IN THE SUP ERIOR COURT OF THE STATE OF DE LAWARE IN AND FOR KENT COUNTY DOROTHY M. RUSSUM, : : C.A. No: K13C-03-022 RBY Plaintiff, : : v. : : IPM DEVELO PMENT PART NERSHIP : LLC, a Dela ware limit ed l iab ili ty co mpany, : BIG LOTS ST ORES, INC. , an unregistered : entity, and SILICATO COMM ERCIAL : REALTY, INC., a Delaware corpora tion, : : Defenda nts. : Submitted: May 1, 20 15 Decided : May 21, 2015
Upon Con sideration of Defe ndant Big L ots Stores, Inc’s. Motion for Summary Judgment

GRANTED

ORDER William D. Fletcher, Jr., Esquire, Schmittinger & Rodriguez, P.A., D over, Delaware for Plainti ff. ChristopherT. Logullo, Esquire, Chrissinger & Baumberger, Wilmington, Delaw are for Defendants IPM Development Pa rtnership , LLC and Silica to Commerc ial Real ty, Inc. David J. Soldo, E squire, M orris Jam es, LL P, Wi lmingt on, Dela ware f or Defe ndant Big Lots Sto res, Inc. Young, J.Russum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015 SUMMARY Dorothy M. Russum

(“P laintiff” ) alleges to have been inj ured, fo llowing a trip and fall accident sustained on a ramp leading up to Big Lots Stores, Inc. ’ s (“D efendant

Big Lots” ) stor e in Dove r, Delaware. D efendant Big Lots leased the store premises f

rom I PM Deve lopme nt Partne rship, L LC (“ Defenda nt IPM”) . The pr

operty
was managed by S ilicato Co mm ercial R ealty , Inc. (“D efendant

Silicato”) . A term

in th e lease agr

eement (“ Lease” ) between Defend ant Big Lo ts and Def endant IPM , delineated control of

the area containing the ramp, called the “ comm on area,” to IPM. Plain tiff’s claim

is supporte d by exp ert testi mony opining th at t he s lo pe o f th e ra mp
was defectiv ely de signed, cr eating thedangerous c onditio n leading to h er fall. Pursuant to a section of the Restatem ent Second o f Tor ts , recogn ized by Delaware case law, Defendant Big Lots argues that, w here it did not have know ledge of the defec tive design, and where it was c ont ractually ab solved of c ontrol of th e ramp area, Plaintiff has failed to show Defen dant Big Lo ts o wed h er an y dut y. Therefore, Defendan t Big Lot s move s for sum mary judgm ent on Plaintiff’ s claim against it, as well as Defenda

nts IPM’ s and Silic ato’s c ross claim for indem nificatio n. For the reas ons that follow, Defendant Big Lots’ Motion for Sum mary Judgme nt is GRANTED

. FACTS AND PROCEDUR ES On April 21, 2011, Pla intiff sust ained inj uries res ulting from a sl ip and fall accident , while in t

he “c omm

on area” in front of

Defenda nt Big Lots’ store in Dover, Delaware. Defenda

nt Big Lots , the les see, lea sed building h ousing the store fr om the lessor, Defendant IPM . As per the Lease, this “ comm on area” was the s ole responsibil ity of

Defenda nt IPM. D efendant Silicato was the proper ty manager. OnRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY 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 M arch 1 8, 2013, P laintiff filed a C ompla int against Defenda nts Big Lot s, IPM a

nd Silicato seeking dam

ages stem ming f rom her injuri es. Def

endants IP M and Silic ato filedcross claims a gainst De fendant B ig Lots, w ith Defe ndant Big L ots filing c ross claims against each of the o ther Defendan ts as well. Plaintiff al leges that, while attempting to enter Defe ndant Big Lots’ retail store, she felt something under her foot, ca using her to fall. D irectly in front of

the store is
a sloped ram

p. On June

10, 2014, a site inspe ction was conducted b y Ronald Cohen,
a certified

engineer retained

by Pla intiff. Mr. Cohe n rendere d a copy of his findings
on July 15, 2014, in w

