IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY MARTHA TIPTON, Guardian of RUTH P. FIELD, Plaintiffs, v. HARDEE S RESTAURANT, and/or HARDEE'S FAMILY RESTAURANT, business entities, and BMB CORPORATION a Delaware corporation t/a Hardee's Restaurant and/or Hardee s Family Restaurant, and OTAC, INC., a Maryland corporation t/a Hardee s Restaurant and/or Hardee s Family Restaurant, Defendants and Third-Party Plaintiffs, v. UNIFIRST CORPORATION, Third-Party Defendant. Submitted: September 27, 2002 Decided: ORDER Upon Consideration of Defendants' Motion for Summary Judgment. Denied. I. Barry Guerke, Esquire of Parkowski & Guerke, P.A., Dover, Delaware, attorneys for Plaintiffs. George T. Lees, III, Esquire of Bifferato Bifferato & Gentilotti, Wilmington, Delaware, attorneys for Defendant BMB Corporation t/a Hardee's. Roger D. Landon, Esquire of Murphy Spadaro & Landon, Wilmington, Delaware, attorneys for Defendant OTAC, Inc. Richard W. Pell, Esquire of Tybout Redfearn & Pell, Wilmington, Delaware, attorneys for Third-Party Defendant Unifirst Corporation. WITHAM, J.
This is the Court s decision on Defendants' Motion for Summary Judgment. For the reasons set forth below, the motion is denied. This case arises from injuries that occurred when Ruth Field tripped and fell in the vestibule of the Hardee s Restaurant in Dover on September 30, 1997. Plaintiff Tipton is legal guardian for her mother, Plaintiff Field, who is presently 85 years of age and suffers from Alzheimer s Disease; she is unable to give testimony. Defendants are as follows: BMB Corporation ( BMB owns and operates the Hardee s Restaurant in Dover; Defendant OTAC Inc. ( OTAC was under contract to supervise the management of the Dover Hardee s (OTAC owns 18 Hardee s Restaurants but not the Dover Hardee s. Third Party Defendant Unifirst Corporation ( Unifirst manufactured and maintained the mat Plaintiffs allege caused Field s fall. Defendant BMB filed this motion for summary judgment which was joined by Unifirst and OTAC. Summary judgment will be granted if the evidence reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 1 As movants, the defendants bear the burden of showing that no genuine issue of material fact exists. 2 The court must view the record in the light most favorable to the non-moving party. 3 It is only when there 1 Super. Ct. Civ. R. 56(c; Borish v. Graham, 655 A.2d 831, 833 (Del. Super. 1994. 2 Borish, 655 A.2d at 833. 3 Id. 2
are no conflicts in the factual contentions of the parties and that the only reasonable inferences to be drawn from the uncontested facts are adverse to plaintiffs that summary judgment should be entered for the defendant. 4 To establish liability of a land owner or occupier for injuries sustained by business invitees, Plaintiff must prove: 1 the injuries were caused by an unreasonably dangerous condition on the premises, 2 which the owner knew about or should have discovered by the exercise of reasonable care, 3 which the owner was more likely than the invitee to know about or discover in the exercise of reasonable care, and 4 the owner failed to use reasonable care to protect the invitee against the danger. 5 Defendants assert that Plaintiffs have not produced any evidence that there were any latent, concealed, or dangerous conditions of which BMB might have been aware, primarily based upon testimony that Plaintiff Tipton observed ripples in the mat after, but not before her mother fell; that Plaintiff Field will not be able to testify to exactly what caused her fall, and that Tipton was merely assuming that the ripples in the mat had caused her mother s fall. Defendants also assert that BMB was not aware of a latent or concealed defect that required a warning and that there is no duty to warn of a dangerous condition which is obvious to a person of ordinary 4 Watson v. Shellhorn & Hill, Inc., 221 A.2d 506, 508 (Del. 1996. 5 Callaway v. Scrivner, Inc., 1991 Del. LEXIS 236 (Del Supr.. 3
prudence. 6 However, Plaintiffs assert that photographs of the mat in question, as well as statements made by Mrs. Field at the time of her fall meet Plaintiffs burden of production to demonstrate what caused the fall. Plaintiffs also assert that Defendant BMB/Hardee s had the duty to exercise reasonable care to discover dangerous conditions and to protect customers from foreseeable dangers that might be encountered while on the premises. It is well settled Delaware law that this duty to exercise reasonable care to protect from foreseeable dangers exists. 7 A reasonable fact finder could certainly determine that Hardee's duty to inspect the premises extended to ensuring that the door mats were flat and without ripples. Other jurisdictions have explicitly identified this duty. 8 In addition, Defendants' assertion that Tipton did not see what her mother tripped on (until she saw the ripples after her mother was on the floor could reasonably confirm Plaintiffs assertion that the ripples in the mat were a concealed defect of which Hardee s had a duty to be aware. Based on these disputed facts and reasonable inferences, I cannot hold as a mater of law that there was no concealed unreasonably dangerous condition on the premises. On the issue of whether Defendants should have know about the condition, 6 Niblett v. Pennsylvania R. Co., 158 A.2d 580, 584 (Del. Super. 1960. 7 DiOssi v. Maroney, 548 A.2d 1361, 1364 (Del. Super. 1988. 8 Weaver v. Winn-Dixie of Louisiana, Inc., 406 So.2d 792, 794 (La. App. 1981. 4
Defendants cite to Shinners v. K-Mart Corporation, 9 which is another slip and fall case that uses that Callaway rule. In Shinners, the issue is whether K-Mart should have discovered the substance upon which plaintiff fell through the exercise of reasonable care. 10 In that case, summary judgment was granted because plaintiffs produced no evidence to show how long the spot was on the floor, so there would be no way for a jury to determine whether K-Mart could have discovered the spot during reasonable inspections of the floor. In the case at bar, however, Defendants witnesses have made statements to the effect that they knew the rugs tended to have ripples, they checked for ripples from time to time, and would have flattened or replaced a rug with ripples because they knew it was a safety hazard. With Defendants superior knowledge, it is impossible to determine as a matter of law that Defendants could not or should not have discovered the ripples and protected against Plaintiff s fall in the several hours between the time the new rug was placed and Plaintiff s fall. In addition, as to the remaining Defendants, deposition testimony shows that the mat in question was delivered by Unifirst at approximately 5:30 the morning of the fall; this raises the fact question of whether Unifirst bears the responsibility of ensuring flat mats were placed at Hardee s that day. The issue has also been raised as to the useful life of the mats and the lack of an obsolescence schedule for the 9 847 F. Supp. 31 (D. Del. 1994. 10 Id. at 33. 5
mats, which could expose Unifirst to liability as well. Furthermore, OTAC was under contract to supervise the management of the Dover Hardee s, but there were no safety policies in effect that addressed the care of the premises, so a jury could reasonably find that OTAC breached its duty to ensure the safety of Hardee s business invitees as well. For all of the foregoing reasons, Defendants Motion for Summary Judgment is DENIED as to all defendants. IT IS SO ORDERED. /s/ William L. Witham, Jr. Judge oc: cc: Prothonotary Order Distribution File 6