IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
MEGAN E. BERNS, individually
:
and as next friend for minor plaintiff, :
KYLEE R. BERNS,
:
:
Plaintiffs,
:
:
v.
:
:
DEBRA A. DOAN,
:
:
Defendant.
:
C.A. No. 05C-07-036 WLW
Submitted: January 29, 2007
Decided: April 13, 2007
ORDER
Upon Defendant’s Motion for Summary Judgment.
Granted.
I. Barry Guerke Guerke, Esquire of Parkowski Guerke & Swayze, P.A., Dover,
Delaware; attorneys for the Plaintiffs.
Brian T. McNelis, Esquire of Young & McNelis, Dover, Delaware; attorneys for the
Defendant.
WITHAM, R.J.
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
Plaintiffs1 (“the Berns”), filed a negligence action against the Defendant, Debra
Doan, arising out of an automobile accident that occurred on November 14, 2003.
After realizing the road ahead was closed for tree removal, Ms. Berns “nosed” her
vehicle into the Defendant’s driveway, so that she could turn her vehicle around.2 The
exact distance that P laintiffs dr ove into Ms. B erns driv eway is in dispute, b ut it is
undisputed that Ms. Berns “nosed” her car or entered into the Defendant’s driveway.
Ms. Berns stopped in the Defendant’s driveway and looked over her shoulder to make
sure her intended path was clear before reversing her car. Defendant Doan backed out
of her own driveway, unaware of the Plaintiffs’ presence, and the vehicles collided.
Defendant Doan filed a Motion for Summary Judgment arguing that the
premises guest statute, 25 Del. C. § 1501, bars Plaintiffs’ cause of action against Ms.
Doan because the impact took place within the p roperty o ccupied by the D efendan t.
Further, Ms. Doan claims that the premises guest statute bars the claim because there
is no evidence that Plaintiffs were business invitees, nor is there evidence of wilful or
wanton condu ct on beh alf of the D efendan t.3 Among other contentions, Plaintiffs
argue that there is a street rig ht-of-w ay whe re Plaintif fs “nosed ” their vehicle into Ms.
Doan’s driveway, so the actual impact occurred in an area reserved for public use as
1
Plaintiffs in this action are Megan E. Berns, individually and as next friend for minor
plaintiff, Kylee R. Berns.
2
Defendant Doan and her family were full time residents of a home located at 226A Center
Street, Camden, Delaware 19934, which is the site of the incident in question. The house was rented
to the Doans by S. Walt Sampson by lease dated January 14, 2004.
3
Plaintiffs do not allege that the Defendant’s conduct was wilful or wanton.
2
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
a thoroughfare. Thus, the Berns were public invitees at the time of the accident
exemp ting them from ap plication o f the prem ises gues t statute.
The Court ruled on certain issu es presen ted by the Parties, p ursuan t to the
Defenda nt’s original Motion for Summary Judgment, by Court Order dated December
28, 2006.4 The Court also requested further submissions from the Parties concerning
the specific issue of a potential right-of-way on the Defendant’s property upon the
application of the premises guest statute. The further submissions are presently before
the Cou rt.
Standard of Review
Summary Judgment should be rendered if the record shows that there is no
genuine issue as to any material fact and the mov ing party is entitled to judgment as
a matter of law.5 The facts must be viewed in the light most favorable to the nonmoving party.6 Summary judgment may not be granted if the reco rd indica tes that a
material fact is in dispute, or if it seems desirable to inquire more thoroughly into the
4
The Court previously decided that an absurd or unworkable result would not occur if the
premises guest statute were applied to vehicular collisions like the one in question. Therefore, the
premises guest statute can be construed to bar actions by guests without payment or trespassers
against the occupier of a private residential premises for vehicular collisions, like the one in this
case, that occur on the occupier’s private premises. Further, the Court decided that the Berns were
not public invitees based on the Restatement (Second) of Torts definition nor through implied
invitation through necessity based on the facts presented.
5
Superior Court Civil Rule 56(c).
6
Guy v. Judicial Nominating Comm’n, 649 A.2d 777, 780 (Del. Super. 1995).
3
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
facts in order to clarify the application of the law to the circumstances. 7 However,
when the facts permit a reasonable person to draw but one inference, the question
becomes one for a decision as a matter of law.8 When a moving party through
affidavits or other admissib le eviden ce show s that there is no genuine issue as to any
material fact, the burden shifts to the non-moving party to demonstrate that there are
material iss ues of fa ct.9
Discussion
Title 25 Del. C. § 1501, known as the premises guest statute, addresses the
liability of o wners or occu piers of la nd for in jury to gu ests or tres passers.
