             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


    RUTH HRYCAK,                                   )
                                                   )
                        Plaintiff,                 )
                                                   )
                   v.                              )   C.A. No.: N18C-05-246 EMD
                                                   )
    PUBLIC STORAGE, INC.                           )
                                                   )
                        Defendant.                 )



                                      Submitted: June 25, 2019
                                     Decided: September 30, 2019

             Upon Defendant Public Storage, Inc.’s Motion for Summary Judgment
                                        GRANTED

Philip M. Finestrauss, Esquire, PHILIP M. FINESTRAUSS, P.A, Wilmington, Delaware
Attorney for Plaintiff Ruth Hrycak.

David W. Giattino, Esquire, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, Wilmington,
Delaware Attorney for Defendant Public Storage Inc.

DAVIS, J.

                                        I. INTRODUCTION

       This is a civil action based on a claim of negligence. Plaintiff Ruth Hrycak brought a

negligence action against Defendant Public Storage, Inc. (“Public Storage”), after she slipped

and fell while walking to her storage unit. Ms. Hrycak asserts that her injuries were a direct and

proximate result of Public Storage’s negligent conduct. Ms. Hrycak claims she is entitled to

compensation for general, compensatory, and special damages, including pain and suffering, the

costs of the accident, and pre and post judgment interest.

       After answering, Public Storage filed its Motion for Summary Judgment for Defendant

(the “Motion”). Public Storage contends it is entitled to judgment because the lease agreement
between Public Storage and Ms. Hrycak contains a limitation of liability provision that bars Ms.

Hrycak’s claim. Public Storage asserts that this provision exculpates it of any liability to Ms.

Hrycak for its own and its employees’ negligence because it is clear and unequivocal, not

voidable as unconscionable, and not void as against public policy.

        For the reasons set forth below, the Court GRANTS the Motion.

                                    II. RELEVANT FACTS

    A. FACTUAL BACKGROUND

        On September 10, 2015, Ms. Hrycak rented a self-storage unit from Public Storage at

3800 Kirkwood Highway, Wilmington, Delaware 19808-5108 (the “Premises”).1 Ms. Hrycak

rented a unit measuring 10 feet by 15 feet at a rate of $201 per month.2 Ms. Hrycak signed a

Lease/Rental Agreement (the “Agreement”), initialing seven times and signing her name on the

last page of the contract.3

        Paragraph 7 of the Agreement contains the limitation of liability language (the

“Provision”). The Provision provides:

        LIMITATION OF OWNERS LIABILITY: INDEMNITY. Owner and Owner’s
        Agents will have no responsibility to Occupant or to any other person for any
        loss, liability, claim, expense, damage to property or injury to persons (“Loss”)
        from any cause, including without limitation, Owner’s and Owner’s Agents
        active or passive acts, omissions, negligence or conversion, unless the Loss is
        directly caused by Owner’s fraud, willful injury or willful violation of law.
        Occupant shall indemnify and hold Owner and Owner’s Agents harmless from
        any loss incurred by Owner and Owner’s Agents in any way arising out of
        Occupants use of the Premises or the Property including, but not limited to,
        claims of injury or loss by Occupant’s visitors or invitees. Occupant agrees
        that Owner’s and Owner’s Agents’ total responsibility for any Loss from any
        cause whatsoever will not exceed a total of $5,000. By INITIALING HERE __.
        Occupant acknowledges that he understands and agrees to the provisions of this
        paragraph.4

1
  Motion, Ex. A.
2
  Id.
3
  Id.
4
  Id. at ¶ 7.

                                                 2
Ms. Hrycak put her initials at the end of the Provision.5

        On or about May 31, 2016, at approximately 4:00 p.m., Ms. Hrycak was walking to her

storage unit as an invitee of Public Storage when she slipped and fell.6 Ms. Hrycak alleges that

she slipped and fell in a “poorly lit area with [an] accumulation of water.”7 Ms. Hrycak

sustained serious and potentially permanent physical and emotional injuries, including but not

limited to, bruising of the left hip, a lateral meniscus tear to the left knee, requiring surgery, with

attendant scarring, pain and suffering, and loss of enjoyment of life.8 Further, Ms. Hrycak

asserts that her injuries have resulted in her incurring hospital, medical, and travel expenses, as

well as lost wages and a diminution of earning capacity.9

B.      PROCEDURAL HISTORY

        Ms. Hrycak filed a complaint (the “Complaint”) against Public Storage10 on May 25,

