Pousson v. D'andrea

• Court: Superior Court of Delaware
• Decided: March 31, 2026
• Docket: S23C-04-020 MHC
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LISA POUSSON, ) ) Plaintiff, ) ) v. ) C.A. No: S23C-04-020 MHC ) LIANNA D’ANDREA, SUN ) COMMUNITIES, INC. AND BLUE ) WATER HOSPITALITY ) MANAGEMENT, LLC ) ) Defendant. ) )

MEMORANDUM OPINION AND ORDER

Submitted: January 26, 2026 Decided: March 31, 2026

Upon Consideration of Defendant’s Motion for Summary Judgment, GRANTED IN PART and Defendant’s Motion in Limine – DENIED.

Michael P. Minuti, Esquire, McCann, Dillon, Jaffe & Lamb, LLC Attorney for Plaintiff

Paul A. Bradley, Esquire, Maron, Marvel, Bradley, Anderson & Tardy, LLC, Attorney for Defendant

CONNER, J INTRODUCTION Before the Court is Sun Communities, Inc. and Blue Water Hospitality

Management, LLC’s (collectively “Defendants”), Motion for Summary Judgment,

Defendants’ Motion in Limine to preclude Mark Monteith from testifying as an

expert, and Lianna D’Andrea’s (“Defendant D’Andrea”) Motion in Limine to

preclude testimony of Mark Monteith regarding any wrongdoing on her part.1

Defendants seek summary judgment on Lisa Pousson’s (“Plaintiff”) claims for

negligence against Defendants (Counts III, IV, and V), negligent entrustment against

Defendants (Counts VI and VII), and premises liability against Defendant Sun

Communities (Count X). For the reasons stated hereinafter, the Motion for Summary

Judgment is PARTIALLY GRANTED, Defendants’ Motion in Limine is DENIED,

and Defendant D’Andrea’s Motion in Limine is DENIED.

STATEMENT OF FACTS

During Labor Day weekend in 2021, Plaintiff was a guest at the Massey’s

Landing Resort, along with her niece, Defendant D’Andrea and other family

members. Defendant Sun Communities is the owner of Massey’s Landing. Blue

Water Management managed the resort. Both Plaintiff and Defendant D’Andrea

rented golf carts during their stay at Massey’s Landing. Defendant D’Andrea was

1 Lianna D’Andrea was formerly known as Lianna Angrisani, but her last name has been changed to D’Andrea. 2 assigned golf cart number ST 7 and Plaintiff was assigned golf cart number 68.2 In

order to rent a golf cart, guests must present their driver’s license and sign a golf cart

liability waiver acknowledging the instructions and the rules, such as no speeding or

reckless driving.3

There are two incidents that are relevant to the case. The first incident, which

is not the incident that led to this lawsuit, occurred on September 4, 2021, at 3:15

p.m. (“3:15 incident”), and involved Plaintiff’s son, Matthew Pousson.4 Resort

guests reported Mr. Pousson to Defendants as a potential underage drunk driver on

a golf cart with young kids. Madison Blewitt, the manager on duty, investigated the

report, observed Mr. Pousson operating the golf cart, and told him to slow down and

not to drive the golf cart after drinking.5 A verbal argument began between Mr.

Pousson and the resort guests who reported him to management. Shortly thereafter,

additional members from the Pousson/D’Andrea party arrived, who were “clearly

intoxicated,” and began arguing with the reporting party.6 Guests asked for security,

however, there were no security guards on the premises. Ms. Blewitt asked her

assistant manager, Candy Gulley, to come into work early to help with the incident.

Ms. Gulley and Ms. Blewitt met with members of the Pousson/D’Andrea party and

2 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, at 6. 3 Defs.’ Mot. for Summ. J., D.I. 107, at 1. 4 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, at 6. 5 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. E. 6 Id. 3 informed them that Mr. Pousson could no longer drive golf carts.7 If Mr. Pousson

continued driving the golf carts they would be confiscated. Ms. Blewitt and Ms.

Gulley also informed the party that they all need to “slow down while driving around

the Resort.”8 It is unclear whether Defendant D’Andrea was present during this

incident.

The incident that led to this lawsuit occurred on the same day, about an hour

and forty-five minutes later, approximately 5:06 p.m. on September 4, 2021.9

Plaintiff was a passenger in a recreational golf cart, numbered ST 7, operated by

Defendant D’Andrea, traveling on the property. While operating the golf cart,

Defendant D’Andrea attempted to make a U-turn, which allegedly caused Plaintiff

to be ejected from the golf cart and land on the ground. Plaintiff was injured and

taken to the hospital, where it was discovered that Plaintiff was intoxicated at the

time of the accident with a serum alcohol level of .231.10 Police arrived at Massey’s

Landing and conducted a sobriety test on Defendant D’Andrea. Defendant

D’Andrea was not intoxicated.11 The posted speed limit at the resort was 5 ½ miles

per hour.12

7 Id. 8 Id. 9 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, at 7. 10 Defs.’ Mot. for Summ. J., D.I. 107, at 2. 11 Id. 12 Id. 4 Plaintiff suffered injuries as a result of this incident. Plaintiff initiated this

lawsuit on April 18, 2023. Plaintiff amended the Complaint on August 31, 2023.

Defendants filed the instant Motion for Summary Judgment on December 19, 2025.