hich he concludes t

hat the slop ed ram

p in front of

Defenda nts’ store caus ed Russum to fal l and injure herself. STANDARD OF REVIEW Summ ary judgm ent is grantedupon showing that there is no genuine

issue of materialfact, where the m oving party is entitle d to judgm

ent as a m atter of law. 1 The Court views the evi den ce in the lig ht mo st f avo rab le t o th e no n-mov ing part y. 2 The moving party bears the burden of

showing tha

t no ma terial is sues of fa ct are pr

esent, but once a m

otion is suppo rted by such a show ing, the bur den shifts t o the nonmoving par ty to d emons trate tha t there is a genuine d

ispute as to mate rial issue s of fact. 3 I n t he altern ative, w here the n on-mo ving party bears the ultim ate burde n of proof at trial, the m oving party succeeds on her motion for su mm ary j udgmen

t byRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY 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 Defend ant IPM and Def

endant Sil icato joined Plaintif f’s Oppo sition to De fendant Big Lots’ Motion for Summary Judgment, by letter dated A pril 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 showinga “c omple te failure of proof concerning an essenti al element” on thepart of the non-movan t, thereby “rendering all other fa cts immaterial.” 4 DISCUSSION 5 In Delaw are, it

is genera lly ac cepted tha t a busine ss owner o wes busine ss invitees a duty to “pr

otect aga inst both d angers he knows to exist and those which with reasonab le care he might dis cover.” 6 In order to succeed in a neglige nce claim based upon failure to keep a pre mises safe, a Plaintif f must show both that “there was
a dangerous or defective condition in defendant’s store, and that the condition was either placed there by thedefendant or its employees, or was permitted to rem ain after notice of its exis tence had come or should hav e com e to the attent ion of defe ndant...” 7 Defenda ntBig Lots’ prese nt m otion for su mm ary j udgmen

t asks this C ourt to find that in certain, limited

types of situatio ns, such a duty doe s not exist f

or all busin ess owners inv olved. Defenda ntBig Lots’ motion

addresse s the instan ce where Plaintif f’s inju ry occurred in an area, whose m aintenance and repair has been previously determined
con trac tua lly. The locale in questi on was posit ioned direc tly in f

ront of De fendantRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015

8 1997 WL 716893, at *1 (Del. Super. Ct. Aug. 22, 1997). 5 Big Lots’ store, c ontaining a ram p leading up t o the place

of business. Defenda

nt Big Lots was the lessee of said store, and Defendant IPM the lessor. T heir rel ationship
was governed by the Lease, which, a mongst other things , provided for the upkeep and maint e nance of the loca

tion adja cent to the

store, t erme d the “ comm on area, ” to b e the sole responsibility of Defendant IPM, the lessor. Significa ntly, this comm on area encompassed

the involved ramp. Plaintiff claims her accident to have been caused by trippi ng on said

ramp. In support of her allegations, Plaintiff has provided expert testim ony formulating the case for a def ec tively designed ramp. Alleging t hat the ramp was ent irely under the control of Defendant IPM, D efendant Big Lots argues ithad no duty to Plaintiff with regard to sai d ra mp and, thus, is deserving of summa ry adjudicati on in its favor. In arguing the

mer its of their re spective positions, Plaintiff and Defe ndant Big Lots raise two questions: (1) to what extent a lessee owes a duty to plaintiff, where plaintiff injures herself on property whose upke ep is cont

rac tually bestowed upon l essor; and (2) w

hat duty does a less ee owe a

plaintiff with res pect to i ngress an d egress, concerning prope rty that is adjacent to the property leased? The form er question was f

irs t co nsi der ed i n Del awar e by Rentz v. Rehoboth M all Ltd. P ’ship, which, in the circum stances pr esented by

that litiga

tion, found

the lessee

to have no duty to the plaintiff. 8 As Defendant Big Lots has articulated, the facts of that case ar e similar to those in

the instant matter. As in the case at bar , the Rentz Plaintiff broughtRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015

