IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DINAH JONES and WILLIAM )
POTTER, )
)

Plaintiffs, )

)

v.,~ ) C.A. No.: N14C-12-159 PRW

)

CLYDE SPINELLI, LLC, dba )
PINE VALLEY APARTMENTS, )
)

Defendant. )

Submitted: July 8, 2016
Decided: July 8, 2016

ORDER
Upon Defendant Clyde Spinellz`, LLC, dba Pine Valley Apartments’
Motion to Dismiss upon Summary Judgment,
GRANTED.

This Sth day of July, 2016, having considered Defendant Clyde Spinelli,
LLC, dba Pine Valley Apartments’ ("Pine Valley") Motion to Dismiss (for
Summary Judgment) (D.I. 22); the Plaintiffs’ response thereto (D.I. 24); the
parties’ arguments at the hearing of this motion on this date; and the record in this
matter, it appears to the Court that-z

(1) Plaintiffs Ms. Dinah J ones and Mr. William Potter, her husband, filed

a Complaint on December 17, 2014 (D.I. 1), alleging negligence and loss of

consortium against Pine Valley for failing to offer seating to Ms. Jones and Ms.

Dorothy Oberly and for negligent placement of a space heater in Pine Valley’s
office.l

(2) On February 6, 2013, Ms. Jones, l\/lr. Potter, Mr. John Yonker, and
Ms. Oberly, went to pay an overdue rent bill at Pine Valley"s business office.z
They entered through a reception area, then into an inner office where they met
with the apartment complex’s administrative assistant, Ms. Audra Greenlee.3

(3) After a twenty-minute discussion, Mr. Potter and Mr. Yonl<er left the

office to get a money order for the overdue rent.4 Ms. Jones and Ms. Oberly

5

remained in the inner office. Ms. Greenlee did not offer the women a seat while

they waited.6 Instead they remained standing in the office until Mr. Potter

returned, approximately twenty-minutes later.7

l Compl. 11 l9._-

2 Ia'. at 11 4. Plf.’s Resp. in Opp’n to Def.’s Mot. to Dismiss l-2. Mr. Yonker is Mr. Potter’s
brother. Ms. Oberly is Mr. Potter’s mother. In February 2013, Ms. Oberly was seventy-seven

years old.

Plf.’s Resp. in Opp’n to Def.’s Mot. to Dismiss 2.

‘* 1a. ar 2.
5 1a.
1a
1a.

(4) A small ("foot and a half") space heater was located on the floor in the
middle of the offices Sometime after Mr. Potter’s return, Ms. Oberly allegedly hit
her foot on the space heater and tripped.9 Ms. J ones reached out to stop her from
falling, but ended up on the ground herself with Ms. Oberly on top of her.w

(5) Ms. Jones was bleeding from her head and immediately complained
of right elbow pain.“ Mr. Potter took her to Union Hospital where doctors
determined she suffered a fractured right elbow, which required surgery, and other
injuries.lz

(6) Pine Valley now moves for summary judgment on the grounds that
the Plaintiffs have failed to prove that Pine Valley breached any duty of care to
Ms. Jones. Specifically, Pine Valley argues it is not liable for Ms. Jones’s injuries
because the "dangerous condition" - the space heater that Ms. Oberly fell into or
on - was open and obvious.”

(7) Delaware Superior Court Civil Rule 56 permits granting summary

judgment upon a showing "that there is no genuine issue as to any material fact and

8 Id., Compl. 1| 8; Def.’s-Mot. to Dismiss Ex. E, Photo.
Plf.’s Resp. in Opp’n to Def.’s Mot. to Dismiss 2.

10 1¢1.

“ ld.
Compl. 11 l7.

Mot. to Dismiss 4-6.

that the moving party is entitled to judgment as a matter of law."m In considering
the motion, "[a]ll facts and reasonable inferences must be considered in a light
most favorable to the non-moving party."lS The moving party bears the burden of
establishing the non-existence of any material issue of fact, and upon such a

showing the non-moving party must establish a genuine issue of material fact
exists.w

(8) Negligence claims are particularly resistant to resolution through
summary judgment." Unresolved issues of fact as to the defendant’s negligence,
proximate cause, and the parties’ respective degrees of negligence usually present
questions of fact for the jury.lg In rare cases, however, summary judgment is

appropriate. 19

14 Super. Ct. Civ. R. 56(c); Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962)
(Summary judgment will not be granted if there is a material fact in dispute or if "it seems
desirable to inquire thoroughly into [the facts] to clarify the application of the law to the
circumstances.").

15 Nu¢r v. A_C. & S. C@., lnc., 517 A.zd 690, 692 (D@i. Super. Ct. 1986).

16 see, e.g., shows v. M¢D@well, 2003 wL 22353659, ar *1 (Dei. Super. Ct. Aug. 5, 2003)
(discussing standard for summary judgment).

