IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SCOTT STEPHENSON and
DANIELLE STEPHENSON
Individually and as Guardian ad
Litem for her Minor Daughters,
AVA STEPHENSON, and
LILLIAN STEPHENSON, C.A. No. N17C-06-383 CLS

Plaintiffs,
Vv.

BIG OAKS TRAILER PARK, INC.,
d/b/a BIG OAKS CAMPGROUND,
and BOYER’S TREE SERVICE

4.4 ae ae ae ee ee

Defendants.

Date Submitted: June 14, 2019
Date Decided: September 12, 2019

Upon Defendant Big Oaks Trailer Park, Inc’s
Motion in Limine to Exclude the Testimony of
Russell E. Carlson
Granted in part.

Upon Defendant's Motion for Summary Judgment
Granted.

Sean P. Gambogi, Esquire, Kimmel, Carter, Roman, Peltz & O’ Neill, Newark, Delaware,
Attorney for Plaintiffs.

Michael I. Silverman, Esquire and Adrienne M. McDonald, Esquire, Wilmington,
Delaware, Attorney for Defendants.

Scott, J.
Background

Plaintiffs Scott and Danielle Stephenson bring this personal injury claim on
behalf of themselves and their minor daughters, Ava and Lillian Stephenson, against
Defendants Big Oaks Trailer Park, Inc. and Boyer’s Tree Service.

On July 3, 2015 Scott, Danielle, Ava, and Lillian Stephenson were camping
at campsite PV-1 on the property of Big Oaks Campground. Plaintiffs allege that on
or about 9:30 pm on July 3, 2015, a large tree limb from an oak tree near campsite
PV-1 broke and fell into the Stephenson family’s campground, bringing smaller tree
limbs from a nearby hickory tree down with it. Plaintiffs allege that they were hit
by some of the falling tree limbs and suffered physical and mental injuries as a result.

Plaintiffs allege that Defendant Big Oaks Trailer Park, Inc. (“Defendant”)
acted negligently by failing to properly inspect, maintain, and remove trees on its
property, creating an unsafe condition.’ Plaintiffs assert that Defendant’s negligence
proximately caused the accident? The complaint requests general and special
damages for physical and mental injury, property damage, and loss of consortium in

an amount to be determined by the jury.’

 

' Compl. 4 5.
2 Id.
31d. 49.
Plaintiffs identified and submitted an expert report from their liability expert,
Russell Carlson, on June 27, 2018.4 Defendant now moves to exclude the testimony
of Plaintiffs’ liability expert. Concurrently, Defendant moves for summary
judgment. For the following reasons, Defendant’s Motion in Limine to Exclude the
Testimony is GRANTED IN PART and Defendant’s Motion for Summary
Judgment is GRANTED.

Parties’ Assertions

On May 20, 2019, Defendant filed Defendant Big Oaks Trailer Park, Inc.’s
Motion in Limine to Exclude the Testimony of Russell E. Carlson and Defendant’s
Motion for Summary Judgment.’ Defendant argues that Mr. Carlson is not qualified
to offer testimony on the appropriate standard of care for campground management
because he is an arborist and not a campground manager.® Defendant asks the Court
to exclude Mr. Carlson’s testimony.’ Additionally, Defendant moves for summary
judgment, arguing that Plaintiffs have not provided sufficient evidence to support

their prima facie case by failing to identify an appropriate liability expert witness.°

 

4 Def. Big Oaks Trailer Park, Inc.’s Mot. in Lim. to Exclude the Test. of Russell E.
Carlson and Defs.’ Mot. for Summ. J. Ex. A.

> The title that the Court is using for Defendant’s Motion is different from the title
on Defendant’s actual motion. The Court has identified errors in the title of
Defendant’s motion and has chosen to correct the errors in its decision rather than
confuse readers by using an inaccurate title.

® Id. FF 5-8, 14-18.

1a.49.

8 Id. § 19-20.
On June 14, 2019, Plaintiffs filed Plaintiffs’ Response to Defendant’s Motion
in Limine to Exclude the Testimony of Russell E. Carlson and Defendant’s Motion
for Summary Judgment.? Responding to Defendant’s motion for summary
judgment, Plaintiffs argue that expert testimony is not needed to establish the
elements of duty and breach because the standard of care is a matter of common
sense.!° Responding to Defendant’s motion in limine, Plaintiffs argue that Mr.
Carlson’s testimony will assist the jury in understanding how to assess the viability
of the oak tree.!! Plaintiffs ask the Court to deny both motions.!”

Standard of Review

The Court may grant summary judgment if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to summary judgment as a matter of law.”'? The moving party bears

the initial burden of showing that no material issues of fact are present.'* Once such

 

° The title that the Court is using for Plaintiffs’ Motion is different from the title on
Plaintiffs’ actual motion. The Court has identified errors in the title of Plaintiffs’
motion and has chosen to correct the errors in its decision rather than confuse
readers by using an inaccurate title.

10 Pls.” Resp. to Def.’s Mot. in Lim. to Exclude the Test. of Russell E. Carlson and
Def.’s Mot. for Summ. J. {{ 7-9.

"Td. 48.

12 Td. at 9.

13 Super. Ct. Civ. R. 56(c); Buckhart v. Davies, 602 A.2d 56, 59 (Del. 1991).

'4 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

4
a showing is made, the burden shifts to the non-moving party to demonstrate that
there are material issues of fact in dispute.!° In considering a motion for summary
judgment, the Court must view the record in a light most favorable to the non-
moving party.'!© The Court will not grant summary judgment if it seems desirable to
inquire more thoroughly into the facts in order to clarify the application of the law.’
Discussion
A. Defendant’s Motion for Summary Judgment

To make a prima facie showing of a claim for negligence, a plaintiff must
show: (1) the defendant owed a duty to plaintiff; (2) defendant breached its duty;
(3) the plaintiff suffered injuries; and (4) defendant’s breach of duty was the
proximate cause of the plaintiff's injuries.'® If a plaintiff fails to make a sufficient
showing of the existence of an element essential to her case, then it is proper for this
Court to grant a defendant’s motion for summary judgment.'? The specific issue
before the Court is whether an arborist may provide expert testimony on the elements

of duty and breach in a negligence claim against a campground.