2018. In the Complaint, Ms. Hrycak alleges that her injuries were proximately caused by the

negligence of Public Storage because it (1) failed to conduct reasonable safety inspections to

discover dangerous conditions; (2) failed to take reasonable steps to cure dangerous conditions;

(3) failed to dry water from common walkways; (4) failed to warn of dangerous conditions; (5)

failed to rope off or otherwise make safe maintenance storage areas; (6) failed to make walkways

and other common areas safe for business invitees; and (7) failed to provide adequate lighting for

common walkway areas.11 Public Storage filed an answer to the Complaint (the “Answer”) on

October 26, 2018.


5
  Id.
6
  Compl. ¶ 3.
7
  Id.
8
  Id. at ¶ 5.
9
  Id. at ¶ 6-7.
10
   Public Storage, which is a statutory trust that is organized under Maryland law, was misnamed in the Complaint,
D.I. 1, Transaction ID 62068178, as Public Storage, Inc.
11
   Compl. ¶ 4.

                                                         3
       Public Storage filed the Motion on April 18, 2019. On May 2, 2019, Ms. Hrycak filed

Plaintiff’s Objection to Defendant’s Motion for Summary Judgment (the “Objection”). On May

10, 2019, Public Storage filed Defendant’s Reply to the Plaintiff’s Objection to Defendant’s

Motion for Summary Judgment (the “Reply”). On June 24, 2019, Ms. Hrycak sent a letter to the

Court (the “Letter”) requesting leave to substitute an ordinance listed in the Objection in light of

further research. On June 24, 2019, Public Storage filed Defendant’s Objection to the Plaintiff’s

Request for Leave to Make a New Argument at Oral Argument. The Court held a hearing on the

Motion on June 25, 2019. At the conclusion of that hearing, the Court took the Motion under

advisement.

                                III. PARTIES’ CONTENTIONS

   A. DEFENDANT’S CONTENTIONS

       Public Storage argues the Court should grant the Motion because Ms. Hrycak’s claim is

barred by the clear and unambiguous Provision in the Agreement. Public Storage also argues

that the Release is neither void nor voidable. In the Reply, Public Storage asserts that the

Premises are not within the corporate limits of Wilmington, and that they are not subject to the

Wilmington Code Provisions, which the Plaintiff cites in the Objection. Public Storage also

argues that the Premises is not residential, and therefore not in violation of any statutory duty

cited by Ms. Hrycak in the Objection.

       In the Letter, Ms. Hrycak notes her mistake regarding the Wilmington location and seeks

to substitute an argument regarding New Castle County ordinances. At the hearing, Public

Storage objected to Ms. Hrycak’s request to substitute statutes in the Letter. Public Storage

contends that the New Castle County Property Maintenance Code is not the type of public policy

that invalidates the Release, and thus Ms. Hrycak’s claim should be barred.



                                                  4
     B. PLAINTIFF’S CONTENTIONS

         In the Objection, Ms. Hrycak notes that in addition to general allegations of negligence,

the Complaint alleges Public Storage’s failure to provide adequate lighting for common walkway

areas to be a proximate cause of her injuries. At oral argument, Ms. Hrycak asserted that Public

Storage violated a New Castle County Property Maintenance Code provision. Ms. Hrycak

argues that the context of the alleged negligence violates Public Storage’s statutory duty owed to

her. Additionally, Ms. Hrycak contends that there is an inherent material dispute of fact as to the

lighting in the area where the slip and fall occurred.

                                        IV. STANDARD OF REVIEW

         The standard of review on a motion for summary judgment is well-settled. The Court’s

principal function when considering a motion for summary judgment is to examine the record to

determine whether genuine issues of material fact exist, “but not to decide such issues.”12

Summary judgment will be granted if, after viewing the record in a light most favorable to a

nonmoving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law.13 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted.14 The moving party bears

the initial burden of demonstrating that the undisputed facts support his claims or defenses.15 If




12
   Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
13
   Id.
14
   See Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244
at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
15
   Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).