Plaintiff filed her response on January 13, 2026. Defendants filed its reply brief on

January 26, 2026.

STANDARD OF REVIEW

Under Delaware Superior Court Civil Rule 56, a party is entitled to summary

judgment when there is no genuine issue as to any material fact and the moving party

is entitled to a judgment as a matter of law.13 If the moving party satisfies the initial

burden, then the burden of proof shifts to the nonmoving party to establish the

existence of genuine issues of material facts.14 The Motion will be viewed in the

light most favorable to the non-moving party. “[T]here is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a jury to return a verdict

for that party.”15 “If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.”16

13 Super. Ct. Civ. R. 56(c). 14 Brown v. Dollar Tree Stores, Inc., 2009 WL 5177162, at *2 (Del. Super. Ct. 2009). 15 Health Sols. Network, LLC v. Grigorov, 2011 WL 443996, at *2 (Del. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). 16 Id. at 250-51. 5 DISCUSSION

I. The Motions in Limine are Denied

Defendants and Defendant D’Andrea filed separate Motions in Limine to

address Mark Monteith and his ability to testify in the present case. Defendants filed

a Motion in Limine to exclude Mr. Monteith from testifying as a RV/Campground

expert.17 Defendant D’Andrea filed a Motion in Limine to preclude Mr. Monteith

from testifying regarding any wrongdoing on her part.18 For the reasons stated

hereinafter, both Motions in Limine are denied.

A. Defendants’ Motion in Limine to Exclude Mr. Monteith from Testifying as a RV/Campground Expert is Denied.

Defendants’ Motion in Limine to exclude Mr. Monteith from testifying as a

RV/Campground expert is denied.19 The Motion in Limine will be addressed in the

Motion for Summary Judgment decision because many of Defendants’ arguments

rely upon the Court granting the Motion in Limine. Mr. Monteith is qualified to

testify as a RV/campground expert, and therefore, the Defendants’ Motion in Limine

is denied, and the Motion for Summary Judgment regarding the exclusion of Mr.

Monteith’s testimony is denied.

17 Defs.’ Mot. in Lim., D.I. 106. 18 Def. D’Andrea’s Mot. in Lim., D.I. 105. 19 Defs.’ Mot. in Lim., D.I. 106. 6 The admissibility of expert testimony is governed by D.R.E. 702, which

states:

[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.20

In order to be admissible, the expert testimony must be relevant and reliable.21

Delaware courts have interpreted relevance to include opinions that “relate to an

issue in the case and assist the trier of fact to understand the evidence or to determine

a fact at issue.”22 Evidence is reliable if it is “based on the methods and procedures

of science, rather than subjective belief or speculation.”23 It is the job of the trial

judge to act as the “gatekeeper” and assess which expert testimony should reach the

factfinder.24

1. Mr. Monteith is qualified to offer opinions as a RV and Campground Expert. Mr. Monteith has sufficient knowledge, skill, experience, training or

education to opine as to the standard of care in the present case. As aforementioned,

20 D.R.E. 702. 21 McLeod v. McLeod, 2015 WL 854299, at *1 (Del. Super. Ct. 2015). 22 Id. 23 Id. 24 Id. 7 Defendants argue that Mr. Monteith is not qualified to offer opinions as a RV and

Campground expert. While he is not a specified campground expert, he has

education, training, and experience in the property management of college

campuses, institutions, multiuse high-rises, golf courses, and recreational centers.25

Mr. Monteith testified that resort management is a type of property management.26

Mr. Monteith testified that he has experience developing policies for managing golf

cart paths.27 He has experience working on a campground case, but does not think

he issued an expert report on the matter. As a forensic investigator, Mr. Monteith

applies expertise in the areas of site safety, premises liability, and professional

practice and standards.28 He is qualified to offer opinions on “best practices” as it

applies to facilities with a high volume of individuals on the premises, similar to the

present case.29

Defendants argue that Mr. Monteith is offering testimony as an accident

reconstructionist, however, that is incorrect. Mr. Monteith’s focus is on premises

safety. In project management, there are often issues with equipment. In those

situations, he assisted with establishing rules, signage, and warnings about the

equipment and how it should be used.30 In the present case, there were a plethora of

25 Pl.’s Resp. to Defs.’ Mot. in Lim, D.I. 114, Ex. I, at 25:10-23. 26 Id. at 25:5-9. 27 Id. at 32:18-24. 28 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, at 15. 29 Id. at 15 (see also Ex. I, at 166:20-24). 30 Pl.’s Resp. to Defs.’ Mot. in Lim, D.I. 114, Ex. I at 44:24-46:23. 8 writings to review regarding golf cart operation. As an architect, he can provide an

opinion based on the “rudimentary physics that all architects have to apply.”31 In the

present case, Mr. Monteith opines that centrifugal force caused the Plaintiff to be

ejected from the golf cart, which is reinforced by the publications that state a person

will be ejected from the rear seats of a golf cart if the vehicle is traveling at high

speed when turning.32 He did not perform a further analysis on centrifugal force, as

he is not an accident reconstructionist, but rather based his opinion on testimony and

the findings on the scene.33

Defendants also argue that Mr. Monteith does not have expertise in operating

or managing golf carts, however, this is not sufficient to exclude him as a witness.

