Carrol v. Bennett

• Court: Superior Court of Delaware
• Decided: June 4, 2024
• Docket: N22C-08-459 CEB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MEGAN CARROLL, ) ) Plaintiff, ) ) v. ) C.A. No.: N22C-08-459 CEB ) CHRISTIAN BENNETT, CRAIG ) BENNETT, FOREWINDS GARRISONS ) LAKE, LLC, FOREWINDS ) HOSPITALITY LLC, and USAA ) GENERAL INDEMNITY COMPANY, ) ) ) Defendants. )

Submitted: March 22, 2024 Decided: June 4, 2024

MEMORANDUM OPINION

Upon Defendants’ Forewinds Garrisons Lake, LLC and Forewinds Hospitality, LLC Motion for Summary Judgment GRANTED.

Gregory V. Daulton, Esquire, MARIN & GREGORY, LLC, Wilmington, Delaware. Attorney for the Plaintiff.

Paul D. Sunshine, Esquire, and Martin D. Page, Esquire, REGER, RIZZO & DARNALL, LLP, Wilmington, Delaware. Attorneys for the Defendants.

BUTLER, R.J. Defendants Forewinds Garrisons Lake, LLC and Forewinds Hospitality, LLC

(“Forewinds” or “Defendant”) is a contractor for the State of Delaware, operating a

golf facility at Garrisons Lake in Smyrna, Delaware. Among the amenities offered

at the golf course are golf carts, which are used by the golfers and kept locked in a

pen overnight.

When golfers finish their round, they pull the cart up to a queue near the pro

shop and attendants remove the carts for routine service as they are able. The carts

therefore may sit for a while, with the key in them, waiting for the attendant.

On June 17, two individuals jumped into one of these unattended carts and

made away with it. They were pursued by employees in a different cart, whereupon

the would-be thieves bailed out of the cart and ran on foot. The salient facts about

this incident are that 1) it was the first case of an attempted theft of a golf cart at

Garrison’s Lake, 2) it was an unattended cart taken in the daylight hours, and 3) the

key that was in the cart when taken was gone when the employees retrieved the cart.

Then on the night of June 27-28, two carts were stolen. One was the “range

picker” – a special cart that was parked adjacent to the driving range. The other was

Cart No. 36, which will figure into this case shortly. Cart No. 36 was stored in a

locked, chained and fenced pen. All keys for the carts were locked separately in the

pro shop, but the cart key from the June 17 attempted theft was still unrecovered.

1 And keys for all of the carts are universal by manufacturer and could even be

purchased on Amazon. The master lock securing the pen was cut and the hinges on

the fence were bent just enough to allow Cart No. 36 to be removed. So far as the

record shows, this was the first theft of a cart from inside the locked pen.

Cart No. 36 appeared at a residence in a nearby neighborhood the next day,

on the afternoon of June 29. Exactly how it got there, there is no record. But Plaintiff

Megan Carroll wanted a ride in it. Christian Bennett – a high school freshman –

drove her and tipped the cart over, causing injury to Ms. Carroll.

Cart No. 36 was gone from the accident scene when help arrived to assist Ms.

Carroll on June 29. Again, no record how. Eventually, after yet another golf cart

theft from the closed pen on July 28 – this time accomplished by simply driving a

cart through and smashing the gate – Brady Iddons came to the Garrison’s Lake pro

shop for the purpose of confessing that he was the thief. Iddons was prosecuted in

Family Court for the theft(s).

Ms. Carroll sued Forewinds and Christian Bennett for her injuries, claiming

negligence by both as the proximate cause. After discovery, Forewinds has moved

for summary judgment.

2 ANALYSIS

The motion requires consideration of the law of stolen vehicles, the

foreseeability of thefts and the duty, if any, owed by vehicle owners to protect others

from harm caused by a potential vehicle thief.

The leading Delaware decision in this area is Vadala v. Henkels & McCoy,

Inc., 1 a case in which an inebriated employee of Henkels & McCoy cut the lock of a

fenced, barb wired, storage yard and took a Henkels & McCoy dump truck that was

stored there with the keys in the ignition. He then drove the dump truck off the yard

and injured another motorist in an accident.

The Vadala Court noted “considerable decisional disagreement” in cases

involving “the liability of one who occasions the taking of his motor vehicle by failing

to remove the key from the ignition.” 2 The Court said that in determining the

foreseeability of the risk of harm sufficient to impose a duty to third persons, the

Court should consider: 1) whether the vehicle is of a type that might attract potential

thieves who may not know how to operate the vehicle (such as a dump truck), 2) if

the vehicle is capable of inflicting more injury than the “ordinary” vehicle (such as a

dump truck), 3) what other security measures were taken (such as taking the keys

out) and 4) whether the storage yard had been victimized previously by thefts, making

1 397 A.2d 1381 (Del. Super. 1979). 2 Id. at 1383. 3 such acts foreseeable. 3 In light of these factors, the Court denied summary judgment

in order to let a jury decide the question.

The Court said, “questions of foreseeability of a particular risk, the

reasonableness of the defendant’s conduct and whether or not an intervening cause is

normal or abnormal are, ordinarily, reserved to the trier of fact.” 4 As a result,

summary judgment should only be granted where there can be “no reasonable

difference of opinion as to the conclusion to be reached.” 5

A second thoughtful discussion of the foreseeability of vehicle thieves can be

found in Jewell v. Absher. 6 Absher was a sometimes mechanic for Jefferson, who

owned a car lot. Knowing where Jefferson kept the keys, Absher helped himself to a

vehicle on a back lot, without Jefferson’s knowledge or consent. After driving it for

about 2 weeks, Absher got drunk and, with Jewell in the car, wrecked it, with tragic

consequences for Jewell.