                                                            5
the motion is properly supported, then the burden shifts to the non-moving party to demonstrate

that there are material issues of fact for the resolution by the ultimate fact-finder.16

                                               V. DISCUSSION

     A. THE PROVISION IN THE AGREEMENT IS VALID.

         The Supreme Court has previously recognized that a contractual release of prospective

negligence may be valid.17 “Under Delaware law, parties may enter into an agreement that

relieves a business owner of liability for injuries to business invitees that result from the owner’s

negligent conduct.”18 A release of negligence is “valid if it meets three requirements. First, the

release must not be ambiguous. Second, the release must not be unconscionable. Finally, the

release must not be against public policy.”19

         Delaware case law is consistent on limitation of liability provisions. For example, in

Ketler v. PFPA, the plaintiff was a member at a Planet Fitness gym and alleged he was injured

when a cable broke while he was operating a rowing machine.20 The plaintiff had signed a

membership agreement containing a waiver releasing the Planet Fitness gym from prospective

negligence.21 The Supreme Court upheld the Court’s determination that the release of


16
   See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
17
   Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016); Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330,
336 (Del. 2012).
18
   Lynam v. Blue Diamond LLC, 2016 WL 5793725, at *3 (Del. Super. Oct. 4, 2016) (citing Ketler, 132 A.3d at
(upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent
activities)).
19
   Tucker v. Albun, Inc., 1999 WL 1241073, at *2 (Del. Super. Sept. 27, 1999) (citing Hallman v. Dover Downs,
Inc., 1986 WL 535, at *2-5 (D. Del. Dec. 31, 1986) and Egan & Sons Air Conditioning Co. v. Gen. Motors Corp.,
1988 WL 47314, at *3 (Del. Super. Apr. 27, 1988)); see also Ketler, 132 A.3d at 747-48.
20
   Ketler, 132 A.3d at 747.
21
   The membership agreement in Ketler, 132 A.3d at 747, contained the following waiver:
          I understand and expressly agree that my use of this Planet Fitness facility . . . involves the risk of
          injury to me or my guest whether caused by me or not. I understand that these risks can range from
          minor injuries to major injuries including death. In consideration of my participation in the activities
          and use of the facilities offered by Planet Fitness, I understand and voluntarily accept this risk and
          agree that Planet Fitness . . . will not be liable for any injury, including, without limitation, personal,
          bodily, or mental injury . . . resulting from the negligence of Planet Fitness or anyone on Planet
          Fitness' behalf whether related to exercise or not. Accordingly, I do hereby forever release and
          discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of

                                                          6
prospective negligence was valid because it was clear and unequivocal, not unconscionable, and

not against public policy.22

         In addition, in Hong v. Hockessin Athletic Club, the plaintiff alleged she and her children

were members of the Hockessin Athletic Club and that her three-year-old son was injured after

falling from indoor playground equipment.23 Like in Ketler, the plaintiff had signed a

membership agreement containing a waiver and release of liability.24 The Court granted

summary judgment for Hockessin Athletic Club and held that the Plaintiff’s claims were barred

because of the liability waiver.25

         Upon review of the Provision and the record, the Court finds that the Provision is a valid

limitation of liability as it is (1) unambiguous, (2) not unconscionable, and (3) not against public

policy. Given that the Provision satisfies the criteria established by the Supreme Court, the

Provision is valid and prevents Ms. Hrycak’s right to file suit against Public Storage on