He has experience working on projects that involve pathways used by both motor

vehicles and pedestrians.34

For these reasons, the Court finds that Mr. Monteith is qualified to testify as

an expert regarding RV/Campgrounds.

2. Mr. Monteith’s opinions are based on credible evidence.

Mr. Monteith has a sufficient factual basis to offer expert testimony.

Defendants seek to exclude Mr. Monteith due to a factual misunderstanding during

31 Id. at 110:4-20. 32 Id. 33 Id. at 111:7-13. 34 Id. at 29:1 – 31:11. 9 his deposition testimony. During his deposition, Mr. Monteith seemed to

misunderstand who was driving the golf cart in the 3:15 incident, as he believed it

was Defendant D’Andrea.35 However, this alone is not sufficient to preclude Mr.

Monteith from offering expert testimony.

Delaware courts have recognized that generally, “the factual basis of an expert

opinion goes to the credibility of the testimony, not the admissibility, and it is for the

opposing party to challenge the factual basis of the expert opinion on cross-

examination.”36 However, expert testimony must be excluded if it is not based upon

an understanding of the fundamental facts of a case, as it would provide no assistance

to a jury.37

In the present case, Mr. Monteith’s misunderstanding about who was driving

the golf cart during the 3:15 incident does not demonstrate a complete lack of

understanding the fundamental facts of the case. Mr. Monteith testified that he

would need to review the specifics as to which golf cart was cited earlier in the day,

but believed it was “the same golf cart or same party, if not the same golf cart

involved in that, the person who rented the golf cart.”38 By misunderstanding that it

may have been Defendant D’Andrea who drove the golf cart during the 3:15

35 Defs.’ Mot. in Lim., D.I. 106, at 11. 36 Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010). 37 Id. 38 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, Ex. I, at 50:17 – 51:6. 10 incident, and not Mr. Pousson, Defendants argue the opinion should be precluded.

However, Defendants may address this issue through vigorous cross-examination.

Mr. Monteith’s report is based upon an adequate factual foundation and his

testimony would assist a jury. His expert report demonstrates that he reviewed

deposition transcripts, litigation documents, incident reports, the police report,

medical records, video footage, and other relevant documents.39

For these reasons, the Court finds that Mr. Monteith’s opinion is supported by

sufficient evidence.

3. Mr. Monteith’s opinion utilizes reliable principles and methods.

Mr. Monteith’s opinions were formed utilizing reliable principles and

methods. Defendants argue that Mr. Monteith “cherry picks” facts and sections from

literature to support his claim.40 Additionally, in his report, Mr. Monteith does not

address that Plaintiff was intoxicated at the time of the accident.

In State v. Dale, the Court held that “[t]he different depth with which [an

expert] pursued particular lines of investigation and the different assumptions they

made are readily subject to cross-examination and to evaluation by the fact finder

for credibility and weight.”41 “An expert's testimony will only be excluded in the

39 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, Ex. B, at 3-4. 40 Defs.’ Mot. in Lim., D.I. 106, at 13. 41 State v. Dale, 2021 WL 5232344, at *5 (quoting Henlopen Hotel, 2020 WL 233333, at *4; Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010)). 11 narrow circumstance that the expert has completely neglected the core facts of the

case.”42

In his report and deposition, Mr. Monteith gave greater weight to Plaintiff’s

deposition testimony rather than the reporting officer’s police report.43 In Plaintiff’s

deposition testimony, she testified that she was holding on to the handrail while

riding on the back of the golf cart. In her statement to the police, however, she stated

she was not holding on right. Mr. Monteith reviewed the police report and other

relevant evidence and chose to give certain evidence greater weight than others in

reaching his decision.

Additionally, Mr. Monteith did not address the toxicology report. He testified

that he did not address the toxicology report because he is not a doctor and is not

qualified to give opinions on such. In Mr. Monteith’s deposition, he was asked if he

considered other possible causes for Plaintiff’s ejectment from the vehicle, in which

Mr. Monteith responded, “I tried to think of every possible other scenario.”44

Defendants may explore the methodology and the different avenues Mr. Monteith

explored to reach his opinion on cross-examination, as it is an issue of credibility,

not admissibility.

42 Id. (quoting Smack-Dixon v. Wal-Mart, Inc., 2021 WL 3012056, at *6 (Del. Super. Ct. 2021)). 43 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, Ex. I, at 65:12 – 66:7. 44 Id. at 60:19 – 61:20. 12 Defendants argue that Mr. Monteith has no qualification to reach the opinion

that the accident would not have happened if Defendant D’Andrea complied with

the rules and regulations, as he is not an accident reconstructionist. However, Mr.

Monteith offers an opinion on Defendants’ management of the resort and their failure

to remove the carts from the members of the D’Andrea and Pousson parties. As an

expert in architecture, premise safety, and management, he is qualified to give that

opinion. As aforementioned, he explained that he does not offer an opinion as an

accident reconstructionist, but rather uses his knowledge of rudimentary physics and

relevant literature to support his findings that a person will be ejected from a golf

cart if turning at high rates of speed.

