      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHIRLY BETNER,                            )
                                          )
                Plaintiff,                )
                                          )
        v.                                )      C.A. No. N16C-08-069 CLS
GRAYLING CORP. d/b/a CHILI’S              )
RESTAURANT                                )
                                          )
              Defendants.                 )
                                          )
                                          )




                             Submitted: February 8, 2018
                               Decided: March 9, 2018

                  On Defendant’s Motion for Summary Judgment.
                                  DENIED.

                                      ORDER

      This 9th day of March, 2018, upon consideration of Grayling Corp. d/b/a

Chili’s Restaurant (“Defendant”) Motion for Summary Judgment, and Shirley

Betner’s (“Plaintiff”) Response, it appears to the Court that:

   1. On or about September 5, 2014 Plaintiff was a visitor a Defendant’s restaurant

      located in Wilmington, Delaware.

   2. Plaintiff claims while walking in Defendant’s restaurant she slipped and fell

      on “a wet greasy substance” like a “goo” on the floor of the restaurant.
    3. Plaintiff filed a Complaint on August 8, 2016, claiming that she suffered

       injuries from the fall. Defendant filed a Motion for Summary Judgment on

       October 5, 2017.      Plaintiff filed a response on November 28, 2017.

       Subsequently on December 28, 2017 Defendant filed a Letter with this Court

       requesting the opportunity to submit a Reply to Plaintiff’s Response. 1 The

       Court denied Defendant’s request.

    4. Defendant claims that Plaintiff cannot demonstrate that there was a dangerous

       or defective condition on the floor at the time she fell. Defendant argues that

       there is “no evidence of any defect” and that Plaintiff “merely speculates the

       floor had what looked like a ‘film’ on it, and that film looked like candlewax

       from afar.” Additionally, Defendant argues that Plaintiff failed to show

       Defendant had notice of any dangerous condition.

    5. Plaintiff argues that summary judgment is not appropriate at this stage as there

       are genuine issues of material fact in dispute and it is for the jury, not the

       judge, to make factual determinations.


1
  Defendant’s counsel requested the opportunity to reply to Plaintiff’s Response for
three reasons: 1) on the grounds that Plaintiff mischaracterized Plaintiff and her
husband as elderly; 2) that Plaintiff misstated prior testimony; 3) Plaintiff misstated
the law on summary judgment. The Court denied Defendant’s request to file a Reply
because the Court is aware of the applicable standard on a motion for summary
judgment, and the Court did not take the Plaintiff’s age into consideration when
determining its ruling on this Motion. Additionally, the Court used the deposition
transcripts attached by Defendant in deciding this Motion. The Court asks the parties
to be cognizant of their citations to the record and the applicable law in the future.
    6. 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.” 2 The

       moving party bears the initial burden of showing that no material issues of

       fact are present.3 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.4

       In considering a motion for summary judgment, the Court must view the

       record in a light most favorable to the non-moving party.5 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.6

    7. In negligence cases it is imperative to determine the status of the individual

       on the premises in order to assess the duty owed to the plaintiff. Here, Plaintiff

       was a business invitee. “Generally, a landowner has a duty to exercise

       reasonable care in keeping its premises safe for the benefit of business




2
  Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
3
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
4
  Id. at 681.
5
  Burkhart, 602 A.2d at 59.
6
  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).
       invitees.”7 Additionally, “[w]hen a business invitee brings a negligence action

       for personal injuries sustained while on a business’ premises, he or she must

       demonstrate three elements: (1) there was an unsafe condition in the

       defendant’s store (2) which caused the injuries complained of, and (3) 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.”8

    8. Defendants claim that Plaintiff’s case fails because she has not demonstrated

       that there was an unsafe condition and Defendant had notice of the unsafe

       condition. The Court disagrees with Defendant’s argument. When viewing

       the evidence in a light most favorable to Plaintiff, there are genuine issues of

       fact as to a dangerous condition. In Plaintiff’s deposition, when asked what

       caused the fall, she states: “The area where I walked was greasy. I slipped. I

       felt something oily as I hit the floor. I could feel that on my hand, but I did

       slip, and I felt the oil of the slipperiness where I fell.” Additionally, when

       asked if there was any residue from the “goo” on her clothing, she stated it

       was on her pants and shoes. Plaintiff’s husband also testified that he saw his



7
  Laine v. Speedway, LLC, 2018 WL 315584 (Del. Jan. 8, 2018)(citing Hamm v.
Ramunno, 281 A.2d 601, 603 (Del. 1971)).
8
  Balzereit v. Hocker’s SuperThrift, Inc., 2012 WL 3550495, at *1 (Del. Super. July
24, 2012).
   wife fall and that the floor was “gooey” and there “was some kind of residue

   on it.” There are sufficient facts for a reasonable jury to conclude that there

   was a dangerous condition on the floor, and thus summary judgment is

   inappropriate as to this argument.

9. Defendant also argues that Plaintiff cannot show that the alleged dangerous

   condition could have been discovered by a reasonable inspection. Defendant

   argues that Plaintiff has introduced no evidence to suggest that Defendant had

   any knowledge or should have known that the floor was slippery, and there

   were no reports of the condition prior to Plaintiff’s fall. On the other hand,

   Plaintiff argues that the accident was near other employees because the

   hostess lead Plaintiff and her husband into the unsafe condition.

10. The Court is not persuaded by Defendant’s argument. As it is Defendant’s

   burden on this motion to show that there are no genuine issues of fact,

   Defendant has not met its initial burden. Defendant’s motion merely repeats

   that Plaintiff provided no evidence as to notice or reasonable inspection. The

   Court finds that it is an issue of fact as to whether Defendant had actual notice

   of the alleged goo on the floor, or that it could have been discovered by such

   reasonable inspection as other reasonably prudent storekeepers would regard

   as necessary. Plaintiff’s husband stated in his deposition that after his wife fell

   he noticed the floor was “greasy.” After the fall he noticed that it “was a filthy
   restaurant” and it was “dimly lit, and the floor was gooey and greasy.”

   Plaintiff’s husband also stated that Plaintiff fell as the hostess was taking them

   to be seated. Plaintiff herself states that after she fell “she could see the

   imprints of the people’s shoes” once she looked down at the floor. Based on

   these facts a jury could infer that Defendant, a restaurant, could have

   discovered the condition through a reasonable inspection. Therefore,

   summary judgment is not appropriate.

11. As to Defendant’s lost wages or loss of earning capacity argument, Plaintiff

   states that she is not claiming any lost wages or loss of earning capacity at this

   time, and therefore that portion of Defendant’s motion is moot. For the

   foregoing reasons, Defendant’s Motion for Summary Judgment is DENIED.

         IT IS SO ORDERED.




                                                  /s/ Calvin L. Scott
                                                  Judge Calvin L. Scott, Jr.
