Lemos v. Willis

858 A.2d 955, 2004 Del. LEXIS 378, 2004 WL 1965641
CourtSupreme Court of Delaware
DecidedAugust 25, 2004
DocketNo. 98,2003
StatusPublished
Cited by2 cases

This text of 858 A.2d 955 (Lemos v. Willis) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lemos v. Willis, 858 A.2d 955, 2004 Del. LEXIS 378, 2004 WL 1965641 (Del. 2004).

Opinion

HOLLAND, Justice:

This is a direct appeal from a final judgment of the Superior Court that dismissed the plaintiff-appellant Sonia Lemos’ (“Lemos”) claims. Lemos fell on ice and snow that had accumulated on the sidewalk abutting property owned by the defendant-appellees, Winston and Gwendolyn Willis (‘Willises”). Lemos filed a complaint in Superior Court seeking damages for her injuries. The complaint named the Willis-es as the only defendants.

The plaintiffs allegations of liability were based upon two City of Wilmington ordinances that impose a duty on abutting landowners to remove snow and ice that accumulates on the sidewalk. Both sides filed cross-motions for summary judgment. The Superior Court granted the defendants’ motion, holding: first, that this Court’s decision in Burns v. Boudwin1 protects abutting landowners from civil liability to third persons for violation of the two City of Wilmington ordinances; and second, that neither of the ordinances at [956]*956issue created an actionable nuisance per se claim.

Lemos filed an appeal with this Court. During the pendency of Lemos’ appeal, this Court issued its opinion in Schadt v. Latchford.2 In Schadt, we determined that a City of Wilmington ordinance making property owners responsible for the maintenance and repair of abutting public sidewalks conflicted with the Home Rule Charter, which placed that duty on the City of Wilmington. In Schadt, we held that the City of Wilmington “repair and maintenance” ordinance was invalid because that conflicting ordinance was not implemented in accordance with the procedures for amending the City of Wilmington’s Home Rule Charter.

We directed the parties to file supplemental memoranda addressing the implications of our holding in Schadt. In the matter sub judice, we have concluded that Section 42-418 of the Wilmington City Code conflicts with Section 5-400(c) of the Wilmington Home Rule Charter. We have also concluded that the ratio decidendi of our holding in Schadt is controlling. Because Section 42-418 in the Wilmington City Code attempts to impose upon an abutting property owner a duty that is specifically imposed upon the City of Wilmington by the Home Rule Charter, we hold that ordinance is invalid in the absence of an amendment to the Home Rule Charter pursuant to Del.Code Ann. tit. 22, §§ 811-815

Facts

For purposes of this appeal, the facts are not in dispute. On December 26,1998, Lemos fell on snow and ice which had accumulated on the sidewalk abutting 1128 Read Street in Wilmington. As a result of this fall, Lemos sustained injuries. At the time of the incident, the property at 1128 Read Street was owned by the Willises. Weather reports indicated that the last snowfall was on December 24, 1998.

Procedural History

Lemos filed a complaint on December 26, 2000 seeking damages for her injuries. The original complaint alleged common law negligence only. Cross motions for summary judgment were filed. The Superior Court held oral argument on those motions on September 20, 2002. At issue before the Superior Court was whether the Willises could be held liable under theories of negligence or strict liability for failing to remove ice and snow in violation of Sections 42-417 and 42-418 of the Wilmington City Code. Also at issue was whether this failure constituted a nuisance.

At the conclusion of the oral arguments, the Superior Court granted, in part, the Willises’ motion for summary judgment. It determined that this Court’s decision in Burns v. Boudwin3 precluded recovery on the theory of common law negligence and, therefore, dismissed that negligence claim. The Superior Court reserved judgment with respect to the strict liability and nuisance claims, however, pending the filing of an amended complaint to specifically include those claims.

On September 23, 2002, Lemos filed an amended complaint. The amended complaint alleged a claim of strict liability “according to 1 Wilm. C. § 42-42, for committing and maintaining a nuisance ... in violation of 1 Wilm. C. § 42-417 and 1 Wilm. C. § 42-418.” The amended complaint alleged that the rationale applied by the Superior Court in Latchford v. [957]*957Schadt4 — i.e., that Wilmington Code Section 42-42’s language made the failure to maintain a sidewalk a nuisance per se rendering an abutting landowner strictly liable — was applicable to the Lemos claim based upon the Willises alleged violations of Sections 42-417 and 42-418.

On January 23, 2008, the Superior Court rendered its decision on the only remaining cross motion for summary judgment issue: whether violations of Sections 42-417 and 42-418 constituted a nuisance per se. The Superior Court concluded that the Superior Court’s holding of negligence per se in Latchford was distinguishable and that the Wilmington City Council had not expressed an intent to codify an actionable nuisance per se in either Section 42-417 or Section 42-418. Accordingly, the Superior Court granted the Willises motion for summary judgment on that issue and denied Lemos’ motion for partial summary judgment. Final judgment was entered in favor of the Willises.

Issues on Appeal

In this direct appeal, Lemos sets forth two arguments. First, she asserts that the Superior Court erred, as a matter of law, when it found that the Willises owed no duty to keep the sidewalk abutting their property clear from the accumulation of ice and snow.5 Second, Lemos contends that the Superior Court erred, as a matter of law, in concluding that Sections 42-417 and 42-418 of the Wilmington City Code do not codify a nuisance per se, necessitating the imposition of strict liability for violators. We do not reach the merits of these issues. Instead, we hold that Section 42-418 is invalid based on our recent decision in Schadt v. Latchford.6

Schadt v. Latchford

Subsequent to the submission of briefs in the matter sub judice, this Court reversed the Superior Court’s decision in Latchford v. Schadt. In that decision, Schadt v. Latchford (“Schadt"),7 we concluded that Section 42412’s placement of maintenance responsibility of public sidewalks upon an abutting landowner conflicted with Section 5-400(a) in the City of Wilmington’s Home Rule Charter.8 Section 5-400(a) placed the duty to repair and maintain sidewalks on the City of Wilmington “by itself, or by contract.”9 Because of this conflict, we held that Section 42-42’s shifting of repair and maintenance responsibility from the City of Wilmington to abutting landowners was improper, in the absence of an amendment to the Home Rule Charter. In Schadt, we held that such an amendment could only “be made by Wilmington voters or the General Assembly in the form of a properly enacted Charter change and not by ordinance of the Wilmington City Council.”10

Following our decision in Schadt,

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Cite This Page — Counsel Stack

Bluebook (online)
858 A.2d 955, 2004 Del. LEXIS 378, 2004 WL 1965641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemos-v-willis-del-2004.