IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIFFANY GREENFIELD, as NeXt
Friend and Guardian ad litem for
ETHAN FORD, a minor,

Plaintiff,
v.

BUDGET OF DELAWARE, INC.,
DFS DIRECTOR LAURA MILES,
individually and in her onicial
capacity; VICTORIA KELLY,
individually and in her official capacity
as DFS director, FAMILY CRISIS
THERAPIST TRINA N. SMITH,
Individually and in her onicial
capacity; JAMIE ZEBROSKI
M.S.W., individually and in her
official capacity as a Supervisor for
DFS; CRYSTAL BRADLEY, M.S.,
Individually and in her official
capacity as a Senior Family Services
Specialist for DFS; JAVONNE RICH
Individually and in her capacity as
a Master Family Services Specialist for
DFS; NANCY CRAIGHTON,
individually and in her official
capacity as a Supervisor for DFS,

Defendants.

V\./VVVV\./\./vv\/V\./VVVV\IVVVV\'/\./VV\./VVV

C.A. No. N16C-07-115 FWW

Submitted: July 19, 2017
Decided: October 31, 2017
Upon Defendant Budget of Delaware, Inc.’s Motion to Dismiss

DENIED.

M

AndreW C. Dalton, Esquire, and Bartholomew J. Dalton, Esquire, Dalton &
Associates, P.A., Cool Spring Meeting House, 1106 West Tenth Street, Wilmington,
DE, 19806; Attorneys for Plaintiffs.

Jeffrey A. Young, Esquire, Young & McNelis, 300 South State Street, Dover,
Delaware 19901; Attorney for Defendant Budget of Delaware, Inc.

Joseph C. Handlon, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French Street, 6th Floor, Wilmington, DE, 19801; Attorney for
Defendants Laura Miles, Victoria Kelly, Trina Smith, Jaime Zebroski, Crystal
Bradley, Javonne Rich, and Nancy Craighton.

WHARTON, J.

This 31st day of October, 2017, upon consideration of the Motion to Dismiss
of Defendant Budget of DelaWare, Inc. (“Budget”), Tiffany Greenfield’s Response
as next friend of and guardian ad litem for Ethan Ford (“Plaintiff’), argument and
the record in this case, it appears to the Court that:

1. On July 15 , 2017, Plaintiff brought this action against Various
employees of the Division of Family Services (With the exception of Nancy
Craighton Who Was added as a defendant later) (“DFS Defendants”) and Defendant
Budget of Delaware, Inc., a Delaware corporation, doing business as Budget Motor
Lodge.l The original complaint Was dismissed by the Court on the motion of the
then-named DFS Defendants.2 The dismissal Was Without prejudice and the Court
granted Plaintiff leave to file an amended complaint.3 Plaintiff filed an amended
complaint on March 24, 2017.4 The allegations against Budget in the Complaint are
unchanged in the Amended Complaint.

2. The Amended Complaint alleges that Budget Was negligent, grossly
negligent, and reckless, in that its agents, apparent agents, and/or employees in the
course of their duties knew or reasonably should have known that Ethan Ford and

his sister Were being abused and other illegal conduct Was occurring on its premises,

 

1Pl.’s Compl. D.I. 1, at 2.

2 Greenfield for F ord v. Budget of Delaware, Inc., et al., 2017 WL 729769 (Del.
Super. 2017).

3Ia’., at 3.

4 Pl.’s Amend. Compl., D.I. 20.

rendering them unsafe (Count I);5 Budget’s conduct amounted to an intentional
infliction of emotional distress on Plaintiff (Count V);6 and Budget’s conduct
amounted to a negligent infliction of emotional distress on Plaintiff (Count VI).7
Plaintiff seeks general, special, and punitive damages, plus costs and interest.8 More
specifically, Plaintiff alleges that the agents of Budget knew of his destitute living
conditions, his abuse, and that he was often locked alone in the motel room.9
Plaintiff argues that Budget was tasked with the maintenance and operation of a
business operating under the laws ofDelaware as a place of public accommodation10
Therefore the staff, employees, owners, and or agents of Budget had a duty, which
they failed, to provide a safe premises, to protect its patrons from criminal acts by
third parties, and to notify the proper authorities upon discovering the ongoing
criminal nature of Plaintiff’ s living environment11 Plaintiff claims that Budget was
grossly negligent and reckless in dereliction of the duty of care it owed its patrons.12

3. On March 28, 2017, Budget filed an Answer denying the allegations in

the Amended Complaint and asserted various affirmative defenses, including that

 

Sld. at 1111 23-25.
61d. at 1111 34-36.
71¢1. at 1111 37-38.
8101. at 111 25, 36, 38.
91d. at 11 17.

10161.

111@1.

121@1.

Plaintiff failed to state a claim against Budget upon which relief may be granted.13

4. On May 4, 2017, Budget moved to dismiss the Amended Complaint for
failure to state a claim.14 Budget first argues that no claims exist against them
because Plaintiffs Amended Complaint failed to establish a duty which was
breached by Budget.15 Budget asserts that allegations of unsafe premises do not
apply in this case, that this case does not involve criminal conduct by a third party
against the patron of a motel, and that the proprietor of a public place is not an insurer
against all personal injuries inflicted on its premises.16 Additionally, Budget argues
that Plaintiff’ s claims are time-barred pursuant to 10 Del. C. § 8107.17

4. On June 9, 2017, Plaintiff filed his answer opposing Budget’s Motion
to Dismiss.18 Plaintiff asserts that he has adequately alleged claims sounding in
negligence, therefore counts l, V, and VI should not be dismissed.19 Plaintiff argues
that Budget, an innkeeper and a business which profited from its business invitees,
owed Plaintiff a heightened duty of care. Specifically, Budget owed a duty of
reasonable care to protect business invitees whom it knew were likely to be victims

of criminal acts by third parties on its premises. Plaintiff argues that Budget

 