Furthermore, in his deposition, Mr. Monteith outlines his analysis for reaching

his opinions. First, Mr. Monteith stated he had to establish whether the conditions

were unreasonably dangerous.45 He began by reviewing the first-hand descriptions

of the incident.46 Then, he analyzed the data regarding the golf carts turning radius,

the width of the roadway, and the golf cart’s traveling speed. Based on that

information, Mr. Monteith was able to opine that the golf cart was traveling at a

speed fast enough for a passenger to be ejected.47 He analyzed other theories and

ruled out other causes. After analyzing how the exact accident occurred, he analyzed

45 Id. at 43:17-18. 46 Id. at 43:18-20. 47 Id. at 43:20 – 44:10. 13 how it was allowed to occur, and how the golf carts were rented and used on the

site.48

Then, Mr. Monteith used his experience, training, and knowledge in property

management to establish the standard of care regarding the enforcement of policies

and procedures.49 Defendants had a duty to monitor the resort and enforce its rules

and regulations. Mr. Monteith opined that Plaintiff’s injuries were caused by the

reckless operation of a golf cart by Defendant D’Andrea, who operated the golf cart

in violation of Defendants’ rules and regulations. In his report, Mr. Monteith states

that it was known by Defendants that the Angrisani/Pousson party were driving

recklessly. In forming his opinion, he relied upon: (1) the EZ-GO TXT Golf Cart

Owner’s Guide, (2) The Journal of Trauma, Injury, Infection, and Critical care; (3)

an American Journal of Preventative Medicine article on Golf Cart-related injuries

in the US; (4) Defendant’s own rules & regulations; and (5) the Park and Recreation

Professional’s Handbook.50 Mr. Monteith reviewed available testimony, evidence,

and written materials, and relied upon his experience in site safety, premises liability,

and professional practice of recreational properties to reach his decision. Defendants

may conduct vigorous cross-examination to question his findings and the evidence

he gave greater weight.

48 Id. at 44:24 – 46:23. 49 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, at 28. 50 Id. at 29. 14 For these reasons, the Court finds that Mr. Monteith’s opinions were formed

utilizing reliable principles and methods. Defendants’ Motion in Limine is denied,

and any claim for summary judgment based on the expert’s testimony is denied.

B. Defendant D’Andrea’s Motion in Limine to Preclude Testimony of Mr. Monteith Regarding Wrongdoing on her Part is Denied.

For the same reasons stated above, Defendant D’Andrea’s Motion in Limine

is denied. Defendant D’Andrea argues that because Mr. Monteith is not an accident

reconstructionist, he cannot offer an opinion as to whether Defendant D’Andrea was

operating the golf cart in an unsafe manner. Defendant D’Andrea argues that Mr.

Monteith is merely weighing the evidence and fact finding, rather than offering an

expert opinion. It would be extremely prejudicial to Defendant D’Andrea if Mr.

Monteith offers testimony regarding her wrongdoing because his opinion has no

basis in fact or in law.

Plaintiff, on the other hand, argues that Mr. Monteith provided a highly developed

technical expert opinion, based on sufficient evidence and reliable principles and

methods. Mr. Monteith reviewed the site, compared the physical conditions of the

site with the characteristics of the golf cart, collected photos and measurements of

the site, and gathered additional information about the property. Mr. Monteith

testified that he has experience evaluating recreational premises and explained the

process for how he reached his decision.

15 As aforementioned, the different depth and lines of investigation an expert

takes in reaching an expert opinion may be explored on cross-examination. For the

reasons stated above, Mr. Monteith is qualified to offer the opinions he provided in

his expert report. His opinion on Defendant D’Andrea’s alleged wrongdoing is an

issue of credibility, not admissibility. Mr. Monteith is not an accident

reconstructionist, nor is he an expert in golf carts. However, he has experience with

recreational sites and pathways utilized by pedestrians and motorized vehicles, such

as golf carts. Mr. Monteith had a sufficient factual foundation in forming his opinion

and relied upon reliable principles and methods. He did not only rely upon

statements from others, but performed his own evaluation using the same

methodology he had performed in over 100 prior premises evaluations.

Defendant D’Andrea may conduct vigorous cross-examination to attack the

credibility of Mr. Monteith, however, his testimony is admissible. For these reasons,

Defendant D’Andrea’s Motion in Limine to preclude Mr. Monteith from testifying

regarding any wrongdoing on her part is denied.

II. Defendants’ Waivers are Insufficient Under Delaware Law to Release Defendants from Liability Defendants cite to three contract provisions between the parties attempting to

release Defendants from liability. However, none of the release of liability waivers

are enforceable.

16 Delaware law allows a party to limit liability for its own negligence, so long

as the waiver is not unconscionable, unambiguous, and not against public policy.51

Delaware law disfavors contractual provisions that release a party from its own fault

or wrongs, therefore, “as a matter of public policy, a provision exonerating a party

for its own negligence will only be given effect if the language ‘makes it crystal clear

and unequivocal that the parties specifically contemplated’ such a release.”52 In

order for the provision to be considered “crystal clear and unequivocal,” the

language must specifically refer to the negligence of the protected party.53

There is no evidence that the waivers are unconscionable. Delaware courts

have found unconscionability when there is a deprivation of meaningful choice.54 In

the present case, Plaintiff willingly chose to stay at Massey’s Landing and sign the

waivers. For this reason, the waivers are not unconscionable.

However, the waivers are ambiguous. The language is not “crystal clear” and

therefore does not exonerate the Defendants from their own alleged negligence. The

three liability waiver provisions will be analyzed hereinafter.

