Summary
In Burris v. Penn Mart Supermarkets, Inc., 2006 WL 2329373 (Del.Super. 2006), the Court also denied summary judgment in a case with similar facts.
Summary of this case from Norton v. Food Lion, Inc.Opinion
C.A. No. 04C-11-004 MMJ.
Submitted: May 30, 2006.
Decided: July 13, 2006.
Upon Defendant's Motion for Summary Judgment , DENIED.
James A. Erisman, Esquire, The Erisman Law Firm, LLC, Wilmington, Delaware, Attorney for Plaintiff.
Stephen P. Casarino, Esquire, Casarino, Christman Shalk, Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
Defendant Penn Mart Supermarkets, Inc. ("Penn Mart") filled a Motion for Summary Judgment on May 10, 2006, seeking dismissal of the case. The Court heard oral argument on May 30, 2006.
SUMMARY JUDGMENT STANDARD
This Court will grant summary judgment only when no material issues of fact exist. The moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, summary judgment must be granted. A court deciding a summary judgment motion must identify disputed factual issues whose resolution is necessary to decide the case, but the court must not decide those issues. The Court must evaluate the facts in the light most favorable to the non-moving party. Summary judgment will not be granted under circumstances where the record reasonably indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp. v. Catrett, supra.
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
Id.
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
FACTUAL SUMMARY
The following facts are set forth in the light most favorable to Plaintiff Stanford Burris, as the non-moving party. On July 1, 2003, Plaintiff was shopping at Defendant's store. Plaintiff fell as he walked down an aisle near the soap display. Plaintiff saw nothing on the floor before he slipped. After he fell, he recalled that his pants, shirt and shoulder were wet.The Customer Accident Report signed by an employee of Defendant described the incident as the Plaintiff having "slipped on drops of dish liquid." The Report also lists the nature of injuries and the location of the fall.
The store inspection procedure required that the night crew clean the store prior to opening. The store manager walked through the store periodically and inspected the floor. A store employee was supposed to go through the store at least once an hour to make sure that there were no safety hazards. The procedure included a protocol for informing the manager of any spill and for rectifying the problem.
ANALYSIS
The Court must consider whether Penn Mart is entitled to summary judgment as a matter of law. If there exists any genuine issue of material fact, summary judgment must be denied. In order to prove liability, Plaintiff must demonstrate: (1) that a dangerous substance was on the floor at the time of Plaintiff's fall; (2) that the dangerous substance caused Plaintiff's fall; and (3) that the dangerous substance was discoverable through reasonable inspection by Defendant.
Howard v. Food Fair Stores, New Castle, Inc., 201 A.2d 638, 640-42 (Del. 1964); Upshur v. Bodie's Dairy Market, 2003 WL 21999598, at *2-3 (Del.Super.).
Burris testified at arbitration that after the fall, he was wet and that the substance was "wet and slick." Although Burris could not identify the substance, this testimony alone creates an issue of fact that must be resolved by the trier of fact.
The Penn Mart Thriftway Aisle Check Sheet lists hourly inspections, initialed by Penn Mart employees for the day in question. Despite this evidence of compliance with established inspection procedures, there are some discrepancies in testimony as to whether these inspections actually took place at the listed intervals. There is also a question of fact as to whether the employees themselves initialed the Sheet or whether such initials were entered by other persons retroactively.
Finally, the reasonableness of the inspection procedure is a classic question for the factfinder. If so, the jury then must determine whether any dangerous substance could have been found had the procedure been followed.
CONCLUSION
Viewing the facts in the light most favorable to the non-moving party, the Court finds that genuine issues of material fact exist that must be resolved by the finder of fact. THEREFORE, Defendant's Motion for Summary Judgment is hereby DENIED.