IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NEWARK SQUARE, LLC, a Delaware
limited liability company,

Plaintiff,
C.A. NO. NlSC-08-227 MMJ

V.

TODD LADUTKO AND CYNTHIA

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)
)
)
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§
LADUTDKO, individuals, )
)
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Defendants.
Submitted: December 9, 20 l 6
Decided: February l(), 2017

Upon Defendant’S Motion for Summary Judgment
GRANTED

OPINION

Richard L. Abbott, Esq., Abbott LaW Firm, Attorney for Plaintiff Newarl< Square,
LLC

Sean A. Dolan, Esq., Law Office of Cynthia G. Beam, Attorney for Defendants
Todd Ladutko and Cynthia Ladutko

JOHNSTON, J.

PROCEDURAL CONTEXT AND FACTUAL BACKGROUND

This litigation raises negligence and trespass claims Stemming from an
alleged fire loss that occurred on November 6, 2014. Plaintiff Newark Square LLC
(“Newark Square”) owns a property (“Newark Square Property”) adjacent to the
property where the fire took place (“Ladutko Property”). The Ladutko Property is
owned by Defendants Todd Ladutko and Cynthia Ladutko (“Ladutkos”). The
Ladutko Property is occupied by various tenants. On November 6, 2014, a fire
occurred on the Ladutko Property. The fire spread to the Newark Square Property
and caused substantial damage For purposes of this Motion, these facts are
undisputed

On August 28, 2015, Newarl< Square filed this lawsuit against the Ladutkos.
The Ladutkos answered on October l, 2015 and denied liability. Discovery was
completed on September 3(), 2016. The Ladutkos filed this Motion for Summary
Judgment on October 25, 2016.

STANDARD OF REVIEW

Summary judgment is granted only if the moving party establishes that there

are no genuine issues of material fact in dispute and judgment may be granted as a

matter of law.l All facts are viewed in a light most favorable to the non-moving

 

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

party.2 Summary judgment may not be granted if the record indicates that a
material fact is in dispute, or if there is a need to clarify the application of law to
the specific circumstances3 When the facts permit a reasonable person to draw
only one inference, the question becomes one for decision as a matter of law.4 If
the non-moving party bears the burden of proof at trial, yet “fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case,” then summary judgment may be granted against that party.5
ANALYSIS

The Ladutkos argue that Summary Judgment should be granted because
Newark Square has not produced any specific evidence as to the cause of the fire.
The Ladutkos point to their expert’s opinion that the precise cause of the fire
cannot be determined The Ladutkos also cite to the fact that while they own the
property in question, various tenants occupy it. The Ladutkos contend that the
Ladutoko property is not under their own specific management and control.

Newark Square argues that res ipsa loquitur applies in this case. lt asserts
that negligence on the part of the Ladutkos may be presumed, even absent a

specific showing of causation

 

ZBthar¢ v. Davies, 602 A.2d 56, 58_59 (Del. 1991).
3 Super. Ct. Civ. R. 56(c).

4 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

5 Celo¢ex Corp. v. Ca¢re¢¢, 477 U.s. 317, 322 (1986).

2

Res Ipsa Loquitur
The doctrine of res ipsa loquitur is a rule of circumstantial evidence that
permits the trier of fact to draw an inference of negligence6 In order for Plaintiff
to invoke res ipsa loquitur, the following elements must be shown:

(l)The accident must be such as, in the ordinary course of events,
does not happen if those who have management and control use
proper care; and

(2) The facts are such as to warrant an inference of negligence of such
force as to call for an explanation or rebuttal from the defendant;
and

(3)The thing or instrumentality which caused the injury must have
been under the management or control (not necessarily exclusive)
of the defendant or his servants at the time the negligence likely
occurred; and

(4) Where the injured person participated in the events leading up to
the accident, the evidence must exclude his own conduct as a
responsible cause.7

When the doctrine is properly invoked, a defendant will not be entitled to a
directed verdict unless evidence is produced that either destroys the
inference of negligence, or so completely contradicts it that a reasonable jury
would be unable to find negligence8 The doctrine of res ipsa loquitur does
not provide a theory of recovery.