51 Ketler v. PFPA, LLC, 132 A.3d 746, 747 (Del. 2016). 52 Slowe v. Pike Creek Ct. Club, Inc., 2008 WL 5115035, at *2 (Del. Super. Ct. 2008). 53 Hong v. Hockessin Athletic Club, 2012 WL 2948186, at *2 (Del. Super. Ct. 2012). 54 Ketler, 132 A.3d at 748. 17 A. The Water Feature Waiver, Contract, and Release of Liability is insufficient under Delaware law.

The Water Feature Waiver, Contract, and Release of Liability is ambiguous.

It is unclear whether the waiver expressly releases Defendants from claims arising

from their own alleged negligence. While Defendants cite to a provision in the

contract that generally refers to all of the amenities at Massey’s Landing, the title of

the contract and the references to water amenities in other sections make it unclear

whether the contract applies solely to water amenities or all amenities. The provision

states the following:

I understand that the amenities at The Resort at Massey’s Landing are also shared by others that staff and management have no control over and I agree to assume all liability for myself, child/children, or ward named below, even if arising from negligence from other participants, employees, or management of the Resort at Massey’s Landing.55

The provision includes clear and equivocal language exonerating the Defendants

from their own negligence, but it is not clear if it applies to solely water features, or

if it extends to golf cart usage. To further support the ambiguity of whether a golf

cart is considered an amenity, there is a map of Massey’s Landing that lists the

amenities at the resort, and it does not list “golf carts” or “golf cart rentals” as an

amenity.56 It is unclear whether claims arising from golf cart usage is covered under

this waiver.

55 Defs.’ Mot. for Summ. J., D.I. 107, Ex. K. 56 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, Ex. B. at 5. 18 As aforementioned, Delaware law disfavors provisions exonerating a party

from incidents arising from its own negligence. Delaware law is very clear that

waivers must be clear and unequivocal. This waiver is ambiguous. Therefore, the

Water Feature Waiver, Contract, and Release of Liability is not a sufficient waiver

under Delaware law.

B. The Golf Cart Liability Waiver is insufficient under Delaware law.

The Golf Cart Liability waiver is insufficient under Delaware law because it

does not contain language that explicitly exonerates Defendants from claims arising

from their own alleged negligence. The golf cart waiver states the following:

In exchange for the privilege to rent this golf cart, you are accepting the responsibility for your own negligence. You must safely operate this vehicle and adhere to all rules set forth by the Resort at Massey’s Landing. You are liable for all mechanical and legal claims that may arise from the rental of the golf cart. You voluntarily agree to accept the risks of using a golf cart, and on behalf of yourself, your personal representatives, and your heirs hereby voluntarily release the aforementioned business, and its owners, officers, employees, and agents from any loss of life and/or loss of service, in law or equity, that may in any manner arise out of the use of the golf cart. In no way should the renting of this vehicle be seen as The Resort at Massey’s Landing endorsing this vehicle as a form of recreation or fun.57

57 Pl.’s Resp. to Defs.’ Mot. in Lim., D.I. 114, Ex. D. 19 The liability waiver states that the party is liable for all legal claims, but the provision

does not specifically exonerate Defendants from claims of their own negligence.

The waiver states that the party will accept responsibility for their own negligence.

Defendants do not attach the Golf Cart Liability Waiver signed by Plaintiff,

but rather the waiver signed by Defendant D’Andrea.58 Plaintiff, however, attached

the waiver signed by Plaintiff in its Response to the Motion for Summary

Judgment.59 Nonetheless, the language of the liability waiver is not sufficient under

Delaware law.

Delaware law is clear that liability waivers must be clear and unequivocal.

The Golf Cart Liability Waiver is not sufficient to exonerate Defendants from claims

arising from their own negligence.

C. The Short-Term Rental Agreement Disclaimer is insufficient under Delaware law.

Similar to the reasons stated above, the Short-Term Vacation Rental

Agreement Waiver is not sufficient to exonerate Defendants from claims arising

from their own alleged negligence under Delaware law. The disclaimer states the

following:

The guest(s) agrees to indemnify and hold harmless The Resort at Massey’s Landing, their premises, and/or any agent involved with this rental agreement for any loss, liability, damage or cost the guest(s) may incur due to his/her occupancy of the premises or from participation in 58 Defs.’ Mot. in Lim., D.I. 106, Ex. B. 59 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. D. 20 any activities undertaken at The Resort at Massey’s Landing or outlying waters. There are no refunds due to inclement weather or power outages.60

The disclaimer does not specifically exonerate Defendants from actions arising from

their own alleged negligence. Delaware courts have held that merely stating “any

loss” or “any claim” is insufficient to exonerate a party from their own negligence.61

For these reasons, the waiver is not “crystal clear or unequivocal” and does

not exonerate Defendants from actions arising from their own negligence. The

waiver is insufficient under Delaware law.

III. Summary Judgment for Counts III and V, Negligence, Must be Denied

There is a genuine issue of fact as to whether Defendants breached a duty

owed to Plaintiff. Defendants argue that if the Motion in Limine to preclude Mr.

Monteith is granted, then Plaintiff has no evidence to establish the elements of duty

and breach for the negligence claim. However, as previously ruled, the Court denied

the Motion in Limine. There is a genuine issue of fact as to whether Defendants

breached a duty owed to Plaintiff.

