   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RICHARD CHASE, and his wife, )
MELANIE CHASE,                     )
                                   )
      Plaintiffs,                  )
             v.                    )        C.A. No. N15C-10-162 CLS
WAP CLEVELAND AVENUE,              )
L.L.C., ROYAL IMPORTS INC.         )
d/b/a NEWARK TOYOTAWORLD )
                                   )
Defendants/Third-Party Plaintiffs, )
            v.                     )
MARTIN NEWARK DEALERSHIP, )
INC., d/b/a MARTIN HONDA,          )
                                   )
Third Party Defendant.             )


                      Submitted: January 31, 2017
                        Decided: May 19, 2017

             On Defendants‟ Motion for Summary Judgment.
                             DENIED.
                              ORDER

Elizabeth Lewis, Esquire, and Thomas Crumplar, Esquire, Jacobs &
Crumplar, P.A., Wilmington, Delaware, Attorney for Plaintiffs Richard and
Melanie Chase.

Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires &
Newby, LLP, Wilmington, Delaware, Attorney for Defendants/Third-Party
Plaintiffs WAP Cleveland Avenue, LLC and Royal Imports Inc. d/b/a
Newark Toyota World.

Melissa L. Rhoads, Esquire, and Jason J. Cummings, Esquire, Tigh &
Cottrell, P.A., Wilmington, Delaware, Attorney for Third Party Defendant,
Martin Newark Dealership d/b/a Martin Honda.

SCOTT, J
                                  Background

      Defendant‟s WAP Cleveland Avenue, LLC (hereinafter “WAP”) and Royal

Imports Inc. d/b/a Newark ToyotaWorld (hereinafter “Royal”) filed a Motion for

Summary Judgment on November, 18 2016.           Plaintiffs Richard Chase (“Mr.

Chase”) and his wife Melanie Chase filed a response on January 31, 2017.

Defendant Martin Newark Dealership d/b/a Martin Honda (hereinafter “Martin

Honda”) did not file a response. A pre-trial conference was held on May 15, 2017.

At the pre-trial conference the parties informed the Court that Defendants Nucar

Newark Body Shop and Diamond Motor Sports, Inc. were no longer in the case.

Further, the parties agreed that the case caption should read “Royal Imports, Inc.

d/b/a Newark ToyotaWorld.”

                                      Facts

      On June 1, 2013, Royal entered into a Parking License Agreement

(hereinafter “Agreement”) with Martin Honda. Under this Agreement, Martin

Honda paid Royal to use a designated portion of property that Royal leases from

the WAP. The Agreement allows Martin to store 100 new and/or used cars on the

property. WAP is not a party to this agreement. On December 11, 2013, Mr.

Chase, a Martin Honda employee, parked his vehicle on the property subject to the

Agreement. As he was walking from the lot onto the adjoining public roadway,
Christopher Lane, he slipped and fell on ice and snow. The pertinent portion of the

Agreement states:

      The Fee does not include customary and ordinary costs and expenses
      associated with the routine maintenance of the Licensed Property,
      including but not Limited to, costs for debris removal, snow plowing
      and restriping (collectively, the “Routine Maintenance”) which shall
      be billed by Licensor to Licensee on a quarterly basis and paid by
      Licensee to Licensor within thirty (30) days of receipt. Any other
      maintenance, repairs and/or replacements of the Licensed Property
      that would be characterized as a capital improvement, including, by
      way of example and not of limitation, resealing and repaving of the
      Licensed Property, shall be performed by and the responsibility of the
      Licensor (collectively the “Long Term Maintenance”). Licensor shall
      provide Licensee with reasonable prior written notice of any Routine
      maintenance of Long Term Maintenance (collectively, the
      “Maintenance”) to be performed on the Licensed Property, Licensee
      agrees to reasonably cooperate with Licensor in connection with any
      Maintenance on the Licensed Property and shall, if necessary in order
      to accomplish the Maintenance, find reasonable alternative parking
      arrangements outside of the Licensed Property for the period required
      to perform any Maintenance.

The lease agreement between WAP and Royal was not proffered during

Discovery.

                              Parties’ Contentions

      Defendants WAP and Royal contend that there is no genuine issue of

material fact in this case and summary judgment is appropriate. WAP contends

that although they are the owner of the property where Mr. Chase was injured, they

were neither the “possessor” nor the “Licensor.” WAP also claims that Mr. Chase

was on the property for the sole benefit of Martin Honda, not to benefit WAP‟s
business. Similarly, Royal claims that the use of the property solely benefited

Martin Honda‟s business and there is no evidence that Royal “invited” Mr. Chase

onto the property. Royal also argues that because Martin Honda is a licensee, Mr.