negligence claims.26



           action. I further understand and acknowledge that . . . Planet Fitness may not be held liable for
           defective products.
22
   Id. at 747-48.
23
   Hong v. Hockessin Athletic Club, 2012 WL 2948186, at *1 (Del. Super. July 18, 2012).
24
   The membership agreement in Hong, 2012 WL 2948186, at *1-2, contained the following waiver:
           Member hereby acknowledges that in using the facilities, programs and equipment of HAC, he/she
           does so entirely at his/her own risk and assume[s] the risk of any injury and/or damage while
           engaging in any physical exercise or activity or use of any club facility on the premises. This
           assumption of the risk included, without limitation, Member’s use of any exercise equipment
           (mechanical or otherwise), the locker room, sidewalk, parking lot, stairs, pool, whirlpool, sauna,
           steam room, racquet courts, lobby hallways, or any equipment in the facility. Member further agrees
           to assume the risk in participating in any activity, class, program, instruction, or any event sponsored
           by HAC. . . . By executing this Agreement, Member does HEREBY WAIVE, RELEASE AND
           FOREVER DISCHARGE, HAC and its past, present and future subsidiaries, affiliates . . . from all
           claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive
           negligence on the part of such company . . . MEMBER ACKNOWLEDGES THAT HE/SHE HAS
           CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS THAT IT IS A
           RELEASE OF LIABILITY AND EXPRESS ASSUMPTION OF RISK AND
           INDEMNIFICATION. MEMBER IS AWARE AND AGREES THAT BY EXECUTING THIS
           WAIVER AND RELEASE, HE/SHE IS GIVING UP THE RIGHT TO BRING LEGAL ACTION
           OR ASSERT A CLAIM AGAINST HAC FOR ITS NEGLIGENCE….
25
   Id. at *3-4.
26
   See Ketler, 132 A.3d at 747-48.

                                                             7
             1. Clear and Unequivocal

        Because “contractual provisions which purport to relieve a party from liability for matters

resulting from its own negligence are not favored” in Delaware, a release of prospective

negligence must be “crystal clear and unequivocal” to insulate a party from liability.27 “[A]

contract is ambiguous only when the provisions in controversy are reasonably or fairly

susceptible of different interpretations or may have two or more different meanings.”28

        In Ketler, the Delaware Supreme Court held that the language in the waiver was clear and

unequivocal because it expressly released the owners of the gym “from any liability for any

injury resulting from the negligence of Planet Fitness, whether related to exercise or not.”29 In

Hong, the Court rejected the plaintiff’s argument that the waiver language was ambiguous.30

The Court noted that the Plaintiff “signed a comprehensive waiver of liability and release in

connection with her Membership Agreement that expressly stated that she (and all others on her

membership) assumed the risk of ‘any injury or damage incurred while engaging in any physical

exercise or activity or use of any club facility on the premises,’ including the use of ‘any

equipment in the facility’ and participation ‘in any activity, class, program, instruction, or any

event sponsored by HAC.’”31

        Here, Public Storage argues that the sole interpretation of the Provision is: Public Storage

is “no[t] responsib[le] to” Hrycak for “any loss, liability, claim, expense, damage to property or

injury to persons” arising “from any cause, including . . . [the] acts, omissions, [or] negligence”

of Public Storage and its agents unless the “direct[] cause[]” of the harm was “fraud, [a] willful


27
   J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540, 552-53 (Del. Super. 1977); see also Ketler, 132 A.3d at
747; Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012).
28
   Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992) (citing Hallowell v.
State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 926 (Del. 1982).
29
   Ketler, 132 A.3d at 747.
30
   Hong, 2012 WL 2948186, at *3 (Del. Super. July 18, 2012).
31
   Id.

                                                        8
injury[,] or [a] willful violation of law” by Public Storage. 32 Public Storage asserts that this

interpretation is the plain meaning of the Provisions. Further, Public Storage argues that the

Provision’s language is broad and applies to Ms. Hrycak’s injuries in the present case. Public

Storage asserts that the Release absolves it of any liability for Ms. Hrycak’s injuries. In the

Reply, Ms. Hrycak does not respond to the interpretation of the Release or assert that there is any

ambiguity of the Release language.

        The Court finds that the Provision is clear and unequivocal. The Provision expressly

limits Public Storage’s liability for any “injury to persons” arising “from any cause, including . . .

[the] negligence” of Public Storage.33 The Provision does not apply if the harm was a result of

fraud, a willful injury, or a willful violation of law by Public Storage. Ms. Hrycak’s slip and fall,

as well as her resulting injuries, clearly falls within “any cause” of injury, including negligence

on the part of Public Storage. Additionally, Ms. Hrycak does not allege that the slip and fall was

a result of Public Storage engaging in fraud, willful injury, or a willful violation of law. As such,

Public Storage is exculpated from liability for any injuries, including those which are a result of

ordinary negligence. Given the Agreement’s specific language and its application to the present

facts, the Provision satisfies the first criterion.

