Summary
holding that developers of a shopping mall had no duty to provide a safe crosswalk to a minor who was hit by a vehicle and killed while attempting to cross a highway as he was leaving the shopping mall
Summary of this case from Gestwicki v. Pine Woods, Inc.Opinion
No. 136, 1998.
Decided: December 9, 1998.
Superior CA 96C-11-258.
Affirmed.
Unpublished Opinion is below.
RONALD COALE and SUZANNE COALE, individually and as Administrators of the Estate of RONALD KEVIN COALE, deceased, Plaintiffs Below, Appellants, v. JAMES C. ROWLANDS, WOODLAWN TRUSTEES, INC., HIGHFIELD PARTNERSHIP, L.P., DELLE DONNE ASSOCIATES, INC., LANDMARK ENGINEERING, INC., and DEL CONCORD ASSOCIATES, L.P., Defendants Below, Appellees. No. 136, 1998. In the Supreme Court of the State of Delaware. Submitted: September 29, 1998. Decided: December 9, 1998.
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
ORDER
This 9th day of December, 1998, upon consideration of the briefs of the parties, it appears to the Court that:
1) Appellants are the parents of Ronald Kevin Coale, a thirteen year old boy who was hit by a vehicle and killed while attempting to cross the Concord Pike (Rte. 202) in Wilmington, Delaware. Appellants brought suit against the driver of the vehicle, alleging negligence, and against the developers of the Brandywine Commons Shopping Center, alleging liability for failure to provide a pedestrian passage across the Concord Pike. The Superior Court granted appellees' motions for summary judgment, finding no evidence of negligence by the driver of the vehicle, and no duty on the part of the developers to provide safe passage across a public road. We affirm.
2) On the night of the accident, Coale went to the Concord Mall to meet some friends. He walked across the Concord Pike to visit another friend who worked in a store in the Brandywine Commons Shopping Center. At about 8:20 p.m., Coale started back across the Concord Pike. James C. Rowlands was driving his pick-up truck in the middle southbound lane. Rowlands slowed down as he approached the intersection with Rocky Run Parkway because the traffic light was red. The light changed to green before he got there, however, and Rowlands began to accelerate. He was traveling at about 30 — 35 miles per hour and was about 100 yards south of the intersection when Rowlands saw Coale right in front of the right side of the pick-up truck. Rowlands attempted to swerve and hit the brakes, but was unable to avoid hitting Coale.
3) Appellants argue that their claim against Rowlands should have gone to the jury because there was evidence suggesting that Rowlands was inattentive. Specifically, they point out that Rowlands had just worked a 12-hour shift and had consumed most of a 12 ounce can of beer shortly before the accident. In addition, Rowlands did not see Coale crossing the highway until Coale was right in front of the pick-up truck. Another driver, Allen Spiro, was traveling behind Rowlands and did see Coale standing on the side of the road getting ready to cross. Appellants' expert opined in an affidavit that Coale was visible on the side of the road and that, if Rowlands had "seen and reacted appropriately" to Coale's attempted crossing, the accident "would not have occurred as it did."
4) Generally, issues of negligence are fact questions for the jury. Summary judgment is appropriate only in those rare cases where the moving party "demonstrate[s] not only that there are no conflicts in the factual contentions of the parties but that, also, the only reasonable inferences to be drawn from the uncontested facts are adverse to the [non-moving party]. . . ." Watson v. Shellhorn Hill, Inc., Del. Supr., 221 A.2d 506, 508 (1966).
5) The record with respect to Rowlands' actions and reactions offers no basis for a finding of negligence. Rowlands was driving well under the speed limit, he was aware of the traffic around him, and, as soon as he saw Coale in his path, Rowlands swerved and tried to stop. Although Rowlands had just worked for 12 hours, that was Rowlands' normal work schedule and there was no evidence that his driving was impaired by fatigue. The fact that Rowlands drank part of a can of beer before going out, likewise, contributed nothing to appellants' negligence claim. The investigating officer found no indication that Rowlands was intoxicated and a blood test taken approximately two hours after the accident showed 0.00 blood alcohol content.
6) The only issue as to which there is some factual dispute is the question of whether Rowlands could have seen Coale on the side of the road before Coale started across the Concord Pike. Rowlands did not see Coale, but appellants' expert says that Coale was "available to be seen" for several seconds. Another driver, who did see the boy, thought that a dark car traveling to the right and slightly ahead of Rowlands blocked Rowlands' view of the sidewalk.
7) Assuming that Rowlands could have seen Coale on the sidewalk, Rowlands still is entitled to summary judgment, as he had no duty to anticipate that a pedestrian would attempt to cross a six lane, 50 mile-per-hour road at a place where there was no traffic signal. See: Storey v. Castner, Del. Supr., 314 A.2d 187, 190-91 (1973).
8) Appellants' claim against the developers of the Brandywine Commons Shopping Center also was rejected by the Superior Court. Appellants contend that the developers had a duty to provide a safe crosswalk between the Brandywine Commons Shopping Center and the Concord Mall. They acknowledge that landowners generally are not responsible for the condition of adjoining public roads. Nonetheless, they say that the developers created a dangerous condition by building a shopping area across the road from the Concord Mall and, as a result, they had a duty to protect shoppers walking from one shopping center to the other.
9) The Superior Court was correct in finding that no such duty exists. The Concord Pike is a public road and is "under the absolute care, management and control of the [State Department of Transportation]." 17 Del. C. § 131(a). "[A] property owner, who is otherwise without fault, owes no duty to pedestrians who are injured on an abutting highway or sidewalk which is part of the public domain." MacGrath v. Levin Properties, N.J. Super. A.D., 606 A.2d 1108, 1110 (1992). This is not a case, like Sandt v. Delaware Solid Waste Authority, et al., Del.Super., C. A. No. 90C-10-234 (September 22, 1994) (Mem. Op.), where employees were required to park in a lot located across a public road from the workplace. The Brandywine Commons Shopping Center and the Concord Mall may be compatible, and even symbiotic, uses of the two parcels. But the developers do not control both properties, and there is nothing about the operation of the Brandywine Commons Shopping Center that compels patrons or other invitees to walk across the Concord Pike from the Concord Mall.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.