17 Ebersole, 54 Del. at 468.

13 Trievez v. Sab@, 714 A.zd 742, 745 (1)@1. 1998).

19 See, e.g., Trievel, 714 A.2d at 745 ("Where the evidence requires a finding that a

plaintiffs negligence exceeded that of the defendant, it is the duty of the trial court, as a matter
of law, to bar recovery"); Polaski v. Dover Downs, Inc., 2012 WL 1413577, at *2-3 (Del. Super.

Ct. Jan. 20, 2012), ajj"d, 49 A.3d 1193 (Del. 2012) (granting summary judgment where danger
presented to the plaintiff was obvious as a matter of law).

_4_

(9) "In order to prevail in a negligence action, a plaintiff must show, by a
preponderance of the evidence, that a defendant’s negligent act or omission
breached a duty of care owed to plaintiff in a way that proximately caused the
plaintiff[’s] injury."z° As a business owner, Pine Valley owed all business invitees,
including Ms. Jones,zl a duty "to protect them against both dangers [l<nown] to
exist and those which with reasonable care [might be discovered]."zz For Ms.
Jones, that specific duty here would be to protect her not from a fall herself, but
from the need to rescue Ms. Oberly from a fall over the space heater.

(10) Assuming for the purposes of this motion only that the space heater
was a "danger," z`.e. a potential tripping hazard, Pine Valley is correct in stating

that there is no duty to warn of or protect invitees from an open and obvious

20 P@zaski, 2012 wL 1413577, ar *2 (quoring Brown v. F.W Bazrd, L_L.C., 2008 WL
324661, at *2 (Del. Super. Ct. Feb. 7, 2008)).

21 A business invitee is "a person who is invited to enter or remain on land for a purpose

directly or indirectly connected with business dealings with the possessor of the land." REST.
(SECOND) OF TORTS § 332 (3) (1965). The parties do not appear to dispute that Ms. Jones, l\/ls.
Oberly and Mr. Potter were business invitees.

22 Kanoy v. Cw¢hall Am., lnc., 1988 wL 15367, ar *2 (Del. Super. Ct. Feb. 8, 1988);
Manucci v. Stop n’ Shop Cos., Inc., 1989 WL 48587 at *2 (Del. Super. Ct. May 4, 1989). See
also REST. (SECOND) OF TORTS § 343 (1965) (stating that a landowner is liable for physical harm
only if he "(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and (b) should
expect that they will not discover or realize the danger, or will fail to protect themselves against
it, and (c) fails to exercise reasonable care to protect them against the danger."); Yancy v. Tri
State Mall Lta'. P ’shzp, 2014 WL 2538805, at *2-3 (Del. Super. Ct. May 29, 20l4) (following the
Restatement (Second)).

..5_.._.

danger.z?’ An "open and obvious danger" has been described as one that "create[s]
a risk of harm that is visible, . . . is a well known danger, or what is discernible by

causal inspection . . . to those of ordinary intelligence."% lt is "a danger [that] is

so apparent that the invitee can reasonably be expected to notice it and protect

against it, [because] the condition itself constitutes adequate warning."25

Generally, whether a dangerous condition exists and whether the danger was
apparent to the plaintiff are questions for the jury. 26 But in "very clear cases" this

is not so.27

(l l) This is such a clear case. lt is undisputed that the office space heater
was open and obvious. In Ms. Jones’s deposition, she admitted that the women

saw the space heater on the office’s floor.zg Specifically, Ms. J ones describes the

23 Nzbzen n pennsylvania R. Cn., 153 A.2d 580, 532 (Del. super. ct 1960) (“there is no
duty upon the owner to warn an invitee of a dangerous condition which is obvious to a person of
ordinary care and prudence.").

24 Mncey v. AAA-l Pnnz Bnzldens & senn Cn_, 1993 wL 189481, at *3 (Del. super. ct Apr.
30, 1993) (quoting AmLawProdLiab 3d § 33:26 at 56). See also Polaski, 2012 WL 1413577, at
*2 (n0ting duty-to-wam principle articulated in Macey, a product liability rather than a condition
on the land case, helpful in the latter).

25 Niblett, 158 A.2d at 582-83 (flnding that as a matter of law "there was no duty . . . to
either warn deceased of, or protect him from, the danger inherent in his act of crossing the [train]

tracks.").

Wz'lliamson v. Wilmington Hous. Auth., 208 A.2d 304, 305-06 (Del. l965)t

Id.

Def.’s Mot. to Dismiss Ex. F, Jones Dep. 29-32.