Mr. Monteith’s expert report creates enough factual dispute to survive a

Motion for Summary Judgment. In his report, Mr. Monteith opines that Defendant

D’Andrea operated the golf cart in violation of the rules/regulations established by

60 Defs.’ Mot. for Summ. J., D.I. 107, Ex. N. 61 Strand-Yarbray v. Bike Delaware, Inc., 2024 WL 4950314, at *1, *3 (Del. Super. Ct. 2024). 21 Massey’s Landing.62 Mr. Monteith opines that operating the golf cart in such a

manner caused Plaintiff to be ejected from the golf cart. Defendants, as the managers

of the golf cart rentals at Massey’s Landing, failed to properly instruct the guests

about the dangers of making sharp turns on the golf carts. Furthermore, Defendants

were aware that the guests were breaking the resort rules on the day of the accident.

As aforementioned, Mr. Pousson, was driving recklessly around the Resort. There

were also multiple reports of both golf carts from the Pousson/D’Andrea party

driving at excessive speeds on the day of the incident.63 The Defendants failed to

enforce their own rules and safety procedures, which could have prevented the

accident. Mr. Monteith opines that Defendants’ failure to mitigate the dangerous

conditions “violated the standard of care for recreational facilities management.”64

Furthermore, there are discrepancies between deposition testimonies. Ms.

Gully testified that she believed Defendant D’Andrea was present during the

conversation after the 3:15 incident, where she instructed all party members to slow

down when driving.65 However, she later testified that she was unsure if Defendant

D’Andrea was present.66 Additionally, an incident report from Ms. Blewitt states

that she and Ms. Gulley informed the Pousson/D’Andrea party that “everyone in

62 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. B, at 17. 63 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. N. 64 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. B, at 17. 65 Id. at 15. 66 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. F, at 73:2-11. 22 their party needs to slow down while driving around the Resort.” 67 After the 3:15

incident was reported, members from both the Pousson and D’Andrea party began

fighting with the reporting guests. Plaintiff argues that the golf carts should have

been taken after the 3:15 incident, as required by Defendants’ rules and regulations.

Defendants’ rules and regulations prohibit driving while under the influence,

speeding, and operating improperly.

Mr. Monteith’s findings create a genuine issue of material fact as to the

standard of care, and whether Defendants breached the standard of care.

Furthermore, there are discrepancies as to whether Defendant D’Andrea was present

during the conversation after the 3:15 incident. Therefore, this issue cannot be

decided on a Motion for Summary Judgment.

IV. Summary Judgment on Count IV, Negligence, Must be Granted

Summary Judgment must be granted for Count IV, negligence, against

Defendant Sun Communities. Under Count IV, Plaintiff alleges that Defendant

D’Andrea was served alcohol and drove a golf cart after her and members of her

party had been drinking.68 Plaintiff claims that she was harmed by Defendant Sun

Communities knowing and allowing Defendant D’Andrea to operate a vehicle after

consuming alcohol. Defendant Sun Communities had notice that Defendant

67 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Ex. E. 68 Am. Compl., D.I. 27, at 10 ¶ 52 - 11 ¶ 55. 23 D’Andrea and other members of her party had been drinking, and therefore, were a

danger to the other resort guests. Defendants argue that such a claim is

impermissible under Delaware law. In her response to Defendants’ Motion for

Summary Judgment, Plaintiff argues that the negligence claim does not allege that

Defendant Sun Communities was negligent for serving alcohol to Defendant

D’Andrea, but rather alleges that Defendant Sun Communities knew about a

dangerous condition and did not take steps to mitigate. The dangerous condition

was created by allowing guests to drive golf carts after being overserved at the pool.

In the case, Samson v. Smith, the Court decided whether a plaintiff could

recover on a theory that the conduct of a commercial business, in permitting the

defendant to drink in excess, was the proximate cause of an accident and the

plaintiff’s injuries.69 However, the Court held that “no cause of action against a

tavern operator for injuries to third parties, caused by an intoxicated patron, exists

in Delaware under either the common law or statutes regulating the dispensing of

alcoholic beverages.”70

In the case, Shea v. Matassa, the plaintiff brought a negligence claim against

a bar that overserved a patron, who then drove drunk, and killed the plaintiff’s

husband.71 The plaintiff argued that the Court should create a common law cause of

69 560 A.2d 1024, 1025 (Del. 1989). 70 Id. 71 Shea v. Matassa, 918 A.2d 1090, 1091-92 (Del. 2007). 24 action for dram shop liability to hold the bar responsible for her husband’s death,

because they negligently served alcohol to the patron, knowing he would drive while

intoxicated.72 The case was dismissed by the Superior Court, and the plaintiff

appealed.73 The Superior Court’s decision was affirmed. The Supreme Court found

that it is the General Assembly’s job to decide whether a cause of action exists, not

the Court.74 There is no cause of action for this claim in Delaware.

