Opinion
N24C-07-161 FWW
10-28-2024
COLLEEN RYAN, Plaintiff, v. SEA COLONY, INC., SEA COLONY SERVICES, CORP., SEA COLONY MANAGEMENT, INC., and SEA COLONY RECREATIONAL ASSOCIATION, INC., Defendants.
David C. Malatesta, SHELSBY & LEONI, Attorney for Plaintiff Colleen Ryan.. Sarah B. Cole, Esquire, MARSHALL DENNEHEY, P.C. Attorney for Defendant Sea Colony Recreational Association, Inc.
Submitted: October 21, 2024
Upon Defendant Sea Colony Recreational Association, Inc. 's Motion for Judgment on the Pleadings GRANTED.
David C. Malatesta, SHELSBY & LEONI, Attorney for Plaintiff Colleen Ryan..
Sarah B. Cole, Esquire, MARSHALL DENNEHEY, P.C. Attorney for Defendant Sea Colony Recreational Association, Inc.
ORDER
Ferris W. Wharton, J.
This 28th day of October 2024, upon consideration of the Motion for Judgment on the Pleadings ("Motion") of Defendant Sea Colony Recreational Association, Inc. ("Sea Colony"), Plaintiff Colleen Ryan's ("Ryan") Response in Opposition to Sea Colony Recreational Association Inc.'s Motion for Judgment on the Pleadings, Sea Colony's Reply in Support of Defendant's Motion for Judgment on the Pleadings, and the record in this case, it appears to the Court:
D.I. 9.
D.I. 11.
D.I. 12.
1. Ryan brings this action for personal injuries she alleges she sustained while participating as an invitee in the Operation SEAs the Day ("Seas the Day") celebration and parade in Bethany Beach, Delaware. In her Complaint she describes being directed to park in the overflow parking lot of Sea Colony, walking into a grass area where she stepped into a large hole hidden by the evenly cut grass, and severely twisting her ankle.
Compl. at ¶¶ 1, 8, D.I. 1.
Id. at ¶ 8.
2. In its Motion, Sea Colony references its Answer asserting an affirmative defense based on a liability waiver executed by Ryan it attached to its Answer. The waiver states in part:
Def.'s Mot. Judg. on the Pleadings at ¶ 2, D.I. 9.
The undersigned recognizes that Operation Seas the Day, Inc. has not undertaken any duty or responsibility for his or her safety and the undersigned agrees to assume the full
responsibility for his or her safety and the undersigned agrees to assume the full responsibility for all risk of bodily injury, death, disability, and property damage as a result of participating in the Warrior Beach Week. The undersigned recognizes that these risks include: the risks from slips and falls...and attendance at the various other events available during the above week. By my signature, I hereby surrender any right to seek reimbursement from Operation Seas the Day, Inc. and its directors, officers, employees, volunteers and other agents for injury sustained and liability incurred during my participation in the activity described above...I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others and assume full responsibility for my participation.
Id. at ¶ 2 (quoting Participant Waiver attached to Sea Colony's Answer at Ex. A).
Sea Colony argues that, as alleged in the Complaint, the parking lot was being used for overflow parking by Seas the Day for invitees like Ryan, and Sea Colony permitted the invitees to park in its lot in order to facilitate their participation in the parade. Sea Colony construes the liability waiver as unambiguous, not unconscionable, and not against public policy, and, therefore enforceable against Ryan.
Id. at ¶ 6.
Id. at ¶¶ 7-11.
3. In her Response, Ryan argues that Sea Colony should not be afforded any liability protection because there was no agreement between herself and Sea Colony - the waiver she signed was with Seas the Day and does not mention or refer to Sea Colony. Further, there is nothing in the record to support Sea Colony's contention that it was acting as an agent for Seas the Day. Finally, even if Sea Colony was entitled to the benefit of the liability waiver, its negligent maintenance of the grass area is outside the scope of the waiver which contemplates a waiver for the physical activities in which Ryan chose to participate as part of the event.
Pl.'s Resp. at ¶ 1,D.I. 11.
Id. at ¶ 2.
Id. at ¶ 3.
4. In its Reply, Sea Colony notes the waiver is not limited to Seas the Day, but includes its "agents." And, in her Complaint, Ryan alleges she was directed to park in a specific overflow parking lot owned and maintained by Sea Colony, thus denoting an agency relationship between Seas the Day and Sea Colony.Additionally, the range of risks the waiver includes is not limited to physical activities, but includes "attendance" at the events, which, in Sea Colony's view, includes attendance at the parade alleged in the Complaint.
Def.'s reply at ¶3, D.I. 12.
Id. at ¶ 2.
Id. at ¶ 3.
5. Pursuant to Super. Ct. Civ. R. 12(c), "[a]fter the pleadings are closed but within such time so as not to delay the trial, any party may move for judgment on the pleadings." Upon considering such a motion, the Court must accept all well-pled facts as true and must construe all reasonable inferences in favor of the non- moving party. The motion may only be granted where the Court is satisfied that "no material issue of fact exists and the movant is entitled to judgment as a matter of law."
Super. Ct. Civ. R. 12(c).
Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014).
Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624 A.2d 1199, 1205 (Del. 1993).
6. Turning to the Complaint and accepting the well-pled facts in it as true, it appears that Ryan and her family "were in Bethany Beach, Delaware to participate in the Operation SEAs the Day celebration and parade as invitees" They "were directed to park in the overflow parking lot of Sea Colony, located on the comer of Westway Drive and Route 1, in Bethany Beach, Delaware." The fact that the Sea Colony parking lot was an "overflow" lot for the event means that parade invitees such as Ryan were authorized by Sea Colony to use the lot. There is no dispute about that fact as Sea Colony admits in its Answer that the parking lot was being used as parking for the Seas the Day event. Otherwise, Ryan would be a trespasser on Sea Colony's parking lot, a status she does not claim. Accordingly, the Court finds that the pleadings establish an agency relationship between Sea Colony and Seas the Day.
Compl. At ¶ 6, D.I. 1.
Id. at ¶ 7.
Answer at ¶ 7, D.I. 8.
7. Having found that Sea Colony is entitled to the benefit of the liability waiver, the Court next turns to the scope of the risks of bodily injury it covered. Ryan agreed "to assume the full responsibility for all risk of bodily injury, death, disability, and property damage as a result of participating in the Warrior Beach Week." Those risks "include the risk from slips and falls, drowning and bodily injury from boating, fishing, swimming in the ocean and pools, kayaking, paddle boarding, bike riding, horseback riding, and attendance at the various other events available during the above week." They also included risks "both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELAESEES." The Complaint alleges that Ryan suffered a fall caused by the negligence of Sea Colony while in attendance at a Seas the Day parade. The Court finds that injury is one for which she must assume full responsibility under the terms of the liability waiver she executed. The Court further finds the waiver is unambiguous, not unconscionable, and not against public policy. There being no genuine issue of material fact, Sea Colony is entitled to judgment as a matter of law due to Ryan's assumption of the risk of injury as a result of her execution of the liability waiver.
Id. at Ex. A.
Id.
Id.
Ryan did not argue these latter two considerations.
THEREFORE, for the reasons set forth above, the Motion for Judgment on the Pleadings of Defendant Sea Colony Recreational Association, Inc. is GRANTED.
IT IS SO ORDERED.