9 Id.

10 Id

.
11 Id

12 Id. , at *2 (citi ng Restatem ent Seco nd 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 lease d has become dangerous for use because of the 6 a negligence claim founded upon a design defe ct. 9 Fu rtherm ore, the defectiv ely designed structure was also a r amp leading up to lessee’s store. 10 The lesso r and lessee had , simi larl y, contract ually d eterm

ined that th e area encompa ssing the ram p, was to be the responsibility of the lessor. 11 The Rentz Court found that this descr ib ed situatio n was gover ned by Restatem ent Second o

f Torts § 360 (1965), stating in relevant pa rt: A possessor of

land who lease s a part th ereof and retai ns in his own control any oth er part which the lessee is entitled to use as appurtenant to the part leasedto him, is subject to liability to his lesse e and to others lawf

ully upon the land with the consent of the lessee or a sublessee for physi ca l harm caused by a dangero us condi tion upon that p art of land ret ained in the lessor’s c ontrol, if

the lessor by the exercise of reasonable care could have discovered

the conditi on an d the unreasonable risk involved therein and could have made the condition safe. 12 Despite finding that, where contract ing to retain control o ver the ar ea containing the ram p, the les sor remained full y liabl e, the Rentz Court 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, large ly due t o the language containe d in Com ment a to § 360. 13Russum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015

lessor’s failure to maintai

n it in safe

condition . [Les see’s] knowledg e may subject h im to liabili

ty 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, Rentz stopped shor t of announc ing that the rule in Delaware was that all lessees were liable to the extent of their knowledge of a d angerous condition. R entz

mer ely “ assum [ed that] ...sub ject[i ng] a te nant to liab ility f or failure to warn of known defects is also the law in Delaw a re...” 14 Neverth eless,
even given this a ssumpti on, Rentz held that “ [plaintif f] has f ailed to produce a

ny evidence that [ defen dant -less ee] knew abou t the c art ramp’s allegedly dangerous conditi on.” 15 This was p rimar ily b ecause the claim was base d upon a desig n defect in the ram

p, which was solel y suppor ted by “ the repor t of an ar chitect” and “[de fendant- lesse e] had no role in th e design or construction of the ramp f or which [defendant -lessor] is res ponsib le.” 16 The Cour t, there fore, gr

anted the defendant -lessee’ s motio n for sum mary judgm ent. 17 Pursua nt to the anal

ysis in Rentz , this Cour

t is persua ded that D efendant Big Lots, as a defendant-lessee who had no part in c onstructing

or designing

the
ra mp in question, could not have had knowledge of its defective co ndition

. Indeed, as in Rentz , the opinion of an expert is require d to ma

ke the determina

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

C.A . No . K1 3C- 03- 022RBY 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 g rounded upon the owner’s superior knowledge of the danger

to the invitee, the Court considers the duty e qually applicable to lessees as to property owne

rs”) (emphasis added) (internal quotations omitted). 8 Comm ent a is the law

in Delaw are, it

would be a chall enge to dee m De fendant Big Lots liabl e for

defects in an area co ntractua lly unde r the contr ol of Def endant IPM, the lessor . With out

the requis ite knowledge , Defe ndant Big L ots could not warn Plainti ff of any alleged defect. Yet, Plaintiff asserts that Delawa re requires landlords to provide safe ingress and egre ss t o in vit ees , inc lud ing adja cen t pr ope rty. 18 Plaintif f contends that the “ comm

on area, ” even if contract ually u nder the c ontrol of D efendant IPM, was an a djacent

area fo rming

the ingres s and

egress to property possessed by Defenda nt Big Lots , its store. Therefore, Plaintif f argues D efendant Big Lots had a duty to provide sa fe ingres s and egre ss to its invitees. Although not cited to by either party, the i ntersecti on betwe en the ho lding in Rentz , and the proposition

put forward b y Plaintiff con cerning in gress and egress, h a s been
co nsidered by the Delawa re Super ior Court in Kendzierski v. Delawa re Fed