This case is factually and legally analogous to State Farm Fire &

 

6 D.R.E. 304(3)(1).
7 D.R.E. 304(b).
8 D.R.E. 304(¢)(2).

Casualty Comparzy v. Middleby Corporatiort.9 ln Middleby, the plaintiff
claimed negligence under the theory of res ipsa loquitur. This Court granted
summary judgment against the plaintiff for failure to adequately identify
“what, if any, negligence ‘likely occurred’ to cause the fire . . . .”10

The plaintiffs experts provided no theory as to any negligence that
caused the damage in either fire The experts opined that the origin of one
fire was a fryer thermostat housing, but concluded that the cause was
accidental. The experts found that the other fire resulted from an electrical
or mechanical malfunction of the fryer, but could not reach a determination
as to specific cause without further engineering analysis. No additional
analysis was performedll

In this case, Plaintiff Newark Square has made no specific showing of
negligence Instead, a witness on behalf of Newark Square stated during her
deposition that a fire marshal told her that “faulty wiring” was the cause of
the fire Newark Square has not produced any expert or factual witness
testimony that indicates that the alleged faulty wiring existed as a result of

negligence Neither has Newark Square produced any evidence opining that

the faulty wiring was the proximate cause of the damage

 

9 2011 wL 2462661 (Del. super.).
'0 1a at *6.
ll Id. at *l.

Newark Square has not produced sufficient evidence to proceed under
the theory of res ipsa loquitur. In order to be adequate evidence, the fire
marshal would have to opine as an expert, and the opinion would need to
cite some negligent activity on the part of the Ladutkos. For example, a
showing that the Ladutkos failed to maintain their property up to a relevant
building code, or a violation of the landlord-tenant law, may have been
enough to survive summary judgment However, any report of the the fire
marshal, even assuming admissibility under an exception to the hearsay rule,
does not provide any such showing. Therefore, the report is not sufficient to
establish a prima facie case of liability for negligence, or for an inference of
negligence by application of res ipsa loquitur.

Fire Trespass

Newark Square argues that the Ladutkos should be liable for trespass
because the fire that originated on the Ladutko Property crossed onto the
Newark Square Property and caused damage In Delaware, in order to prove
an intentional trespass to land Plaintiff must show: (l) that the plaintiff has
lawful possession of the land; (2) that the defendant entered onto the
plaintiff’ s land without consent or privilege; and (3) damages12 Entry onto

the property in question must be intentional, but the plaintiff need not prove

 

12 Wuliams v. Manning, 2009 wL 960670, at *8 (Del. super.).
5

any wrongful intent.]3

In this case, there was no volitional act that constituted trespass In
order for liability to exist, a defendant must take some action that
proximately causes damage to another’s property, even if that action is not
purposeful For example, trespass may occur when an owner of property
negligently takes action that diverts water from the owner’s property, the
water floods adjoining land, and damages a neighbor’s property. Here, there
is no such showing of any negligent action. Therefore, Newark Square has
not established a prima facie case for trespass

PlaintiffBears Burden of Proving Liability

Negligence is not presumed In order to survive a motion for
summary judgment, Newark Square must make some showing of negligence
on the part of the Ladutkos. Newark Square has made no such showing.
Newark Square has offered neither expert nor factual testimony of any
negligent activity by the Ladutkos. Further, Newark Square has not

established a basis for a finding of trespass

 

13 ld.

CONCLUSION

The Court finds that Newark Square has failed to make any showing
of negligence on the part of the Ladutkos. Facts alleged by Newark Square,
even viewed in the light most favorable to Newark Square, do not establish a
prima facie case for liability based in negligence Newark Square has not
satisfied the elements to invoke res ipsa loquitur.

Additionally, The Court finds that Newark Square has not established
a prima facie case for liability based in trespass THEREFORE, the

Ladutkos’ Motion for Summary Judgment is hereby GRANTED.

%7”%%-:

The¢fionorab‘l€ Mary M. Johnston

IT IS SO ORDERED.