Chase is also a licensee because he was Martin Honda‟s employee. Royal also

claims that the Complaint does not allege willful or wanton conduct on the part of

Royal.

      On the other hand, Plaintiffs contend that Mr. Chase is a business invitee

because he was rightfully on the lot when he was injured, and both WAP and

Royal owed Mr. Chase a duty to exercise reasonable care in making the property

safe. Plaintiffs claim that Mr. Chase was a business invitee pursuant to the

Restatement (Second) of Torts because Mr. Chase was invited to enter on the land

for a purpose directly or indirectly related to the business dealings with the

possessor of the land. Plaintiffs claim that this is evidenced by the fact that Martin

Honda directed Mr. Chase to park in the designated lot, and Royal received a fee in

exchange for allowing Martin Honda to use the property. Plaintiffs argue that

pursuant to Section 26-3 of the City of Newark‟s Municipal Code, the “property

owner”, in this case WAP, is required “to remove all snow or ice from the sidewalk

abutting such property from the time the snow ceases to fall.” Plaintiffs also claim

that as part of the Agreement between Royal and Martin Honda, Royal was to pay

for the snow removal and seek reimbursement from Martin Honda.                Finally,
Plaintiffs contend that there is an issue of fact as to joint control of the property in

question between WAP and Royal. Plaintiffs state that the Agreement between

Martin Honda and Royal places responsibility on Royal to take care of snow

removal, and then subsequently bill Martin Honda for the removal. However,

Plaintiffs claim that the Agreement requires that any inquiries pertaining to the

Agreement should be directed to Warren A. Price, the principle of WAP. Because

of this clause, Plaintiffs argue that there is an issue regarding joint control of the

property. Additionally, Plaintiffs state that Martin Honda had no responsibility for

the “Routine Maintenance” or “Long Term Maintenance” pursuant to the

Agreement.

                                           Standard

       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.”1 The moving party

bears the initial burden of showing that no material issues of fact are present. 2

Once such a showing is made, the burden shifts to the non-moving party to

demonstrate that there are material issues of fact in dispute.3 In considering a


1
  Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
2
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
3
  Id. at 681.
motion for summary judgment, the Court must view the record in a light most

favorable to the non-moving party.4 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.5

                                         Discussion

       Under Delaware law, a plaintiff must demonstrate that a particular defendant

owed her a duty of care, breached that duty, and the breach was the proximate

cause of her injuries.6 The Court determines whether a duty exists, and it “is

entirely a question of law, to be determined by the body of statutes, rules,

principles and precedents which make up the law.”7 Generally, landowners have

“an affirmative duty to keep premises safe from hazards of ice-and snow-related

accumulation,” and they are “permitted to await the end of a storm and a

reasonable time thereafter to remove ice and snow from an outdoor entrance walk,

platform, or steps.”8      Pertinent to this case, the City of Newark‟s Code of

Ordinances, Section 26-3(a) provides that the “owner, tenant, or occupant of every

building or lot within the city, or owner, claimant, agent, or person having same in

4
  Burkhart, 602 A.2d at 59.
5
  Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods., Inc., 2006
WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
6
  Patton v. 24/7 Cable Co., LLC, 2016 WL 6272552, *2 (Del. Super. Aug. 31, 2016).
7
  Id. (citations omitted).
8
  Laine v. Speedway, LLC, 2016 WL 5946491, at *2 (Del. Super. Oct. 13, 2016)(citing Cash v. E.
Coast Prop. Mgmt., Inc., 2010 WL 4272925, at *2 9Del. Oct. 29, 2010). The Court notes that
this duty applies to business invitees. See Elder v. Dover Downs, Inc., 2012 WL 2553091, at *4
(Del. Super. July 2, 2012).
charge or control when the same is not tenanted or occupied, or the owner of any

property which is occupied by multiple businesses or multiple dwelling units, shall

remove all snow or ice from the sidewalk abutting such property within 24 hours

from the time the snow ceases to fall.”9 There is no claim under Delaware‟s

continuing storm doctrine in the present case. Rather, the main issue before the

Court is which parties, if any, owed Mr. Chase a “duty” to remove the ice and

snow where Mr. Chase fell. To properly answer this question, the Court must

assess Mr. Chase‟s status on the premises in order to determine the applicable duty

of care.      Because there are multiple parties in this action, and each party‟s

relationship to Mr. Chase differs, the Court will assess the Motion per each

Defendant individually.