In the present case, Plaintiff’s Amended Complaint for Count IV Neglignece

As a foreseeable consequence of Defendants SUN COMMUNITIES, INC. and MASSEY’S landing allowing, permitting, or otherwise having knowledge that Defendant LIANNA ANGRISANI intended to operate a recreational vehicle upon their premises after consuming alcohol, Plaintiff was caused to be directly and proximately injured through the negligence of all Defendants.75 Plaintiff’s argument, despite Plaintiff’s contentions, seeks to impose liability to

Defendant Sun Communities for allowing Defendant D’Andrea to drive after serving

her alcohol. Delaware courts have clearly found that liability will not be imposed in

these circumstances, even if the bar knew the patron would drive after drinking

alcohol. Additionally, there is evidence Defendant D’Andrea was not intoxicated at

72 Id. at 1092. 73 Id. 74 Id. at 1095-96. 75 Am. Compl., D.I. 27, ¶ 54. 25 the of the accident.76 Defendant Sun Communities cannot be held liable for allowing

Defendant D’Andrea to drive a golf cart after serving her alcohol.

For these reasons, summary judgment for Count IV negligence should be granted.

V. Summary Judgment on Plaintiff’s Negligent Entrustment Claims, Counts VI and VII, is Granted

Summary judgment must be granted for Plaintiff’s negligent entrustment

claims. Plaintiff has not produced evidence that Defendant D’Andrea was a reckless

or incompetent driver at the time the Defendants entrusted the golf cart to Defendant

D’Andrea.

Delaware courts have found that the elements of negligent entrustment are as

follows: “(1) entrustment of the automobile, (2) to a reckless or incompetent driver

whom, (3) the entrustor has reason to know is reckless or incompetent, and (4)

resulting damages.”77 “[T]he key element in the tort of negligent entrustment . . . is

the foreseeability of the harm . . . .”78

When viewing the facts in the light most favorable to the Plaintiff, there is no

dispute of material fact as to whether the incident was foreseeable. The Court in

Finkbiner v. Mullins briefly discussed the general rule in Delaware, that unless there

is a statute that imposes liability, mere ownership of a vehicle involved in an accident

76 Defs.’ Mot. For Summ. J., D.I. 107, at 2. 77 Perez-Melchor v. Balakhani, 2006 WL 3055852, at *4 (Del. Super. Ct. 2006). 78 Id. 26 generally does not subject the vehicle owner to liability for the negligence of

another.79 However, the Court notes an exception for claims under negligent

entrustment. The owner becomes liable “if [the owner] knows or has reason to

believe at the time [the owner] entrusts the vehicle to another that the driver is

incompetent.”80 Delaware courts have held that the “standard for proving

entrustment to a reckless or incompetent driver is high in Delaware.”81

In the present case, Plaintiff has not produced evidence that Defendant

D’Andrea was a reckless or incompetent driver prior to the incident, or that

Defendants knew or had reason to believe she was reckless or incompetent. Instead,

Plaintiff argues that Defendant D’Andrea was driving recklessly on the day of the

incident, and Defendants became aware of her reckless driving after multiple guests

reported the Pousson/D’Andrea party’s golf cart numbers. This alone is not

sufficient for a negligent entrustment claim. At the time of the entrustment, it was

unforeseeable that Defendant D’Andrea would be a reckless or incompetent driver.

Additionally, Plaintiff argues that Defendant D’Andrea was reckless and

incompetent because she was not properly advised by Defendants on how to

79 Finkbiner v. Mullins, 532 A.2d 609, 617 (Del. Super. Ct. 1987). 80 Id. at n.3. 81 Berger v. Millstone, 2001 WL 1628308, at *2 (Del. Super. Ct. 2001). 27 effectively operate the golf cart. However, this is not sufficient to support a negligent

entrustment claim.

For these reasons, the Court must grant summary judgment on Plaintiff’s

negligent entrustment claims.

VI. Summary Judgment on Plaintiff’s Premises Liability Claim, Count X, is Partially Granted

Viewing the facts in the light most favorable to the Plaintiff, there are issues

of material fact that preclude the Court from granting summary judgment. In the

Amended Complaint, Plaintiff alleges that Defendant Sun Communities:

[K]new or should have known that the premises may have been improperly maintained which may have contributed to the happening of the incident and otherwise presented and created a hazardous and/or dangerous condition to persons lawfully utilizing same, including but not limited to, the Plaintiffs LISA POUSSON, in violation the aforesaid Town ordinance.82

Defendants argue that if the Motion in Limine to exclude testimony from Mr.

Monteith is granted, Plaintiff does not have evidence of a dangerous condition on

the premises that Defendant Sun Communities should have known and warned

about. However, as aforementioned, the Motion in Limine is denied.

Mr. Monteith opined that Defendants created unreasonably dangerous

conditions, which caused Plaintiff to be ejected from the golf cart. There is a genuine

issue of material fact as to whether Defendant Sun Communities breached its duty

82 Am. Compl., D.I. 27, at ¶ 89. 28 and whether unreasonably dangerous conditions were created by the failure to

confiscate the golf carts from the Pousson and D’Andrea parties.

However, Plaintiff now seeks to argue that Defendant Sun Communities failed

to properly maintain the premises by employing only 20 employees for 1,000 guests

and failing to employ security.83 Defendants argue that this is the first time Plaintiff

has made this argument, therefore it cannot be considered. Negligence must be pled

with particularity, and Plaintiff did not allege that Massey’s Landing was

inadequately staffed prior to summary judgment.

