Ottinger, et al. v. Hercules Inc., et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY JORDAN OTTINGER, a minor, : by his next friends, SHERYL OTTINGER : and KEITH OTTINGER, : : Plaintiffs, : : v. : : HERCULES INCORPORATED, : HERCULES COUNTRY CLUB INC, : CHAPS 901 LLC, : WOODALE COUNTRY CLUB LLC : and DELAWARE COUNTRY CLUB, : : Defendants. : C.A. No. 04C-06-081 SCD Submitted: April 14, 2008 Decided: April 28, 2008 Decision upon Defendant Chaps 901, LLC s Motion for Summary Judgment ORDER This 28th day of April 2008, upon consideration of the motion for summary judgment filed by Defendant Chaps 901, LLC ( Chaps ), it appears that: 1. On September 28, 2001, two transactions took place among the defendants: (1) Hercules Country Club, Inc. transferred ownership of the country club, including an 18-hole golf course, to Woodale Country Club, LLC ( Woodale ); (2) Hercules Country Club, Inc. transferred the adjacent 9-hole golf course to Chaps, which immediately leased the property to Woodale. Chaps intention was to lease the 9-hole course to Woodale until it decided to develop the land. Both courses are known collectively as the Delaware National Country Club. 2. The lease between Chaps and Woodale, dated September 28, 2001, states that the tenant Woodale would maintain the property. The purchase and immediate lease to Woodale 1 was the extent of Chaps involvement with the property. Woodale has had exclusive use of the property since entering the lease. 3. On June 7, 2004, plaintiffs filed a complaint seeking damages resulting from the ingestion of arsenic and other substances suffered by the minor Plaintiff, Jordan Ottinger, while living on property located next to the Delaware National Country Club. 4. On June 12, 2007, Chaps brought this motion for summary judgment on the ground that there are no disputed facts and that Chaps is entitled to judgment as a matter of law. Chaps contends that it is merely the titled owner of the property and that because Woodale maintained possession and control, Chaps is not liable for any injury caused by a condition on the property. 5. Under Delaware law, a landowner who has neither possession nor control of the leased premises is not liable for injuries to third persons. 1 Thus, a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession. 2 But an exception arises, justifying the imposition of liability on an out-ofpossession owner, where the owner retains control of portions of the land which the lessee is entitled to use. 3 Under these circumstances, it is necessary to show actual control because once a landlord leases property, he generally relinquishes both control and possession of the leased area to the lessee. 4 6. Chaps involvement in this transaction is unique because it purchased the property from Hercules Country Club and leased it immediately to Woodale. Delaware premises-liability 1 Volkswagen of America, Inc. v. Costello, 880 A.2d 230, 233 (Del. 2005)(citing Craig v. A.A.R. Realty Corp., 576 A.2d 688, 694 (Del. Super. Ct. 1989), aff d 571 A.2d 786 (Del. 1990)). 2 Id. 3 Id. (citing Craig, 576 A.2d at 694). 4 Id. (citing Argoe v. Commerce Square Apts. Ltd. Partnership, 745 A.2d 251, 255 (Del. Super. Ct. 1999). 2 law imposes a duty only on landowners that either retain possession or create dangerous conditions before relinquishing possession. 5 Given the simultaneous nature of the purchase and lease transaction, the record does not support any finding of control on the part of Chaps. 7. Arguing the exception to the rule, Plaintiffs contend that Chaps is liable as an out- of-possession owner which retained control of portions of the land which the lessee is entitled to use. Specifically, they cite a provision in the lease that requires Woodale to seek written approval from Chaps before making any alterations or additions to the land including removal of trees and movement of dirt. 8. Actual control in the context of the duty owed by a landlord means the authority to manage, direct, superintend, restrict or regulate. 6 Neither the right to inspect the premises by the landlord nor the reservation of a right to inspect coupled with a right to retake control under certain circumstances amounts to control. 7 9. In spite of years of discovery, no evidence has been presented to suggest that Chaps was ever asked to or authorized changes to the land. There being no issue of material fact, Defendant Chaps 901, LLC s motion for summary judgment is GRANTED. IT IS SO ORDERED. __ Original to Prothonatary xc: Stephen P. Casarino, Esq. Herbert W. Mondros, Esq. Somers S. Price, Esq. Nicholas E. Skiles, Esq. 5 Volkswagen, 880 A.2d at 235. Craig, 576 A.2d at 695 7 Id. 6 3 /s/ Susan C. Del Pesco_____ Judge Susan C. Del Pesco
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