## SUPERIOR COURT of the STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Judge 38 The Green Dover, DE 19901 Telephone (302)735

- 2111

May 24, 2018

Ms. Gnei Lehner Michael J. Logullo, Esq. 7016 Nimitz Drive Rawle & Henderson, LLP Forestville, MD 20747 300 Delaware Avenue Suite 1105 Wilmington, DE 19899

RE: Gnei Lehner v. Dover Downs, Inc. K16C

– 01

- 026 JJC

Submitted: May 16 , 2018 Decided: May 24 , 2018

Dear Ms. Lehner and Mr. Logullo:

This is the Court’s letter order providing its decision and reasoning regarding Defendant Dover Downs, Inc.’s (hereinafter “Dover Downs’s”) summary judgment

motion. At the outse t, after reviewing the videotape showing Ms. Lehner’s fall, the

Court recognizes that Ms. Lehner suffered a serious fall while at Dover Downs.
Ms. Lehner has appeared before the Court several times and the Court does not
question her motives or her good faith belief that Dover Downs is responsible for
her injuries. She has been both professional and persisten t in advancing her claims
without an attorney

. Equally throughout the pretrial process, counsel for Do ver

Downs interacted patiently and professionally with Ms. Lehner

.2

Apart from these observations

, the Court must apply well settled legal
principles wh en deciding Dover Downs ’s motion for summary judgment. After a
careful review of the record, the Court finds that al though Ms. Lehner believes a
defect in the carpet outside her hotel room caused her to fall, t here is no admissible

ev idence of record supp orting that conclusion. For that reason and those that follow,

Dover Downs ’s motion for summary judgment must be granted.

The Parties Claims and the Facts of Record
Ms. Lehner tripped and fell while exiting her room at the Dover Downs Casino

Hotel on D ecember 27, 2013 1

. In her complaint, she alleged (1) that her hotel room

door pushed her while she exited her room with her luggage, and (2) she tripped o n
the hallway carpet. Ms. Lehner also asserted in her complaint that Dover Down s ’s
failure to properly maintain the hotel room door and hallway carpet caused her fall

. Dover Downs moves for summary judgment alleging that Ms. Lehner did not
identify what was unsafe about the hotel room door or the carpet outside it.
In response to Dove r Downs’ s motion for summary judgment, Ms. Lehner

now identifies a single alleged defect, rather than the two separate defects asserted
in her complaint. Namely, s he opposes Dover Downs ’s motion by focusing only on
the carpet alleging th at her “foot got caught [on the carpet that was] sticking up . . . that should be flat on the ground.”
Both Dover Downs and Ms. Lehner submitted deposition testimony where she

discussed her fall. T he deposition testimony establishes that Ms. Lehner cannot

des cribe, based on personal knowledge, an alleged defect in the carpet. She had
entered and exited the room several times during her stay, and testified that she

1 Dover Downs’ s videotape, included as an exhibit in the summary judgment motion, shows Ms. Lehner backing out of her hotel room, and falling violently backwards.3

noticed no defect. After she fell, she also testified that she did not see the carpet and

acco rdingly could not identify or describe a defect that caused her to fall.

Ms. Lehner primarily opposes Dover Down ’ s motion by offering what the

Court considers to be an affidavit submitted for summary judgment motion

purposes

. 2 Although the affidavit is not notar ized, in light of Ms. Lehner’s pro se status and the fact that the document attests that its contents are true, the Court will
consider it as an affidavit submitted in support of her position. In that affidavit, Ms.

Lehner alleges that the carpet was “sticking up

, ” and that the carpet “caught her

foot.”

Dover Downs argues that she references no evidence of record that the carpet
was defective, and that she testified that both before and after the fall, she saw no
carpet de fect. Dover Downs further argues that h er allegation in her
response/affidavit is merely a conclusion that there must have been something wrong
with the carpet because she fell. In addition to submitting her deposition testimony

, taped statement, and a vi deo showing the fall from a distance

, Dover Downs

submitted depo sition testimony from two employees who testified that they
inspected the area after her fall and observed no defects. Specifically, the employees
testified that they looked for rips, tears, bum ps or lumps in the carpet where she fell

, b ut they found none

.

Stan dard for Summary Judgment

S ummary judgment is appropriate only if there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. 3 The Court must view
the evidence in the light most favorable to the non

- moving party. 4 The burden of

2 See Super. Ct. Civ. R. 56(e) (describing the requirements f or such an affidavit submitted in the summary judgment context )

. 3 Super. Ct. Civ. R. 56(c); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).

