Johnson v. American Car Wash, Inc.
Annotate this Case
Download PDF
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JAMES B. JOHNSON and
BARBARA JOHNSON,
Plaintiffs,
v.
AMERICAN CAR WASH,
INC.,
Defendant.
)
)
)
) C.A. No. N11C-10-015 CLS
)
)
)
)
)
)
)
Date Submitted: May 13, 2013
Date Decided: August 21, 2013
On Defendant’s Motion for Summary Judgment. DENIED.
ORDER
Gary S. Nitsche, Esq., Weik, Nitsche & Dougherty, Wilmington, Delaware,
19899. Attorney for Plaintiffs.
Nancy Chrissinger Cobb, Esq., Law Offices of Chrissinger & Baumberger,
Wilmington, Delaware, 19806.
Scott, J.
Introduction
Before the Court is Defendant American Car Wash’s (“Defendant”)
Motion for Summary Judgment. The Court has reviewed the parties’
submissions. For the following reasons, Defendant’s motion is DENIED.
Background
Plaintiff James B. Johnson (“Mr. Johnson”) started working for
Defendant for about three months after the business changed hands from
another owner. Although he no longer worked there, he continued to visit
the property for various reasons, such as visiting friends, using the car
wash’s amenities, and discussing plans for opening a small store on
Defendant’s property where he would sell certain car wash related items.
Plaintiff had several prior communications with “Shorty”, the person who
could lease the location for the store on the property, and viewed the lease
space with him on April 13, 2010.
On April 15, 2010, Mr. Johnson went to Defendant’s property to
vacuum his car. 1 Mr. Johnson was standing outside of a car wash bay when
Tony Dolce (“Mr. Dolce”), Mr. Johnson’s prospective partner for the store
business, pulled into the parking lot. Mr. Dolce exited his vehicle, looked at
Mr. Johnson and said, “Can I talk to you?” Mr. Johnson said “Sure.” Mr.
1
There is a dispute as to what Mr. Johnson’s purpose was for being at the car wash. He
may have been there to discuss business, socialize, or to vacuum his car.
2
Dolce did not appear angry as he gestured towards the inside of the bay.
Then, Defendant’s employee, “Tek,” ran into the bay and closed the bay’s
front and rear garage doors. While the front garage door was still open, Mr.
Johnson turned toward the front door, but Mr. Dolce reached for Mr.
Johnson’s knife which he kept in a holster on his person. Mr. Johnson
wrestled with Mr. Dolce, but he was unable to stop him from obtaining the
knife. However, Mr. Johnson was able to retrieve another knife that he
carried on his person. As he retrieved his knife, Mr. Dolce stabbed him in
the chest, pulled the knife out, and attempted to stab him again. Mr. Johnson
blocked him with his arm and Mr. Dolce inflicted a seven-to-eight inch cut
under Mr. Johnson’s left armpit and then stabbed him in his left leg. Mr.
Johnson then stabbed Mr. Dolce. Mr. Johnson eventually stumbled, fell, and
hit his head on the concrete.
In his deposition, Mr. Johnson stated that he wasn’t sure why Mr.
Dolce attacked him, but a day or so prior to the altercation, Mr. Johnson
insulted Mr. Dolce after he had failed to keep an appointment to discuss the
business.
Parties’ Contentions
Plaintiffs filed this action in negligence claiming that Defendant
breached its duty owed to Plaintiff as a business invitee. Specifically,
3
Plaintiffs claim that Defendant failed to take reasonable measures to prevent
the altercation from occurring or escalating, provide adequate security, and
properly and reasonably train its staff.
Defendant moves for summary judgment arguing that, as a matter of
law, Mr. Johnson was not a business invitee on the date of the incident and
that Defendant owed no duty to protect Mr. Johnson from Mr. Dolce’s
actions. Defendant argues, in the alternative that, assuming an issue of fact
exists as to whether Mr. Johnson was a business invitee, Plaintiffs’ claims
fail not only because there was nothing to put Defendant on notice, but since
Mr. Dolce’s conduct was superseding criminal activity. Defendant also
challenges any assertion of liability based on Tek’s actions because he was
acting outside the course and scope of his employment.
Plaintiff opposes Defendant’s motion on the grounds that discovery
has yet to be completed. Plaintiff intends to depose Tek, Shorty, and Mr.
Dolce. Plaintiff asserts that since he was a business invitee, Defendant is
liable based on Restatement (Second) of Torts § 344 (1965).
