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


JOHN F. WOOD & M. KRISTINA  :
WOOD, husband and wife,     :                   C.A. No: K14C-08-026 RBY
                            :
            Plaintiffs,     :
                            :
    v.                      :
                            :
RODEWAY INN & CHOICE HOTELS :
INTERNATIONAL, INC.,        :
                            :
            Defendants.     :


                         Submitted: January 12, 2015
                           Decided: March 4, 2015

                     Upon Consideration of Defendants’
                            Motion to Dismiss
                                DENIED


                                   ORDER


Michael I. Silverman, Esquire, Silverman, McDonald & Friedman, Wilmington,
Delaware for Plaintiff.

Marc S. Casarino, Esquire, and Agatha C. Mingos, Esquire, White and Williams,
LLP, Wilmington, Delaware for Defendants.




Young, J.
Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

                                     SUMMARY
      John F. Wood and M. Kristina Wood (“Plaintiffs”), were guests of Rodeway
Inn in Dover, Delaware. While attempting to make use of the bathtub, Mr. Wood
alleges he slipped and fell, sustaining injuries to his spine. Plaintiffs argue that the
accident and resulting injuries were proximately caused by the negligence of
Rodeway Inn, and its owner/operator Choice Hotels International, Inc. (“Choice
Hotels” and together with Rodeway Inn “Defendants”).
      Defendants move to dismiss Plaintiffs’ Complaint pursuant to Super. Ct.
Civ. R. 12(b)(6) and 9(b). Defendants point to Brown v. Dover Downs, Inc.,
arguing that the Delaware Supreme Court’s holding in that case would bar
Plaintiffs’ current suit. As per Defendants’ account of Brown, innkeepers owe no
duty to business invitees in their use of hotel room bathtubs. In the alternative,
Defendants contend that Plaintiffs’ Complaint lacks the requisite particularity
called for by Rule 9(b) when pleading negligence.
      The Court DENIES Defendants’ motion. The scope of Brown’s ruling does
not reach the facts of this case. Therefore, it does not require this Court to dismiss
Plaintiffs’ claim pursuant to Rule 12(b)(6). With regard to Defendants’ Rule 9(b)
argument, the Court finds that, although Plaintiffs’ Complaint borders upon
vagueness, given Delaware’s notice pleading standard, it would be premature to
dismiss the action at such an early juncture. Plaintiffs have, even if in a meager
manner, pled the requisite elements for their negligence suit.
                           FACTS AND PROCEDURES
      On or about September 10, 2012, Plaintiffs, residents of Connecticut, were

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

guests of Rodeway Inn, located in Dover, Delaware. Rodeway Inn is owned and
operated by Choice Hotels. Plaintiffs allege that on this date, Mr. Wood slipped
and fell in the bathtub of his room in the Rodeway Inn. Plaintiffs claim that Mr.
Wood has suffered injuries as a result of this accident, including a fractured spine.
On August 22, 2014, Plaintiffs filed the instant action against Defendants.
                                  STANDARD OF REVIEW
         The Court’s standard of review on a motion to dismiss pursuant to Superior
Court Civil Rule 12(b)(6) is well-settled. The Court accepts all well-pled
allegations as true.1 Well-pled means that the complaint puts a party on notice of
the claim being brought.2 If the complaint and facts alleged are sufficient to
support a claim on which relief may be granted, the motion is not proper and
should be denied.3 The test for sufficiency is a broad one.4 If any reasonable
conception can be formulated to allow Plaintiff’s recovery, the motion to dismiss
must be denied.5 Dismissal is warranted only when “under no reasonable
interpretation of the facts alleged could the complaint state a claim for which relief
might be granted.”6

         1
             Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. Ct. Mar. 31, 2009).
         2
             Savor, Inc. v. FMR Corp., 2001 WL 541484, at *2 (Del. Super. Ct. Apr. 24, 2001).
         3
             Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
         4
             Id.
         5
             Id.
         6
             Thompson v. Medimmune, Inc., 2009 WL 1482237, at *4 (Del. Super. Ct. May 19,
2009).

