            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


CHARLOTTE HUDSON,                            :
                                             :     C.A. No: K14C-01-007 RBY
                    Plaintiff,               :     In and For Kent County
                                             :
      v.                                     :
                                             :
BOSCOV’S DEPARTMENT STORE,                   :
L.L.C., a limited liability company, and     :
DOVER MALL LIMITED                           :
PARTNERSHIP, a Delaware limited              :
partnership,                                 :
                                             :
                    Defendants.              :

                            Submitted: November 15, 2016
                             Decided: February 1, 2017

                          Upon Consideration of Defendants’
                           Motion for Summary Judgment
                                      DENIED

                                       ORDER


Nicholas H. Rodriguez, Esquire, Schmittinger & Rodriguez, P.A., Dover,
Delaware for Plaintiff.

Sarah M. Ennis, Esquire, Margolis Edelstein, Wilmington, Delaware for
Defendant Boscov’s Department Store, L.L.C.

Kevin J. Connors, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware for Defendant Dover Mall Limited Partnership.

Young, J.
Hudson v. Boscov’s Dept. Store, L.L.C., et al.
C.A. No. K14C-01-007 RBY
February 1, 2017

                                             SUMMARY
        Dover Mall Limited Partnership and Boscov’s Department Store, L.L.C.
(“Defendants”) filed this Motion for Summary Judgment against Charlotte Hudson
(“Plaintiff”) in an action in which she alleged that she was injured in a slip and fall
outside of the Dover Mall Boscov’s location. Because Plaintiff’s negligence cannot
be established at this stage of the proceeding to exceed Defendants’, as a matter of
law; and because the factual circumstances are insufficiently developed regarding
Defendants’ post-storm clearing actions to determine Defendants’ relief from clearing
obligations, Defendants’ motion is DENIED.
                                  FACTS AND PROCEDURE
        Plaintiff alleges that she was injured in a slip and fall, on ice or snow, on
February 1, 2013. She asserts her alleged fall occurred outside of the Boscov’s
location, at the Dover Mall, at 2:14 p.m., as she was returning to her car from the
mall.
        On February 1, 2013, snow and freezing rain fell, throughout the day, until
1:22 p.m.1 The storm cleared by 1:31 p.m.2 Plaintiff was aware of the presence of
snow plows and the weather conditions as she entered the mall. Defendants assert
that Plaintiff took the same path back to her vehicle from the Dover Mall, and was,



        1
        Plaintiff provides an alternative version of facts. However, Plaintiff appears to rely on
Defendants’ weather report for her data. Therefore, this Court is using the times from
Defendants’ weather report.
        2
         Defendants assert in their brief that the storm cleared at 1:33 p.m. However, the weather
report Defendants rely on says the storm cleared by 1:31 p.m.

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Hudson v. Boscov’s Dept. Store, L.L.C., et al.
C.A. No. K14C-01-007 RBY
February 1, 2017

therefore, aware of the alleged surface conditions as she exited the Dover Mall.
However, Plaintiff contends that the alleged surface conditions were different
when she exited the store. She claims that snow plows moved more snow and ice
into her path, before her exit, than existed in her path during her entrance.
         Plaintiff filed her Complaint on January 7, 2014. Defendant Dover Mall
Limited Partnership filed the instant Motion for Summary Judgment on November
15, 2016. Defendant Boscov’s Department Store, L.L.C. joined the instant Motion
for Summary Judgment.
                                      STANDARD OF REVIEW
         Summary judgment is appropriate where the record exhibits no genuine
issue of material fact, and the movant is entitled to judgment as a matter of law.3
This Court shall consider the “pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any” in deciding the
motion.4 The moving party bears the initial burden of demonstrating the
nonexistence of material issues of fact; the burden then shifts to the nonmoving
party to show that there are material issues of fact in dispute.5 The Court views the
record in the light most favorable to the nonmoving party.6 When material facts
are in dispute, or “it seems desirable to inquire more thoroughly into the facts, to

         3
             United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. May 22,
1997).
         4
             Del. Super. Ct. Civ. R. 56(c).
         5
             Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).
         6
             Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).

