Opinion
C.A. No. 05C-05-042 WLW.
Submitted: January 18, 2008.
Decided: May 2, 2008.
Upon Defendant Mill-Pond Properties, Inc.'s Motion for Summary Judgment. Denied.
William D. Fletcher, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for the Plaintiffs.
Daniel P. Bennett, Esquire of Mintzer Sarowitz Zeris Ledva Meyers, LLP, Wilmington, Delaware; attorneys for Defendants Cumberland Engineering Company, Inc., ACS Auxiliaries Group, Inc., and Cumberland Engineering Corporation.
Ryan M. Ernst, Esquire of Marks O'Neill O'Brien Courtney, P.C., Wilmington, Delaware; attorneys for Defendant Mill-Pond Properties, Inc.
Mary E. Sherlock, Esquire of Mary E. Sherlock, P.A., Dover, Delaware; attorneys for Defendant Joseph L. Warnell.
Kevin J. Connors, Esquire of Marshall Dennehey Warner Coleman Goggin, Wilmington, Delaware; attorneys for Third-Party Defendant Clariant Corporation.
ORDER
On January 4, 2008, Defendant Mill-Pond Properties, Inc. ("Defendant Mill-Pond") filed a motion for summary judgment. Individual Defendant Joseph Warnell ("Defendant Warnell"), the current President and owner of Defendant Mill-Pond joins and concurs with Defendant Mill-Pond's motion to the extent that the motion supports that there is no basis for any claims against Defendant Warnell and renews his motion for summary judgment. Defendant Clariant filed a limited joinder of Defendant Mill-Pond's motion. Defendant Cumberland Engineering Company and its related entities oppose this motion. Plaintiff Rocky Stayton ("Plaintiff") filed a response on January 17, 2008.
Arguments were heard on this issue on January 18, 2008. Present at the hearing were the attorneys for Defendant Mill-Pond, Defendant Clariant Corp. ("Defendant Clariant") and Plaintiff. Relevant parties that were missing at that hearing were Cumberland Engineering Company and its related entities ("Defendant Cumberland Engineering") and Defendant Warnell. A February 26, 2008 Mediation did not resolve the issues.
The following lists all the parties to this case at the time of this motion: Rocky Stayton, Plaintiff; Cumberland Engineering Corp., Cumberland Engineers Contractors, Inc., Defendant; Mill Pond Properties, Inc., 3rd Party Plaintiff, Defendant; Polymer Color North America, Inc., Defendant; Plastic Materials Co., Inc., Defendant; Clariant Corp., Defendant; Joseph L. Warnell, Defendant; A.C.S. Auxiliaries Group, Inc., Defendant; and P.M.C. Acquistion Co., Inc., Defendant.
BACKGROUND
On May 20, 2003, Plaintiff was seriously injured while moving a large four-wheeled pelletizer machine, weighing nearly 1700 pounds, on the premises where he worked ("the Premises"). Plaintiff was manually moving the machine through a passageway of the Premises over an allegedly defective concrete flooring. Plaintiff claims that the floor had a notable depression and cracking that caused the pelletizer machine to become unstable and to tip over onto him. Plaintiff suffered extensive crushing injuries to his left leg and hand and has undergone numerous surgeries. Plaintiff was employed as a Senior Machine Operator by Defendant Clariant in Milford. The Premises where he worked were leased by Defendant Clariant and owned by Defendant Mill-Pond and/or Defendant Warnell.
Plaintiff's Complaint, with respect to this Motion, alleges that Mill-Pond was negligent in its duty to inspect, maintain and repair the Premises and that Mill-Pond was negligent in its ownership of the pelletizer machine. Mill-Pond filed a third-party complaint against Defendant Clariant.
