Opinion
C.A. No. 02C-05-038 ESB.
Submitted: September 21, 2004.
Decided November 5, 2004.
Brian F. Dolan, Esquire, Stumpf, Vickers, Sandy, P.A.
Michael L. Sensor, Esquire.
Dear Counsel:
This is my decision on the Motion for Summary Judgment filed by defendant Nanticoke Memorial Hospital, Inc. ("Nanticoke") against plaintiffs Karen Morris and Bruce Morris ("Morris") in this negligence action. Nanticoke's Motion for Summary Judgment is granted for the reasons stated herein.
STATEMENT OF THE CASE
Karen Morris was involved in a slip and fall accident on Nanticoke's premises on May 31, 2000. At the time of the accident, Morris was lawfully on Nanticoke's premises as a patron and a business invitee. While leaving Nanticoke's premises, Morris slipped on some landscaping stones in the parking lot and fell to the ground and allegedly sustained injuries. Morris alleges that Nanticoke was negligent because it not only had knowledge or should have had knowledge of the dangerous condition, but created the dangerous condition by allowing the stones to accumulate from an adjacent landscaped area within the paved area of the parking lot. Morris contends that Nanticoke failed to take reasonable actions to make the alleged dangerous condition safe, provide an adequate warning, or to provide a safe pathway alternative. Karen Morris' husband, Bruce, alleges that he suffers from the loss of the society, services and companionship of his wife. Nanticoke has denied knowledge of any unsafe condition in its parking lots.
STANDARD OF REVIEW
Summary Judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of her case, then summary judgment must be granted. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. At 681.
Super. Ct. Civ. R. 56(3); Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp., 477 U.S. 317 (1986).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
DISCUSSION
I. Morris failed to meet her burden in producing evidence that demonstrates the existence of a genuine issue of material fact.Nanticoke was not negligent in the maintenance of its premises. A business owner is not an insurer of the safety of its customers. A business owner will be liable for an accident on its premises only if the plaintiff can show that "the unsafe condition caused the accident and that such unsafe condition was either created by, known to, or should have been known to the defendant." Furthermore, the duty of care a business-owner owes to its business invites is simply to exercise due care to keep the property in a "reasonably safe condition as to any condition which is known to the business operator or should have been known within the exercise of reasonable care or diligence."
Wilson v. Derrickson, 175 A.2d 400 (Del. 1961).
Collins v. F.W. Woolworth Co., 295 A.2d 732, 733 (Del. 1972).
Woods v. Prices Corner Shopping Center Merchants Association, 541 A.2d 574, 575 (Del.Super.Ct. 1988) (citing Howard v. Food Fair Stores, New Castle, Inc., 201 A.2d 638 (Del. 1964)).
The only issue to be resolved in this case is whether Nanticoke knew or should have known about the unsafe conditions in the parking lot. Nanticoke contends it was unaware of the alleged dangerous conditions in the parking lot. To support its Motion for Summary Judgment, Nanticoke presented an affidavit from its liability expert, Gregory A. Harrison, PH.D., P.E. ("Harrison"). Harrison conducted an examination of Nanticoke's premises and came to several conclusions. First, Harrison concluded that Nanticoke's premises do not violate any architectural standards or building codes. Second, Harrison found the landscaping bed, which is bordered by a concrete curb, to be safe and within all applicable standards. Next, Harrison stated that Nanticoke's procedures for inspecting and maintaining the parking lot are in accordance with industry standards and were in effect at the time of the accident. Harrison found the area where Morris slipped and fell to be neither dangerous nor defective. Harrison does not think that it was necessary for Nanticoke to give a warning to its patrons about the presence of landscaping stones because there are two crosswalks that are provided for the safety of the patrons. Nanticoke has demonstrated that not only did it not know about the alleged dangerous condition in the parking lot, but that there were no indications that it should have known about the alleged condition. By providing an affidavit, Nanticoke has successfully shifted the burden to Morris. Morris may not rest on her pleadings, but must provide evidence showing a genuine issue of material fact.
Karen Morris alleges in her complaint that Nanticoke was negligent in the maintenance of its parking lot. She alleges that Nanticoke allowed loose landscaping stones to create a dangerous condition. She further alleges that Nanticoke should have known about this condition. The only testimony provided by Morris is the arbitration testimony of Barbara Young ("Young"). Young testified that the maintenance department was responsible for cleaning up the parking lot. Her testimony also indicated that the parking lot is checked and cleaned every morning. Young's testimony mentioned that routine patrols are conducted by management and security personnel who report items that need to be fixed. There are no records kept of routine maintenance. Morris supplemented her reply to this Motion with an affidavit and photographs from Nanticoke's premises. The affidavit states that the photographs were taken on June 2, 2000, two days after the accident. The photographs show landscaping stones in the parking lot. Morris cannot rest upon the uncertainty that she has created in her complaint, affidavit or photographs. She has presented no information that Nanticoke knew or should have known about the dangerous condition at the time of her accident. Nanticoke presented the Court with an affidavit that contends the parking lot meets all industry standards and is safe. It is the finding of this Court that Morris has not carried her burden. Morris' response to Nanticoke's Motion for Summary Judgment did nothing to controvert Nanticoke's denial that it created the dangerous condition in its parking lot, knew about the condition, or should have known about it. As such, even after viewing all facts and reasonable inferences in a light most favorable to Morris, there are no material issues of genuine fact and Nanticoke is entitled to judgment in its favor as a matter of law.
CONCLUSION
Nanticoke's Motion for Summary Judgment is granted for the reasons stated herein.
IT IS SO ORDERED.
Very truly yours,
E. Scott Bradley