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

                                        DISCUSSION
       Defendants move to dismiss Plaintiffs’ Complaint under two theories: 1)
pursuant to Super. Ct. Civ. R. 12(b)(6), that Plaintiffs have failed to state a claim for
which relief can be granted; and 2) that Plaintiffs have failed to plead their negligence
claim with particularity, as required by Super. Ct. Civ. R. 9(b). Although the
sparseness of Plaintiffs’ pleading is readily apparent, their Complaint, barely, meets
Delaware’s notice pleading standard.
       The Court begins by noting that, as opposed to its Federal counterpart,7
Delaware’s pleading standard maintains its traditional low threshold.8 The Court is
to deny a motion to dismiss under 12(b)(6), if “a plaintiff would...be entitled to
recover under any reasonably conceivable set of circumstances susceptible of proof.”9
Moreover, “[a]n allegation, though vague or lacking in detail, is nevertheless well-
pleaded if it puts the opposing party on notice of the claim being brought against it,”10
– hence the “notice pleading” denomination. Finally, the standard is to be “liberally
construed.”11


       7
        See generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal,
556 U.S. 662 (2009).
       8
         Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings, LLC, 27 A.3d 531, 537
(Del. 2011) (“until this Court decides otherwise or a change is duly effected through the Civil
Rules process, the governing pleading standard in Delaware to survive a motion to dismiss is
reasonable conceivability”)(internal quotations omitted).
       9
           VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 611 (Del. 2003).
       10
            Id. (emphasis added).
       11
            Id.

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

       Despite this general relaxation with respect to precision at the pleadings stage,
when a complaint includes a claim alleging negligence, the standard becomes
heightened.12 Such 12(b)(6) motions are to reviewed pursuant to Rule 9(b), requiring
“the circumstances constituting negligence [to be pled] with particularity.”13
“Particularity” in pleading negligence is satisfied by “specify[ing] a duty, a breach of
duty, who breached the duty, what act or failure to act caused the breach, and the
party who acted.”14 “[C]laims of negligence...may not be conclusory and must be
accompanied by some factual allegations to support them.”15
       Defendants attack the sufficiency of Plaintiffs’ complaint under 12(b)(6), by
citing to the Delaware Supreme Court’s decision in Brown v. Dover Downs, Inc.16
According to Defendants, Brown stands for the proposition that innkeepers owe no
duty to business invitees, to warn of the dangers associated with the use of hotel
bathtubs. Plaintiffs’ suit, which arises out of a slip and fall injury Mr. Wood allegedly
sustained, while attempting to shower in Defendants’ hotel bathtub, would, as per
Defendants, be barred by Brown’s holding, on the basis that a negligence action
requires the element of duty to be pled. Since the Supreme Court has not held that


       12
          Id., n.9 (recognizing limited exceptions to the notice pleading standard, such as “Rule
9(b)...requir[ing] greater particularity...”).
       13
         Tews v. Cape Henlopen School Dist., 2013 WL 1087580, at *2 (Del. Super. Ct. Feb.
14, 2013)(internal quotations omitted).
       14
            Rinaldi v. Iomega Corp., 1999 WL 1442014, at *7 (Del. Super. Ct. Sept. 3, 1999).
       15
            Doe 30's Mother v. Bradley, 58 A.3d 429, 462 (Del. Super. Ct. 2012).
       16
            2011 WL 3907536, at *1 (Del. Aug. 30, 2011).

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

such a duty exists, the claim must, by necessity, fail.
       Defendants’ reading of Brown is too broad. The Supreme Court did not make
an all-encompassing declaration that innkeepers owe no duty to invitees, with respect
to bathtubs on their premises. Indeed, as the Supreme Court expressly noted “[t]he
singular issue for this Court to determine is whether Defendant, as an innkeeper,
owed a duty to Plaintiffs, its business invitees, to place a bathmat in their room’s
tub.”17 The Supreme Court was faced with a narrow issue, that of the placement of
bathmats in hotel room bathtubs, and whether the absence of such a bathmat,
constituted negligent behavior. The Brown Court resoundingly rejected that
proposition, finding that the “inherently slippery nature of a wet bathtub surface”
does not “present an unreasonable risk of harm,” such that inkeepers have a duty to
provide bathmats.18 The allegations in the instant matter, by contrast, have nothing
to do with bathmats. As Plaintiffs detail (unfortunately in their response to
Defendants’ motion, and not in their Complaint, as would have been the proper situs),
their action is based upon the premise that there was some foreign substance in
Defendants’ bathtub, creating the hazardous condition that led to Mr. Wood’s alleged
accident. In fact, the Supreme Court specifically excluded such situations from its
ruling.19 Therefore, Brown, limited to circumstances involving bathmats, does not

       17
            Brown, 2011 WL 3907536 at *3.
       18
            Id.
       19
           Id., at *4 (“[i]n contrast, where there is a foreign substance such as wax or cleaning
material present in a slip and fall case, courts allow the jury to determine whether the specific
factual situation constitutes negligence on the part of the defendant”) (internal quotations
omitted).