Defendant Mill-Pond originally leased the Premises to PMC Acquisition ("Defendant PMC"). Defendant Polymer Color North America, Inc. ("Defendant Polymer") was PMC's successor and assumed PMC's lease with Mill-Pond. Defendant Polymer then assigned the lease to Defendant Clariant. Therefore, at the time of the accident the lease was between Defendant Mill-Pond and Defendant Clariant.
The Lease that bound Defendants Mill-Pond and Clariant was signed on May 8, 1996 and was between Mill-Pond and PMC Acquisition. Polymer succeeded PMC and therefore assumed PMC's lease with Mill-Pond. Then Polymer assigned the lease to Clariant, who was therefore the lessee for the Premises on the date of the accident.
The Lease provided that "Landlord covenants that . . . the Premises are in good order and satisfactory condition." It also required that the tenant, Defendant Clariant, maintain and care for the Premises and that "no representation respecting the condition of the Premises have been made by or on behalf of the Landlord to the Tenant except to the extent expressly set forth herein or made a part hereof." Further, it stated that the Landlord [Mill-Pond] has "responsibility to perform repairs at its sole expense to those latent defects of the Buildings' structural systems including foundations, walls, structure and floor structural slabs which have a material adverse effect on the operation of the Subject Business." Mill-Pond did not receive any notice that there was a problem with the floor.
Industrial Buildings Lease ¶ 4, "Condition of the Premises" (hereinafter "Lease").
Lease ¶ 4.
Lease ¶ 8, "Maintenance and Repairs."
Regarding fixtures, the Lease provided that "[e]xcept for such fixtures, machinery and equipment previously installed in the premises and which comprise the Subject Assets, as that term is defined in the Asset Purchase Agreement, all fixtures, machinery and equipment which are necessary for the general operation and maintenance of the Premises ("Landlord's Fixtures and Equipment") shall be the property of the Landlord, whether owned by Landlord or subsequently purchased by Landlord." Plaintiff argues that this clause is evidence that Defendant Mill-Pond owned the Pelletizer that fell upon him.
The Asset Purchase Agreement was not provided to the Court.
During his deposition, Defendant Warnell testified that the Premises were in excellent condition when it was transferred to Defendant Clariant and that there were no cracks on the floor. He also said that Defendant Clariant had an "extensive" history of removing the concrete floor and re-pouring it, and that if the alleged condition existed, only Defendant Clariant knew about it. Further, according to Defendant Clariant interrogatory answer, Clariant owned the pellitizer, not Mill-Pond. Defendant Mill-Pond argues that there is no evidence that they owned the pellitizer.
Plaintiff argues that discovery is still on-going and that this motion is therefore premature. Some of the discovery relates to ownership, maintenance and the nature of the pellitizers as well as the possible existence of unsafe flooring prior to the tenancy of Clariant and asserts that ownership is not as clear-cut as Defendant Mill-Pond alleges. Plaintiff also asserts that there are eyewitnesses that the flooring condition does not meet Defendant Mill-Pond's covenanted duties.
Defendant Clariant's limited joinder to Mill-Pond's motion for summary judgment, agrees that Mill-Pond had no duty to maintain the premises and that it did not retain possession or control of the subject area. Further, it agrees that there was no evidence of a potentially hazardous condition in the premises floor when Mill-Pond had access to the premises and that Mill-Pond never had any notice of any alleged condition. Finally, Defendant Clariant agrees that Mill-Pond did not own the pelletizer used by Plaintiff at the time of the accident and that even if it did, there is no evidence that they ever modified it.