. Credit Un ion

. 19 The Court finds that case instructive. As a startin g point, Kendziersk i is he lpfu l to Pl aint iff’s position, because itexte nds th e genera l Delaw are rule that landow

ners m ust provide s afe ingre ss and egress to i nvitees t o lessees s uch as De fe ndant Big L ots. 20 Neverth eless, Kend zi erski found that t

his extensio n was not a pplicable in all situa

tions,Russum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015

21 Kendzierski , 2009 WL 342895 at *5.

22 Id. (emphasis added).

23 Id ., at *1.

24 Id. , at *6. 9 recognizi ng that the Rentz Court “ granted sum mary judgm ent in favor

of the lessee because the plaintiff had presented no evidence that the lessee had knowledgeof the alleg ed defects i n the ramp’s desig n and cons truction .” 21 Kendzierski , th ere for e, l imit ed i ts fin di ng to th e “p artic ular facts of the case at bar,” whe re “ a landowner has a duty to protect

or warn invitees a gainst latent dangers .” 22 Considerin g Kend

zierski’s holding and its discussion of Rentz , for this Court the deter

minat ive facto r regar

ding liabili ty of

the lessee is the precise type of latent def ect or dan ger involve d. Hence, whether the defen dant-lesse e knows,
or should have known, of its existence is critical. In Kendzierski , for ex ample , the latent danger w as loose br

icks found in

the stair s leadi ng up to the entrance of less ee’s store. 23 Moreover, there was som e evidence that defendant-lessee had taken ste ps t o ame liorate t he stairs’ precari ous condition. 24 Although the Kendzierski Court found that, where a contract provided f

or lessor t o repair and maint ainthe stairs, no claim could be brought against le ssee prem

ised on neglige nt maint e nance of t he stairs, there w as suffic ient fact ual debate

as to whether defendant -lessee w as on n otice of the defec t, or shoul d have been onRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY 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 wi th reasonabl e inspecti on, to deny the m otion for su

mm ary j udgmen

t. 25 If the lessee had known of the defect , Kendzie rski held the le ssee had a duty to
warnthe plaintiff. 26 However, in so holding , Kendzierski acknowle dged t hat in the situation pr

esent ed b y Rentz , where the defect needed articulation by an
ex pert, a court c ould appropr iately determ ine that the

lessee did

n ot hav e knowledgeof any

defect in the ramp it had no part in designing o r construc ting. 27 In reviewi ng these tw o authoriti es, this Court notes the distinction between loose b ri cks, and an allegedly dangerously sloped ram p. The argument is m

ore salient and palata

ble that le ssee knew , or should have known , of def ectively loose bricks than that th e lessee knew of th e allegedly defectiv e design

of a ram p it did not create. Furtherm ore, as Defendant Big Lots points out, no evidence has been presentedthat a previous accident on the ram

p would haveput it on notic e of the dangers associate d with theramp’s use. Fact discovery has been c omple ted in this
case. “On

this recor

d, [plain tiff] has fail ed to sh ow that [defendant-lessee] breached an y duty to warn her of k nown dang ers...” 28 Where the m oving pa

rty has shown a “ compl ete fail ure of pro of concer

ning
an essential

elem ent” by

the non-m

oving party , the moving part y is entitled toRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015

29 Kanoy , 1988 WL 15367 at *1.

30 In De fendant

Big L ots’ Motion

for Summa

ry Judgment i

t states “ Big L ots is also entitled to summary judgment on c o-defendants’ cross claim for indemnification,” a t ¶ 9.

