IN THE SUPERIOR COUR'I` OF THE STATE OF DELAWARE

AMANDA FRANCOIS,
Plaintiff,

C.A. No. NlSC-05-191 FWW
v.

LUCINDA T. ELOM,

VVv\/\./VVVV\./

Defendant.
Submitted: January 13 , 2017
Decided: January 17, 2017

Upon Defendant’s Motion for Summary Judgment:
GRANTED.

M

Gary S. Nitsche, Esquire, Samuel D. Pratcher, III, Esquire, Weik, Nitsche &
Dougherty, 305 North Union Street, Second Floor, P.O. BoX 2324, Wilmington,
Delaware 19899; Attorneys for Plaintiff.

Rachel D. Allen, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., 405

North King Street, Suite 300, P.O. Box 1276, Wilmington, Delaware 19899;
Attorney for Defendant.

WHARTON, J.

This 17th day of January 2017, upon consideration of Defendant Lucinda
Elom’s Motion for Summary Judgment, Plaintiff Amanda Francois’ Response,
argument, and the record in this matter, it appears to the Court that:

l. On May 15, 2014, Plaintiff Was Walking her dog on the sidewalk in front of
Elom’s residence.1 For a reason unknown to Plaintiff, Plaintiff decided to step off
of the public sidewalk and onto Elom’s driVeWay.2 Plaintiff asserts that she fell on
Elom’s driveway due to a crack in the driveway, and as a result, she sustained
injuries to her right l<nee.3

2. On May 22, 2015, Plaintiff filed her Complaint. Plaintiff asserts that Elom
Was negligent in failing to properly and reasonably inspect her driveway, in failing
to properly and reasonably Warn Plaintiff, and in failing to repair the driveway.4
Plaintiff also claims that Elom’s failure to fix the driveway “amounted to Willful
and Wanton conduct in knowing that the area in question needed repairs and failed
to do so in a timely fashion or at all.”5 Plaintiff therefore seeks damages for her
personal injuries, pain and suffering, medical expenses, costs, and interest.6

3. On October 24, 2016, Elom filed her Motion for Summary Judgment.

Because Plaintiff trespassed onto Elom’s premises, Elom argues that she cannot be

 

1 Pl.’s Comp., D.I. 1, at 11 4.

2 Def.’s Opening Br., D.I. 33, at 1[ 4.
3 D.I. 1,ar1[5.

"f 1a ar 11 6.

:' Id. at‘[[ 7.

6 mt ar‘[| 10.

held liable under 25 Del. C. § 1501 unless she willfully or wantonly disregarded
the defective condition on her premises.7 As such, Elom argues that she did not
willfully or wantonly disregard a defective condition on her property because she
never had any concerns about her driveway.8 Furthermore, Elom argues that she
has never been informed that anyone slipped and fell on her property in the past.
Finally, no one has ever requested that Elom repair her driveway.9 Therefore,
Elom’s conduct could not be deemed willful or wanton because she had no reason
to believe that a defective condition on her driveway ever existed.10

4. On November 15, 2016, Plaintiff filed her Response to Plaintiff’ s Motion.

1
However,

Plaintiff does not contest that she trespassed onto Elom’s premises.1
Plaintiff argues that Elom failed to repair her driveway after she was informed that
it needed to be done.12 Plaintiff contends that such inaction amounts to willful or
wanton conduct.13 Hence, Plaintiff asserts that Elom should be held liable under §
1 5 01 .

5. Superior Court Civil Rule 56(0) provides that summary judgment is

appropriate when there is “no genuine issue as to any material fact” and “the

 

7 D.I. 33, at 11 6.
8 1a ar 11 5.
9 1a
10 Id

11Pl.’s Answering Br., D.I. 35, at 11 5.

12 Id. at 1111 5-7. At argument, however, Plaintiff conceded that the record does not support this
assertion.

13 Id. at 11 6.

moving party is entitled to a judgment as a matter of law.” When considering a
motion for summary judgment, the Court’s function is to examine the record to
determine whether genuine issues of material fact exist “but not to decide such
issues."’14 The moving party bears the initial burden of demonstrating that the
undisputed facts support his claims or defenses.15 If the moving party meets its
burden, then the burden shifts to the non-moving party to demonstrate that there
are material issues of fact to be resolved by the ultimate fact-finder.16

6. Pursuant to § 1501, “[n]o person who enters onto private residential or farm
premises owned or occupied by another person, either as a guest without payment
or as a trespasser, shall have a cause of action against the owner or occupier of
such premises for any injuries or damages sustained by such person while on the
premises unless such accident was intentional on the part of the owner or occupier
or was caused by the willful or wanton disregard of the rights of others.”17
7. Plaintiff, a trespasser, argues that Elom should be liable because Elom
willfully or wantonly neglected to repair her driveway. Delaware courts have

defined “willful or wanton” conduct in the context of premise liability cases. For

example, in Bailey v. Pennington, the Delaware Supreme Court found that willliil

 

14 Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99 (Del. 1992).

15 Moore v. Sizemor@, 405 A.2d 679, 681 (Del. 1979).

16 Brzoska v. olson, 668 A.2d 1355, 1364 (Del. 1995).

17 Berns v. Docm, 961 A.2d 502, 505 (Del. 2008) (“The premises guest statute reflects a specific
social policy to protect landowners from liability for injuries to persons who enter their land
without permission.”).

or wanton conduct “assumes the character of maliciousness or wickedness.”18 The
Bailey Court also noted that “[t]here is a clear distinction between wantonness and
negligence, as the former term includes the elements of consciousness of one’s
conduct, realization of the probability of injury to another, and disregard of the
consequences.”19 Additionally, in Kalb v. Council, this Court stated that a
“[w]illful or wanton disregard of a plaintiff" s rights-as opposed to negligence_
reflects a ‘conscious indifference’ or an ‘I-don’t-care attitude.”’20
8. Viewing the facts in the light most favorable to Plaintiff, the Court finds that
Elom’s conduct cannot be construed as either willful or wanton. Plaintiff asserts
that Elom knew about the defective condition on her driveway and consciously
disregarded repairing it, but there is no evidence in the record to support this
assertion. Elom testified that she has lived in her home for over nineteen years,
and during this time period, she has never had any concerns about the condition of

1 According to Elom’s testimony, no one has ever fallen on her

her driveway.2
driveway due to the defect that allegedly exists.22 Furthermore, Elom testified that

no one has ever requested Elom to fix her driveway near the public sidewalk.23

The Court, therefore, cannot find any evidence in the record to suggest that Elom

 

:: 406 A.2d 44, 46 (Del. 1979) (quoting Gallegher v. Davis, 183 A. 620, 622 (Del. Super. 1936)).
Id.

20 2013 WL 1934665, at *4 (Del. Super. May 8, 2013) (quoting Eustz'ce v. Rupert, 460 A.2d 507,

509 (Del. 1983)).

21 Elom Dep., E.I. 33, at 4;20-22, 1411-7.

22 1a at 14;18-24.

23 1a at20;16-24.

had a “conscious indifference” or an “I-don’t-care attitude” towards the defective

condition that allegedly exists on her driveway.24

'I`I-IEREFORE, Defendant’s Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

”l) t

Fero'ris W/ \Uh,arton J.

l

 

24 Kalb, 2013 wL 1934665, at *4 (citations Omiu;ed).
6