             2. Not Unconscionable

        To be valid, a release of prospective negligence may not be unconscionable.34 In Ketler,

the Delaware Supreme Court described unconscionability as “a concept that is used sparingly.”35

Traditionally, a contract is unconscionable where “no man in his senses and not under delusion




32
   Motion, Ex. A, ¶ 7.
33
   Id.
34
   Ketler, 132 A.3d at 748.
35
   Id. (citing Progressive Int'l Corp. v. E.I. Du Pont de Nemours & Co., 2002 WL 1558382, at *11 (Del. Ch. July 9,
2002).

                                                         9
would make on the one hand, and as no honest or fair man would accept, on the other.”36

Disparity in the bargaining powers of the contracting parties is not sufficient to support a finding

of unconscionability. “[T]here must be an absence of meaningful choice and contract terms

unreasonably favorable to one of the parties.”37

         In the Objection, Ms. Hrycak calls the Release “an adhesion type contractual waiver,”38

however, she does not assert any facts or cases to support the claim that the contract was

unconscionable. In the Motion, Public Storage argues “what Public Storage leased to Hrycak

space to store property is not essential, so she could have just walked away from the Lease.”39

         The Court finds that the Agreement and the Provision are not unconscionable. Ms.

Hrycak had a meaningful choice when she entered into the Agreement, she was free to accept the

terms of the Agreement or not. A place to store personal property is not an essential good. Ms.

Hrycak continued to rent the storage unit from September 2015 to the time of the accident in

May 2016. If Ms. Hrycak felt the terms of the Agreement were in any way unfair she was free to

terminate the Agreement. There is no evidence indicating that the Agreement was voidable as

unconscionable. The Court, therefore, finds that the Provision satisfies the second criterion.

             3. Does Not Violate Public Policy

         The Release must not violate public policy. “The public policy of this state is typically

determined by the Delaware General Assembly.”40 “A release of tort liability is unenforceable to




36
   Ketler, 132 A.3d at 748 (quoting Williams v. Walker–Thomas Furniture Co., 350 F.2d 445, 450 n.12 (D.C. Cir.
1965)).
37
   Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978).
38
   Objection, ¶ 6.
39
   Motion, ¶ 10 (citing Taylor v. Pub. Storage, 2012 WL 3879248, at *5 (W.D. Wash. Sept. 6, 2012) (applying
Washington law) (“A self-storage facility does not fit within the category of ‘essential public services[]’ . . .”))
(internal quotation omitted).
40
   Ketler, 132 A.3d at 748.

                                                          10
exculpate a party for statutory violations where the plaintiff is a member of the class protected by

the statute.”41

         In Ketler, there were no Delaware statutes identified on the validity of a release of

prospective negligence.42 The plaintiffs in Ketler, attempted to “argue that the release violates

the public policy embodied in the principle that a property owner has a duty to make his property

safe for business invitees.”43 However, the Supreme Court rejected this argument, stating that

[t]he public policy of this state is typically determined by the Delaware General Assembly.”44

The Supreme Court held that “a general release by its nature releases a party from a potential

liability otherwise imposed by law. The public policy involved must be one which disapproves of

the release.”45

         In Slowe v. Pike Creek Court Club, a guest fell on a set of negligently maintained stairs in

the swimming pool at a health club and was not barred from bringing suit.46 The Court held that

the liability waiver47 in the membership agreement was not specific in excusing the health club

from liability for negligent acts and that the risk of the injury was not assumed.48 However, the

Slowe court did leave open the possibility that “a properly-worded release might effect a waiver

of premises liability.”49 The Court held that “enforcing a liability waiver to bar a negligence

claim related to the operation and maintenance of a public pool could impermissibly undermine


41
   Slowe v. Pike Creek Court Club, Inc., 2008 WL 5115035, at *5 (Del. Super. Dec. 4, 2008).
42
   Ketler, 132 A.3d at 748.
43
   Id.
44
   Id. (emphasis added).
45
   Id.
46
   Slowe, 2008 WL 5115035, at *1-4.
47
   The membership agreement in Slowe, 2008 WL 5115035, at *1, contained the following liability waiver:
           LIABILITY WAIVER. I agree that I am voluntarily participating in activities and use of the
           facilities and premises (including the parking lot) and assume all risk of injury, illness, damage or
           loss to me or my property that may result in any loss or theft of any personal property. I further
           agree that I shall hold this club, its shareholders, directors, employer’s representatives and agents
           harmless from any and all loss, claims, injury, damages or liability sustained by me.
48
   Id. at *3-4.
49
   Id. at *5.

