       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DARRYL DAVIS,              )
                           )
          Plaintiff,       )
                           )
     v.                    )                   C.A. No. N17C-01-245 ALR
                           )
OUTDOOR DESIGN GROUP, LLC, )
EMORY HILL REAL ESTATE     )
SERVICES, INC., and        )
CITIGROUP, INC.,           )
                           )
          Defendants.      )

                               Submitted: May 8, 2018
                               Decided: May 16, 2018

             Upon Defendants’ Joint Motion for Summary Judgment
                                 GRANTED

                                       ORDER

      Upon consideration of the Motion for Summary Judgment filed by Defendants

Outdoor Design Group, LLC, Emory Hill Real Estate Services, Inc., and Citigroup,

Inc. (collectively, “Defendants”); the opposition thereto filed by Plaintiff Darryl

Davis (“Plaintiff”); the facts, arguments, and authorities set forth by the parties; the

Superior Court Civil Rules; statutory and decisional law; and the entire record in this

case, the Court hereby finds as follows:

      1.     This is a personal injury case involving a slip and fall. The following

facts are undisputed:
              Plaintiff was employed by G4S Regulated Security Solutions,
       LLC (“Employer”) as a security officer. Employer contracted with
       Citigroup, Inc. to provide security services at Citigroup’s 500 White
       Clay Center, Newark Delaware location (“Citigroup Location”).
       Emory Hill Real Estate Services acted as an agent to Citigroup’s
       landlord at the Citigroup location, and contracted with Outdoor Design
       Group, LLC to provide snow and ice removal services at the Citigroup
       Location.
              In the early morning hours of January 12, 2015, Plaintiff was
       acting in the course of his employment providing security services at
       the Citigroup Location. Freezing rain began to fall by at least 1:00 a.m.
       and continued to fall until sometime between 8:45 a.m. and 10:00 a.m.,
       at which time rain continued to fall. At approximately 3:30 a.m.,
       Plaintiff slipped and fell twice on ice while checking out a delivery
       vehicle. There was ongoing freezing rain at the time of Plaintiff’s falls.

       2.     On January 12, 2017, Plaintiff filed a complaint alleging that

negligence on the part of all Defendants caused Defendant’s falls, and that he was

injured as a result.

       3.     Defendants move for summary judgment.            Defendants argue that

because Plaintiff’s falls occurred during ongoing freezing rain, the continuing storm

doctrine applied and temporarily suspended Defendants’ duty of care to keep the

premises safe from hazards associated with ice and snow. As a result, Defendants

argue that Plaintiff cannot make out a negligence claim as a matter of law. Plaintiff


                                           2
opposes Defendants’ motion, arguing that the Court should apply the unusual

circumstances exception to the continuing storm doctrine.

      4.     The Court may grant summary judgment only where the moving party

can “show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.”1 The moving party bears the initial

burden of proof and, once that is met, the burden shifts to the non-moving party to

show that a material issue of fact exists.2 At the motion for summary judgment phase,

the Court must view the facts “in the light most favorable to the non-moving party.”3

      5.     To succeed in a negligence claim under Delaware law, a plaintiff must

prove that the defendant owed the plaintiff a duty and that the “breach of that duty

proximately caused plaintiff’s injury.”4 In this case, it is undisputed that Plaintiff

was a business invitee. Delaware law generally provides that a landowner owes a

duty to business invitees to “mak[e] safe any dangerous condition on the land which

the landowner either knows about or should discover upon reasonable inspection of

the property.”5 To that end, landowners and landlords typically have “an affirmative




1
  Super. Ct. Civ. R. 56(c).
2
  Moore v. Sizemore, 405 A.2d 679, 680–81(Del. 1979).
3
  Brozka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
4
  Id. (citing Dilks v. Morris, 2005 WL 445530, at *2 (Del. Super. Feb. 25, 2005)).
5
  Agroe v. Commerce Square Apts. Ltd. P’ship, 745 A.2d 251, 254 (Del. Super.
1999).
                                         3
duty to keep the premises safe from hazards associated with natural accumulations

of ice and snow.”6

      6.     However, Delaware courts have adopted the continuing storm doctrine

as a caveat to a landowner’s general duty to remove ice and snow.7 Under the

continuing storm doctrine, “A business establishment, landlord, carrier, or other

inviter, in the absence of unusual circumstances, is permitted to await the end of the

storm and a reasonable time thereafter to remove ice and snow from an outdoor

entrance walk, platform, or steps.”8 The general principle underlying the continuing

storm doctrine is that “changing conditions due to the pending storm render it

inexpedient and impracticable to take earlier effective action, and that ordinary care

does not require it.”9

      7.     It is undisputed that there was ongoing freezing rain at the time of

Plaintiff’s falls. As a result, Defendants contend that the continuing storm doctrine

applied and temporarily suspended Defendants’ duty to conduct ice removal and

remediation efforts. Plaintiff does not challenge the applicability of the continuing

storm doctrine, but argues that the Court should apply the unusual circumstances




6
  Cash v. East Coast Property Management, Inc., 2010 WL 4272925, at *2 (Del.
2010) (citing Young v. Saroukos, 185 A.2d 274, 282 (Del. 1962)).
7
  See Young, 185 A.2d at 282.
8
  Id. (emphasis removed).
9
  Id. (emphasis removed).
                                        4
exception. The applicability of the unusual circumstances exception is a question of

law, not fact, and is for the Court to decide.10

      8.     Plaintiff generally asserts that the unusual circumstances exception

should apply because the precipitation was light, the storm was predicted in advance,

the lighting was inadequate, and because the policy underlying the continuing storm

doctrine would not be served by its application in this case. Plaintiff’s arguments

are without merit.