WAP Cleveland Avenue

         The Court is not persuaded by WAP‟s argument that no genuine issue of fact

exists because WAP was neither the “possessor” nor the Licensor. The general

rule concerning leased premises is that “a landowner who has neither possession

nor control of the leased premises is not liable for injuries to third persons.”10

Thus, “a lessor of land is not subject to liability to his lessee or others upon the

land with the consent of the lessee or sublessee for physical harm caused by any

dangerous condition which comes into existence after the lessee has taken

9
    See The City of Newark‟s Municipal Code Section 26-3 (emphasis added).
10
     Volkswagen of America, Inc. v. Costello 880 A.2d 230, 233 (Del. 2005).
possession.”11 However, “an exception arises, justifying imposition of liability on

an out-of-possession owner, where the owner „retains control of portions of the

land which the lessee is entitled to use‟.”12 Further, “it is necessary to show actual

control because „once a landlord leases property, he generally relinquishes both

control and possession of the leased area to the lessee‟.”13 At this point in the

litigation, when viewing the facts in a light most favorable to Plaintiffs, summary

judgment is inappropriate. Plaintiffs‟ case a very similar to the Delaware Supreme

Court case, Volkswagen of America, Inc. v. Costello.14 In Costello, the plaintiff

worked at Transworld Port and Distribution Services Inc. as an automobile

mechanic.15 Transworld processed and stored vehicles for Volkswagen (“VW”)

imported through the Port of Wilmington.16 VW and Transworld entered into an

agreement that granted Transworld a license to “occupy” the property, and the

agreement stated that VW “owns, leases, or is in possession” of the said property. 17

Subsequently in 1996, VW installed new floors in the area where the plaintiff

worked,18 and in 2001 the plaintiff slipped in a puddle of water on these floors.19


11
   Id.
12
   Id. at 233 (citing Craig v. A.A.R. Realty Corp., 576 A.2d 688, 694 (Del. Super. 1989)).
13
    Id. (citing Argoe v. Commerce Square Apts., Ltd. P’ship, 745 A.2d 251, 255 (Del. Super.
1999)).
14
   880 A.2d 230 (Del. 2005).
15
   Id. at 231.
16
   Id.
17
   Id. at 231-32.
18
   Id. at 232.
19
   Id. at 232.
This Court granted partial summary judgment because it found that “VW did not

actively control the „method and manner of work‟ performed by Transworld,” but

denied the motion on the issues of possession.20 The Supreme Court held the issue

of possession remained a question for the factfinder, and not the trial judge. 21 The

court noted that “[p]ossession and control are related, but nonetheless

jurisprudently distinct concepts,”22 and “it is possible for a landowner to retain

some modicum of possession, but relinquish all control to a lessee or another

party.”23 Here, there are issues of fact as to whether WAP was in actual control of

the property in question. The lease between WAP and Royal was not turned over

during discovery, and the Court is limited to the facts in the record. Under these

set of facts, when viewed in a light most favorable to the Plaintiffs, the Court

cannot determine whether WAP was in actual control of the property. Therefore,

WAP‟s Motion for Summary Judgment is DENIED.

Defendant Royal Imports d/b/a Newark ToyotaWorld

       Royal argues that Mr. Chase was a licensee on the property because of the

licensor/licensee relationship established through the Agreement between Royal

and Martin Honda. However, Plaintiffs argue that Mr. Chase was a business

invitee under the Restatement (Second) of Torts because he “was invited to enter

20
   Id.
21
   Id. at 234.
22
   Id. (citations omitted).
23
   Id. (citing Argoe, 745 A.2d at 255).
or remain on the land for a purpose directly or indirectly connected with the

business dealings with the possessor of the land.” The Court does not agree with

Plaintiffs‟ assertion.     The relationship between Royal and Martin Honda is

established through the “Parking License Agreement.” The licensing agreement

between Royal and Martin is “solely and exclusively for parking for no more than

100 motor vehicles, and for no other purposes whatsoever.” From the outset, there

is an issue of fact whether Mr. Chase was on the property pursuant to the permitted

use under the Agreement. Setting this issue aside, Mr. Chase cannot be classified

as a business invitee of Royal. A licensee is defined as “a person who is privileged

to enter or remain on land only by virtue of the possessor‟s consent."24 An invitee,

on the other hand, is defined in Section 332 of the Restatement as “either a public

invitee or a business visitor.”25 A “business visitor is a person who is invited to

enter or remain on land for a purpose directly or indirectly connected with business

