IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

DOROTHY M. RUSSUM, :

: C.A. No: K13C-03-022 RBY

Plaintiff, :

:

v. :

:

IPM DEVELOPMENT PARTNERSHIP :

LLC, a Delaware limited liability company, :

BIG LOTS STORES, INC., an unregistered :

entity, and SILICATO COMMERCIAL :

REALTY, INC., a Delaware corporation, :

:

Defendants. :

Submitted: May 1, 2015

Decided: May 21, 2015 

Upon Consideration of Defendant Big Lots Stores, Inc’s.

Motion for Summary Judgment 

GRANTED 

ORDER

William D. Fletcher, Jr.,Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware

for Plaintiff. 

Christopher T. Logullo, Esquire, Chrissinger & Baumberger, Wilmington, Delaware

for Defendants IPM Development Partnership, LLC and Silicato Commercial Realty,

Inc. 

David J. Soldo, Esquire, Morris James, LLP, Wilmington, Delaware for Defendant

Big Lots Stores, Inc. 

Young, J.
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

SUMMARY

Dorothy M. Russum (“Plaintiff”) alleges to have been injured, following a trip

and fall accident sustained on a ramp leading up to Big Lots Stores, Inc.’s

(“Defendant Big Lots”) store inDover, Delaware. Defendant Big Lots leased the store

premises fromIPM Development Partnership, LLC (“Defendant IPM”). The property

was managed by Silicato Commercial Realty, Inc. (“Defendant Silicato”). A term in

the lease agreement (“Lease”) between Defendant Big Lots and Defendant IPM,

delineated control of the area containing the ramp, called the “common area,” to IPM.

Plaintiff’s claim is supported by expert testimony opining that the slope of the ramp

was defectively designed, creating the dangerous condition leading to her fall.

Pursuant to a section of the Restatement Second of Torts, recognized by

Delaware case law, Defendant Big Lots argues that, where it did not have knowledge

of the defective design, and where it was contractually absolved of control of the

ramp area, Plaintiff has failed to show Defendant Big Lots owed her any duty.

Therefore, Defendant Big Lots moves for summary judgment on Plaintiff’s claim

against it, as well as Defendants IPM’s and Silicato’s cross claim for indemnification.

For the reasons that follow, Defendant Big Lots’ Motion for Summary Judgment is

GRANTED.

FACTS AND PROCEDURES

On April 21, 2011, Plaintiff sustained injuries resulting from a slip and fall

accident, while in the “common area” in front of Defendant Big Lots’ store in Dover,

Delaware. Defendant Big Lots, the lessee, leased building housing the store from the

lessor, Defendant IPM. As per the Lease, this “common area” was the sole

responsibility of Defendant IPM. Defendant Silicato was the property manager. On
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

1

 Super. Ct. Civ.R. 56(c). 

2 Windom v. Ungerer, 903 A.2d 276, 280 (Del. 2006).

3 Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

3

March 18, 2013, Plaintiff filed a Complaint against Defendants Big Lots, IPM and

Silicato seeking damages stemming from her injuries. Defendants IPM and Silicato

filed cross claims against Defendant Big Lots, with Defendant Big Lots filing cross

claims against each of the other Defendants as well. 

Plaintiff alleges that, while attempting to enter Defendant Big Lots’ retail store,

she felt something under her foot, causing her to fall. Directly in front of the store is

a sloped ramp. On June 10, 2014, a site inspection was conducted by Ronald Cohen,

a certified engineer retained by Plaintiff. Mr. Cohen rendered a copy of his findings

on July 15, 2014, in which he concludes that the sloped ramp in front of Defendants’

store caused Russum to fall and injure herself. 

STANDARD OF REVIEW

Summary judgment is granted upon showing that there is no genuine issue of

material fact, where the moving party is entitled to judgment as a matter of law.1 The

Court views the evidence in the light most favorable to the non-moving party.2 The

moving party bears the burden of showing that no material issues of fact are present,

but once a motion is supported by such a showing, the burden shifts to the nonmoving party to demonstrate that there is a genuine dispute as to material issues of

fact.3 In the alternative, where the non-moving party bears the ultimate burden of

proof at trial, the moving party succeeds on her motion for summary judgment by
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

4

 Kanoy v. Crothall American, Inc., 1988 WL 15367 at *1 (Del. Super. Ct. Feb. 8, 1988)

(citing Celotex Corporation v. Catrett, 477 U.S. 317, 91 (1986)).

