Janice HAZEL, Plaintiff Below, Appellant, v. DELAWARE SUPERMARKETS, INC., Edy‘s Grand Ice Cream, a California Corporation, and Dreyer‘s Grand Ice Cream Holdings, Inc., a Delaware Corporation, Defendants Below, Appellees.
No. 210, 2007.
Supreme Court of Delaware.
July 14, 2008.
953 A.2d 705
Finally, RMLP argues that there is no factual basis from which to conclude that its acceptance of NPC‘s first renewal constituted a waiver of the no default requirement. RMLP points to an affidavit it submitted, which explains that its failure to object to the first renewal was an oversight. Thus, RMLP says there is no evidence of “an intentional relinquishment of a known right.”8 In advancing its argument, RMLP would have this Court overlook the fact that it accepted rent payments and allowed NPC to remain in possession of the leased premises for five years without objection. We are satisfied that RMLP‘s conduct over this extended period of time constitutes a waiver of the no default requirement, as a matter of law.9
CONCLUSION
Based on the foregoing, the judgment of the Superior Court is AFFIRMED.
Timothy H. Rohs and Richard D. Abrams (argued), Esquires, of Mintzer, Sarowitz, Zeris, Ledva & Meyers, Wilmington, Delaware; for Appellees.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.
JACOBS, Justice, for the Majority.
Janice Hazel (“Hazel“), the plaintiff below, appeals from an order of the Superior Court granting summary judgment to the defendants below, Delaware Supermarket,
FACTS
On July 2, 2003, Hazel slipped and fell in the frozen food aisle of the Stanton ShopRite supermarket that was operated by DSI. Hazel, who was wearing “flip-flops,” was pushing a shopping cart in the frozen food aisle. According to her testimony, she fell near a square wooden pallet that (Hazel was “99.9 percent sure“) contained ice cream. Hazel described the pallet as follows:
“What I mean [by] a pallet, [is that] it seemed like it was off the ground a little bit. I‘m going to guess it was made of wood or something, but there was a stack of something there. I remember it having some sort of plastic over it and it seemed like there was some sort of [frost] on the plastic. [...] It was full, and I‘m pretty sure it was ice cream. If it wasn‘t ice cream, it was something cold that made the plastic seem like it had a frosty thing on it. [...] I actually saw some frost on it. It seemed like it may have been sitting there for a while.”
Hazel did not notice any water on the floor either before or after her fall, but indicated that she felt her legs “slide,” and that after the fall she touched her calf with her hand, and her hand was wet. Hazel did not know where the water came from. As a result of the fall, Hazel‘s rear end hit the floor, her legs went under the shopping cart, and her knee hit the metal part underneath the cart.
At the time of Hazel‘s injury, Michael Klingensmith (“Klingensmith“), an employee of Edy‘s, was stocking ice cream in Edy‘s freezers, which were located in that aisle 12 or 15 freezer doors away from where Hazel fell. Klingensmith testified that he would bring the ice cream from the freezers located at the back of the store to the sales floor in a shopping cart. He would then transfer the ice cream from the cart into the aisle freezers. Klingensmith agreed that occasionally a “product would get condensation on it and drip on the floor between the time [he] g[o]t it from the freezer and finish[ed] packing it out on the sales floor.” In such cases, Klingensmith would “clean it up with paper towels and get a wet floor sign, if [the frozen product] is sitting there for a while.”
After witnessing Hazel‘s fall, Klingensmith made the following notation: “7-2-03. Saw lady fall in the aisle. Said she hurt her back. Saw a little bit of water.” In his deposition, Klingensmith explained that, three or four minutes after Hazel fell, he and the frozen food manager inspected the area. The inspection revealed an amount of water on the floor about the size of a quarter. Klingensmith could not remember where he saw the water or whether the floor was cleaned after the incident.
Another person who witnessed Hazel‘s fall was Jeanne O‘Connor (“O‘Connor“), who was working for Mellita, a coffee company. O‘Connor‘s job was to fill Mellita coffee machines located in ShopRite
Hazel testified that as she left the frozen food aisle to go to the courtesy counter, she saw a ShopRite employee heading with a roll of paper towels towards the area where she fell. At the courtesy counter, Hazel reported the incident to William Yanchulis (“Yanchulis“), the assistant store manager, who then noted the following: “Front office called me for a customer who fell. I asked the customer what happened, she said she fell on something. She stated that she did not have insurance and needed a contact person. She said something pulled in her back and she had back surgery about one year ago. Her ... knee was bruised on the left and ... right shin bruised. She had flip-flops on. Inspection of floor showed nothing. Floor was cleaned and no wet spots.”2 Although Yanchulis’ written report stated that the floor was “cleaned,” in his deposition Yanchulis testified that he meant that the floor was “clean” and that nobody had “cleaned” the floor after the fall.
