SUPERIOR COURT
OF THE

STATE OF DELAWARE

E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
TELEPHONE (302) 856-5256

June 18, 2019

Philip T. Edwards, Esquire Shae L. Chasanov, Esquire
Murphy & Landon Swartz Campbell, LLC

1011 Centre Road, Suite 210 300 Delaware Avenue, Suite 1410
Wilmington, DE 19805 Wilmington, DE 19801

Re: Donna Fleischmann v. Blue Surf Condominium, LLC
Civil Action No. $17C-08-022 ESB

Date Submitted: April 22, 2019
Dear Counsel:

This is my decision on Defendant Blue Surf Condominium, LLC’s Motion for
Reargument in this case where Plaintiff Donna Fleischmann fell on the sidewalk after
exiting Blue Surf’s building. Blue Surf owns a condominium and commercial shop
at 98 Garfield Parkway, Bethany Beach, Delaware. The sidewalk adjacent to Blue
Surf's building is owned by the Town of Bethany Beach. The Blue Surf building has
a Grotto’s Pizza inside. Fleischmann and her family ate at Grotto’s Pizza on July 29,
2016. After eating, Fleischmann exited the Blue Surf building by going down a set

of stairs on the side of the building which allows for ingress and egress to the
sidewalk. As Fleischmann stepped on to the sidewalk from the stairs her foot landed
in a “broken concrete hole,” causing her to lose her balance and fall.

The parties have identified two longstanding rules in Delaware that they
believe are applicable to this case. The first rule is that an abutting landowner is not
liable to pedestrians injured as a result of defects in a sidewalk, absent a statutory
duty to repair the defect, unless the landowner caused the defect.' This rule imposes
no liability on Blue Surf because Blue Surf has no statutory duty to repair the defect
in the sidewalk and it did not cause the defect in the sidewalk. Blue Surf argues that
this rule excuses it from all liability in this case even though Fleischmann was a
business invitee and not just a person walking by on the sidewalk who had never set
foot on Blue Surf’s property. Blue Surf reasons that Fleischmann’s status does not
matter and the fact that she fell on a sidewalk is the critical factor that relieves Blue
Surf of all liability.

The second rule is that a property owner owes a business invitee a duty to
provide safe ingress and egress, including a duty to warn or protect against hazards
on adjacent property.” Fleischmann argues that since the concrete defect was within

a few feet of Blue Surf’s building and in the area of ingress and egress to Blue Surf’s

 

' Lawson vy. Wilmington College of Del., Inc., 2009 WL 27301, at *2 (Del. Super. Jan 5,
2009).

* Wilmington Country Club vy. Cowee, 747 A.2d 1087, 1092 (Del. 2000).

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building, it is reasonable to impose a duty to warn of the “broken concrete hole” upon
Blue Surf. I agreed and denied Blue Surf’s Motion for summary judgment.

I based my decision on Cowee. In Cowee, the Delaware Supreme Court held
that “a property owner owes a business invitee a duty to provide safe ingress and
egress, including a duty to warn or protect against hazards on adjacent property.”
Fleischmann is a business invitee. Cynthia Cowee was too. The hazard in Cowee
was the intersection of Route 52, the Kennett Pike, and the private entrance to the
Wilmington Country Club. The intersection was hazardous because the Country Club
had not marked or lighted its exit onto Route 52, making it difficult for people
leaving the Country Club to tell that they were entering the intersection. Cynthia
Cowee, after finishing work at a wedding reception at the Country Club, drove into
the intersection and was struck by a truck. Cowee was not new Delaware law. The
duty to warn a business invitee of hazards on adjacent property had been discussed
in previous Delaware cases and those cases involved roadway and railroad

intersections and a sidewalk.’ While Cowee did not involve a sidewalk, I did not

 

> Id.

* Niblett v. Pennsylvania Railroad, 158 A.2d 580 (Del. Super. 1960) (holding that a
property owner’s duty to warn a business invitee of danger on adjacent land is based on owner’s
superior knowledge of such danger); Rocci v. United States, 688 F. Supp. 971 (D. Del. 1988)
(acknowledging Delaware standard that possessor of land has a duty to warn of unreasonable risk
on the possessor’s property of which the possessor knows or should know by the exercise of
reasonable care and which the invitee would not be expected to discover); Coleman v. National

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think that made a difference. Instead, I reasoned that Fleischmann’s status as a
business invitee was the critical factor that imposed a duty on Blue Surf.