4 Brozaka v. Olson , 668 A.2d 1355, 1364 (Del. 1995).4

proof is initially on the moving party. 5 However, if the movant meets his or her
initial burden, then the burden shifts to the non

- moving party to demo nstrate the

existence of material issues of fact. 6 The non

- movant's evidence of material facts in
dispute must be sufficient to withstand a motion for judgment as a matter of law and
sufficient to support the verdict of a rational jury. 7

In this m atter, Ms. Lehner’s submitted a written response to the motion in

what was most close in form to an affidavit. 8 After the summary judgment burden
shift, the non

- moving party seeking to meet her burden by affidavit

, may offer affidavit(s) based upon “ personal knowledge, [and] set forth such fac t s as would be

admis sible in evidence and show affirmatively that the affiant is competent to testify

to the matters stated therein.” 9 Mere conclusions stated in an affidavit where all
evidence of record conclusively est ablishes that the affiant did not have personal
knowledge supporting the basis for such conclusions are insufficient.

Discussion
In order to prevail, Ms. Lehner must establish that there was a dangerous or

defective condition on the carpet that caused her to fall

, and also that Dover Downs

, in the exercise of reasonable care, should have known about the condition and

corrected it. 10 In personal injury actions such as this, “n egligence is never presumed

from the mere fact that the plaintiff has suffered an injury [and the] burden is upon
plaintiff to prove that defendant was negligent and that his negligence was the

5 Super. Ct. Civ. R. 56(e); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).

6 Id . at 681 (citing Hurtt v. Goleburn , 330 A.2d 134 (Del. 1974)).

7 Lum v. Anderson , 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).

8 Although it is not notarized, the affidavit includes language attesting that “[u]nder the penalties of perjury, the facts above are true to the best of my knowle dge information and belief.”

9 Super. Ct. Civ. R. 56(e).
10 Collier v. Acme Markets, Inc. 670 A.2d 1337 (Del. 1995) (TABLE) ( citing Howard v. Food Fair Stores, 201 A.2d 638, 640 (Del. Super. June 2, 1964).5

proximate cause of the injury. ” 11 To establish that there was a dangerous or defective
condition, plaintiff must proffer specifi c facts, rather than merely make allegations. 12

In its motion, Dover Downs cited Price v. Acme Markets, Inc.

, which is a case
where the court granted summary judgment for d efendant in a very similar

situation

. 13 In Price , the plaintiff allegedly slipped an d fell on the exteri or sidewalk
of a supermarket. 14 The d efendant in that matter moved for summary ju dgment
because the plaintiff could not identify a dangerou s condition

. 15 The defendant
supported its motion with sworn testimony from employee s that they d id not observe

any dangerous condition in the area that cou ld have contributed to her fall. 16 As in
the case at hand, t he plaintiff in Price did not support her claim with evidence
demonstrating a dangerous condition. 17 The Price c ourt accordingly found that the

p laintiff failed to establish an essential element of her claim that a dangerous

condition existed on the defendant’s premises . Because she did not identify such

evidence

, apart from mere allegations, t he court granted defendant’s motion for

summa ry judgment. 18
Here, Dover Downs’s motion must be granted using the same reasoning. The
Court has carefully reviewed the evidence , including Ms. Lehner’s deposition
testimony, her transcribed statement, Dov er Downs’s employee testimony, and the

video of the fall. Viewing the facts in the light most favorable to Ms. Lehner, the

Court finds that Dover Downs met its initial showing that th ere was no defective
condition through sworn testimony by two employees inspecting the sit e shortly

11 Wilson v. Derrickson , 175 A.2d 400, 401 (Del. Super. Nov. 2, 1961).

12 Price v. Acme Markets, Inc . 2010 WL 4062007, at *2 (Del. Super. Sep. 29, 2010).
13 Id

. at *1.

14 Id

. 15 Id

. 16 Id

. 17 Id

. 18 Id . at *3.6

after her fall

. I n response, Ms. Lehner has identified no admissible evidence of

record demonstrating that the carpet was defective. The Court acknowledges her claims in her affidavit that the carpet “was sticking up” at the site. However, all

admissible evidence of record, including her taped statement and her deposition
testimony

, establishes that she did not actually observe such a condition before or

after her fall. In fact, at oral argument, Ms. Lehner confirmed that at no time did
she observe problems wi th the carpet. As Superior Court Civil Rule 56(e) requires

, Ms. Lehner must demonstrate some evidence of record or identify evidence by affidavit based upon a witness’s personal knowledge that there was a defective
condition to prevent summary judgment. H er conclusory statement that something
must have been wrong with the carpet because her foot got stuck on the carpet is

insufficient to survive Dover Downs’s summary judgment motion

.

Conclusion
In summary, when viewing all admissible evidence of record i n the light most
favorable to Ms. Lehner, no rational jury could conclude that Dover Downs is liable for Ms. Lehner’s injuries. Accordingly, summary judgment on behalf of Dover
Downs and against Ms. Lehner is GRANTED.

IT IS SO ORDERED.

/ s/ Jeffrey J Clark Judge