5

 Defendant IPM and Defendant Silicato joined Plaintiff’s Opposition to Defendant Big

Lots’ Motion for Summary Judgment, by letter dated April 30, 2015. For ease of readability, the

Court refers to the positions contained in said Opposition, as those of “Plaintiff.” 

6 Kanoy, 1988 WL 15367 at *2. 

7

Id. 

4

showing a “complete failure of proof concerning an essential element” on the part of

the non-movant, thereby “rendering all other facts immaterial.”4

DISCUSSION5

In Delaware, it is generally accepted that a business owner owes business

invitees a duty to “protect against both dangers he knows to exist and those which

with reasonable care he might discover.”6 In order to succeed in a negligence claim

based upon failure to keep a premises safe, a Plaintiff must show both that “there was

a dangerous or defective condition in defendant’s store, and that the condition was

either placed there by the defendant or its employees, or was permitted to remain after

notice of its existence had come or should have come to the attention of defendant...”7

Defendant Big Lots’ present motion for summary judgment asks this Court to find

that in certain, limited types of situations, such a duty does not exist for all business

owners involved. 

Defendant Big Lots’ motion addresses the instance where Plaintiff’s injury

occurred in an area, whose maintenance and repair has been previously determined

contractually. The locale in question was positioned directly in front of Defendant
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

8

 1997 WL 716893, at *1 (Del. Super. Ct. Aug. 22, 1997). 

5

Big Lots’ store, containing a ramp leading up to the place of business. Defendant Big

Lots was the lessee of said store, and Defendant IPM the lessor. Their relationship

was governed by the Lease, which, amongst other things, provided for the upkeep and

maintenance of the location adjacent to the store, termed the “common area,” to be

the sole responsibility of Defendant IPM, the lessor. Significantly, this common area

encompassed the involved ramp. Plaintiff claims her accident to have been caused by

tripping on said ramp. In support of her allegations, Plaintiff has provided expert

testimony formulating the case for a defectively designed ramp. Alleging that the

ramp was entirely under the control of Defendant IPM, Defendant Big Lots argues

it had no duty to Plaintiff with regard to said ramp and, thus, is deserving of summary

adjudication in its favor. 

In arguing the merits of their respective positions, Plaintiff and Defendant Big

Lots raise two questions: (1) to what extent a lessee owes a duty to plaintiff, where

plaintiff injures herself on property whose upkeep is contractually bestowed upon

lessor; and (2) what duty does a lessee owe a plaintiff with respect to ingress and

egress, concerning property that is adjacent to the property leased? The former

question was first considered in Delaware by Rentz v. Rehoboth Mall Ltd. P’ship,

which, in the circumstances presented by that litigation, found the lessee to have no

duty to the plaintiff.8 As Defendant Big Lots has articulated, the facts of that case are

similar to those in the instant matter. As in the case at bar, the Rentz Plaintiff brought
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

9

Id.

10 Id.

11 Id

12 Id., at *2 (citing Restatement Second of Torts § 360 (1965))(emphasis added). 

13 Stating in relevant part”[t]he lessee may, for example, know that the common entrance

to the apartment or office, which he has leased has become dangerous for use because of the

6

a negligence claim founded upon a design defect.9 Furthermore, the defectively

designed structure was also a ramp leading up to lessee’s store.10 The lessor and

lessee had, similarly, contractually determined that the area encompassing the ramp,

was to be the responsibility of the lessor.11

The Rentz Court found that this described situation was governed by

Restatement Second of Torts § 360 (1965), stating in relevant part:

A possessor of land who leases a part thereof and retains in his own control

any other part which the lessee is entitled to use as appurtenant to the part

leased to him, is subject to liability to his lessee and to others lawfully upon

the land with the consent of the lessee or a sublessee for physical harm

caused by a dangerous condition upon that part of land retained in the

lessor’s control, if the lessor by the exercise of reasonable care could have

discovered the condition and the unreasonable risk involved therein and

could have made the condition safe.12

Despite finding that, where contracting to retain control over the area containing

the ramp, the lessor remained fully liable, the RentzCourt recognized that lessees

could also be liable in such situations where “[lessee] knew that the ramp was a

dangerous condition, but failed to warn [plaintiff] about it.” The Rentz Court did

so, largely due to the language contained in Comment a to § 360.13
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

lessor’s failure to maintain it in safe condition. [Lessee’s] knowledge may subject him to liability

even to his own licensees, if he fails to warn them of the danger” Rentz, 1997 WL 716893 at *2

(emphasis added). 