Delaware Superior Court Civil Rule 9 states, “[i]n all averments of fraud,

negligence or mistake, the circumstances constituting fraud, negligence or mistake

shall be stated with particularity.”84 Delaware courts have found that “[t]he purpose

of Rule 9(b) is one of fairness and notice.”85

The Amended Complaint does not mention the number of staff or lack of

security on the premises. However, Plaintiff argues that the following provision is

sufficient to put Defendants on notice of the claim:

At all times mentioned, the Defendants knew or should have known that the premises may have been improperly maintained which may have contributed to the happening of the incident and otherwise presented and created a hazardous and/or dangerous condition to persons lawfully utilizing same, including but not limited to, the 83 Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, at 33. 84 Del. Super. Ct. Civ. R. 9(b). 85 Murray v. Mason, 244 A.3d 187,192 (Del. Super. Ct. 2020), modified (Jan. 5, 2021)(quoting Fox v. Fox, at 827 n.2, (citing Chesapeake and Potomac Tel. Co. of Maryland v. Chesapeake Utilities Corp., 436 A.2d 314, 338 (Del. 1981)). 29 Plaintiffs LISA POUSSON, in violation the aforesaid Town ordinance.86

Plaintiff argues that Defendants had proper notice of this claim because Plaintiff

alleged that Defendants had a duty to maintain the property and had control of the

property. Therefore, Defendant Sun Communities knew or should have known that

there was a dangerous condition on the property. However, this is not sufficient to

put Defendants on notice of the claim for premise liability due to staffing issues.

Plaintiff has not amended its Amended Complaint to assert the relevant facts or add

facts to the premises liability claim.

Next, Defendants argue that even if the Court allows the claim, Plaintiff

cannot prove the claim without expert testimony. Plaintiff does not have an expert

to testify about the lack of security and staffing shortage. In his deposition, Mr.

Monteith testified that he believed there were approximately 1,000 guests at

Massey’s Landing that weekend.87 He states that he did not provide an evaluation

of how many people it takes to monitor 1,000 guests.88 Mr. Monteith stated that he

did not need to “speculate about a failure to maintain safe conditions because we had

a reported instance of a failure to maintain safe conditions.”89 He opined that by

breaking their own rules and failing to intervene, Defendants breached their duty to

86 Am. Compl., D.I. 27, ¶ 89. 87 Pl.’s Resp. to Defs.’ Mot. for Summ. J., Ex. P, at 94:23 - 95:13. 88 Id. 89 Id. at 96:3-7. 30 monitor. Mr. Monteith does not testify about the number of staff compared to the

number of guests.

Defendants cite to Kaster v. Big Kahuna of Wilmington, Inc., where the Court

found that “the number of security personnel required for a given number of people

in a bar is not common knowledge.”90 However, the Court did not dismiss the case

due to a lack of expert testimony because there were other facts, if accepted by the

jury, that might define the standard of care and whether Defendant breached its duty.

Plaintiff, however, cites to Richards v. Salvation Army, where the Court found

“there is no statute or case law mandating the use of an expert in security cases.”91

In Richards, there was a security guard on duty. The assailant walked past the

security guard, walked up the stairs, and assaulted the plaintiff. The court found that

it was not beyond the knowledge of a layperson to determine whether the defendant

was negligent in its implementation of security measures.

The present case is similar to Kaster. If the premises liability claim regarding

staffing and security survives the present Motion, then the jury would need to decide

whether Defendant Sun Communities was negligent by failing to employ more

workers and security guards. The number of staff or security for a resort like

Massey’s Landing is beyond the knowledge of a layperson. Mr. Monteith did not

90 Kaster v. Big Kahuna of Wilmington, Inc., 1999 WL 459135, at *2 (Del. Super. Ct. 1999). 91 Richards v. Salvation Army, 1996 Del. Super. Lexis 292, at *2 (Del. Super. Ct. 1996) (see also Pl.’s Resp. to Defs.’ Mot. for Summ. J., D.I. 115, Case Ex. F). 31 offer an opinion on the issue, and there are no facts in the case that would allow the

jury to reach this decision without an expert. For these reasons, even if the security

and staffing claim were properly pled, the claim would not survive the Motion for

Summary Judgment due to a lack of expert testimony on the issue.

For these reasons, the Court must grant summary judgment on Plaintiff’s

premises liability claim against Defendant Sun Communities as it pertains to security

and staffing issues. However, the Court must deny summary judgment for Plaintiff’s

premises liability claim as it pertains to Defendant Sun Communities’ alleged

negligence by failing to confiscate the golf carts and implement its own rules.

CONCLUSION

For these reasons, the Motion for Summary Judgment is partially granted.

Defendants’ and Defendant D’Andrea’s Motions in Limine are denied. Plaintiff’s

expert, Mr. Monteith is qualified to testify, and therefore, the negligence claims

(Counts III and V) must survive the Motion. Summary judgment on Plaintiff’s

Count IV negligence claim against Sun Communities must be granted. The Court

must grant Summary Judgment on Plaintiff’s negligent entrustment claims (Counts

VI and VII). Summary judgment on Plaintiff’s premises liability claim for

Defendant Sun Communities’ alleged failure to enforce its own rules and procedures

32 is DENIED. However, summary judgment on Plaintiff’s premises liability claim

regarding security and staffing is GRANTED.

IT IS ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

oc: Prothonotary