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


JOYCE HENRY,                      :
                                  :
                Plaintiff,        :                C.A. No: K14C-03-002 RBY
                                  :
     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: July 8, 2014
                              Decided: September 8, 2014

                       Upon Consideration of Defendant’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
September 8, 2014

                                      SUMMARY
       Jeanette Waters (“Defendant”), one of the defendants in a negligence action
brought by Joyce Henry (“Plaintiff”), moves for an order dismissing Plaintiff’s
Complaint. In the action, Plaintiff alleges, that while attending a community yard
sale, Plaintiff sustained injuries to the head caused by a bi-fold table led by a gust
of wind. Plaintiff alleges that Defendant was negligent in failing to maintain the
area of the community yard sale, which caused Plaintiff’s damages. Defendant
argues that Plaintiff’s Complaint should be dismissed, because Plaintiff’s injuries
were not severe, and Plaintiff cannot claim negligence for an act of God.
Defendant’s Motion presents many questions of fact, that cannot be resolved upon
a motion to dismiss. Thus, Defendant’s Motion to Dismiss is DENIED.
                             FACTS AND PROCEDURE
       Plaintiff is a resident of Middletown, Delaware. Defendant resides in Bear,
Delaware. The other defendants in this action are Middletown Farmers Market,
LLC, , Moses F. Zook, Dutch Country Farmers Market, and Frances Dusell.
       On April 7, 2012, all of the defendants participated in a community yard
sale at the Dutch Country Farmers Market. Defendant and Francis Dusell
(“Dusell”) had their own area set up at the community yard sale, where they sold
goods. On the date of the yard sale, weather conditions were evidently very windy.
Defendant and Dusell had a bi-fold table in the area where they sold goods. While
Plaintiff attended the community yard sale, a gust of wind apparently caused the
bi-fold table to lose its grounding, striking Plaintiff in the head, allegedly causing
injuries.

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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
September 8, 2014

       On March 4, 2014, Plaintiff filed a Complaint against all of the Defendants
in this action. In the Complaint, Plaintiff alleged that the accident was proximately
caused by the negligence of the Defendants in that they: a) failed to secure the bi-
fold table so that it would not blow about in the wind; b) failed to take other
measures to ensure that business invitees would not be struck by the bi-fold table
during the event; c) failed to inspect the area to identify the existence of the
hazardous condition in light of the windy day; d) failed to adopt and enforce
adequate safety standards to ensure that participants in the community yard sale
had safely set up their areas, and that items were secure from blowing during the
windy conditions; and e) failed to maintain the area of the community yard sale
open to business invitees to ensure the reasonable safety of business invitees, such
as Plaintiff.
       Plaintiff has alleged that she sustained serious temporary and permanent
injuries, incurred past medical expenses, and will incur future medical expenses
for her scarring, disfigurement, and serious emotional injuries. On June 19, 2014,
Defendant filed a Motion to Dismiss the Complaint against her individually. On
July 3, 2014, Plaintiff voluntarily dismissed Defendant Moses F. Zook from this
action. Plaintiff submitted her Opposition to Defendant’s Motion to Dismiss on
July 7, 2014.
                              STANDARD OF REVIEW
       “A motion to dismiss under [Superior Court Civil] Rule 12(b)(6) presents
the question of ‘whether a plaintiff may recover under any reasonably conceivable



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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
September 8, 2014

set of circumstances susceptible of proof’ under the complaint”.1 “When
considering a motion to dismiss, the Court must read the complaint generously,
accept all well-[pled] allegations as true, and construe them in a light most
favorable to the plaintiff.”2 “A complaint is ‘well-plead’ if it puts the opposing
party on notice of the claim being brought against it.”3 “Dismissal is warranted,
however, when ‘under no reasonable interpretation of the facts alleged could the
complaint state a claim for which relief might be granted.’”4
                                        DISCUSSION
       In the Motion to Dismiss, Defendant argues that Plaintiff sustained no
permanent damages from her injury on April 7, 2012, claiming that Plaintiff
generated only one medical bill for $178.00 from the Middletown Medical Center.
Defendant, therefore, claims that Plaintiff’s injuries were not severe. Further,
Defendant contends that Plaintiff cannot claim negligence for an act of God, such
as a flying table being thrown by a sudden gust of wind.
       In the Opposition to Defendant’s Motion to Dismiss, Plaintiff asserts that
the purported grounds for Defendant’s Motion to Dismiss are, at best, affirmative
defenses that may be raised. It is well established that, under Delaware law, a

       1
         Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403, 406 (Del. 1995),
citing Kofron v. Amoco Chems. Corp., 441 A.2d 226, 227 (Del. Super. 1982).
       2
           Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952).
       3
          Boyce Thompson Inst v. MedImmune, Inc., 2009 WL 1482237 (Del. Super. 2009),
citing Precision Air v. Standard Chlorine of Del., 654 A.2d 403, 406 (Del. 1995).
       4
           Id., citing Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del.Super. 2004).


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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
September 8, 2014

Complaint cannot be dismissed for failure to state a claim upon which relief can be
granted where the Complaint gives general notice as to the nature of the claim
asserted against the defendant.5 Plaintiff argues that Defendant merely disputes
issues of fact, which must be resolved by the trier of fact, not upon a motion to
dismiss.
         It is clear that Defendant’s Motion presents several questions of fact that
cannot be resolved upon a motion to dismiss. While there is presently evidence
only of a $178.00 hospital bill, the extent of Plaintiff’s injury is undetermined.
Defendant states that the wind blowing the bi-fold table was an act of God, but
neither Plaintiff nor Defendant provide details about the circumstances
surrounding the incident, which creates a factual issue remaining to be determined.
         Moreover, the responsibilities of the various defendants in this action during
the community yard sale are open questions of fact. A successful claim of
negligence requires identifying the duty that was breached, stating who breached
the duty, identifying how the duty was breached, and identifying the injured
party,6 all of which are properly pled by Plaintiff. The facts alleged by Plaintiff
are, at this point, to be assumed as true7; any disputes by Defendant are open
factual issues.



         5
             Diamond State Telephone Company v. University of Delaware, 269 A.2d 52 (Del.
1970).
         6
             Roberts v. Delmarva Power and Light, 2007 WL 23197962 at *1 (Del. Super. 2007).
         7
             Stevenson v. Isaacs, 126 F. Supp. 411 (D. Del. 1954).

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Henry v. Middletown Farmers Market, LLC, et. al.
C.A. No.: K14C-03-002 RBY
September 8, 2014

                                    CONCLUSION
       For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED.
       IT IS SO ORDERED.


                                              /s/ Robert B. Young
                                                         J.

RBY/lmc
oc: Prothonotary
cc: Mr. Chambers, Esq. (via File & ServeXpress)
     Middletown Farmers Market, LLC, Pro se (via U.S. mail)
     Jeanette L. Waters, Pro se (via U.S. mail)
     Frances Dusell, Pro se (via U.S. mail)
     Opinion Distribution
     File




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