IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MICHAEL LAINE,
. C.A. No. K15C-12-008 WLW
Plaintiff, : Kent County
v.
SPEEDWAY, LLC,
Defendant.
Submitted: September 23, 2016
Decided: October 13, 2016
ORDER
Upon Defendant’s Motion for Summary Judgment.
Deniea'.
Nicholas H. Rodriguez, Esquire of Schmittinger and Rodriguez, P.A., Dover,

Delaware, attorney for Plaintiff.

Jessica T. Tyler, Esquire of Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware; attorney for Defendant.

VVITHAM, R.J.

Michael Laine v. Speedway, LLC
C.A. NO. K15C-l2-008 WLW
October 13, 2016

Before the Court is Defendant Speedway, LLC’s motion for summary judgment
and Plaintif`f Miehael Laine’s memorandum in opposition. Oral argument was heard
on the motion on September 23, 2016. In resolving the Defendant’s motion, the
Court need only decide one issue: whether the continuing storm doctrine bars the
Plaintiff’ s claim. Because there may remain triable issues of fact for the jury, the
motion is denied without prejudice to Defendant’s right to refile at the close of
discovery.

FACTS

Around five in the morning on January 10, 2014, employee Jessica Lorilla
arrived to work at the former Hess gas station and convenience store at 31 North
Dupont Highway in Dover, now owned by Speedway LLC.l At 6:07 a.m., the
weather station at Dover Air Force Base reported a trace amount of “unknown
precipitation” followed by, beginning at 6:43 a.m., a trace amount of light rain.2 By
7:00 a.m., just before the Plaintiff arrived, Lorilla observed slippery outside
conditions and reported them to her supervisor.3 According to weather records

supplied by the Plaintiff and his deposition testimony, rain, mist, drizzle, and

 

l Lorilla Dep. 13 :14-23.

2 Pl.’s Resp. Opposing Def.’s Mot. f`or Summ. J., Ex. 4. The Defendant’s motion attached
similar climatological data without any kind of certification See D.R.E. 902(4). A motion for
summary judgment must be supported by either the documents enumerated in Superior Court Civil
Rule 56(c) or other “competent evidence.” See Campbell v. Stonebridge Life Ins. Co. , 966 A.2d 347
(Table), 2009 WL 315687, at *2 (Del. Feb. 10, 2009). The Defendant’s unauthenticated exhibit is
thus disregarded

3 Speedway LLC’s Answers to Pl.’s Interrogs. No. 38.

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Michael Laine v. Speedway, LLC
C.A. NO. K15C-12-008 WLW
October 13, 2016

occasional fog continued through the rest of the day.4

Around 7:15 a.m., the Plaintiff stopped to fuel a shuttle bus owned by his
employer at the Hess station. As the Plaintiff stepped out of the bus, he slipped on
the ice, fell backwards, and Struck his head and upper body on the stairs of the shuttle
bus, injuring himself.

THE PARTIES’ CONTENTIONS

The Defendant argues that, as a matter of law, it acted reasonably by waiting
until the storm ended to clear the accumulated snow and ice. lt bases this argument
on both the continuing storm doctrine and its contention that “[i]t is undisputed that
Plaintiff . . . slipped and fell on ice that accumulated during an ongoing weather
event.”5

The Plaintiff responds that there was no “storm” at the time of his fall because
(l) his employer allowed him to provide rides to elderly disabled clients throughout
the morning and the rest of the day, (2) a Speedway employee observed icy conditions
prior to the Plaintiff’s fall, (3) the Capital School District remained open, and (4)
climatological data shows that the temperature reached thirty-two degrees at 6:20 a.m.
and remained above freezing for the rest of the day. In the altemative, he requests

additional time to produce evidence that there was no “storm” at the time of the fall,

because the discovery cutoff is not until January 11.

 

4 Pl.’s Resp. Opposing Def.’s Mot. for Summ. J., Ex. 4; Laine Dep. 28:21-32.
5 Def. Speedway LLC’s Mot. for Summ. J. 11 5.

3

Michael Laine v. Speedway, LLC
C.A. NO. K15C-12-008 WLW
October 13, 2016

STANDARD OF REVIEW

Summary judgment will be granted when, viewing all of the evidence in a light
most favorable to the nonmoving party, the moving party demonstrates that “there are
no material issues of fact in dispute and that the moving party is entitled to judgment
as a matter of law.”6 This Court shall consider the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any” in
determining whether to grant summary judgment.7 When material facts are in
dispute, or “it seems desirable to inquire more thoroughly into the facts, to clarify the
application of the law to the circumstances,” summary judgment will not be
appropriate8

DISCUSSION

The continuing storm doctrine was first announced in Delaware by the Superior
Court in Young v. .S`aroz,¢kos.9 While landowners have an affirmative duty to keep
premises safe from the hazards of ice- and snow-related accumulation, “a business
establishment, landlord, carrier, or other inviter . . . is permitted to await the end of

a storm and a reasonable time thereafter to remove ice and snow from an outdoor

 

6 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Benge v. Davis, 553 A.2d 1180,
1182 (Del. 1989)); see also Super. Ct. Civ. R. 56(c).