dealings with the possessor of the land.”26 A key distinction pertinent to this case

is the difference between an invitation and permission. The comments of the

Restatement distinguish the terms.           Section 332, comment b, states that “[a]n

invitation does not in itself establish the status of an invitee, it is essential to it. An

invitation differs from mere permission in this: an invitation is conduct which


24
   Restatement (Second) of Torts § 330.
25
   Restatement (Second) of Torts § 332(1).
26
   Restatement (Second) of Torts § 332(b).
justifies others in believing that the possessor desires them to enter the land;

permission is conduct justifying others in believing that the possessor is willing

that they shall enter if they desire to do so. Any words or conduct of the possessor

which lead or encourage the visitor to believe that his entry is desired may be

sufficient for the invitation.”27

       Comment (e) of the Restatement suggests that there are two forms of

“business visitors.”28 The first type “includes persons who are invited to come

upon the land for a purpose connected with the business for which the land is held

open to the public, as where a person enters a shop to make a purchase, or to look

at goods on display.”29 The record before the Court suggests that Mr. Chase does

not fall into this category of business invitee as he is an employee of Martin

Honda, and was not on the land for a purpose connected with Royal‟s business.

The second type of business visitor under the Restatement “includes those who

come upon the land not open to the public, for a purpose connected with business

which the possessor conducts upon the land, or for a purpose connected with their

own business which is connected with any purpose, business or otherwise, for




27
   Restatement (Second) of Torts § 332 cmt (b). See also Malin v. Consolidated Rail. Corp., 438
A.2d 1221, 1224 (Del. 1981); Lum v. Anderson, 2004 WL 772074, at *4-5 (Del. Super. Mar. 10,
2004).
28
   See Restatement (Second) of Torts § 332 cmt (e). The Court notes that Delaware courts refer
to business visitors as “business invitees.”
29
   Id.
which the possessor uses the land.”30            For example, “a truck driver from a

provision store who enters to deliver goods to a private residence is a business

visitor; and so is a workman who comes to make alterations or repairs on land used

for residence purposes.”31 Delaware law suggests that the “distinguishing factor

between a licensee and an invitee is whether the possessor of the property receives

any benefit from the use of the property by the licensee or the public invitee.”32

Similarly, “[a]nother key factor in evaluating whether or not a party is an invitee or

a licensee is if their status on the possessor‟s property is related to possessor‟s

business on that property.”33 The Court finds that Mr. Chase was not a business

invitee of Royal. Royal does not confer a benefit from the use of the property by

Mr. Chase, and there are no facts in the record to indicate that he was on the

property for a reason related to Royal‟s business. However, there are multiple

issues of fact in this case. First, it is an issue of fact as to whether Royal was the

“possessor” of the property where Mr. Chase was injured. Although Royal gave

Martin Honda a license34 to enter the property in question through the agreement, a


30
   Id. (emphasis added).
31
   Id.
32
   Short-Karr v. RB Gyms, Inc., 2015 WL 7776734, at *3 (Del. Super. Nov. 20, 2015)(citations
omitted).
33
   Id. (citing Davenport v. D & L Construction, LLC, 2015 WL 4885069, at *3 (Del. Super. Aug.
14, 2015)).
34
   “A license amounts to a permissive use granted by the owner of a property to another which is
terminable at the will of the owner.” Kuhns v. Bruce A. Hiler Delaware QPRT, 2014 WL
1292860, n. 187 (Del. Ch. Mar. 31, 2014)(citing Coker v. Walker, 2013 WL 1858098, at *3 (Del.
Ch. May 3, 2013)).
question of fact exists whether Mr. Chase was on the property within the permitted

scope of the Agreement. Finally, Under Delaware common law, “the duty owed

by industrial and commercial owners and occupiers of land to trespassers and

guests without payment,” also known as a licensee, is “to refrain from willful or

wanton conduct.”35 However, in the present case, the Agreement sets forth the

terms regarding duty to remove snow and the City of Newark requires that the

“owner, tenant, or occupant . . . shall remove all snow or ice from the sidewalk

abutting such property.” Thus, there is an issue of fact as to which party, pursuant

to the agreement, and the city ordinance, was responsible for the removal of ice

and snow on the property. For the aforementioned reasons, Royal‟s Motion for

Summary Judgment is hereby DENIED.

IT IS SO ORDERED.




                                                              /s/ Calvin L. Scott

                                                              Judge Calvin L. Scott, Jr.




35
     Simpson v. Colonial Parking, Inc., 36 A.3d 333, 335 (Del. 2012)(citation omitted).
