IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LAWRENCE J. DEVINE, )
)
Plaintiff, )
)
v. ) C.A. NO.: NlSC-03-016 AML

)
MHC WATERFORD ESTATES, )

L.L.C. and MHC OPERATING ) JURY TRIAL OF 12 DEMANDED
LIMITED PARTNERSHIP )
)
Defendants. )

Submitted: September 18, 2017
Decided: October 10, 2017

Upon Defendants’ Motion for Summary Judgment: Denied

MEM`ORANDUM OPIN ION

Joseph J. Rhoades, Esquire, and Stephen T. Morrow, Esquire, of RHOADES &
MORROW LLC, Wilmington, Delaware, Attorneys for Lawrence J. Devine.

Kelly E. Rowe, Esquire, of REILLY, JANICZEK, MCDEVITT, HENRICH &
CHOLDEN, P.C., Wilmington, Delaware, Attorney for Waterford Estates, L.L.C.

LeGroW, J.

Plaintiff LaWrence Devine, a resident of Waterford Estates mobile home
park, alleges Waterford management acted negligently and breached a rental
agreement by failing to flx a stagnant Water problem on his property. Devine
contends the accumulated water froze and he slipped and fell on his icy sidewalk,
resulting in multiple injuries. MHC Waterford Estates, L.L.C. and MHC
Operating Limited Partnership (collectively “Defendants”), however, contend the
ice on Which Devine slipped formed as a result of a snow storm and Was unrelated
to the stagnant Water problem.

In this motion, Defendants seek summary judgment on all of Devine’s
claims. The motion presents two primary issues: (l) does Devine’s contract With
Waterford bar his negligence claim, or is there an independent statutory or
common law duty of a landlord to correct the condition at issue here; and (2) may
the Court determine as a matter of law that Devine’s claims are barred by
acquiescence, lack of notice, or assumption of risk. As set forth below, Devine’s
negligence claim may proceed, notwithstanding the contract, and disputed factual
issues preclude any judgment on the basis of the acquiescence, notice, or

assumption of risk defenses Defendants raise.

FACTUAL AND PR()CEDURAL BACKGROUND

The following facts are drawn from the complaint and the record presented
by the parties, drawing all reasonable inferences in favor of Devine, who is the
non-moving party, and resolving disputed factual issues in Devine’s favor.
Beginning in 2008, Lawrence Devine owned or occasionally occupied 420 Ranee
Loop, in Bear, Delaware, part of the Waterford Estates mobile home park.1
Defendants manage the mobile home park and lease lots to mobile horne owners
like Devine. From the time he moved in, Devine notice the yard continually was
saturated by water.2 During summer time, Devine complained the ground was so
saturated that a lawn chair would sink in the mud if sat upon.3 The saturation
continued during the winter months.4

On multiple occasions, Devine called and visited the rental office to ask
Defendants’ management “if something could be done to correct the problem.”5
Devine and his late mother, who also lived at 420 Ranee Loop, attended a meeting
with a Waterford Estates representative to discuss the issue, but management never
followed up after their meeting.6 Beginning in 2012, every time Devine took his

rent check to the rental office he would ask management “when do you plan on

 

l Pl.’s Resp. to Def.’s Mot. Summ. J. 4.
2 ld. at 5.

3 Id.

4 Id.

5 ld.

6 Id. at 5-6.

fixing this?”7 Despite Devine’s continued complaints, Defendants’ management
never addressed the water saturation on the lot. Another resident, Henry Young,
explained that Defendants’ management was “sort of slow at taking care of
business.”8

On January 21, 2014, approximately twelve inches of snow fell in Bear. On
January 22, 2014, Devine began shoveling the snow off his handicap ramp, making
his way down to the sidewalk outside his home.9 When Devine reached the
sidewalk, he encountered a thick layer of ice on the sidewalk under the snow.
After clearing the snow from the sidewalk, Devine began spreading rock salt along
the sidewalk in order to provide traction for himself and any visitors to the home.10
Because the ground along the sidewalk was so saturated, Devine was forced to
stand on the sidewalk while he spread the rock salt.