The Court granted summary judgment for Jefferson. Looking to Vadala, the

Court said that a car thief may be seen as an unforeseen risk, the car owner therefore

owing no duty to a plaintiff injured by the thief. The Court said, “simply leaving one’s

keys in the ignition of a vehicle sitting on private property is not enough to impose a

3 Id. 4 Id. 5 Id. 6 2002 WL 970464 (Del. Super. Apr. 18, 2002). 4 duty on the owner.” 7 Rather, the plaintiff must show “unusual circumstances”

surrounding the theft that would render it foreseeable to the owner. 8

Thus, the pleadings here represent the parties’ attempts to show how ordinary

– or extraordinary – this case is from other, “ordinary” thieves who steal vehicles and

wreck them causing mayhem.

In Plaintiff’s view, “Vehicle owners have a duty to third parties to secure their

property against theft. This duty is predicated on the foreseeability that stolen

vehicles will be involved in accidents.” 9 This is indeed the predicate for liability,

but the duty only exists when the risk is foreseeable: the default rule is that vehicle

owners have no such duty, except in “exceptional circumstances.” It is for the

Plaintiff to make out the case of exceptional circumstances giving rise to the duty

Plaintiff seeks to impose on the owner. “Foreseeable thieves” may create a duty while

“unforeseeable thieves” do not.

Plaintiff tries to fit her exceptional circumstance argument into all of the

factors cited in the dump truck case, Vadala, above. So, she says, golf carts are a type

of vehicle that might draw the attention of persons who are unfamiliar with their

operation. That argument makes far more sense in Vadala, involving a dump truck,

7 Id. at *3. 8 Id. 9 Pl.’s Answering Br., Trans. ID 72090046 (Feb. 20, 2024) at 3 (quoting Robbins v. William H. Porter, Inc. 2006 WL 1313858, at *1 (Del. Super. Apr. 19, 2006)). 5 or perhaps a case involving construction equipment. It makes far less sense in

considering a golf cart, which is about as complicated as bumper cars at the state fair.

Equally unimpressive is her argument that golf carts are dangerous, capable

of inflicting more injury than an “ordinary” vehicle. This is again argued from the

analysis in Vadala, but it is a strained argument here. Golf carts are not dump trucks.

Without minimizing Plaintiff’s injuries, most golf cart mishaps do not result in

serious injury, as a half hour watching YouTube videos of golfers acting irresponsibly

with their carts will demonstrate. Any mechanized means of locomotion is capable

of causing injury. But the likelihood is far greater with full sized motor vehicles and

greater still with a dump truck.

Plaintiff tries to show that Forewinds was on notice of the possibility of the

theft of Cart No. 36 because of the prior theft of a cart 2 weeks earlier. But this is a

distortion of the record: the “theft” 2 weeks earlier was a quite different species – 2

individuals walked up to a cart in the return queue, got in it and drove away before

abandoning it. The theft of Cart No. 36 occurred overnight, inside a fenced, locked

pen. The prior attempted theft on June 17 did not put Fairwinds on notice that thieves

would enter the locked pen and vandalize the security to pry out a golf cart. That was

not a “foreseeable theft” as a matter of law.

6 Before Ms. Carroll was injured in the mishap on June 29, Forewinds knew it

had experienced a theft of two carts on the night of the 27th. The theft of Cart No.

36 and the “range picker” was reported to the police at 9 a.m. on the 28th. Forewinds

knew where the carts had been and knew they were gone in the morning. Telltale

evidence of theft included a broken lock and pried hinges.

Plaintiff relies on the deposition testimony of Brady Iddon, the juvenile thief

at the bottom of all this. Brady testified at a deposition that Cart No. 36 was simply

driven off the lot, in broad daylight, several days before the night he stole the range

picker. A cart was driven off the lot “several days” earlier – on June 17 -- when two

unidentified juveniles drove off in a cart but abandoned it a short distance later. That

was not Cart No. 36. Whether Brady is truthful or simply confusing his thefts,

Plaintiff urges that his confusing testimony creates a fact issue precluding summary

judgment.

But Plaintiff presumes that if Brady is being truthful – that he stole Cart No.

36 in broad daylight days or weeks earlier – then Plaintiff has a case to make against

Forewinds. Leaving aside the dubious proposition that someone broke the lock of

the vehicle pen on the night of June 27 but took nothing, the Plaintiff would have the

Court impose a “foreseeability” duty on Forewinds for a theft on June 17 – the only

other date either side alleges involved even an attempted theft. The only time a cart

theft had ever been attempted during business hours was on June 17 and the driver 7 had been spotted, chase given, and the cart abandoned. Forewinds’ “sample of one”

previous case would not have put Forewinds on notice that a thief may come at night,

with a spare key, cut the lock to the pen and vandalize the fencing to squeeze a golf

cart off the premises at night. And if it was taken – as Brady apparently believes –

on June 17, Forewinds had no prior experience with a thief at all and certainly no

notice that would impose a duty to protect from a theft. So, the alleged factual

discrepancy found in Brady Iddon’s testimony is not “material” within the meaning

of D.R.Civ.P Rule 56(c). Under either scenario, Plaintiff cannot show notice to

Defendant such that harm to members of the public from torts caused by golf cart

thieves was foreseeable.

The Court expresses no opinion if a course manager can ever be held liable to

a downstream tort victim when a thief steals a golf cart. One supposes some fact

pattern imposing a “foreseeability of theft” duty on the golf course manager may

come along some day. But this is not that fact pattern. The Court must do its duty

and GRANT summary judgment to Defendant Forewinds.

IT IS SO ORDERED.

/s/ Charles E. Butler Charles. E. Butler, Resident Judge