“No person who enters onto private residential or farm premises owned
or occupied by another person , either as a guest without payment or as a
trespasse r, shall have a cause of action against the owner or occupier of
such premises for any injuries or damag es sustain ed by su ch perso n while
on the prem ises unles s such ac cident w as intentio nal on the part of the
owner or occupier or was caused by the wilful or wanton disregard of the
rights of others.” 10
The premises guest statute governs an occupier’s liability for incidents that occur
when guests without payment or trespassers enter onto an occupier’s private property.
The statute w as intend ed to pro tect the occ upier fro m suits b y guests b ased on simple
7
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
8
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
9
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
10
25 Del. C. § 1501.
4
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
acts of neglig ence. H owev er, a finding that Plaintiffs are public invitees, as opposed
to guests without payment o r trespassers, triggers a more stringent duty owed to the
invitees by the possessor of the land. A home owner or occupier owes a duty to a
person that is found to be a public invitee to inspect the premises and to h ave mad e it
reasona bly safe by repair or to have given w arning of any dangerous conditions.11
Plaintiffs argue that they are public invitees because the accident actually occurred in
the street right-of-way. The Berns contend that the street right-of-way, an area
reserved for public use as a thoroughfare, extends 9 ½ feet beyond the paved portion
of the roadway, over the D efendant’s property. 12
Plaintiffs contend that two Delaware Supreme Court cases support their position
that the existence of the public easement (right-of-way) over the Defen dant’s pr operty
where the accident occurred, renders this case an exception to the gu est premise
statute. In Malin v. Consolidated Rail Corp., the Delaware Supreme Court found that
the Plaintiff was a “public invitee”, under the Restatement (Second) of Torts, and the
premises guest statute was therefore inapplicable.13 In Caine v. New Cas tle Coun ty,
the Delaware Supreme Court reversed a grant o f summ ary judg ment in favor o f certain
11
Lum v. Anderson, 2004 WL 772074, *1 (Del. Super.).
12
Plaintiffs have submitted two affidavits to support this proposition. Defendant Doan
contends that Plaintiffs failed to submit evidence from which a jury or Court could conclude that the
Defendant’s property was subject to any easement or right-of-way because the proffered language
in Plaintiffs’ supporting affidavit lacks specificity. This argument does not need to be addressed at
this time.
13
Malin v. Consolidated Rail Corp., 438 A.2d 1221, 1227-1228 (Del. 1981).
5
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
Defen dants based on the Restatement (Second) of Torts.
The Supreme Court
determined that certain Defendants were not entitled to judgment as a matter of law on
the theory that the decedent w as a trespasser [u nder the gu est premises statute]. 14 Both
cases are factually dissimilar to the case at hand and this Court reiterates its finding that
Plaintiffs were not public invitees under the Restatemen t (Second) of Torts.
In Malin , the Dela ware S uprem e Cour t empha sized that C omme nts b and c of
the Restatement (Second) of Torts § 332 sugg est that expectation and desire [to enter
the premises] must be viewed from the entering public’s point of view.15 In Malin , a
member of the public (the plaintiff) was traveling on a public roadway, which was the
14
Caine v. New Castle County, 379 A.2d 1112, 1115 (Del. 1977).
15
Malin, 438 A.2d at 1226. Restatement (Second) of Torts § 332(2)(1965) defines a public
invitee as a person who is invited to enter or remain on land as a member of the public for a purpose
for which the land is held open to the public.
Comment b to Restatement (Second) of Torts § 332 states: Invitation and permission.
Although invitation does not itself establish the status of an invitee, it is essential to it. An invitation
differs from mere permission in this: an invitation is conduct which justifies others in believing that
the possessor desires them to enter the land; permission is conduct justifying others in believing that
the possessor is willing that they shall enter if they desire to do so. Any words or conduct of the
possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient
for an invitation. A common form of invitation is preparation of the land for the obvious purpose
of receiving the visitor, and holding it open for that purpose.
Comment c to Restatement (Second) of Torts § 332 states in relevant part: In determining
whether a particular person is an invitee, the important thing is the desire or willingness to receive
that person which a reasonable man would understand as expressed by the words or other conduct
of the possessor. It is immaterial that the person is one whom the possessor is not willing to receive
as an invitee if the possessor’s words or other conduct are understood, and would be understood by
a reasonable man, as indicating the possessor’s willingness.
6
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
only entrance into and exit out of a p ublic land fill.16 While tr aveling o n the pu blic
roadway, the plaintiff crossed a private railroad that intersected the public road.17 The
private crossing had every appearance of being a continuation of the public roadway. 18
Photographs showed that the surface of the railroad crossing was paved and level with
the road surface, which was also paved.19 There were no signs at the crossing
indicating that the crossing was private in nature.20 Further, the only means of access
into the public landfill was by crossing the [private] railroad tracks. 21 The Court found
that the appearance of the railroad crossing was an unequivocal act done by the
defendant company, holding its land open to the public for the purpose of accessing
the landfill. 22 Conse quently, th e Cour t determin ed that it would appear to a reason able
person in the plaintiff’s position that his crossing the tracks was both expected and
desired, and the Plaintiff was therefore held to be a public invitee under the
Restatem ent.