As Devine placed his foot on the sidewalk, he slipped and fell on the ice,
suffering multiple neck and back injuries.ll Devine later filed this action claiming:
(l) Defendants negligently failed to correct the stagnant water, which then froze
and proximately caused Devine’s injuries; (2) Defendants breached the rental
agreement by failing to regrade the lot in order to prevent saturation; and (3)

Defendants breached their “contractual duty of fair dealing” in connection to fixing

 

71¢1. ata
8la'. at 7.
9Id. atl.
‘Old. atz.
“Id. at2-3.

the water saturation.12 Defendants filed the pending motion for summary judgment
on July 28, 2017. Devine filed his response on August 25, 2017. In his response,
Devine withdrew the breach of duty of fair dealing claim. The Court heard
argument on the pending motion on September 18, 2017.

ANALYSIS

Summary judgment should be awarded if “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”13 When considering a motion
for summary judgment, the evidence and the inferences drawn from the evidence
are to be viewed in the light most favorable to the nonmoving party.14 The Court
will accept “as established all undisputed factual assertions . . . and accept the non-
movant’s version of any disputed facts. From those accepted facts[,] the [C]ourt
will draw all rational inferences which favor the non-moving party.”15 A party
seeking summary judgment bears the initial burden of showing that no genuine
issue of material fact exists.16 If the movant makes such a showing, the burden

then shifts to the non-moving party to submit sufficient evidence to show that a

 

'2 Comp. 11 24.

‘3 super. Ct. civ. R. 56(¢).

14 Brzoska v. Olson, 668 A.Zd 1355, 1364 (Del. 1995); Jua'ah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).

15 Marro v. Gopez, 1994 WL 45338, at *l (Del. Super. Jan 18, 1994) (citing Merrill v. Crothall-
Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)).

16 Moore v. Szzemore, 405 A.2d 679, 680-81 (Dei. 1979).

4

genuine factual issue, material to the outcome of the case, precludes judgment
before trial.17

Defendants seek summary judgment on Devine’s negligence claim on the
basis that it is precluded by law because the parties’ relationship is governed by a
contract_the rental agreement Second, Defendants argue Devine’s breach of
contract claim is estopped by Devine’s acquiescence to the stagnant water
problem. Even if Devine’s claims survive those arguments, Defendants contend
those claims are barred because Devine failed to establish that Defendants had any
notice of the icy condition that caused the injury, or because Devine assumed the
risk of injury by stepping onto the icy sidewalk to clear the snow. In my view,
disputed issues of fact preclude summary judgment on all claims except the fair

dealing claim already withdrawn by Devine.

I. The parties’ contract does not preclude Devine’s negligence claim.

Defendants argue that Devine cannot maintain his action in tort because
“under Delaware law, where an action is based entirely on a breach of terms of a
contract between the parties, and not in violation of an independent duty imposed
by law, a plaintiff must sue in contract and not in tort.”18 Defendants argue that
any duty Defendants arguably owed Devine arose solely from the parties’ rental

agreement. The relevant law provides otherwise.

 

17 Id.; see also Brzoska, 668 A.3d at 1363.
18 Greensmr, LLC v. Heller, 934 F.supp.zd 672, 696 (D. Dei. 2013).

5

Under common law, a landlord’s failure to maintain premises in a
reasonably safe condition is sufficient to prove ordinary negligence19 This long-
established duty provides an independent basis for Devine’s negligence claim.20 In
addition, 25 Del. C. § 7006(a)(l3)a., which is part of the Manufactured
Homeowners and Community Owners Act (the “Act”), imposes a statutory duty on
landlords to “[m]aintain and regrade the lot area where necessary and in good faith
to prevent the accumulation of stagnant water thereon and to prevent the
detrimental effects of moving water.”21 Although one purpose of Section 7006 is
to prescribe mandatory provisions for rental agreements, this Court has held the
section also imposes an independent duty to regrade the property when necessary.22

The interpretation of Section 7006 as creating a statutory duty independent
of the parties’ contract is consistent with Section 7001, which describes the Act’s
purpose and policies. Section 7001 provides “[t]his subchapter must be liberally
construed and applied to promote its underlying purpose and policies, which are: . .