14 Rentz, 1997 WL 716893 at *3. 

15 Id. (emphasis added). 

16 Id. 

17 Id. 

7

However, Rentzstopped short of announcing that the rule in Delaware was

that all lessees were liable to the extent of their knowledge of a dangerous

condition. Rentz merely “assum[ed that]...subject[ing] a tenant to liability for

failure to warn of known defects is also the law in Delaware...”14 Nevertheless,

even given this assumption, Rentz held that “[plaintiff] has failed to produce any

evidence that [defendant-lessee] knew about the cart ramp’s allegedly dangerous

condition.”15 This was primarily because the claim was based upon a design

defect in the ramp, which was solely supported by “the report of an architect” and

“[defendant-lessee] had no role in the design or construction of the ramp for

which [defendant-lessor] is responsible.”16 The Court, therefore, granted the

defendant-lessee’s motion for summary judgment.17

Pursuant to the analysis in Rentz, this Court is persuaded that Defendant

Big Lots, as a defendant-lessee who had no part in constructing or designing the

ramp in question, could not have had knowledge of its defective condition.

Indeed, as in Rentz, the opinion of an expert is required to make the determination

as to a dangerously sloped construction. Even if, as the Rentz Court assumed,
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

18 See e.g., Wilmington Country Club v. Cowee, 747 A.2d 1087 (Del. 2000). 

19 2009 WL 342895, at *1 (Del. Super. Ct. Feb. 4, 2009). 

20 Id., at *5 (“[b]ecause liability in this respect is grounded upon the owner’s superior

knowledge of the danger to the invitee, the Court considers the duty equally applicable to lessees

as to property owners”) (emphasis added) (internal quotations omitted).

8

Comment a is the law in Delaware, it would be a challenge to deem Defendant

Big Lots liable for defects in an area contractually under the control of Defendant

IPM, the lessor. Without the requisite knowledge, Defendant Big Lots could not

warn Plaintiff of any alleged defect. 

Yet, Plaintiff asserts that Delaware requires landlords to provide safe

ingress and egress to invitees, including adjacent property.18 Plaintiff contends

that the “common area,” even if contractually under the control of Defendant

IPM, was an adjacent area forming the ingress and egress to property possessed

by Defendant Big Lots, its store. Therefore, Plaintiff argues Defendant Big Lots

had a duty to provide safe ingress and egress to its invitees. Although not cited

to by either party, the intersection between the holding in Rentz, and the

proposition put forward by Plaintiff concerning ingress and egress, has been

considered by the Delaware Superior Court in Kendzierski v. Delaware Fed.

Credit Union.

19 The Court finds that case instructive.

As a starting point, Kendzierski is helpful to Plaintiff’s position, because

it extends the general Delaware rule that landowners must provide safe ingress

and egress to invitees to lessees such as Defendant Big Lots.20 Nevertheless,

Kendzierski found that this extension was not applicable in all situations,
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

21 Kendzierski, 2009 WL 342895 at *5. 

22 Id. (emphasis added). 

23 Id., at *1. 

24 Id., at *6.

9

recognizing that the Rentz Court “granted summary judgment in favor of the

lessee because the plaintiff had presented no evidence that the lessee had

knowledge of the alleged defects in the ramp’s design and construction.”21

Kendzierski, therefore, limited its finding to the “particular facts of the case at

bar,” where “a landowner has a duty to protect or warn invitees against latent

dangers.”22

Considering Kendzierski’s holding and its discussion of Rentz, for this

Court the determinative factor regarding liability of the lessee is the precise type

of latent defect or danger involved. Hence, whether the defendant-lessee knows,

or should have known, of its existence is critical. InKendzierski, for example, the

latent danger was loose bricks found in the stairs leading up to the entrance of

lessee’s store.23 Moreover, there was some evidence that defendant-lessee had

taken steps to ameliorate the stairs’ precarious condition.24 Although the

Kendzierski Court found that, where a contract provided for lessor to repair and

maintain the stairs, no claim could be brought against lessee premised on

negligent maintenance of the stairs, there was sufficient factual debate as to

whether defendant-lessee was on notice of the defect, or should have been on
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

25 Id., at *1. 

26 Id. 

27 Kendzierski, 2009 WL 342895 at *4. 

28 Rentz, 1997 WL 716893 at *3.

10

notice with reasonable inspection, to deny the motion for summary judgment.25

If the lessee had known of the defect, Kendzierski held the lessee had a duty to

warn the plaintiff.26 However, in so holding, Kendzierski acknowledged that in

the situation presented by Rentz, where the defect needed articulation by an

expert, a court could appropriately determine that the lessee did not have

knowledge of any defect in the ramp it had no part in designing or constructing.27

