IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WAWA STORE #809 and
LB POWELL, LLC,
C.A. No. N10C-09-101 PLA
Submitted: July 25, 2012
Decided: August 13, 2012
UPON DEFENDANT WAWA STORE #809’S MOTION FOR SUMMARY
On this 13th day of August, 2012, it appears to the Court that:
Before the Court is a Motion for Summary Judgment 1 filed by
Defendant Wawa Store #809 (“Wawa”) on the grounds that both the terms of the
contract between tenant Wawa and landlord LB Powell, LLC (“LB Powell”), and
the subsequent acts of the parties as to how the contract was interpreted by them
preclude Plaintiff James Trombetti (“Trombetti”) from establishing that Wawa
The motion submitted by Wawa bears the heading, “Motion for Summary Judgment.”
However, the recitation of the first paragraph seeks dismissal pursuant to Rule 12(b)(6) and asks
the Court to dismiss Trombetti’s and Powell’s claims for failure to state a claim under which
relief can be granted. Upon review of the record and the pleadings in this case, the Court is
satisfied that a factual dispute as to the obligations of the tenant and the landlord with respect to
business invitees exists. Therefore, under either standard, Wawa cannot recover at this stage of
owed any duty to Plaintiff with respect to the condition of the sidewalk where
Plaintiff slipped and fell. For the reasons set forth below, the Motion is DENIED.
This personal injury case arises from Trombetti’s slip and fall on a
patch of ice near the Wawa store in the Carpenter Station Road shopping center on
the morning of December 24, 2008. Trombetti fell on an icy sidewalk while
returning to his car after making his purchases at Wawa.
At his deposition,
Trombetti testified that he advised Wawa employees while he was in the store that
the sidewalk was icy and that they should put down some salt. 2 After he fell,
Trombetti testified, Wawa’s manager came to the parking lot to check on
Trombetti and then promptly salted the sidewalk. 3 Trombetti now seeks damages
from both Wawa and LB Powell, asserting that they neglected their duty to keep
the premises safe for business invitees.
Wawa and LB Powell have both denied liability and filed cross-claims
against each other, each asserting that it was the other party’s duty to keep the
walkways to and from the store free of hazards. Wawa has now filed the instant
motion for summary judgment, arguing that the express terms of its lease with LB
Powell provide that LB Powell would be responsible for maintaining the common
areas of the shopping center, including plowing and salting the sidewalks and
parking lot. Wawa further relies on the testimony of Calvin Powell, LB Powell’s
Trombetti Dep. Tr. at 13.
Id. at 23; 66.
general manager, who stated that his nephew plowed and salted surfaces at the
shopping center in inclement weather because it was LB Powell’s responsibility.
Defendant LB Powell has filed a Response in opposition to the
Motion in which it cites Delaware cases that require the landowner or occupier to
take reasonable steps to make the premises reasonably safe from the hazards
associated with natural accumulations of ice and snow for the benefit of business
invitees. Since Wawa occupied the property, LB Powell argues that the question is
not one of duty but whether Wawa controlled the area where Plaintiff fell. LB
Powell submits that whether Wawa controlled the sidewalk and whether it
consequently had a duty to protect customers from ice and snow are questions of
fact thus precluding summary judgment.
Summary judgment is appropriate where the record presents no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. 4 When considering a motion for summary judgment, the Court must
view the record in the light most favorable to the non-moving party, and the Court
must draw all reasonable inferences in favor of the non-moving party. 5 On a
motion for summary judgment, the moving party bears the initial burden of
showing that there are no material facts in dispute. 6 If the moving party meets this
Super. Ct. Civ. R. 56(c).
E.g., Merrill v. Crothall-American, Inc., 606 A.2d 96, 100 (Del. 1992).
Manucci v. The Stop ‘n’ Shop Companies, Inc., 1989 WL 48587, *2 (Del. Super. May 4, 1989).
burden, then the burden shifts to the non-moving party to set forth specific facts in
its response to the motion for summary judgment that go beyond the bare
allegations of the complaint. 7 Where a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
the party will bear the burden of proof at trial,” the Court must enter summary
judgment against that party. 8
In its Response to the Motion, LB Powell relies upon Delaware’s
adoption of the rule requiring the land owner or occupier to take reasonable steps
to make the premises reasonably safe from the hazards associated with natural
accumulations of ice and snow for the benefit of business invitees. 9 Furthermore,
LB Powell argues that the manager’s response to Trombetti’s fall, including
bringing a bag of salt out to the parking lot, indicates that Wawa exercised control
over the premises, 10 and that Wawa may be held liable for its failure to exercise
reasonable care in making its premises safe for invitees. 11 Having considered the
cases cited in LB Powell’s Response to the Motion and the fact that there is
evidence of subsequent precautions taken by Wawa after the accident, which bear
Id. at *3.
Id. at *4.
Woods v. Price’s Corner Shopping Ctr. Merchants’ Assoc., 541 A.2d 574 (Del. Super. 1988);
Grochowski v. Stewart, 169 A.2d 14 (Del. Super. 1961); D.R.E. 407.
Handler Corp. v. Tlapechco, 901 A.2d 737 (Del. 2006) (holding that one who undertakes,
gratuitously or for consideration, to render services to another which he should recognize as
necessary for the protection of a third person, is subject to liability for his failure to undertake
reasonable care to protect the person if he has undertaken a duty and harm is suffered as a
on the issue of its control, the Court is convinced that there are obvious issues of
fact, rendering summary judgment inappropriate.
The Motion is therefore
IT IS SO ORDERED.
/s/ Peggy L. Ableman
PEGGY L. ABLEMAN, JUDGE
Original to Prothonotary
cc: All counsel via File & Serve