Opinion
Nos. 98C-05-001, 98C-05-001
Submitted: November 12, 1999
Decided: February 4, 2000
A. Richard Barros, Esq., Dover, Delaware. Attorney for Plaintiff.
Robert B. Young, Esq., Dover, Delaware. Attorney for Defendants.
DENIEDORDER
Upon consideration of the motion of defendant Delaware State Housing Authority ("DSHA") for summary judgment, and the plaintiff's response, it appears that:
1. This case arises out of an accident that occurred on August 20, 1996 in the parking lot of McLane Gardens in Smyrna, Delaware. McLane Gardens is a state housing apartment complex owned by DHSA. On that date the plaintiff, Jimyre Powell, then seven years of age, was riding his bicycle around in the parking lot. Jimyre and his family lived in the complex. A hedgerow ran through the center of the parking lot, east to west. The hedgerow was several feet high. There is evidence in the record that the hedgerow was taller than Jimyre. It had the effect of dividing the parking lot into two halves, a north half and a south half. A parking lot entrance was on the west side of the lot, opposite the west end of the hedgerow. There were no signs or other devices to regulate traffic in the parking lot. In the moments before the accident, Jimyre was riding in the north half of the lot, headed westerly in the direction of the entrance. At the same time defendant Shirley LaCroix was driving a pick up truck in the southerly half of the lot, heading westerly toward the entrance. Apparently they both emerged from behind the hedgerow at the same time, neither saw the other, and they collided at a point between the west end of the hedgerow and the entrance. As a result of the collision, the plaintiff was injured.
2. The plaintiff filed suit against Ms. LaCroix, alleging negligence on her part in the operation of her motor vehicle, and against DHSA, alleging negligence on its part relating to the design and maintenance of the parking lot. Specifically, as to DHSA, the plaintiff alleges that DHSA was negligent in allowing the hedgerow to create obstructed views, and in failing to have some traffic control signs or devices in the vicinity of the entrance. The case against Ms. LaCroix has been settled. DHSA now brings this motion for summary judgment, arguing that it is entitled to partial summary judgment on the grounds that the plaintiff was negligent as a matter of law because he did not maintain a proper lookout while riding his bicycle. DHSA further contends that it is entitled to full summary judgment on the grounds that the plaintiff's negligence exceeds 50% of the combined negligence of plaintiff and DHSA as a matter of law.
3. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. If the movant supports the motion with the proper affidavits, the burden shifts to the non-moving party to show, using support taken from the developed record or with opposing affidavits, that a material issue of fact exists. If there is a reasonable indication 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, summary judgment will not be granted. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995), appeal dismissed, Del. Supr., 670 A.2d 1338 (1995).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 681 (1979); Del. Super. Ct. Civ. R. 56(e).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Wooten v. Kiger, Del. Supr., 226 A.2d 238 (1967).
4. In support of its motion, DHSA contends that the plaintiff was old enough to be conscious of the need to maintain a proper lookout while riding his bicycle, that he frequently played in the parking lot, that he knew that cars parked in and drove in and out of the lot, that he knew that vehicles frequently came through the area traveled by the LaCroix vehicle, that he rode his bicycle in the area daily with friends, that even the plaintiff's own expert admitted the plaintiff had an obligation to keep a lookout, and that under these circumstances he was negligent in not looking out for cars when he rode out from behind the hedgerow. In opposition to the motion, the plaintiff points out other evidence in the record, including the deposition testimony of one witness that suggests it would have been difficult for the plaintiff and Ms. LaCroix to see each other until they both emerged from behind the hedgerow, and the deposition testimony of the plaintiff in which he states that he had never experienced having to stop previously for vehicles entering or exiting the parking lot, that no vehicle had ever had to stop for him before, and that usually there were no cars coming.
5. While the Court can readily agree for purposes of this motion that there is evidence from which a jury could infer that Jimyre was negligent in failing to keep a proper lookout, the record is not clear enough to arrive at such a conclusion as a matter of law. While there is evidence that vehicular traffic passed back and forth through the parking lot and that the plaintiff was aware of it, there is also evidence to suggest that the parking lot traffic was light to the point that the plaintiff, who rode his bike daily, had never encountered a car in that area before. This creates some ambiguity relating to the plaintiff's alleged breach of a duty to maintain a lookout. In addition, in determining whether a child is negligent, the trier of fact must take into account "[t]he maturity and capacity of the child, [his] ability to understand and appreciate danger, [his] familiarity with the surroundings, [and] the circumstances under which the accident occurred." While there is no doubt that the plaintiff was familiar with his surroundings, maturity is difficult to judge from a paper record, at least in a case like this where the child is more than an infant but less than a teenager. The plaintiff's ability to understand and appreciate the danger involved in this case is not entirely clear. The record suggests that the child did not in fact appreciate the danger. The extent to which a seven-year old boy riding his bicycle in an apartment complex parking lot under these circumstances can be said to be legally negligent by failing to notice a car emerging from behind a hedgerow is an issue about which reasonable jurors may differ. Thus, while a child can be negligent as a matter of law, the Court does not believe that the facts of this case lead to that result. This matter can, however, be revisited at an appropriate time during trial based upon the evidence as presented.
Moffitt v. Carroll, Del. Supr., 640 A.2d 169, 172 (1994).
6. Since the Court is denying defendant's motion for partial summary judgment, it follows that the application that the plaintiff be found to be more than 50% negligent is also denied. It is noted that the case of Trievel v. Sabo cited by defendant, which involves an adult riding a bicycle across traffic on a public highway under circumstances that were negligent to the point of being reckless, is so factually different from this case as not to be helpful.
Del. Super., C.A. No. 94C-120-213 (May 2, 1997) Quillen, J.
THEREFORE, defendant's motion for summary judgment is denied.
IT IS SO ORDERED. _________________ Resident Judge
oc: Prothonotary cc: Order Distribution