Blue Surf cited ten cases in support of its Motion for Reargument.° All dealt
with sidewalks. However, only two — Ptomey and Lawson — involved a business
invitee. The other cases all appeared to only involve pedestrians who were merely
walking by the defendant’s property on a sidewalk owned by someone else. Mere
pedestrians get no special protection unless the abutting landowner had a duty to
repair the sidewalk or caused the defect in the sidewalk. This certainly makes sense,
because mere pedestrians who are just walking by on the sidewalk have no
connection to the abutting landowner. Thus, it would make no sense to impose a duty
to warn on the abutting landowner. Business invitees get treated differently because
they do have a connection to the abutting landowner. They have gone to the owner’s

business to — like Fleischmann — buy goods or services. As such, they are entitled to

 

Railroad, 1991 WL 113332 (Del. Super. June 18, 1991) (holding that a landowner may owe a
duty to warn invitees of dangers on adjacent land but liability hinges on the open and obvious
nature of the particular hazard).

° Lawson v. Wilmington College of Del., Inc., 2009 WL 27301 (Del. Super. Jan. 5, 2009);
Ptomey v. Rago, 1989 WL 5226 (Del. Super. Jan. 11, 1989); Goldberg v. Church St. Assoc.,
LLC, 2013 WL 6667701 (Del. Super. Sept. 16, 2013); Bogert v. Eisenhardt, 2008 WL 4817079
(Del. Super. Oct. 20, 2008); Davis v. Golden, 1992 WL 114115 (Del. Super. May 15, 1992); Eck
v. Birthright of Del., Inc., 559 A.2d 1227 (Del. 1989); Freiman v. Evans, 1997 WL 719318 (Del.
Super. Aug. 19, 1997); Jones v. Wright, 1996 Del. Super. LEXIS 312 (Del. Super. Apr. 8, 1996);
Marshalewski v. Sitko, 1991 WL 18086 (Del. Super. Feb. 12, 1991); Burns v. Boudwin, 282 A.2d
620 (Del. 1971).
a greater level of protection.

In Ptomey, the plaintiff, who was on the defendant’s property to care for her
lawn, tripped on a portion of the sidewalk that had been raised by a tree root in front
of the defendant’s house. The plaintiff argued that the general rule about sidewalks
did not apply because she was a business invitee. The Superior Court disagreed,
stating that, “jurisdictions that follow the general rule that abutting landowners are
not responsible for the condition of the public sidewalk make no exceptions for
invitees.”° Ptomey was decided before Cowee, and in Cowee the Delaware Supreme
Court treated business invitees differently, at least for roadway intersections.
Additionally, the Mendyk case cited by Ptomey concerned a landowner’s duty to
invitees with regard to ice and snow accumulation.’ There is a notable difference
between a hazard created from the natural accumulation of ice and snow versus a
structural sidewalk defect. Ice and snow accumulation constitutes a hazard of an
impermanent and inherently erratic nature. Structural sidewalk defects like those at
issue here and in Ptomey are fundamentally different in that the hazard exists over a

much longer period of time and will remain indefinitely until corrective actions are

 

° Ptomey, 1989 WL 5226, at *1 (Del. Super. Jan. 11, 1989) (citing Mendyk v. Michigan
Employment Sec. Comm., 288 N.W.2d 643 (Mich. App. 1979)).

” Mendyk, 288 N.W.2d 643, 645 (Mich. App. 1979).

5
taken.

In Lawson, the plaintiff, a student at Wilmington College, tripped on a patch
of uneven pavement in front of the campus. The plaintiff argued that the college
should have warned him, as a business invitee, of the dangerous condition of the
sidewalk. The Superior Court, with little discussion, resolved the case by repeating
the general rule that an abutting landowner is not liable for injuries caused by the
deficient condition of sidewalk absent a statutory duty to repair the deficiency, unless
the landowner caused the defect.’ In doing so, the Superior Court relied on Eck,
which did not involve a business invitee. The Superior Court in reaching its decision
did not mention Cowee.

I find neither Ptomey or Lawson dispositive of the issues in this case. Neither
address Cowee. Cowee speaks broadly about a property owner’s duty to a business
invitee. I see no basis to read it as narrowly as Blue Surf does, particularly because
there are many similarities between intersections and sidewalks. Both move people.
Both are owned by the government. The government, in each instance, bears the duty
of maintenance. Blue Surf relies completely on the fact that it had no duty to repair
the sidewalk adjacent to its property. The County Club in Cowee had no duty to

maintain the intersection adjacent to its property, yet the Supreme Court still found

 

* Lawson, 2009 WL 27301, at *2 (Del. Super. Jan. 5, 2009).

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that it could have had a duty to warn a business invitee about the dangers of the
adjacent intersection.’ It is clear that the status of the injured person as a business

invitee is the critical factor and not the duty to repair.

CONCLUSION

Defendant Blue Surf Condominium, LLC’s Motion for Reargument is

DENIED.
Very truly yours,
te
E. Scott Bradley
ESB/jwe

cc: Prothonotary’s Office

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” Cowee, 747 A.2d 1087, 1092 (Del. 2000) (holding that the property owner owed a duty
to warn or protect against hazards on adjacent property but a question of fact with regard to the
“open and obvious” nature of the danger remained for determination by a jury).

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