13 Def. Answ., D.I. 21.

14 Def. Mot. To Dismiss, D.I. 26.

15 Id. at 11 5 .

16 Id. at 1111 2-5.

17 Id. at 11 6.

18 Pl.’s Resp. Mot. Dismiss, D.I. 31.
19 Id.

breached that duty, thereby injuring Plaintiff. Plaintiff also responds that its claims
were filed timely.20

5. Budget filed its Motion to Dismiss under Super. Ct. Civ. R. 12(c).21
Rule 12(c) states, in relevant part, that a motion for judgment on the pleadings may
be filed “after the pleadings are closed but within such time as not to delay the
trial.”22 The Court may only grant a motion for judgment on the pleadings if there
are no disputed facts and the moving party is entitled to judgment as matter of law.23

6. The Court first turns to Defendant Budget’s principal argument, which
is that Plaintiff failed to establish a duty which was breached by the Defendant.
Budget is incorrect. In Jardel Co., Inc. v. Hughes, the Delaware Supreme Court held
that property owners have a residual obligation of reasonable care to protect business
invitees from the acts of third persons. 24 Furthermore, in adopting Section 344 of
the Restatement (Second) of Torts (1965), the Jardel court approved the concept that

incidents of criminal activity provide a duty to foresee specific criminal conduct.25

 

20 Id.

21Perhaps the motion might have been more appropriately styled as a motion for
judgment on the pleadings

22 Super. Ct. Civ. R. 12(c).

23 Blanco v. AMVAC Chemical Corp., 2012 WL 3194412 *6 (Del. Super.)

24 523 A.2d 518, 525 (Del. 1987).

25 Id. See also F oster v. Winston-Salem Joint Venture, N.C.Supr., 303 N.C. 636,
281 S.E.2d 36, 40 (1981); Murphy v. Penn Fruit Company, Pa.Super., 274
Pa.Super. 427, 418 A.2d 480 (1980); Nallan v. Helrnsley-Spear, Inc., N.Y.Ct.App.,
50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451 (1980) (“Moreover, the
repetition of criminal activity, regardless of its mix, may be sufficient to place the

6

7. In particular Section 344 provides:

A possessor of land who holds it open to the public for
entry f`or his business purposes is subject to liability to
members of the public while they are upon the land for
such a purpose, for physical harm caused by the
accidental, negligent, or intentionally harmful acts of third
persons or animals, and by the failure of the possessor to
exercise reasonable care to (a) discover that such acts are
being done or are likely to be done, or (b) give a warning
adequate to enable the visitors to avoid the harm, or
otherwise to protect them against it.

Comment f to section 344 further provides:

Since the possessor is not an insurer of the visitor's safety,
he is ordinarily under no duty to exercise any care until he
knows or has reason to know that the acts of the third
person are occurring, or are about to occur. He may,
however, know or have reason to know, from past
experience, that there is a likelihood of conduct on the part
of third persons in general which is likely to endanger the
safety of the visitor, even though he has no reason to
expect it on the part of any particular individual. If the
place or character of his business, or his past experience,
is such that he should reasonably anticipate careless or
criminal conduct on the part of third persons, either
generally or at some particular time, he may be under a
duty to take precautions against it, and to provide a
reasonably sufficient number of Servants to afford a
reasonable protection.

8. Under a Rule 12(c) motion f`or judgment on the pleadings, “the Court

must accept the complaint’s well-pled facts as true and construe all reasonable

 

property owners on notice of the likelihood that personal injury, not merely
property loss, will result.”).

7

inferences in favor of the non-moving party.”26 According to Plaintiffs Amended
Complaint: (1) Ethan Ford was the victim of repeated criminal acts including, but
not limited to, those of his mother; (2) Budget’s express agent General Manager
Dolly Dunn had actual knowledge of, or at least constructive knowledge of, the fact
that Plaintiff was subject to repeated criminal acts; (3) Budget, through its staff,
employees, owners and or agents, failed to act to protect Plaintiff, or to notify the
proper authorities; and (4) Plaintiff was harmed by the repeated criminal acts to
which he was subjected. The well-pled facts and the reasonable inferences
demonstrate that Plaintiff has adequately established a claim sounding in negligence

9. Under Jardel and Section 344, the facts alleged by Plaintiff establish
Budget’s duty of care. Budget held its motel open to the public for business
purposes Budget, therefore, had a duty of reasonable care to protect Plaintiff - its
patron - from the acts of third persons on their premises, and a duty to foresee
specific criminal conduct given the allegations of past incidents of criminal activity.
Accordingly, Plaintiff states an actionable claim against Budget.

ll. Budget also argues that Plaintiff" s claim is time barred. Title 10 Del. C.
§ 8107 provides that no action to recover damages for wrongful death or for injury
shall be brought after the expiration of two years from the accruing of the cause of

such action. Plaintiff resided and was Subject to harm at Budget Motor Lodge for

 

26 Blanco v. AMVAC Chernical Corp., 2012 WL 3194412 *6 (Del. Super.).
8

many months prior to, and through, August 2014.27 Plaintiff filed his initial
complaint July 15, 2016.28 Thus, Plaintiff s action was brought within two years of
the accrual of the cause of action.

THEREFORE, Defendant Budget’s Motion to Dismiss is hereby DENIED.

md

Ferrf s W Wharton, J.

IT IS SO ORDERED.

 

27 Pl.’s Resp. Mot. Dismiss, D.I. 31.
28 Pl.’s Compl., D.I. 1, at l.

