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 outset, 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 persistent in advancing her claims

without an attorney. Equally throughout the pretrial process, counsel for Dover 

Downs interacted patiently and professionally with Ms. Lehner. 
2

Apart from these observations, the Court must apply well settled legal 

principles when deciding Dover Downs’s motion for summary judgment. After a 

careful review of the record, the Court finds that although Ms. Lehner believes a 

defect in the carpet outside her hotel room caused her to fall, there is no admissible 

evidence of record supporting 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 December 27, 20131. 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 on

the hallway carpet. Ms. Lehner also asserted in her complaint that Dover Downs’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 Dover 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, she opposes Dover Downs’s motion by focusing only on 

the carpet alleging that 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. The deposition testimony establishes that Ms. Lehner cannot 

describe, 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 

accordingly 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 notarized, 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 defect. Dover Downs further argues that her 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 video showing the fall from a distance, Dover Downs 

submitted deposition 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, bumps or lumps in the carpet where she fell, 

but they found none.

Standard for Summary Judgment

Summary 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 for 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 demonstrate 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 matter, 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 facts as would be 

admissible 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 establishes 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, “negligence 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 knowledge 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 specific 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 defendant in a very similar 

situation.

13 In Price, the plaintiff allegedly slipped and fell on the exterior sidewalk 

of a supermarket.14 The defendant in that matter moved for summary judgment

because the plaintiff could not identify a dangerous condition.

15

 The defendant 

supported its motion with sworn testimony from employees that they did not observe

any dangerous condition in the area that could have contributed to her fall.16 As in 

the case at hand, the plaintiff in Price did not support her claim with evidence 

demonstrating a dangerous condition.17 The Price court accordingly found that the 

plaintiff 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, the court granted defendant’s motion for 

summary 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, Dover 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 there was no defective 

condition through sworn testimony by two employees inspecting the site 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. In 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 with 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. Her 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 in 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