                                                           11
statutory standards set forth in Delaware’s public pool regulations.”50 While health clubs are

typically not subject to health and safety regulations, “Delaware has adopted extensive

regulations governing swimming pools”51 and the Defendant in Slowe was injured in a

swimming pool. Therefore, the injury in the pool was not subject to limitation by any waiver.

        In Hong, the Court granted summary judgment for Hockessin Athletic Club and held that

the plaintiff’s claims were barred because of the liability waiver in the membership agreement. 52

The Court held “[u]nlike in Slowe, Plaintiff has not alleged the existence of any dangerous

condition on the premises that was the result of the health club’s failure to perform its duties,

which were statutory and could not have been disclaimed by a liability waiver.”53 The Court

noted “[a]lternatively, notwithstanding the liability waiver, summary judgment should still be

granted based on Plaintiff’s failure to make a prima facie case of negligence . . . [because] [t]he

Complaint contains no specific allegations about the nature of HAC’s negligence and how it

caused [the] injury.”54

        Ms. Hrycak notes that in addition to general allegations of negligence, the Complaint

alleges Public Storage’s failure to provide adequate lighting for common walkway areas is a

proximate cause of her injuries. Ms. Hrycak argues that she alleged specific allegations of

negligent maintenance of lighting on the property in the Complaint which raises a material

dispute of fact. Ms. Hrycak cites the Hong Court’s discussion of the Plaintiff’s failure to assert a

prima facie case because of the lack of specific allegations of negligence.55 Ms. Hrycak is also

contending that the Provision is invalid as against public policy. Ms. Hrycak first contended that



50
   Id. at *1.
51
   Id. at *5.
52
   Hong v. Hockessin Athletic Club, 2012 WL 2948186, at *3 (Del. Super. July 18, 2012).
53
   Id. at *4.
54
   Id. at *3.
55
   Objection, ¶ 3-4 (citing Hong, 2012 WL 2948186, at *3-4).

                                                       12
a Wilmington City Ordinance applied and, later, that a New Castle County Property Maintenance

Code applied to make the Provision void under public policy.

         Here, Public Storage is not arguing that Ms. Hrycak failed to properly assert a negligence

claim. Public Storage is moving for summary judgment solely on the grounds that the Provision

bars Ms. Hrycak’s suit against them. Therefore, the Court’s holding is limited to the

applicability and scope of the Provision in the present case and not whether Ms. Hrycak properly

pled negligence.

                       i. Wilmington City Code of Ordinances

         In the Objection, Ms. Hrycak argues that Public Storage’s facility where the incident

occurred is subject to the Wilmington City Code of Ordinances and that Public Storage’s

inadequate lighting is a violation of Section 34-234(8),56 Section 5-58(3)(e),57 and Title 31,

Section 4118 of the Delaware Code.58 Ms. Hrycak cites the Court’s discussion from Hong59 and

Slowe60 on the limits of liability waivers if they violate public policy.

         In the Response, Public Storage argues that the Premises of the slip and fall is not within

the Wilmington City limits, and therefore potential ordinance violations cited by Ms. Hrycak do

not apply. Public Storage also argues that even if the Premises were subject to the Wilmington

City Code of Ordinances the sections Ms. Hrycak cites were not violated by Public Storage.

Section 34-234(8) does not apply to Public Storage because it is a “Housing Code”61 and the unit




56
   Wilm. C. § 34-234(8).
57
   Wilm. C. § 5-58(c)(3)(e).
58
   31 Del. C. § 4118.
59
   2012 WL 2948186, at *3.
60
   Slowe v. Pike Creek Court Club, Inc., 2008 WL 5115035, at *5 (Del. Super. Dec. 4, 2008).
61
   See Wilm. C. § 34; see also Wilm. C. § 34-234 (noting that subsection 234 refers specifically to a facility which is
“for occupancy” or a “dwelling unit, for the purpose of living therein”).