      9.     First, Plaintiff argues that the ongoing freezing rain at the time of

Plaintiff’s falls was a “nearly imperceptible drizzle” that does not warrant

application of the continuing storm doctrine. However, the severity of the storm

does not control the applicability of the continuing storm doctrine.11 In addition, the

Delaware Supreme Court has made clear that the continuing storm doctrine applies

not only to falling snow, but also to ice caused by freezing rain. 12 Indeed, the

Delaware Supreme Court recognized freezing rain as “one of the trickiest situations

to deal with,” and explained that “[e]ven more than deep snow, a thin coat of ice can




10
   Cash, 2010 WL 4272925, at *3.
11
   See Laine v. Speedway, 177 A.3d 1227, 1233 (Del. 2018) (concluding that the
continuing storm doctrine should not be limited to severe storms like that in Young);
Cash, 2010 WL 4272925, at *3 (rejecting the plaintiff’s position that the Court
needed to conduct a fact-intensive inquiry into the severity of the storm before the
continuing storm doctrine could apply).
12
   See Laine, 177 A.3d at 1232-34.
                                         5
be slippery and hard to eradicate even with salting or chemicals.”13 Therefore, the

Court rejects Plaintiff’s argument that the nature of the storm in this case warrants

application of the unusual circumstances exception to the continuing storm doctrine.

      10.    Second, Plaintiff argues that the unusual circumstances exception

should apply because the storm was predicted enough in advance that Defendants

could have applied salt to prevent the accumulation of ice. Plaintiff emphasizes that

Defendants knew Plaintiff would be at the Citigroup Location per his employment.

However, “A landowner’s duty to make its premises reasonably safe for business

invitees does not require the landowner to take pre-storm, precautionary measures

to attempt to prevent ice from accumulating during a storm that has not yet

arrived.”14 According to the Delaware Supreme Court, “The principle that it is

reasonable for a landowner to wait until a storm ends and a reasonable time thereafter

before removing accumulations of ice and snow applies to the approaching storm as

well as the storm in progress.”15 Therefore, the fact that the storm was predicted in

advance in this case does not warrant application of the unusual circumstances

exception to the continuing storm doctrine.




13
   Id. at 1232.
14
   Buchanan v. TD Bank, et. al., 2018 WL 2058189, at *3 (Del. May 2, 2018).
15
   Id.; see also Day v. Wilcox Landscaping, Inc., et. al., 2018 WL 2058188, at *3
(Del. May 2, 2018) (rejecting the argument that a landowner’s duty of care requires
pre-storm, precautionary activities to prevent snow and ice from forming).
                                          6
        11.   Third, Plaintiff argues that the unusual circumstances exception should

apply because the nature of the Citigroup Location contributed to Plaintiff’s falls.

Specifically, Plaintiff argues that better lighting and a roof over the delivery bay door

at the Citigroup Location would have prevented Plaintiff’s falls. In support, Plaintiff

submits an affidavit stating that the lighting at the Citigroup Location was “dim.”

However, the fact that the lighting was dim at the time of Plaintiff’s falls does not

establish that it was inadequate, especially given the fact that Plaintiff’s falls took

place at approximately 3:30 a.m. Moreover, even assuming that additional lighting

or a roof over the delivery bay door would have prevented Plaintiff’s fails, Plaintiff

has not established that Defendants had a legal duty to take such action. Therefore,

Plaintiff’s arguments regarding the nature of the Citigroup Location do not warrant

application of the unusual circumstances exception to the continuing storm doctrine.

        12.   Lastly, Plaintiff asserts that the policy underlying the continuing storm

doctrine, namely that “changing conditions due to the pending storm render it

inexpedient and impracticable to take earlier effective action,”16 would not be served

by the application of the doctrine in this case. Specifically, Plaintiff argues that the

mild nature of the storm would have allowed Defendants to begin ice remediation

efforts a few hours before Plaintiff’s falls. However, Plaintiff’s argument suggests

that Defendants should have travelled to the Citigroup Location sometime between


16
     Young, 185 A.2d at 282 (emphasis removed).
                                         7
1:00 a.m. and 3:30 a.m. to conduct ice remediation efforts during ongoing freezing

rain. These are exactly the type of conditions contemplated by the continuing storm

doctrine. Therefore, the unusual circumstances exception to the continuing storm

doctrine should not be applied.

         13.   The continuing storm doctrine applies in this case, such that

Defendants’ duty of care to keep the Citigroup Location free from the dangers

associated with ice and snow was temporarily suspended. While unfortunate,

Plaintiff’s injuries stem from “the reality … that there is no foolproof way to avoid

the risk of slipping on ice.”17 As the Delaware Supreme Court recognizes, “Some

injuries are not the legal fault of anyone, they just are the result of the reality that

nothing in life is entirely safe, and surely not walking on ice or snow.”18 As a result,

Defendants’ motion for summary judgment is granted.

         NOW, THEREFORE, this 16th day of May, 2018, Defendants’ Motion for

Summary Judgment is hereby GRANTED and JUDGMENT is entered in favor

of Defendants Outdoor Design Group, LLC, Emory Hill Real Estate Services,

Inc., and Citigroup, Inc.

         IT IS SO ORDERED.

                                        Andrea L. Rocanelli
                                        ____________________________________
                                        The Honorable Andrea L. Rocanelli

17
     Laine, 177 A.3d at 1233.
18
     Id.
                                           8