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Hudson v. Boscov’s Dept. Store, L.L.C., et al.
C.A. No. K14C-01-007 RBY
February 1, 2017

clarify the application of the law to the circumstances,” summary judgment will
not be appropriate.7 However, when the facts permit a reasonable person to draw
but one inference, the question becomes one for decision as a matter of law.8
       Defendants assert that either Plaintiff was more negligent than the
Defendants combined or Defendants did not owe Plaintiff a duty to clear the
parking lot in which the Plaintiff fell. Therefore, Defendants seek summary
judgment in their favor.
I. COMPARATIVE NEGLIGENCE AS A MATTER OF LAW
       Defendant Dover Mall claims that, as a matter of law, Plaintiff was
negligent to a degree greater than 50 percent when she fell, as she alleges, on an
ice patch on Defendant’s commercial property. Defendant notes that Plaintiff
knew that the roadway had ice, and had earlier encountered it as she walked from
her vehicle to the store; and, at the time of the fall, Plaintiff was returning to her
vehicle. Moreover, she was aware of the weather conditions as well as the
presence of snow plows for surface clearage. Plaintiff responds that the surface
conditions were not the same each time she traversed the area, because there
existed more ice during her egress as a result of plowing while she was inside.
       A plaintiff cannot recover in an action for negligence when the plaintiff’s
negligence is greater than the combined negligence of the defendants.9


       7
           Sztybel v. Walgreen, 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).
       8
           Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
       9
           10 Del. C. § 8132.

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Hudson v. Boscov’s Dept. Store, L.L.C., et al.
C.A. No. K14C-01-007 RBY
February 1, 2017

        While this decision does not prevent Defendants from moving for judgment
at the close of Plaintiff’s trial presentation of evidence, at this point Plaintiff
cannot be said, as a matter of law, to have been more negligent than Defendants.
Defendants’ reference to Trievel v. Sabo does not control this case.10 There, the
negligence of Plaintiff was great in riding a bicycle onto a busy state highway,
ignoring a “stop sign,” out into perpendicular traffic, directly into the path of a
truck. The contrast between the actions of the plaintiff and the defendant was
extreme, leaving only the conclusion that the plaintiff was at least more than 50
percent negligent.
        The same cannot be said at this juncture to have been as obvious here.
II. NEGLIGENCE ON THE PART OF DEFENDANT
        The foregoing, of course, is academic if Defendant is not negligent or is
relieved from any duty to Plaintiff.
        To that effect, Defendant asserts that it cannot be found to have been
negligent, because it breached no duty to Plaintiff. Any duty that might exist
would come from the legal affirmative obligation of a landowner to its business
invitees to keep its premises reasonably safe from danger created by the natural
accumulation of snow and ice.11 That responsibility requires only reasonable


        10
          Trievel v. Sabo, 714 A.2d 742, 744-46 (Del. Aug. 3, 1998) (ruling in favor of a
defendant on a judgment as a matter of law motion when the defendant hit a bicyclist who
crossed a busy road into perpendicular traffic because the plaintiff was more negligent than the
defendant as a matter of law).
        11
          Woods v. Prices Corner Shopping Center Merchants Assoc., 541A.2d 574 (Del. Super.
Apr. 7, 1988).

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Hudson v. Boscov’s Dept. Store, L.L.C., et al.
C.A. No. K14C-01-007 RBY
February 1, 2017

efforts by the landowner, though that determination would typically be a
quintessential jury question.
       Defendant, however, does not press that issue here. In this case, Defendant
relies upon the “Continuing Storm Doctrine,” saying that whatever obligations
exist to clear an area of the results of a storm, those obligations do not apply in
this case. That is so, Defendant claims, because a landowner conducts itself in a
reasonable manner, as a matter of law, by waiting until a storm has ended, and a
reasonable time thereafter12 before incurring any duty to remove ice and snow.
       In the case at bar, the Plaintiff allegedly fell on an ice patch at 2:14 p.m. on
February 1, 2013. The information relied upon by the parties is that snow and
freezing rain had existed throughout the day on February 1 through 1:22 p.m., with
a clearing of the storm for about three-quarters of an hour by the time Plaintiff fell.
       Plaintiff agrees that, at the time of her fall, Defendant had snow plows
already in operation.
       The question, then, is whether within 40 or 50 minutes, by which time
Defendant already had begun removal efforts, Defendant had exceeded a
reasonable time to have cleared the portion of its property where Plaintiff fell. A
landowner need not have cleared every square inch of property immediately.
Hence, the requirement to provide for a clearing (which itself is undoubtedly open
to some interpretation) is only to do so within a reasonable time. That would be a
function of the area size to be cleared. There is, in the present material, no


       12
            Young v. Saroukos, 185 A.2d 274, 282 (Del. Super. Oct. 24, 1962).

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Hudson v. Boscov’s Dept. Store, L.L.C., et al.
C.A. No. K14C-01-007 RBY
February 1, 2017

information as to that.
       Accordingly, again, while a motion for directed verdict following the
presentation of all of the evidence is not precluded, at this point in the
proceedings, this cannot be determined on Motion for Summary Judgment.
                                      CONCLUSION
       Because of the foregoing, Defendants’ motion is DENIED.
       IT IS SO ORDERED.

                                                     /s/ Robert B. Young
                                                              J.

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