. to clarijj) and establish . . . the rights and obligations of manufactured community

 

19 Norfleet v. Mid-Atlantic Realty C0., Inc., 2001 WL 695547, *4 (Del. Super. April 20, 2001).

20 See Young v. Saroukos, 185 A.2d 274 (Del. Super. 1962).

2' 25 Del. C. § 7006(3)(13)3.

22 Weyl v. Bay Cily Inc., 2008 WL 5264879_, *3 (Del. Super. Nov. 25, 2008) (“The Act places the
responsibility for re-grading a lot on the landlord when it is necessary to prevent the
accumulation of stagnant water on the lot.”).

owners (landlords), manufactured home owners (tenants), and residents of

. . 2
manufactured home communities . . .” 3

In view of the independent duties Defendants owed Devine under common
law and the Act, l conclude Devine’s action is not based entirely on the terms of
the rental agreement. As a result, Devine’s tort claim is not barred.

II. Whether Devine’s breach of contract claim is estopped by
acquiescence is a disputed issue of fact for the jury.

Defendants next argue that the equitable doctrine of acquiescence bars
Devine’s breach of contract claim. Defendants assert that because Devine knew of
the stagnant water problem, and nonetheless continued to pay rent for six years, he
effectively acquiesced to the water saturation, thereby relieving Defendants of any
liability for breach of contract.

The Court of Chancery has held that acquiescence:

arises when a party complaining of an act (l) has full
knowledge of his rights and all material facts and (2)
remains inactive for a considerable time, or freely gives
recognition to the act, or conducts himself in a manner
inconsistent with any subsequent repudiation of the act,

thereby leading the other party to believe that the act has
been approved24

Assuming for argument’s sake that Devine had full knowledge of his rights
and all material facts, the question of whether Devine remained inactive, gave

recognition to the act, or conducted himself in a manner inconsistent with his

 

23 25 Del. C. § 7001(a) (emphasis added).
24 Tenneco Auwmonve lnc. v. El Paso Corp., 2004 WL 3217795, * 12 (Del. Ch. Aug. 26, 2004).

7

repudiation of the act remains a disputed factual issue. On one hand, Defendants
claim Devine “satisf[ied] his portion of the rental agreement” by continuing to pay
rent, thereby presumably giving recognition to the water saturation.25 On the other
hand, Devine contends he repeatedly complained to Defendants about the
saturation by calling management and going into the office to ask for something to

6 Additionally, Devine argues he complained about

be done to fix the condition.2
the water saturation to management every time he took a rent check to Defendants’
office.27 As a result, whether Devine’s conduct constituted acquiescence is a
factual issue for the jury to resolve after hearing and weighing the evidence and the

witnesses’ credibility.

III. The rental agreement did not require Written notice, and Whether
Defendants had actual or constructive notice is an issue of fact for
the jury.

Defendants argue that notice is a necessary element of a negligence claim
and Devine has not established Defendants’ notice of the sidewalk’s icy condition.
Defendants contend that the snowstorm from the day before Devine’s fall caused
snow and ice to accumulate on the sidewalk, and point to Ela'er v. Dover Downs,
Inc.,28 in which this Court held “[a] general awareness of a dangerous condition or

that water can freeze or re-freeze is legally insufficient to constitute or create an

 

25 Def.’s Mot. Summ. J. 6.

26 Pl.’s Resp. to Def.’s Mot. Summ. J. 19.

27 ld-

28 2012 WL 2553091, *5 n.41 (Dei. super. July 2, 2012).