In reviewing these two authorities, this Court notes the distinction between

loose bricks, and an allegedly dangerously sloped ramp. The argument is more

salient and palatable that lessee knew, or should have known, of defectively loose

bricks than that the lessee knew of the allegedly defective design of a ramp it did

not create. Furthermore, as Defendant Big Lots points out, no evidence has been

presented that a previous accident on the ramp would have put it on notice of the

dangers associated with the ramp’s use. Fact discovery has been completed in this

case. “On this record, [plaintiff] has failed to show that [defendant-lessee]

breached any duty to warn her of known dangers...”28 

Where the moving partyhas shown a “complete failure of proof concerning

an essential element” by the non-moving party, the moving party is entitled to
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

29 Kanoy, 1988 WL 15367 at *1.

30 In Defendant Big Lots’ Motion for Summary Judgment it states “Big Lots is also

entitled to summary judgment on co-defendants’ cross claim for indemnification,” at ¶ 9.

31 637 A.2d 418, 421 (Del. 1994). 

11

judgment as a matter of law.29 Following the Rentz reasoning, this Court

determines that Plaintiff has failed to establish Defendant Big Lots owed her a

duty to warn of the alleged defect in the ramp. Therefore, stricken of this essential

element, Plaintiff cannot sustain her claim against Defendant Big Lots. The Court

GRANTS Defendant Big Lots’ motion with respect to Plaintiff’s claim.

In addition to moving for judgment as a matter of law against Plaintiff’s

claim, Defendant Big Lots seeks summary adjudication of one of Defendant

IPM’s and Defendant Silicato’s cross claims. By their cross claims, Defendants

IPM and Silicato seek contribution and indemnification from Defendant Big Lots.

The Court understands Defendant Big Lots’ motion to refer to the cross claim for

indemnification only.30 Defendant Big Lots argues that, if this Court finds it is

entitled to judgment as a matter of law with respect to Plaintiff’s claims, then

Defendants IPM’s and Silicato’s indemnification cross claim should be similarly

disposed of. In support of this proposition, Defendant Big Lots cites Pike Creek

Chiropractic Ctr., P.A. v. Robinson, in which the Delaware Supreme Court held

that “the scope of indemnification” is determined by “actual wrongdoing,”to a

third party bringing suit, and that an “[indeminitee] should not be divested of its

legal right to indemnification due to unsubstantiated pleading choices of a third

party.”31 The Rentz Court further applied this reasoning to grant lessee-
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

32 1997 WL 716893 at *3.

33 See Ex. C to Defendant Big Lots’ Motion for Summary Judgment. 

34 Id. 

12

indemnitee’s motion for summary judgment against lessor-indemnitor, where it

was decided that no wrongdoing was found on lessee-indemnitee’s part.32

Defendant Big Lots’ citation to this authority requires this Court to perform

something of a reverse analysis. That is, the positioning of the parties in the case

at bar is switched. Rather than seeking summary judgment on its own cross claim

of indemnification, Defendant Big Lots, seeks summary adjudication of lessorindemnitor’s cross claim against it. Nonetheless, the Court finds the logic

applicable. If the Supreme Court has held that, where lessee-indemnitee is found

to have committed no misdeed, it retains its right of indemnification, then it must

also be that lack of wrongdoing precludes indemnification claims against said

lessee-indemnitee. A further review of the relationship of all the parties, vis-a-vis

this action, reveals the cogency of this point. Defendants IPM and Silicato, by

their cross claim, seek to indemnify themselves from any monetary liability

originating from Plaintiff’s lawsuit. Although neither party states as much, the

Court understands the right of indemnification to stem from Section 11 of the

Lease, which speaks to the lessor’s and lessee’s right to indemnification.33 Either

party’s implication of this section arises upon the injury to “any person” caused

by either party’s “negligent” or “wilful acts.”

34

 It follows, therefore, that if one

of these parties is adjudicated to have no part in said injury, then the right to
Russum v. IPM Development Partnership, LLC, et. al. 

C.A. No. K13C-03-022 RBY 

May 21, 2015 

13

indemnification falls away. Here, the Court has deemed there to be no evidence

that Defendant Big Lots breached its standard of care – hence, no finding of

wrongdoing can exist. The Court GRANTS Defendant Big Lots’ motion for

summary judgment with respect to Defendants IPM’s and Silicato’s cross claim

for indemnification. 

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Big Lots’

Motion for Summary Judgment in its entirety. 

IT IS SO ORDERED.

 /s/ Robert B. Young 

 J.

RBY/lmc

oc: Prothonotary

cc: Counsel 

Opinion Distribution