7 Super. Ct. Civ. R. 56(c).

8 Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962) (citing Knapp v. Kinsey, 249
F.2d 797, 802 (6th Cir. 1957)).

9 185 A.2d 274, 282 (Del. super. 1962), ajar 189 A.2d 437 (De1. 1963).

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Michael Laine v. Speedway, LLC
C.A. NO. K15C-12-008 WLW
October 13, 2016

entrance walk, platform, or steps.”10

In deciding, at summary judgment, whether the continuing storm doctrine is
applicable, a court need not engage in a fact-intensive consideration of “the type,
length, and intensity of the storm.”11

In Cash v. East CoastProperly Management, Inc. , the Supreme Court held that
the trial court had properly granted summary judgment to a defendant-landowner. In
that case, the landowner showed the existence of an ongoing storm through
deposition testimony and weather reports. The storm consisted of a “misty drizzle”
that continued throughout the day.12 The court noted the absence of any evidence that
the storm had ended, and reasoned that an assertion that the storm was minor was
unavailing to the plaintiff`.13 The Court further pointed out that the trial court in
another case had found the precipitation on that date was sufficient to invoke the
continuing storm doctrine.14

In contrast, this Court in Buchanan v. TD Bank, N.A. denied without prejudice

a defendant-landowner’s motion for summary judgment.15 In that case, only two

weeks had passed since the Court had entered its scheduling order. In support of its

 

10 Cash v. E. Coast Prop. Mgmt., Inc., 7 A.3d 484 (Table), 2010 WL 4272925, at *2 (Del.
Oct. 29, 2010) (quoting Young, 185 A.2d at 282).

11 Ia'. at *3.
12 Id.
13 Id.

14 Id. (citing Morris v. Theta Vest, Inc. , No. 08C-06-030, 2009 WL 693253, at *2 (Del. Super.
Mar. 10, 2009)).

15 No. K15C-12-020, 2016 WL 3621102, at *1 (Del. Super. June 28, 2016).

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Michael Laine v. Speedway, LLC
C.A. NO. K15C-12-008 WLW
October 13, 2016

motion, the defendants provided an excerpt of the plaintiff s deposition testimony as
well as meteorological records. The plaintiff responded in opposition by noting that
the defendants and their employees had not yet been deposed.16 The Court denied the
motion for summary judgment without prejudice, finding that there was an
outstanding factual question as to the weather conditions at the time of the accident.

Here, like in Cash, weather data and deposition testimony have been presented
from both the Plaintiff and Defendant showing that there was an ongoing
precipitation event that began before the Plaintiff fell and continued through the rest
of the day.

In response to the evidence submitted by the Defendant, however, the Plaintiff
invites the Court to consider inferences that may be drawn from the evidence he has
submitted. F or example, the Plaintiff argues that the Court may infer, from the fact
that Modern Maturity Center and the Capital School District remained open, that the
storm was too minor to trigger the doctrine’s application. Such facts, standing alone,
may not warrant such an inference-a storm may cause sufficiently slippery surfaces
to invoke the doctrine without shutting down a community’s schools and
transportation networks. But the reality remains that, as in Buchamm, the Plaintiff
has theorized remaining questions of fact that may well preclude summary judgment

While Delaware courts have often resisted parties’ invitation to require trial

courts to engage in such fact-intensive inquiries when determining the availability of

 

16 Pl.’s Opp’n Resp. to Defs.’ Mot. for Summ. J. 11 1, Buchanan, 2016 WL 3621102 (Del.
Super. June 28, 2016) (No. K15C-12-020), Dkt. No. 47.

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Michael Laine v. Speedway, LLC
C.A. NO. K15C-12-008 WLW
October 13, 2016

the continuing storm doctrine,17 here, several months remain before the close of
discovery. Given the Court’s strong preference for determinations on the merits,18 it
seems appropriate to give the parties additional time to discover evidence relating to
the weather at the time of the incident.
CONCLUSION

The parties shall have additional time to conduct discovery regarding the
weather conditions at the time of the Plaintiff s fall. The Defendant’s motion is thus
DENIED without prejudice to Defendant’s right to refile at the close of discovery.

IT IS SO ORDERED.

/s/ William L. Witham. Jr.
Resident Judge

WLW/dmh

 

17 Cash, 2010 WL 4272925, at *3.
18 See, e.g., Wilson v. Wilson, No. 04C-03-031, 2005 WL 147942, at *2 (Del. Super. Jan. 14,
2005)

