                                SUPERIOR COURT
                                    OF THE
                               STATE OF DELAWARE

JOHN A. PARKINS, JR.                                   NEW CASTLE COUNTY COURTHOUSE
      JUDGE                                        500 NORTH KING STREET, SUITE 10400
                                                   WILMINGTON, DELAWARE 19801-3733
                                                          TELEPHONE: (302) 255-2584



                                March 1, 2017


Katherine L. Hemming, Esquire                Eric S. Thompson, Esquire
Lundy Law                                    Franklin & Prokopik
1600 Pennsylvania Avenue, Suite C            300 Delaware Avenue, Suite 1210
Wilmington, Delaware 19806                   Wilmington, Delaware 19801

Michael F. Duggan, Esquire                   Adrienne M. McDonald, Esquire
Marks, O’Neill, O’Brien                      Silverman McDonald & Friedman
Doherty & Kelly, P.C.                        1010 North Bancroft Parkway
300 Delaware Avenue, Suite 900               Suite 22
Wilmington, Delaware 19801                   Wilmington, Delaware 19805


              Re:   Andrea Ridgeway
                    v. Acme Markets, Albertsons LLC,
                    Fox Run SC, LLC and Cipolloni Brothers, LLC
                    C.A. No. N16C-10-183 JAP


Dear Counsel:

      Now before the court is the joint motion of Acme Markets and Fox Run to

dismiss Plaintiff’s claims against Acme and Albertsons.

      According to the complaint, Plaintiff slipped and fell on some ice while

visiting the Acme at Fox Run Shopping Center on February 6, 2014. Acme and

Fox Run seek dismissal of Plaintiff’s claims against Acme and Albertsons on

the basis that under the terms of the Lease Agreement between Acme and Fox

Run, Fox Run undertook responsibility for removal of ice and snow from the
shopping center.        The moving parties recite “there is no dispute over

responsibility for maintenance of the parking lot being the responsibility of Fox

Run,” and assert that “entities not parties to the Lease do not have standing to

contest the provisions of the contract.”

       Moving Defendants’ argument fails because Acme’s duty of care to

Plaintiff is independent of any contractual relationship it may have with its

landlord. Acme owed a common law duty of care to its customers to keep its

premises safe.      More than fifty years ago the Delaware Supreme Court

described it this way:

              The defendant as a storekeeper owes a duty to the
              public to see that those portions of its premises
              ordinarily used by its customers are kept in a
              reasonably safe condition for their use. In the
              performance of this duty a storekeeper is charged with
              responsibility for injuries which are caused only by
              defects or conditions of which the storekeeper had
              actual notice or which could have been discovered by
              such reasonable inspection as other reasonably
              prudent storekeepers would regard as necessary.1

A private agreement between Acme and Fox Run cannot alter the duty Acme

owes to its customers. It may well be (and indeed Fox Run seems to concede)

that Acme has a valid claim for indemnification against Fox Run. But that does

not change the fact that Acme owes a duty of care to its customers.

       In a footnote the moving parties question why Albertsons is a party to

this case. The complaint alleges that Albertsons owns Acme Markets, Inc., but

it does not set forth any discernable theory why this makes Albertsons liable.



1   Howard v. Food Fair Stores, New Castle Inc., 201 A.2d 638, 640 (Del. 1964).


                                           2
The court will not dismiss the claim against Albertsons on this theory because

it was not fairly presented. The mere appearance in a footnote does not suffice.

However, Plaintiff may wish to rethink its decision to include Albertsons as a

defendant.

      For the foregoing reasons, the motion to dismiss is DENIED.




                                                 Very truly yours,


                                                 John A. Parkins, Jr.




oc:   Prothonotary




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