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

govern, nor require dismissal pursuant to Rule 12(b)(6).
      The analysis under Rule 9(b) is a much closer one for the Court. This is
primarily due to the fact that Plaintiffs’ presentation of their claim in the Complaint
is bare-boned and sparse, dangerously toeing the line of imprecision and
incompleteness. As has been stated, a negligence claim meeting the demands of Rule
9(b) requires a plaintiff to specify: 1) duty; 2) breach of duty; 3) who breached the
duty; 4) what act or failure to act caused the breach; and 5) the purportedly offending
party.20 Plaintiffs, albeit just barely, have pled these elements in their Complaint:
    Plaintiff John F. Wood’s fall, it’s claimed, was the direct and proximate result
    of the negligence of Defendant...in that it:
           a. failed to use reasonable care to protect Plaintiff, John G. Wood from
           hazardous conditions present on the premises;
           b. failed to maintain the premises in a safe condition;
           c. failed to keep the premises properly free from defects;
           d. failed to warn Plaintiff of the existing hazard and danger;
           e. failed to remedy a dangerous condition that it knew or should have
           known existed on the premises....21
Furthermore, the requirement that “some factual allegations”22 support the claim is,
again, met by the complaint’s recitation “[o]n or about September 10, 2012,
Plaintiff...was on the property...when suddenly and without warning, Plaintiff slipped
and fell in the slippery tub.”23


      20
           Rinaldi, 1999 WL 1442014, at *7.
      21
           Plaintiff’s Complaint, at ¶ 8.
      22
           Doe 30's Mother, 58 A.3d at 462.
      23
           Id., at ¶ 4.

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

       Defendants’ citation to Tews v. Cape Henlopen School Dist., in support of their
contention that Plaintiffs have not met the Rule 9(b) particularity demands.24
Although pinpointed by Defendants for broad propositions, outlining the Rule 9(b)
standard, it is instructive to contemplate the Tews Court’s reasoning. Tews, which,
incidentally, granted the movant’s motion to dismiss, is distinguishable in that the
claim was one sounding in gross negligence, rather than negligence.25 Such claims
require, not a mere departure from the standard of care owed by defendants, but an
“extreme departure.” 26 That is, gross negligence, by necessity, carries a higher burden,
not only with respect to its elements, but also with respect to the particularity of the
Rule 9(b) factual allegations.27 What’s more, the circumstances in the instant matter
are further distinct from Tews, in that, however thinly it may so do, Plaintiffs’
complaint does include “some” facts supporting the allegations.28 Indeed, the Tews
Court was persuaded to grant movant’s motion as “[t]he complaint contains no facts
indicating how [Defendant] deviated from the applicable standard of care, what the




       24
            2013 WL 1087580, at *1.
       25
            Id.
       26
            Id., at *2.
       27
          See e.g., Id., (finding that “Plaintiff’s bare-boned recitation of wholly conclusory
allegations is insufficient, and fails to satisfy the particularity requirement for plain negligence,
let alone an extreme departure from the standard of care”). In this Court’s mind, this is an express
recognition that gross negligence carries a higher pleading burden than regular negligence under
Rule 9(b).
       28
            Doe 30's Mother, 58 A.3d at 462 (emphasis added).

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Wood v. Rodeway Inn & Choice Hotels Int., Inc.
C.A. No.: K14C-08-026 RBY
March 4, 2015

applicable standard of care is...” 29 Such is not the case here.
      Although, for the foregoing reasons, the Court DENIES Defendants’ motion,
it does so with some reservations. Stated bluntly, Plaintiffs’ papers are in need of
augmentation. Plaintiffs should provide a more detailed account of their allegations
going forward, and not continue to strain the outermost boundaries of the notice
pleading standard.
                                    CONCLUSION
      For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED.
      IT IS SO ORDERED.


                                             /s/ Robert B. Young
                                                        J.
RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
     File




      29
           2011 WL 1087580 at *4.

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