        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                    IN AND FOR KENT COUNTY


JOYCE HENRY,                               :
                                           :        C.A. No: K14C-03-002 RBY
           Plaintiff,                      :
                                           :
      v.                                   :
                                           :
MIDDLETOWN FARMERS MARKET, :
LLC, a Delaware limited liability company, :
d/b/a DUTCH COUNTRY FARMERS                :
MARKET, JEANETTE L. WATERS and :
FRANCES DUSELL,                            :
                                           :
                  Defendants.              :

                              Submitted: December 5, 2014
                               Decided: January 14, 2015


             Upon Consideration of Defendants Jeanette L. Waters
                   and Francis Dusell’s Motion to Dismiss
                                  DENIED

                                       ORDER

Scott E. Chambers, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for
Plaintiff.

Middletown Farmers Market, LLC, pro se.

Jeanette L. Waters, pro se.

Frances Dusell, pro se.


Young, J.
Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
January 14, 2015

                                     SUMMARY
       Jeanette Waters and Francis Dusell (“Defendants”) have filed a second Motion
to Dismiss in this unusual case, involving injuries sustained from an airborne farmer’s
market vendor table. Having recently obtained Joyce Henry’s (“Plaintiff”) medical
records, Defendants seek to bolster their argument that there are no facts to support
Plaintiff’s claim of negligence. In particular, Defendants contend Plaintiff suffered
from a number of preexisting medical conditions that are the true cause of her
injuries.
       In framing their motion, Defendants have cited to evidence outside of the
pleadings – the Plaintiff’s medical records, which were recently produced to
Defendants through discovery. The Court must, therefore, review the filing as a
Motion for Summary Judgment. The proper standard of review, however, is
immaterial to this Court’s decision. The factual issues in this case are far from
decided. The freshly produced evidence, and the Defendants’ new argument regarding
causation, only underscores this point. Therefore, Defendants’ Motion for Summary
Judgment is DENIED.
                           FACTS AND PROCEDURES
       On April 7, 2012, Plaintiff attended an open air market, called Dutch Country
Farmers Market, where she allegedly sustained injuries from the airborne vendor
table. It is alleged that the table was swept up by a gust of wind, and while landing,
made impact with the Plaintiff’s person. Defendants, both attending the market as
vendors, are said to be the owners of said table.
       Plaintiff filed a negligence action against Defendants, claiming they negligently

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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
January 14, 2015

failed to secure the table to the ground, allowing the table to be susceptible to the
elements. Plaintiff attributes the table’s flight to this negligence, resulting in the
injuries she alleges from its downward trajectory.
         Defendant Waters previously filed a Motion to Dismiss the present action, on
June 19, 2014. The Court denied this motion on September 8, 2014. Since that time,
the parties have conducted discovery, most recently resulting in production of
Plaintiff’s medical records. Defendants move, yet again, to dismiss the action.
                                   STANDARD OF REVIEW1
         Summary judgment is granted upon showing that there is no genuine issue of
material fact, where the moving party is entitled to judgment as a matter of law.2 The
Court views the evidence in the light most favorable to the non-moving party.3 The
moving party bears the burden of showing that no material issues of fact are present,
but once a motion is supported by such a showing, the burden shifts to the non-
moving party to demonstrate that there is a genuine dispute as to material issues of
fact.4
                                          DISCUSSION
         It must first be stated that the Defendants’ Motion to Dismiss will be viewed
as a summary judgment motion. In drafting their motion, Defendants cited to matters


         1
             The Court treats Defendants’ motion to dismiss as a summary judgment motion.
         2
             Super. Ct. Civ.R. 56(c).
         3
             Windom v. Ungerer, 903 A.2d 276, 280 (Del. 2006).
         4
             Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
January 14, 2015

outside of the pleadings, requiring this Court, therefore, to treat Defendants’ filing as
a summary judgment motion.5 Defendants’ motion appears to be prompted by the
receipt of Plaintiff’s medical records through discovery.
       On summary judgment, it is the moving party’s burden to establish that all
major factual issues are resolved, such that a reasonable trier fact could not find for
the opposing party. 6 In their motion, Defendants claim that Plaintiff has not
articulated “[j]udicial facts.”7 Given the context of Plaintiff’s claim, the Court
understands this to mean there are no facts supporting the allegation that (1)
Defendants were negligent in not securing their vendor table; and (2) that the impact
from the table caused Plaintiff’s injuries. With particular reference to the newly
received medical records, Defendants argue that many of the conditions Plaintiff
suffers from, predate the avian table accident.
       The Court finds that the substance of Defendants’ motion, which largely
consists of tying Plaintiff’s injuries to her prior medical record, belies any argument
for granting summary judgment. Aside from the main factual issues, in regard to
which Defendants merely repeat their prior positions8, their new argument (again,


       5
           Mell v. New Castle Cnty, 835 A.2d 141 (Del. Super. Ct. 2003).
       6
         Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (“[i]f the facts permit reasonable
persons to draw from them but one inference, the question is ripe for summary judgment”).
       7
           Defendant’s Motion to Dismiss, at p.1.
       8
          For example, Defendants make arguments regarding the wind conditions on that day,
calling the gust that lifted the table an “act of nature.” The Defendants’ made this same argument
in their motion to dismiss, filed on June 19, 2014, which this Court denied on September 8,
2014.

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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
January 14, 2015

based upon the recently acquired medical records) manifests how far from resolved
the factual questions in this case are. Contending that Plaintiff’s injuries preceded the
impact from the table simply provides another factual matter to be decided by the
jury. Defendants’ motion has created more factual disputes, rather than having
resolved them.
                                   CONCLUSION
      For the foregoing reasons, Defendants’ motion is DENIED.
      IT IS SO ORDERED.


                                             /s/ Robert B. Young
                                                        J.

RBY/lmc
oc: Prothonotary
cc: Scott E. Chambers, Esq.
     Middletown Farmers Market, LLC, pro se
     Jeanette L. Waters, pro se
     Frances Dusell, pro se
     Opinion Distribution
     File




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