                                                          13
rented to Ms. Hrycak62 was only meant for the storage of personal property.63 Public Storage

argues that because Section 34-234 does not apply to the Premises, Section 5-58, the

enforcement mechanism for Ordinance violations, is not applicable either.64 Public Storage

argues that Title 31, Section 4118 of the Delaware Code is part of the Delaware State Housing

Code65 and, as such, does not apply to the Premises.66

         The location of Ms. Hrycak’s alleged slip and fall is the Public Storage at 3800 Kirkwood

Highway, Wilmington, Delaware, 19808.67 The Premises are located outside of the corporate

limits of the City of Wilmington and, therefore, the Wilmington City Code of Ordinances does

not apply to Public Storage.68 Accordingly, the first two ordinances that Ms. Hrycak asserts

Public Storage violated are not applicable in this case. In addition, the Court finds that Ms.

Hrycak’s argument regarding violations of Title 31, Section 4118 of the Delaware Code are

misplaced. Title 31, Section 4118 does not apply to the Premises because it is part of the




62
   The Agreement provides “[t]he parties have entered into this Lease/Rental Agreement for the purpose of renting
the above noted storage space.” Motion, Ex. A, ¶ 1.
63
   Neither the walkways to the storage unit nor the unit itself qualifies as a “dwelling unit” or space that’s use is for
anything except its intended purpose of storage. See Wilm C. § 34-1; see also Walker v. City of Wilmington, 2014
WL 4407977, at *2 (Del. Ch. Sept. 5, 2014) (“Chapter 34 of the Wilmington City Code, entitled the ‘Housing Code’
sets forth the minimum property maintenance standards for all dwellings used for purposes of ‘living, sleeping
cooking or eating therein.’” (quoting Wilm. C. § 34-231)).
64
   Section 5-58 of the Wilmington City Code addresses the point value to violations of other City Ordinances. See
Wilm. C. § 5-58(c)(3).
65
   See 31 Del. C. § 4101 (“This chapter shall be known as the Delaware State Housing Code . . . and is herein
sometimes referred to as the ‘State Housing Code’ or ‘Code’ . . . .”).
66
   The Delaware State Housing Code consists of Sections 4101-4135. 31 Del. C. §§ 4101-4135. Section 4103 states:
“[t]he State Housing Code shall apply to existing residential structures used for human habitation,” and “[e]very
portion of a building or premises used or intended to be used for residential purposes shall comply with this
chapter.” 31 Del. C. § 4103. The Premises is not “residential” or “used for human habitation” and therefore the
minimum health and safety regulations set forth by Title 31, Section 4118 are not applicable.
67
   Compl. ¶ 2.
68
   See Details for Parcel No. 0803930114, New Castle County, Delaware (June 20, 2019, 12:15 P.M. (EDT)),
http://www3.nccde.org/parcel/Details/Default.aspx?ParcelKey=60016 (noting that the “Municipal Info” for this
Parcel, which is the Premises, is “Unincorporated”); Zoning Map, City of Wilmington, Delaware (June 20, 2019,
12:15 P.M. (EDT)), https://www.wilmingtonde.gov/home/showdocument?id=364 (outlining the corporate limits of
Wilmington).

                                                           14
Delaware State Housing Code which relates to residential properties and premises and not

commercial properties.

                     ii. New Castle County Property Maintenance Code

        In the Letter, Ms. Hrycak requests leave to substitute the New Castle County Property

Maintenance Code69 in lieu of the Wilmington City Code of Ordinances. At oral argument, Ms.

Hrycak argued that Public Storage violated the New Castle County Property Maintenance Code

by failing to maintain adequate lighting. As such, Ms. Hrycak contends that the Release is

invalid and does not exculpate Public Storage from liability in this case.

