            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHARLOTTE HUDSON,                     :
                                      :    C.A. No: K14C-01-007 RBY
              Plaintiff,              :    In and For Kent County
                                      :
      v.                              :
                                      :
BOSCOV’S DEPARTMENT                   :
STORE, LLC, and DOVER MALL,           :
LP, a Delaware limited partnership,   :
                                      :
              Defendants.             :


                             Submitted: May 21, 2016
                              Decided: June 22, 2016


   Upon Consideration of Defendant Boscov’s Department Store, LLC’s Motion
                           for Summary Judgment
                                  DENIED

                                      ORDER


Nicholas H. Rodriguez, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware
for Plaintiff.

Sarah M. Ennis, Esquire, Margolis Edelstein, Wilmington, Delaware for Defendant
Boscov’s Department Store, LLC.

Kevin J. Connors, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware for Defendant Dover Mall, LP.



Young, J.
Hudson v. Boscov’s Department Store, LLC, et al.
C.A. No.: K14C-01-007 RBY
June 22, 2016

                                     SUMMARY
       Charlotte Hudson (“Plaintiff”) filed an action against Defendants Boscov’s
Department Store (“Boscov’s”) and Dover Mall (“Dover Mall”) for damages
arising out of a slip and fall accident. Boscov’s filed a Motion for Summary
Judgment. Because material issues of fact remain in dispute, Defendant’s Motion is
DENIED.
                               FACTS AND PROCEDURE
       Plaintiff alleges that either or both Defendants Boscov’s and Dover Mall
breached a duty of care to her when they failed to maintain the premises where the
accident occurred in a reasonably safe condition. In particular, Plaintiff claims that
on February 1, 2013, she slipped and fell on a patch of ice while walking off of a
curb in the parking lot behind Boscov’s store location at the Dover Mall. As a
result, Plaintiff allegedly suffered injuries.
       Boscov’s claims that it did not owe a duty of care to Plaintiff at the time of
her accident. Boscov’s first points to the general proposition that, as the managing
landlord of the complex, Dover Mall is responsible for maintenance of all areas,
including the parking lot where Plaintiff slipped and fell. Second, Boscov’s points
to the specific Operating Agreement (the “Contract”) between itself and Dover
Mall. The Contract incorporates a prior lease which expressly states that as
landlord, Dover Mall is responsible for maintaining the parking areas.
       Plaintiff filed suit on January 7, 2014. On May 2, 2016, Boscov’s filed the
instant motion for summary judgment. In the motion, Boscov’s asserts that it owed
no duty of care to Plaintiff under the terms of the Contract between it and Dover


                                                 2
Hudson v. Boscov’s Department Store, LLC, et al.
C.A. No.: K14C-01-007 RBY
June 22, 2016

Mall, which expressed the parties’ intent to allocate responsibility for relevant
maintenance to Dover Mall. Therefore, as a matter of law, Boscov’s requests that
this Court grant summary judgment.
                                       STANDARD OF REVIEW
         Summary judgment is appropriate where the record exhibits no genuine issue
of material fact so that the movant is entitled to judgment as a matter of law.1
“Summary judgment may not be granted if the record indicates 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 to the circumstances.”2 The court should
consider the record in the light most favorable to the non-moving party.3
                                           DISCUSSION
         Delaware case law notes that “courts often turn to the language of relevant
agreements, such as a lease, to determine whether a party held a duty to plaintiffs in
slip-and-fall cases involving snow and ice.”4 In doing so, courts may apply the
objective theory of contracts to determine whether terms are ambiguous.5 If the
court finds that “reasonable minds could differ as to the contract’s meaning,” then



         1
             Tedesco v. Harris, 2006 WL 1817086 (Del. Super. June 15, 2006).
         2
             Id.
         3
             Id.
         4
             Keating v. Best Buy Stores, LP, et al., 2013 WL 8169756, at *2 (Del. Super. March 28,
2013).
         5
             Id. (citation omitted).

                                                   3
Hudson v. Boscov’s Department Store, LLC, et al.
C.A. No.: K14C-01-007 RBY
June 22, 2016

a factual dispute remains and summary judgment is inappropriate.6
       Here, the legal issue underlying Boscov’s motion is whether either or both
Boscov’s and Dover Mall owed a duty of care to Plaintiff, which Plaintiff claims
was breached by failure to maintain the area at issue in a reasonable manner. If
Boscov’s did not owe a duty of care to Plaintiff because of the parking lot
provision in its Contract with Dover Mall, then summary judgment is appropriate.
If, however, Boscov’s did or may have owed a duty of care to Plaintiff, material
facts remain in dispute and summary judgment is inappropriate.
       Here, the express language of the Contract assigns responsibility for
maintenance of the “parking areas” to Dover Mall. However, as evidenced by the
Plaintiff’s expert report (“the Report”), citing conflicting deposition testimony
regarding which Defendant was responsible for maintenance of the curb, step, and
parking lot, the Contract’s terms are ambiguous as applied to Plaintiff’s accident.
       Boscov’s notes correctly that during summary judgment analysis, the Court
should not find a disputed fact issue present based on mere speculation. Here,
however, there is record evidence of disputed facts in the Report. The Report
offers alternative assessments of where the accident occurred and which Defendant
was responsible for the area. Specifically, the Report states that both Defendants
negligently maintained the accident location. In the Report, Plaintiff’s expert
comments that the duty of maintenance was ambiguous, but nevertheless he opines
that Plaintiff’s injury was Boscov’s’ responsibility, at least in part. Since the
Plaintiff’s expert places these critical, material facts in dispute, it remains unclear

       6
           Id. (citation omitted).

                                              4
Hudson v. Boscov’s Department Store, LLC, et al.
C.A. No.: K14C-01-007 RBY
June 22, 2016

which Defendant or Defendants owed a duty of care to Plaintiff. Therefore,
summary judgment is inappropriate at this time.
                                     CONCLUSION
       For the foregoing reasons, the Defendant’s Motion for Summary Judgment
is DENIED.
       IT IS SO ORDERED.


                                                  /s/ Robert B. Young
                                                             J.

RBY/lmc
Via File and ServeXpress
cc: Counsel
      Opinion Distribution




                                              5