Standard of Review
Summary judgment is to be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
4
fact and that the moving party is entitled to a judgment as a matter of law.” 2
When considering a motion for summary judgment, the Court must view the
evidence in the light most favorable to the nonmoving party. 3 Where there is
a material fact in dispute or if it seems desirable to inquire more thoroughly
into the facts in order to clarify the application of the law, summary
judgment is inappropriate. 4 If a motion for summary judgment is properly
supported, the burden shifts to the non-moving party to show that there are
material issues of fact. 5
Discussion
The parties have provided three possible explanations for Plaintiff’s
visit to Defendant’s property. Therefore, an issue of fact exists as whether
Plaintiff was a business invitee on Defendant’s premises. A landowner’s
duty to a business invitee is to ensure that “the premises [is] free of any
dangerous condition known or discoverable by the possessor of the land.” 6
He or she will be liable if there is “physical harm caused to a business
invitee by a condition on the land if he knows of it, or if by the exercise of
reasonable care he would discover the condition and, realizing that it
2
Superior Court Rule 56; Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Bailey v. City of Wilmington, 766 A.2d 477, 479 (Del. 2001).
4
Tew v. Sun Oil Co., 407 A.2d 240,242 (Del. Super. 1979).
5
State v. Regency Group, Inc., 598 A.2d 1123, 1129 (Del. Super. 1991).
6
DiOssi v. Maroney, 548 A.2d 1361, 1366 (Del. 1988).
3
5
involves an unreasonable risk of harm to the business invitee, give him
warning.” 7
When the physical harm is caused by “accidental, negligent, or
intentionally harmful acts of third persons [],” the business premises owner
will be liable if he “fail[s] [] to exercise reasonable care to (a) discover that
such acts are being done or likely to be done, or (b) give warning adequate
to enable visitors to avoid the harm, or otherwise to protect them against
it.” 8 The landowner’s “residual obligation” to “reasonably anticipate, and
to protect the business visitor from, the likelihood that third persons will
pose a danger to the business visitor” 9 is triggered only when the business
landowner “knows or has reason to know that the acts of the third person are
occurring, or about to occur.” 10
The intentional torts or criminal acts of a third party may be
considered the “superseding cause” of harm for which a party will not be
liable, “unless the actor at the time of his negligent conduct realized or
should have realized the likelihood that such a situation might be created,
7
Hamm v. Ramunno, 281 A.2d 601, 603 (Del. 1971).
Restatement (Second) of Torts, § 344; Jardel Co., Inc. v. Hughes, 523 A.2d 518, 52526 (Del. 1987) (“there is a residual obligation of reasonable care to protect business
invitees from the acts of third persons”).
9
DiOssi, 548 A.2d at 1367.
10
Restatement (Second) of Torts, § 344, Comment f.
8
6
and that a third person might avail himself of the opportunity to commit such
a tort or crime.” 11
Defendant is correct that the facts presented to the Court thus far do
not clearly demonstrate that Defendant knew or should have known that Mr.
Dolce would attack Plaintiff. However, since Defendant’s employee closed
the bay doors before the incident began the Court will infer, in favor of
Plaintiffs, that Defendant might have had some notice, via its employee, that
Mr. Dolce might attack Plaintiff. Therefore, an issue of fact exists as to
whether Defendant had knowledge or reason to know that Mr. Dolce would
attack Mr. Johnson and whether Mr. Dolce’s conduct constituted a
superseding cause.
Defendant also argues that it is not liable for Tek’s actions since Tek
was acting outside of the course and scope of his employment based on the
Restatement of Agency (Second) § 228. The question of whether a tortuous
act is committed within the course and scope of employment must be left to
the jury, unless the question is so clear that it should be decided as a matter
of law. 12 Sections 228 and 229 of the Restatement provide factors to guide
the Court in determining whether employee conduct is within the scope of
11
12
Restatement (Second) of Torts, § 448.
Draper,181 A.2d at 569.
7
his employment. 13 Although Tek was a window tinter, the full extent of his
duties at the car wash has yet to be discovered. Therefore, summary
judgment is inappropriate on this issue. 14
Based on the foregoing analysis, the Court finds that genuine issues of
fact exist as to whether Plaintiff was a business invitee, whether Defendant
knew or had reason to know that Mr. Dolce would attack Plaintiff, and
whether Defendant bears any responsibility based on Tek’s actions. The
Court agrees with Plaintiffs that the completion of discovery would be useful
to the Court on these issues. 15 Therefore, summary judgment is denied
without prejudice.
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary
Judgment is DENIED.
IT IS SO ORDERED.
/s/calvin l. scott
Judge Calvin L. Scott, Jr.
13
Id. at 570.
It is notable that Comment b to Section 448 Restatement (Second) of Torts, explains
that business premises owners may also be liable for acts of third parties who are servants
“acting outside of the scope of their employment.”
15
Singeterry v. H.H. Moor, Jr. Trucking Co., Inc. 1996 WL 527313, at *3 (Del. Super.
June 20, 1996).
14
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