        At oral argument, Public Storage asserted that the New Castle County Property

Maintenance Code was adopted to give the government an enforcement mechanism for proper

maintenance of property in the county and not as a public policy to set health and safety

standards for all businesses. Additionally, Public Storage asserts there is no public policy

prohibiting the creation of a liability waiver for ordinary negligence. Public Storage argues the

Release does not violate public policy and therefore meets the standard set forth in Ketler.70

        The Premises is located in New Castle County boundaries71 and as such falls within the

purview of The New Castle County Property Maintenance Code.72 The intent of the regulation is

to “provide for the health, safety and welfare of the citizens of New Castle County . . . [by]

regulating and governing the condition and maintenance of all property, structures[,] and

buildings to eliminate or prevent unsafe, unhealthy, unsanitary or substandard conditions.”73

Chapter 7 of the New Castle County Property Maintenance Code adopts “all the sections,




69
   9 Del. C. § 2902.
70
   Ketler v. PFPA, LLC, 132 A.3d 746, 748 (Del. 2016).
71
   9 Del. C. § 102.
72
   9 Del. C. § 2902.
73
   9 Del. C. § 2902.

                                                         15
conditions, and terms of the International Property Maintenance Code.”74 Chapter 4 of the

International Property Maintenance Code requires:

         Other spaces shall be provided with natural or artificial light sufficient to permit
         the maintenance of sanitary conditions, and the safe occupancy75 of the space and
         utilization of the appliances, equipment, and fixtures.76

Public storage facilities such as the one involved in this case would constitute a “building”

subject to the regulations.77

         The case at bar is distinguishable from Slowe.78 The Court in Slowe, declined to apply a

liability waiver because the public policy surrounding swimming pools is well-developed and

specific.79 The Delaware General Assembly promulgated the law at issue in Slowe. The Slowe

court discusses at length the “extensive regulations governing swimming pools” noting that “the

regulations provide detailed specifications for pool steps” including tread length, depth, and slip

resistance specifications.80 Importantly, the Slowe court found that “Delaware’s public pool

regulations reflect a clear intent by the legislature to impose statutory duties upon public pool

operators in order to protect the public’s health and safety.”81

         Here, Ms. Hrycak relies on the New Castle County Property Maintenance Code and not a

statute promulgated by the Delaware General Assembly or a Delaware adopted regulation that

governs public storage units. In addition, Ms. Hrycak provides no support that the New Castle




74
   New Castle Cty. C. §7.
75
   Occupancy as defined by the code is “[t]he purpose for which a building or portion thereof is utilized or
occupied.” INTERNATIONAL PROPERTY MAINTENANCE CODE § 202 (2018).
76
   2018 INTERNATIONAL PROPERTY MAINTENANCE CODE § 402.3(2018).
77
   The definition of building “shall mean a structure having a roof, and intended to shelter persons, animals, property
or business activity. The word “building” shall be construed to include parts thereof and all equipment therein.” 9
Del. C. § 2901.
78
   Slowe v. Pike Creek Court Club, Inc., 2008 WL 5115035, at *5 (Del. Super. Dec. 4, 2008).
79
   Id.
80
   Id.
81
   Id.

                                                          16
County Property Maintenance Code, or the provision relied upon, disapproves of a release in this

situation.

          Delaware courts respect the right of private parties to contract. The jurisprudence on the

applicability of liability waivers is clear that a violation of public policy only occurs when the

statewide public policy involved “disapproves of the release.”82 The Court cannot adopt Ms.

Hrycak’s argument that a violation of the New Castle County Property Maintenance Code means

the Provision is void under the public policy of the Delaware. Because the concept of the

“public policy” is amorphous, it could be difficult to apply. The Supreme Court has provided a

guide—the public policy of Delaware typically is determined by the Delaware General

Assembly. Applying the same logic that the Delaware Supreme Court used in Ketler, Ms.

Hrycak has not purported that there is any public policy disapproving of the release of

prospective negligence.83 Therefore, the release does not violate public policy and the third

criterion is met.

                                               VI. CONCLUSION

         For the foregoing reasons, the Court GRANTS Public Storage’s Motion for Summary

Judgment for Defendant.

         IT IS SO ORDERED.

                                                                /s/ Eric M. Davis
                                                                Eric M. Davis, Judge

cc:      File&ServeXpress




82
  Ketler v. PFPA, LLC, 132 A.3d 746, 748 (Del. 2016)
83
  Id. (holding “a general release by its nature releases a party from a potential liability otherwise imposed by law.
The public policy involved must be one which disapproves of the release.”).

                                                          17
