENIED.
IT IS SO ORDERED.