 

'S Td. at 681.

'6 Buckhart, 602 A.2d at 59.

17 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ
Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Apr. 26, 2006).

'8 Campbell v. DiSabatino, 947 A.2d 1116, 1117 (Del. 2008).

'9 Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1270—
1271 (Del. 1998).

5
In general, a business owner “owes a duty to those who come to his place to
do business 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 which should have
been known in the exercise of reasonable care or diligence.””? The “due care” which
business owners owe to invitees is that of a reasonable person under the
circumstances.*! Here, Defendant is the business owner of a campground. As such,
Defendant should be held to the standard of care of other campground owners.” The
required procedures and practices followed by campground owners are not within
the knowledge of a layperson.” Therefore, it is more appropriate to evaluate the
sufficiency of Plaintiffs’ evidence for duty and breach in accordance with the

evidentiary thresholds required for professionals than for laypersons.

 

20 Woods v. Prices Corner Shopping Center Merchants, Ass’n, 541 A.2d 574, 575
(Del. Super. 1988).

21 See Coker v. McDonald’s Corp., 537 A.2d 549, 551 (Del. Super. 1987) (finding
that landowners should be compared to a “reasonable person”).

2 Abegglan v. Berry Refrigeration Co., 2005 WL 6778336, at *2 (Del. Super. Dec.
2, 2005) (clarifying that a charge of negligence against a person in a particular
profession requires that the defendant be held to the standard of care of a member
of that profession in good standing).

3 Cf Roberts v. Daystar Sills, Inc., 2008 WL 8203205, at *3 (Del. Super. Dec. 8,
2008) (“A lay jury has common knowledge of what conditions are expected and
reasonable in a grocery store or when walking down a residential street but the
determination of what conditions are expected and reasonable at a closed
construction site requires specialized knowledge.”).

6
As a general rule, the standard of care applicable to a professional can only be
established through expert testimony.*4 As an exception to this rule, expert
testimony is not required when the professional’s mistake is so apparent that a
layman, exercising his common sense, is perfectly competent to determine whether
there was negligence.?° Unlike failing to clean up “hoagie guts” from a parking lot”®
or spilled water from the aisle of a grocery store,”’ Defendant’s alleged failure is not
a matter of common sense.

Plaintiffs have identified an arborist as their liability expert and allege that if
Defendant had called an arborist, then Defendant would have immediately known
of the potential weaknesses of the oak tree involved in this incident. Whether this is
true or not, it is not the correct standard. Instead, the relevant inquiry is whether a
reasonable campground owner in the Defendant’s circumstances would have called
an arborist. Merely setting out what Plaintiffs think Defendant should have done is
not enough to show that Defendant breached its standard of care. To allow the jury

to decide that Defendant acted negligently without giving the jury a standard under

 

24 Weaver v. Lukoff, 1986 WL 17121, at *1 (Del. July 1, 1986).

25 Td.

26 Donovan v. Wawa, Inc., 2017 WL 4675755, at *3 (Del. Super. Oct. 17, 2017).
27 Hazel v. Delaware Supermarkets, Inc., 953 A.2d 705, 710-11 (Del. 2008).

d
which to evaluate Defendant’s actions would be tantamount to inviting the jury to
speculate.?® Although juries are the finders of fact, juries cannot speculate.”?

By failing to identify an expert to establish the duty which Defendant owed to
Plaintiffs and to show how Defendant breached that duty, Plaintiffs have not set forth
sufficient evidence to support essential elements of their prima facie case. In
viewing the facts in a light most favorable to the Plaintiffs, the Court finds that
Defendant is entitled to judgment as a matter of law. Accordingly, Defendant’s
Motion for Summary Judgment is GRANTED.

B. Defendant’s Motion in Limine

Delaware Rule of Evidence 702 provides that “a witness who is qualified as
an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if... the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.”°° There is no question that Russell Carlson’s testimony
would help the trier of fact understand the extent of the latent damage to the oak tree

of which Plaintiffs allege Defendant should have been aware. But Plaintiffs have

 

8 Abegglan, 2005 WL 6778336, at *3 (“Without expert testimony in this case,
‘jurors would be forced to surmise about the particular degree of skill and how to
measure it’ against [defendant’s] repair of the ice machine on the day of the
accident.”’).

2° Roberts, 2008 WL 8203205, at *3.

39 Del. R. Evid. 702(a).
offered Mr. Carlson to show how Defendant breached his duty. As an arborist, Mr.
Carlson is not qualified to give an opinion on a campground owner’s duty of care.
Therefore, the Court finds that Mr. Carlson is not qualified to testify as Plaintiffs’
liability expert. The Court also finds, however, that Mr. Carlson’s testimony would
help the jury understand exactly why the oak tree was an unsafe condition.
Accordingly, the Court GRANTS Defendant’s Motion in Limine to prohibit Mr.
Carlson from testifying as a liability expert but DENTES Defendant’s Motion in
Limine to exclude Mr. Carlson’s otherwise relevant testimony.
Conclusion

For the forgoing reasons, Defendant’s Motion in Limine to Exclude the
Testimony of Russell E. Carlson is GRANTED IN PART and Defendant’s Motion
for Summary Judgment is GRANTED.

IT ISSO ORDERED.

KH)

Judge alvin L. Scott, Jr.