In Caine, an eleven year old decedent was killed as a result of a sledding
16
Malin, 438 A.2d at 1226.
17
Id.
18
Id.
19
Id. at 1224.
20
Id.
21
Id.
22
Id. at 1226.
7
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
accident that occurred on public property. 23 The area that the decedent’s accident
occurred was under construction.24 The specific land under development was part of
and contiguous to a much larger tract of parkland which was apparently not being
develo ped.25 The Delaware Supreme Court reversed the Superior Court’s grant of
summary judgment in favor of certain defend ants find ing evid ence sug gesting th e child
was a public invitee.26 The Supreme Court determined that there was an inference that
the disputed area was not effectively closed to public use and that the decedent
understood this to indicate the County’s consent or willingness to enter as a member
of the public.27 The absence of any signs or boundaries restricting access to the
recreation area under development or isolating it from the larger park facility which
remained open to the public was pivotal to the Court’s decision.28 Additionally, the
child’s presenc e in the pa rk was in confo rmity w ith the pu blic purp ose for w hich it
existed.29 This Court articulated that Caine and Malin read together suggest that the
visitor’s purpose in entering the subject premises must be approp riate to and coincide
23
Caine v. New Castle County, 379 A.2d 1112, 1115 (Del. 1977).
24
Id.
25
Id.
26
Id.
27
Id.
28
Anderson v. Armstrong, 1982 WL 172854, *2 (Del. Super. 1982) explaining and citing
Caine, 379 A.2d at 1115.
29
Id.
8
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
with the public p urpose to which the pro perty seem ingly ava ils itself.
The alleged str eet right-of-way in Defendant Doan’s driveway where the
accident purportedly occurred in the case at hand is unlike the railroad cro ssing in
Malin and the public park in Caine. In Malin , the Plaintiff w as travelin g on a p ublic
roadway that was the only access point to a public landfill. The private railroad
crossing intersected a continuing public roadway. T hus, the public road led up to the
private crossing and continued on after the crossing. In Caine, the decedent was
injured on a portion of public land that was under development. Other contiguous
areas of the public land were open for public use. There was an inference that the
disputed area wa s not effe ctively clos ed off to the pub lic and the deceden t could have
understood that the County consented to his entering the area as a member of the
public. In the case sub judice, Ms. Do an’s drivew ay was n ot a throu ghwa y nor pu blic
land. The Defendant’s driv eway did not intersect a continuing public roadway, nor
was the driveway public land under develop ment tha t was pa rt of and contigu ous w ith
a larger tract of public land not under development. The driveway solely led to the
Defenda nt’s residence and it was for the personal use of the Defen dant only.
Therefore, the nature of the land in question in this case is distinguishable from the
land in Malin and Caine.
The conduct of Plaintiffs would not lead a reasonable person to believe that their
entrance onto the Defendant’s private drivew ay, for the purpose of turning around, was
expected and desired by the Defendant. The Defendant did nothing to make her
driveway appear a s if it were open to the public. Plaintiffs argue that the lack of posted
9
Berns v. Doan
C.A. No. 05C-07-036 WLW
April 13, 2007
signs warning people to stay off the premises (indicating no trespassing), and/or the
lack of a barricade blocking the driveway evidences conduct by the Defendant that
would lead a reasonable person to understand Ms. Doan’s willingness to receive the
person. In Malin and Caine, the lack of signs, etc. played a role in the Supreme
Court’s decisions. However, as discussed above, the land at issue in those cas es is
different from Ms. Doan’s personal driveway here. The Court believes that Ms. Doan
should not be re quired to take affirmative steps, such as posting signs, to evidence her
unwillin gness in allowin g public entry on to her oth erwise p rivate driv eway.
Based on the foregoing, Plaintiffs were not public invitees when they entered
onto the private premises occupied by Ms . Doan . Theref ore, the g uest prem ises statute
is applicable. The Berns, as guests without payment or trespassers, are barred from
recovering pursuant to a negligence action against Ms. Doan as the occupier of the
private residential premises where the accident occurred. Examining the facts in a light
most favorable to the non-moving Plaintiffs, summary judgment in favor of the
Defendant is appropriate.
For the reasons set forth above and the reaso ns articula ted in the Court’s Order
dated December 28, 2006, the Defendant’s Motion for Su mmary Judgm ent is granted.
IT IS SO ORDERED.
/s/ William L. With am, Jr.
Resident Judge
WLW/dmh
oc: Prothonotary
xc: Order Distribution
10