Hazel went home and put ice on her knee. Because the pain became “intense,” Hazel‘s son took her to the hospital. The hospital doctor gave Hazel a prescription for pain medication and advised her to consult her family doctor. Hazel told her family doctor about her back pain and her recent back surgery. She then saw an orthopedic doctor who fitted her with a brace and recommended physical therapy. Hazel attended physical therapy sessions infrequently because she was uninsured.
Hazel filed suit in the Superior Court against DSI alleging negligence and seeking recovery for the injuries she sustained as a result of her fall. DSI filed a third-party complaint against Edy‘s and Dreyer‘s, seeking indemnification or contribution. All three defendants subsequently moved for summary judgment. The Superior Court “reluctantly” granted the motions, holding that “there is no evidence from which to argue negligence” because “there is nothing ... in the record which said what caused it” and “[w]hether it was a substance that [Hazel] brought in or the supermarket left there or some patron dropped ... a minute or hour or day before, we simply do not know.”
This appeal followed.
ANALYSIS
We review a Superior Court decision granting summary judgment de
Because “a complete failure of proof concerning an essential element of the nonmoving party‘s case necessarily renders all other facts immaterial,”7 we must first determine whether Hazel made a showing sufficient to establish the existence of the essential elements of her negligence claim. Viewing the evidence and all reasonable inferences that can be drawn therefrom in a light most favorable to the nonmoving party (here, Hazel), we conclude that Hazel met her burden of making a prima facie showing of negligence. We further conclude that DSI did not meet its burden of establishing that there are no genuine issues of material fact and that the undisputed material facts legally preclude a finding of negligence on the part of the defendants.
First, Hazel made a sufficient showing that there was an unsafe condition in the supermarket, namely, water on the floor in the frozen food aisle.8 Although both O‘Connor and Yanchulis testified that they observed no water on the floor after the incident, Hazel testified that she felt water on her calf, and Klingensmith‘s report indicates that three or four minutes after the fall he observed a “little bit of water.” The Superior Court correctly noted that Klingensmith‘s report contains no precise indication as to the location of the water. Nonetheless, it is reasonable to infer that, because his report was prompted by Hazel‘s fall, the water Klingensmith observed was at the area where Hazel fell. That Hazel saw no water on the floor
Hazel‘s contention that there was water on the floor is further supported by (i) the fact that she observed a ShopRite employee carrying a roll of paper towels and heading towards the area where she fell, and (ii) Yanchulis’ written report indicating that the floor was “cleaned” after the incident. Yanchulis’ post-report deposition testimony that the floor was never “cleaned” and that his report inadvertently stated that the floor was “cleaned” when he actually meant that the floor was “clean,” merely creates an issue of material fact that is properly for a jury to resolve.
Second, Hazel also presented sufficient evidence to defeat summary judgment with respect to causation. Hazel testified that she felt her legs “slide” on something, which is consistent with her testimony that after her fall she felt water on her calf.10 O‘Connor‘s report provided a different perspective. O‘Connor noted that Hazel‘s fall was more likely to be attributable to the fact that Hazel wore “very thin flip-flops which [O‘Connor] knew are easy to trip over” and/or to Hazel‘s previous medical problems (because Hazel went “straight down as if her knee gave way” and then said “Oh, just what I need, another problem with my knee.“) At most, however, O‘Connor‘s non-expert testimony served only to create another genuine issue of material fact. It was for a jury to determine whose testimony—Hazel‘s or O‘Connor‘s—was more credible.
Third, Hazel made a prima facie showing that the defendants should have been aware of the dangerous condition, and that by failing to discover it and to take reasonable measures to prevent injuries to customers, they were negligent. Hazel‘s testimony suggested two potential sources for the water on which she claims to have slipped: (1) the pallet of ice cream that had frost on it and was located near where she fell; and/or (2) Klingensmith‘s stocking ice cream in the freezers, which required Klingensmith to transport the ice cream, in a shopping cart, from the freezers located at the back of the store to the
Hazel testified that she saw “frost” on the pallet of ice cream, and that the pallet looked as though it “may ha[ve] been sitting there for a while.” Experience shows that when frozen products are left outside a freezer for a period of time, frost and condensation may form and water may leak as a result.12 A reasonable jury could conclude that DSI should have known that water might have been on the floor in the frozen food aisle, near the ice cream pallet where Hazel fell.