8

inference of constructive notice of the particular condition that caused plaintiffs
injury [from a slip and fall on ice].” Defendants conclude that, under Ela’er,
Defendants’ knowledge of the snowstorm is insufficient to establish constructive
notice of the icy condition of the sidewalk,

What caused the ice to form on the sidewalk, however, is a disputed fact.
Devine contends the ice was unrelated to the snowstorm and was caused when
temperatures dropped and caused the standing water to freeze. Defendants, on the
other hand, argue the ice was caused by snow melting and refreezing during and
after the snowstorm. In the procedural posture of this motion, the Court must view
the facts in the light most favorable to Devine and infer that the ice formed when
the standing water froze. Devine testified he repeatedly notified Defendants that
standing water was present on the property throughout the year. The Court (and
jury) reasonably may infer that Defendants had actual notice of the standing water
and, at a minimum, constructive notice of the risk that the standing water could
freeze in cold weather. Consequently, whether the Defendants had notice of the
icy condition of the sidewalk is a factual determination for the jury.

Defendants also argue in their reply brief that notice was deficient because
the rental agreement required written notice.29 The portion of the rental agreement

on which Defendants rely provides: “Management is required to . . . maintain all

 

29 Rental Agreement 6 (Ex. D to Pl.’s Resp. to Def.’s Mot. Summ. J.).
9

water, electric, plumbing, gas, sewer, septic, and other utilities and services
provided by management in good working order, repairing said utilities and
services within the earlier of forty-eight (48) hours after written notification of the
utilities or service problem . . .”30 This provision does not apply to Devine, at least
under his theory of the case. The rental agreement only requires a resident to
provide written notice to management for utility service problems. Devine
contends the stagnant water in this case is not related to a utility service problem,
Devine therefore was not obligated to give written notice of the water
accumulation

IV. Whether Devine assumed the risk of clearing the sidewalk is a
disputed issue of fact for the jury.

Finally, Defendants argue Devine’s claim should be dismissed because he
assumed the risk of removing the snow from his sidewalk. Defendants contend
that Devine either expressly assumed the risk of snow removal through the rental
agreement, or, in the alternative, was contributorily negligent through secondary
assumption of risk because he knowingly engaged in a risk that he could have
avoided. The rental agreement provides: “Resident shall be responsible for the
removal of snow and ice from the walkways and driveways of the resident’s
manufactured home site. Resident, and not Management, shall be solely

responsible for any and all claims resulting from Resident’s failure to maintain

 

30 Ia'. (emphasis added).

lO

.”31 Defendants’ argument that Devine

Resident’s manufactured home site . .
expressly assumed the risk through the rental agreement is misplaced for two
reasons. First, this contractual provision addresses, at most, which party has the
duty to remove ice in the first place, not assumption of risk. Second, even if the
provision bears on assumption of the risk, if it later is determined that the ice
formed as a result of a stagnant water problem that Defendants failed timely to
correct, then Devine’s contractual duty to remove snow and ice under normal
circumstances is irrelevant because he did not assume the risk of Defendants’
negligence or contractual breach.

Defendants’ secondary assumption of risk argument also is based on
controverted issues of fact. Defendants argue that Devine could have avoided the
risk of standing on the icy sidewalk while clearing a path, suggesting Devine
instead could stand on the ground along the sidewalk. Devine, however, argues the
ground along the sidewalk was so saturated that he “had no choice” but to stand on
the sidewalk to clear away the ice. Viewing the facts in this light, there is a
reasonable basis to conclude Devine could not avoid the risk of standing on the

sidewalk as he cleared the path, Consequently, because the issue of whose duty it

was to remove the ice, and whether Devine had the option to stand on the ground

 

31 Rules and Regulations 11 (Ex. O to Pl.’s Resp. to Def.’s Mot. Summ. J.).

ll

along the sidewalk, are both controverted issues of fact for the jury, Defendants are

not entitled to summary judgment

CONCLUSION

For the reasons set forth above, Defendants’ Motion f`or Summary Judgment
as to Counts I and II is DENIED. Defendant’s Motion as to Count III is moot
because that count was dismissed by stipulation of the parties.

IT IS SO ORDERED.

l2

