            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DENISE BUCHANAN,                      :
                                      :     C.A. No: K15C-12-020 RBY
               Plaintiff,             :     In and For Kent County
                                      :
      v.                              :
                                      :
TD BANK, N.A., TD BANK US             :
HOLDING CO., MERIT SERVICE            :
SOLUTIONS, LLC, a Delaware            :
Limited Liability Company,            :
JT SNOW REMOVAL, INC., and            :
JERRY TAYLOR,                         :
                                      :
               Defendants.            :

                              Submitted: May 31, 2016
                               Decided: June 28, 2016


           Upon Consideration of Defendants’ Motion for Summary Judgment
                                      DENIED

                                     ORDER


William D. Fletcher, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for
Plaintiff.

Mary E. Sherlock, Esquire, Weber Gallagher Simpson Stapleton Fires, Dover,
Delaware for Defendants TD Bank, N.A. and TD Bank US Holding Co.

Robert D. Cecil, Jr., Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware for
Defendants Merit Service Solutions, LLC, JT Snow Removal, Inc. and Jerry Taylor.

Young, J.
Buchanan v. TD Bank, N.A., et al.
C.A. No.: K15C-12-020 RBY
June 28, 2016

                                      SUMMARY
       Merit Service Solutions, LLC, JT Snow Removal, Inc., Jerry Taylor, TD Bank,
N.A., and TD Bank US Holding Co. (together, “Defendants”) move for summary
judgment in Denise Buchanan’s (“Plaintiff”) negligence action pursuant to Superior
Court Rule of Civil Procedure 56. This matter involves Plaintiff’s premises liability
claim for personal injuries allegedly sustained while Plaintiff visited TD Bank in Dover,
Delaware on January 10, 2014. Defendants’ motion for summary judgment argues that,
as a matter of law, Defendants did not fail to act reasonably in awaiting the end of a
storm, since they had no duty to remove snow and ice from the premises prior to
Plaintiff’s alleged fall. The factual issue of whether any storm had abated inter alia,
is not determined at this early stage. Accordingly, Defendants’ motion is DENIED,
without prejudice to refiling at the conclusion of discovery.
                              FACTS AND PROCEDURE
       Plaintiff alleges that on January 10, 2014, at shortly before 8:00 a.m., she was
lawfully on the premises of TD Bank in Dover, Delaware. While exiting her car to use
the ATM, Plaintiff indicates that she slipped on a patch of ice in the premises’ parking
lot. As a result, she claims to have suffered serious injuries to her head and shoulder.
       Plaintiff filed suit on December 14, 2015, asserting that she was a business
invitee to whom Defendants owed a duty of care reasonably to ensure that the
premises were free from hazardous conditions. Plaintiff claims that Defendants
breached their duty of care by failing to inspect, keep, and maintain the premises free
from ice and snow on that morning. Plaintiff argues that her injury was proximately
caused by Defendants’ negligent maintenance of the premises.
Buchanan v. TD Bank, N.A., et al.
C.A. No.: K15C-12-020 RBY
June 28, 2016

       Defendants have filed the instant motion for summary judgment, asserting that
no legal duty to begin ice removal arose prior to Plaintiff’s fall. In support of this
position, Defendants cite to the Continuing Storm Doctrine, which provides that a
landowner may wait until the end of a storm to remove snow and ice from premises.1
Defendants argue that it was raining throughout the morning of Plaintiff’s accident.
Therefore, as a matter of law, Defendants requested that this Court grant summary
judgment.
                                  STANDARD OF REVIEW
       Pursuant to Superior Court Civil Rule 56, summary judgment is appropriate
when there is no genuine issue of material fact so that the moving party is entitled to
judgment as a matter of law.2 “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.”3 The court should consider the record in the light most favorable to
the non-moving party.4 The moving party bears the burden of showing that no genuine
material of fact exists.5 In weighing a motion for summary judgment under this rule, the



       1
         Demby v. Delaware Racing Ass’n, 2016 WL 399136, at *1 (Del. Super. Jan. 28, 2016);
Elder v. Dover Downs, Inc., 2012 WL 2553091, at *2 (Del. Super. July 2, 2012); Cash v. E. Coast
Prop. Mgmt, 2010 WL 2336867, at *2 (Del. Super. June 8, 2010).
       2
           Tedesco v. Harris, 2006 WL 1817086, at *1 (Del. Super. June 15, 2006).
       3
           Id.
       4
           Id.
       5
           Moore v. Sizemore, 405 A.2d 679, 680 (Del. Super. 1979).
Buchanan v. TD Bank, N.A., et al.
C.A. No.: K15C-12-020 RBY
June 28, 2016

Court must examine the record, including pleadings, depositions, admissions,
affidavits, answers to interrogatories, and any other product of discovery.6
                                             DISCUSSION
        In general, the entry of summary judgment in negligence actions is a rare
occurrence. This is because the movant must show “not only that there are no
conflicts in the factual contentions of the parties but that, also, the only reasonable
inference to be drawn from the uncontested facts are adverse to the plaintiff.”7 Several
elements of a negligence action, for example, the showing of proximate cause, are
“[o]rdinarily ... questions of fact to be determined by a jury.”8 In addition, “the
question of whether or not a dangerous condition existed” is also a jury question,
“since it depends upon the facts and circumstances of each case.”9
        However, there are instances in which the plaintiff has so completely failed to
prove an essential element of her case, that Superior Court Civil Rule 56(c) “mandates
the entry of summary judgment.”10 This is especially so, after plaintiff has had
adequate time to conduct discovery.11 Plaintiff asserts that such a situation is not


        6
            Del. Super. Ct. Civ. R. 56(c).
        7
            Watson v. Shellhorn & Hill, Inc., 221 A.2d 506, 508 (Del. 1966).
        8
            Id.
        9
            Id.
        10
             Buckhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
        11
           Collier v. Acme Markets, Inc., 1995 WL 715862, at *2 (Del. Super. Nov. 16, 1995)
(“[n]otwithstanding the fact that [Plaintiff] had ample opportunity to take discovery, she was unable to
make a sufficient showing to establish all the essential elements of her case ... [Defendant] is entitled to
the entry of summary judgment as a matter of law.”).
Buchanan v. TD Bank, N.A., et al.
C.A. No.: K15C-12-020 RBY
June 28, 2016

presently before the Court.
       Defendants filed a motion for summary judgment in this case less than two
weeks after the Court issued its scheduling order. Although Defendants presents the
argument that, under the Continuing Storm Doctrine, no duty for removal existed,
Plaintiff hypothesizes outstanding questions of fact remaining regarding the weather
conditions at the time and location of the accident. At this early stage of the litigation,
a factual dispute exists. Reviewing Defendants' motions under the summary judgment
standard, the Court finds that the factual disputes between the parties require further
development through the discovery process. Therefore, summary judgment is
inappropriate at this time.
                                    CONCLUSION
       For the foregoing reasons, the Defendants’ Motion for Summary Judgment is
DENIED, without prejudice to refiling at the conclusion of relevant discovery.
       IT IS SO ORDERED.


                                              /s/ Robert B. Young
                                                         J.
RBY/lmc
Via File and ServeXpress
cc: Counsel
      Opinion Distribution