Similarly, with respect to Klingensmith transporting the ice cream for stocking in the aisle freezers, the evidence of record would permit a jury to conclude that DSI and/or Edy‘s should have known that such activity could result in water dripping on the floor. Klingensmith admitted that occasionally a “product would get condensation on it and drip on the floor between the time [he] g[o]t it from the freezer and finish[ed] packing it out on the sales floor.” He also stated that, as a preventive measure, he would place “a wet floor sign, if [the frozen product] is sitting there for a while.” It is undisputed that no wet floor signs were placed in the frozen food aisle at the time of Hazel‘s fall.
Whether the presence of the water was caused by the ice cream pallet or Klingensmith‘s activity (as Hazel claims), or by some unrelated cause for which the defendants might not be responsible, was an issue of material fact that, in our view, precluded the entry of summary judgment in the defendants’ favor.13
For these reasons, we conclude that the Superior Court erred in granting summary judgment to the defendants. We therefore reverse and remand for further proceedings consistent with this Opinion.
BERGER, Justice, dissenting, with STEELE, Chief Justice, joining.
Negligence claims generally present issues of fact that must be decided by a jury. Moreover, on a motion for summary judgment, the evidence and all reasonable inferences that can be drawn from the evidence must be viewed in the light most favorable to the non-moving party. This deferential standard, however, has its limits. “[N]egligence is never presumed from the mere fact that the plaintiff has suffered an injury.”14 Where, as here, Hazel relies on circumstantial evidence, the conclusion that DSI was negligent “must be the only reasonable inference possible from the admitted circumstances. If the proven circumstances are as consistent with the absence of negligence as with the existence of negligence, neither conclusion can be said to have been established and, accordingly, it would follow that a prima facie case of negligence has not been established....” 15
We agree with the majority that the record creates a triable issue of fact as to the reason for Hazel‘s fall. She says there was something slippery on the floor and that her leg felt wet after the fall. Thus, we must assume at this point that there was water on the floor, and that the water caused her to slip. The real issue is whether DSI knew or should have known that this dangerous condition existed. It is at this point in the analysis that the majority impermissibly speculates about possible scenarios that would support Hazel‘s claim. First, the majority says that water may have dripped from the pallet of ice cream. Hazel testified that the pallet had frost on it and she slipped a few feet from the pallet. From these two facts, the majority says that water could have dripped from the pallet onto the floor and spread into the aisle where Hazel fell. To reach this conclusion, one would have to assume that enough water dripped down from the pallet to create a pool of water that spread a foot or two into the aisle where Hazel slipped. But the record refutes such an assumption, as all witnesses testified that there was no pool of water. At most, there was a drop of water the size of a quarter. Thus, there is no basis to infer that the water came from the pallets.
Alternatively, the majority suggests that Hazel slipped on water that dripped from the frozen food that Klingensmith was stacking in a freezer cabinet. But it is undisputed that Klingensmith was stacking food 12-15 cabinet doors away from the area where Hazel fell—a point to which Hazel‘s travels had yet to take her. Thus, the only way this scenario makes sense is if we assume that: i) Klingensmith walked his cart of frozen food past the spot where Hazel fell; and ii) during the time it took to walk from the freezer room to the point where Hazel fell, the frozen food started to melt and dripped on the floor. A scenario the facts undisputedly do not support. Klingensmith and cart traveled from the stock room directly to stand up freezers, 12-15 feet in the opposite direction of Hazel‘s travels. He and his frozen ice cream cargo never crossed her path, nor did he
In sum, the evidence only supports a conclusion that Hazel fell on something wet. That wet substance could have come from another customer‘s shopping cart, a spilled power drink, condensation from frozen food, or a number of other theoretical possibilities. The source of the water is a matter of pure speculation. Accordingly, the trial court correctly granted summary judgment.
Ralph HOAG, Plaintiff Below-Appellant, v. AMEX ASSURANCE COMPANY, Defendant Below-Appellee.
No. 461, 2007.
Supreme Court of Delaware.
July 21, 2008.
953 A.2d 713