31 637 A.2d 418, 421 (Del. 1994). 11 judgm ent as a matter of law. 29 Fo llo wing the Rentz reasoning, this Court d etermines that Plaintiff has f ailed to es tablish De fendant B ig Lots o wed her a duty to warn of the alleged defect in the ram p. Therefore, stricken of this essential elem ent, Plaintiff

cannot sustain her claim against Defendant Big Lots. T he Court GRANTS Def

end ant Big Lot s’ mo ti on wit h re sp ect to Pla in ti ff’s cla im. In addition to m

ovi ng for judgmen t as a mat ter of law aga inst Plain tiff’s cla im, Defenda

nt Big Lots seeks sum

mary adjudi cat ion of one of

Defenda nt IPM’s and Defendant Silic ato’s c ross claim s. By the ir cross c laims , Defe ndants IPM and Sili cato seek contributio n and indem nificatio n from

Defenda nt Big Lots

. The Court understand s Defend ant Big Lo ts’ motion to ref er to the c ross claim

for indem nificati on o nly. 30 Defenda nt Big Lots argues tha

t, if this Court find s it is entitled to judgment as a m atter of law with respect to Plaintiff’s cla ims, then Defenda nts IPM’s and Silica

to’s inde mnifi cation cr

oss claim should be sim

ilarly disposed of. In support of this proposition, Defenda nt Big Lots cites Pike Creek Chiropracti c Ctr., P

.A. v . Robinson , in which the Delaware Suprem e Courtheld that “the scope of indemnific ation” is determined by “ actual wrongdoing,”t o a third party

bringing suit , and

that an “ [indem

initee] should not

be diveste d 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 . K1 3C- 03- 022RBY May 21, 2015

32 1997 WL 716893 at *3.

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

34 Id

. 12 inde mnitee’s motion

for sum mary judgm ent

against le ssor-indem

nitor, w here it was deci ded that no w

rongdoing w as found on le ssee-inde mnite e’s par t. 32 Defenda ntBig Lo ts’ citat ion to this authority requires this Court to perform somet hing of a reverse analysis. T hat is, the positioning of the parties in the case atbar is sw itched. R

ather tha n seeking sum

mary judgm ent on

its own cr

oss claim of indem nificatio n, Defenda

nt Big Lots , seeks su

mm ary a djudicat

ion of lessorinde mnitor ’s cross claim aga inst it. N onetheless , the Cour t finds the logic applicable. If the Supreme Court has held that, where lessee-indemniteeis found to have com

mitte d no mis deed, it

retains i ts right of indem

nificatio n, then it

must also be that la ck of wrongdoing prec ludes indem nificatio n claim s aga inst sa id lessee-indemnitee. A furthe r review of the re lationship of

all the partie s, vis-a-vis this action, r

eveals the

cogency of this point . Defe ndants IPM and Sili ca to, by their cross claim, seek to inde mnify thems elves fro m any

monet ary l iability originating

from Plaintiff’ s law suit. Although ne ither par ty sta tes as m uch, the Court understand s t he right of indem nificatio n to stem

from Section 11 of the Lease, which spe aks to the lessor ’s and le ssee’s right to inde mnifi cation. 33 Either party’s impli cation of t

his section arises upon

the injur y to “any person” caused by either pa rty’ s “neg ligent” or

“wi lful acts. ” 3 4 It follow s, there fore, t hat if one of these par

ties is adj udicated t o have no par t in said inj ury, then the ri ght toRussum v. IPM Development Partnership, LLC, et. al.

C.A . No . K1 3C- 03- 022RBY May 21, 2015

13 indem nificatio n falls aw ay. Here, the Court has d eeme d there to be no evidence that Defenda

nt Big Lots breache d its standa rd of care – hence, no finding of wrongdoing

can exist. The Cour

t GRAN TS Defe ndant Big L ots’ m otion for
summar y judgm ent with

respect to Defen dants IPM ’s and S ilicato’ s cross claim for indemnific ation. CONCLUSION For the foregoing reasons, the CourtGRANT S Defenda nt Big Lots ’ Motion fo r Summary Judgment in its ent irety. IT IS SO ORDERED

. /s/ Rober t B. Youn g J.
RBY /l mc oc: Prothonotary cc: Counsel Opinion Di stribution