Betner v. Grayling Corp.

• Court: Superior Court of Delaware
• Decided: March 9, 2018
• Docket: N16C-08-069 CLS
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHIRLY BETNER, ) ) Plaintiff, ) ) v. ) C.A. No. N16C-08-069 CLS GRAYLING CORP. d/b/a CHILI’S ) RESTAURANT ) ) Defendants. ) ) )

Submitted: February 8, 2018 Decided: March 9, 2018

On Defendant’s Motion for Summary Judgment. DENIED.

ORDER

This 9th day of March, 2018, upon consideration of Grayling Corp. d/b/a

Chili’s Restaurant (“Defendant”) Motion for Summary Judgment, and Shirley

Betner’s (“Plaintiff”) Response, it appears to the Court that:

1. On or about September 5, 2014 Plaintiff was a visitor a Defendant’s restaurant

located in Wilmington, Delaware.

2. Plaintiff claims while walking in Defendant’s restaurant she slipped and fell

on “a wet greasy substance” like a “goo” on the floor of the restaurant. 3. Plaintiff filed a Complaint on August 8, 2016, claiming that she suffered

injuries from the fall. Defendant filed a Motion for Summary Judgment on

October 5, 2017. Plaintiff filed a response on November 28, 2017.

Subsequently on December 28, 2017 Defendant filed a Letter with this Court

requesting the opportunity to submit a Reply to Plaintiff’s Response. 1 The

Court denied Defendant’s request.

4. Defendant claims that Plaintiff cannot demonstrate that there was a dangerous

or defective condition on the floor at the time she fell. Defendant argues that

there is “no evidence of any defect” and that Plaintiff “merely speculates the

floor had what looked like a ‘film’ on it, and that film looked like candlewax

from afar.” Additionally, Defendant argues that Plaintiff failed to show

Defendant had notice of any dangerous condition.

5. Plaintiff argues that summary judgment is not appropriate at this stage as there

are genuine issues of material fact in dispute and it is for the jury, not the

judge, to make factual determinations.

1 Defendant’s counsel requested the opportunity to reply to Plaintiff’s Response for three reasons: 1) on the grounds that Plaintiff mischaracterized Plaintiff and her husband as elderly; 2) that Plaintiff misstated prior testimony; 3) Plaintiff misstated the law on summary judgment. The Court denied Defendant’s request to file a Reply because the Court is aware of the applicable standard on a motion for summary judgment, and the Court did not take the Plaintiff’s age into consideration when determining its ruling on this Motion. Additionally, the Court used the deposition transcripts attached by Defendant in deciding this Motion. The Court asks the parties to be cognizant of their citations to the record and the applicable law in the future. 6. The Court may grant summary judgment 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 summary judgment as a matter of law.” 2 The

moving party bears the initial burden of showing that no material issues of

fact are present.3 Once such a showing is made, the burden shifts to the non-

moving party to demonstrate that there are material issues of fact in dispute.4

In considering a motion for summary judgment, the Court must view the

record in a light most favorable to the non-moving party.5 The Court will not

grant summary judgment if it seems desirable to inquire more thoroughly into

the facts in order to clarify the application of the law.6

7. In negligence cases it is imperative to determine the status of the individual

on the premises in order to assess the duty owed to the plaintiff. Here, Plaintiff

was a business invitee. “Generally, a landowner has a duty to exercise

reasonable care in keeping its premises safe for the benefit of business

2 Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991). 3 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 4 Id. at 681. 5 Burkhart, 602 A.2d at 59. 6 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006). invitees.”7 Additionally, “[w]hen a business invitee brings a negligence action

for personal injuries sustained while on a business’ premises, he or she must

demonstrate three elements: (1) there was an unsafe condition in the

defendant’s store (2) which caused the injuries complained of, and (3) of

which the storekeeper had actual notice or which could have been discovered

by such reasonable inspection as other reasonably prudent storekeepers would

regard as necessary.”8

8. Defendants claim that Plaintiff’s case fails because she has not demonstrated

that there was an unsafe condition and Defendant had notice of the unsafe

condition. The Court disagrees with Defendant’s argument. When viewing

the evidence in a light most favorable to Plaintiff, there are genuine issues of

fact as to a dangerous condition. In Plaintiff’s deposition, when asked what

caused the fall, she states: “The area where I walked was greasy. I slipped. I

felt something oily as I hit the floor. I could feel that on my hand, but I did

slip, and I felt the oil of the slipperiness where I fell.” Additionally, when

asked if there was any residue from the “goo” on her clothing, she stated it

was on her pants and shoes. Plaintiff’s husband also testified that he saw his

7 Laine v. Speedway, LLC, 2018 WL 315584 (Del. Jan. 8, 2018)(citing Hamm v. Ramunno, 281 A.2d 601, 603 (Del. 1971)). 8 Balzereit v. Hocker’s SuperThrift, Inc., 2012 WL 3550495, at *1 (Del. Super. July 24, 2012). wife fall and that the floor was “gooey” and there “was some kind of residue

on it.” There are sufficient facts for a reasonable jury to conclude that there

was a dangerous condition on the floor, and thus summary judgment is

inappropriate as to this argument.

9. Defendant also argues that Plaintiff cannot show that the alleged dangerous

condition could have been discovered by a reasonable inspection. Defendant

argues that Plaintiff has introduced no evidence to suggest that Defendant had

any knowledge or should have known that the floor was slippery, and there

were no reports of the condition prior to Plaintiff’s fall. On the other hand,

Plaintiff argues that the accident was near other employees because the

hostess lead Plaintiff and her husband into the unsafe condition.

10. The Court is not persuaded by Defendant’s argument. As it is Defendant’s

burden on this motion to show that there are no genuine issues of fact,

Defendant has not met its initial burden. Defendant’s motion merely repeats

that Plaintiff provided no evidence as to notice or reasonable inspection. The

Court finds that it is an issue of fact as to whether Defendant had actual notice

of the alleged goo on the floor, or that it could have been discovered by such

reasonable inspection as other reasonably prudent storekeepers would regard

as necessary. Plaintiff’s husband stated in his deposition that after his wife fell

he noticed the floor was “greasy.” After the fall he noticed that it “was a filthy restaurant” and it was “dimly lit, and the floor was gooey and greasy.”

Plaintiff’s husband also stated that Plaintiff fell as the hostess was taking them

to be seated. Plaintiff herself states that after she fell “she could see the

imprints of the people’s shoes” once she looked down at the floor. Based on

these facts a jury could infer that Defendant, a restaurant, could have

discovered the condition through a reasonable inspection. Therefore,

summary judgment is not appropriate.

11. As to Defendant’s lost wages or loss of earning capacity argument, Plaintiff

states that she is not claiming any lost wages or loss of earning capacity at this

time, and therefore that portion of Defendant’s motion is moot. For the

foregoing reasons, Defendant’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.