Standard
Summary Judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record 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 the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for a decision as a matter of law. When a moving party through affidavits or other admissible evidence shows that there is no genuine issue as to any material fact, the burden shifts to the non-moving party to demonstrate that there are material issues of fact.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 649 A.2d 777, 780 (Del.Super. 1995).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Discussion
The first and most obvious issue is whether there was a defect in the concrete slab or pelletizer at issue that could have caused the accident. This is a genuine issue of material fact and the Court's inquiry could end here. Assuming that there was a defect, the next issue is whether Defendant Mill-Pond had a duty to repair it.The Lease defines Defendant Mill-Pond and the respective lessee's duties. Commercial Leases are constructed using general contract principles. Only when there is ambiguity will a court inquire beyond the terms of the lease. The relevant provisions of the Lease appear to be Paragraphs 4 ("Condition of the Premises") and 8 ("Maintenance and Repairs"). According to Paragraph 4, Defendant Mill-Pond was to leave the Premises in "good order and satisfactory condition." Therefore, a factual inquiry must be made as to whether the floor was left in "good order and satisfactory condition." This is a genuine issue of material fact that precludes the Court from granting the motion.
Martin v. Hopkins, 2006 WL 1915555, *6 (Del.Super., June 27, 2006) ( citing 25 Del. C. § 5101(b), which provides
Any rental agreement for a commercial rental unit is excluded from this Code. All legal rights, remedies and obligations under any agreement for the rental of any commercial rental unit shall be governed by general contract principles; and only Chapter 57 of Title 25 and Part IV of Title 25 shall have any application to commercial rental agreements.
25 Del.C. § 5101.
Id.
Additionally, even if Defendant Mill-Pond did leave the Premises in "good order and satisfactory condition," did it have an on-going duty to inspect the premises for possible defects such as in the floor? Generally, a "lessor of land is not subject to liability to his lessee . . . for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession." However, a lessor is subject to liability if he has contracted to keep the land in repair, a disrepair created an unreasonable risk that would have been prevented by the lessor's performance and the lessor failed to exercise reasonable care in performing his contract. Therefore the issue is whether any provision in the Lease rises to the level of contracting to keep the Premises in repair.
Craig v. A.A.R. Realty Corp., 576 A.2d 688, 694 (Del.Super. 1988) ( quoting Restatement (Second) of Torts § 355 (1965)). Of note, the deposition of Defendant Warnell revealed that Defendant Clariant was in the habit of taking up the floor and re-pouring the concrete slabs. The Lease did not provide for this. Should Defendant Mill-Pond be liable for defects created by the Lessee?
Restatement (Second) of Torts § 357 (1965)).
Paragraph 8 gives Defendant Mill-Pond responsibility for repairing the floor but does not specifically detail how Mill-Pond is to learn of a floor in need of repair. Paragraph 8 also gives Defendant Clariant the duty to notify the Landlord of the need for roof repairs, another repair for which Mill-Pond is responsible. Since Defendant Clariant's limited joinder agrees that Defendant Mill-Pond did not retain possession or control of the subject area, a reasonable interpretation of the Lease is that Defendant Mill-Pond relinquished control of the Premises to Defendant Clariant except in the instances where Defendant Clariant notifies Defendant Mill-Pond of the need for specific repairs as indicated in Paragraph 8. Mill-Pond appears therefore not to have an on-going duty to keep the Premises in repair. However, Plaintiff alleges Mill-Pond did not relinquish control of the Premises, and further, that the defect existed before the signing of the Lease. Plaintiff asserts that this defect falls below the "good order and satisfactory condition" standard. Since this is a genuine issue of material fact, the Court cannot grant a motion for summary judgment.
Additional issues include whether Defendant Mill-Pond owned the pelletizer and whether Defendant Mill-Pond made any changes in the pelletizer's design that could have caused the accident. Defendant Clariant agrees that Defendant Mill-Pond did not own or make any changes to the pelletizer at issue. Plaintiff disagrees and therefore this is a genuine issue of material fact.
The pellitizers were originally designed, manufactured and sold by Defendants Cumberland Engineering Company, Inc., ACS Auxiliary Group, Inc. and Cumberland Engineering Corporation.
Further discovery may permit one or more of the parties to revisit this matter.
Conclusion
At this stage of discovery, genuine issues of material fact remain. Wherefore, the Court denies Defendant Mill-Pond's Motion for Summary Judgment.IT IS SO ORDERED.