_6_

,29

location of the space heater as in "the center of the room’ with approximately

two feet of clearance around it.30 The space heater was being used in and was
placed in the ordinary manner one would expect of that common appliance. Ms.
J ones admits that the women noticed the space heater when Mr. Potter was told to

get a money order; that occurred, by her own account, approximately twenty

151

minutes before Ms. Oberly fel The space heater wasn’t even partially hidden or

32

difficult to see. Both women knew of its existence and location. In fact, both

Ms. J ones and Ms. Oberly successfully maneuvered around the space heater while

they waited for Mr. Potter’s return, demonstrating that they knew about the space

>33

heater and appreciated its "danger.’ A space heater in the middle of a floor

should be obvious to a person of ordinary care and prudence. After clearly
noticing it, Ms. Oberly could be expected to protect herself against space heater;

and no one would reasonably expect to have to protect Ms. J ones from having to

Ia'. at 30.
 at 
Id. at 32.

32 H@rzon v. Lempeszs, 1990 WL 990093, ar *1 (Del. com P1. oct 22, 1990), a/j"d sub

nom. Horton v. Lempesis, 1992 WL 19986 (Del. Super. Ct. Jan. 28, l992) (granting summary
judgment for negligence claim where "[n]o reasonable inference can be drawn from the record

that any latent or concealed danger existed").

33 Def.’s Mot. to Dismiss Ex. F, Jones Dep. 33 ("Q. [T]o get from close to Audra
[Greenlee]’s desk to closer to the other desk you would have had to walk around the space

heater? A. We walked past it or behind it.").

_7_

rescue Ms. Oberly from the result of her potential contact with the peril it
represented.34

(12) In short, Pine Valley had no duty to warn or protect Ms. Jones, as a
potential rescuer, (or Ms. Oberly, the actual tripper) from the space heater because
it posed an open and obvious danger. Even under the facts interpreted in the best
light for Ms. Jones, Pine Valley is due judgment as a matter of law and its motion
for summary judgment should be granted.

(l3) Lastly, the Plaintiffs complain also of Ms. Greenlee’s alleged
negligent behavior while the ladies waited. No doubt, taking the evidence in the

light most favorable to Ms. Jones, she and her mother-in-law were offered no seat

34 Polaski v. Dover Downs, Inc., 2012 WL 1413577, at *2-3 (Del. Super. Ct. Jan. 20, 20l2),
cyj"d, 49 A.3d 1193 (Del. 2012) (granting summary judgment because "[a] change in elevation
on this well-lit, defect-free sidewalk leading down to a handicapped ramp is not a dangerous
condition" and the "change in elevation should be obvious to a person of ordinary care and
prudence"); Talmo v. Union ParkAuto., 38 A.3d 1255 (Del. 20l2) (affirming summary judgment
for store where no reasonable jury could find store negligent for plaintiff’ s collision with a
stationary plate glass, floor-to-ceiling window).

Admittedly, Delaware cases involving the "open and obvious" doctrine are limited and
mostly involve curbs, sidewalks, snow, ice, or other "slippery" liquids - distinguishable from the
case here involving an appliance on the ground. But other jurisdictions have granted summary
judgment under similar conditions. See, e.g., Colyer v. Speedway, LLC, 981 F. Supp. 2d 634, 636
(E.D. Ky. 2013) (granting summary judgment because a box - sitting on the floor of a gas station
that plaintiff admitted to have seen prior to her fall and attempted to walk around - was an open-
and-obvious condition); Meader v. Paetz Grocery Co., 147 N.W.2d 21 l, 217 (lowa 1966)
(holding that grocery box placed on the ground with ample room for customers to move around
was an open and obvious danger); Espinoza v. Hemar Supermarket, Inc., 841 N.Y.S.2d 680
(N.Y. App. Div. 2007) (milk crate in grocery store was open and obvious danger); Conrad v.
Sears, Roebuck & C0., 2005 WL 758199, at *4 (Ohio Ct. App. Apr. 5, 2005) (display box was an
open and obvious danger because plaintiff stood next to display for over four minutes, the
plaintiff had an unobstructed view of the display, there was ample space between the plaintiff
and the display, and there were no distractions).

_g_

for the over forty minutes they were in Ms. Greenlee’s office. This was rude, not
negligent, behavior. And this Court may only enforce in a civil negligence action
the rule to be followed by those exercising ordinary care, not the rule of etiquette
followed by those exercising common decency. Thus, this churlish behavior,
while regrettable, is not actionable. The space heater, the alleged "dangerous
condition," was "open and obvious."35 lt was even more so as Ms. Oberly and Ms.
Jones stood by it for the span they did. That Ms. Greenlee allowed them to stand
that long does not convert bad manners to actionable negligence.

(14) Because, for the reasons set forth herein and on the record of the
hearing of this motion, the Court finds that no material issue of fact exists and that
Defendant Pine Valley is entitled to judgment as a matter of law, Pine Valley’s

Motion to Dismiss upon Summary Judgment all claims brought by Ms. J ones and

Mr. Potter is GRANTED.

IT IS SO ORDERED.
PAUL R. WALLACE, .IUDGE
Original to Prothonotary

cc: All counsel via File & Serve

35 Niblett v. Pennsylvania R. Co., 158 A.2d 58(), 582 (Del. Super. Ct. 1960).

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