Delaware law regarding premises liability – duty of care – licensees/trespassers.

The Supreme Court reaffirmed the Delaware common law rule in premises liability cases that property owners/possessors must refrain from willful and wanton conduct toward trespassers and licensees.

The plaintiff was riding his bicycle through the defendant's, Colonial Parking Inc., parking lot in Wilmington, Delaware. The plaintiff passed through an ungated entrance to the lot. His bike struck a pothole while crossing the lot, which was marked by a traffic cone that the plaintiff saw only after the crash. The plaintiff sued Colonial alleging they failed to maintain safe premises, thereby breaching a duty Colonial owed to the plaintiff as a "licensee."

The parties filed cross-motions for summary judgment. The trial court found that the plaintiff was a trespasser, not a licensee, because he failed to establish Colonial's implied consent that would entitle him to use the Colonial parking lot. The court held that there was nothing in this case to establish that the plaintiff had the privilege of entering. Thus, Colonial's duty was to refrain from "willful and wanton" conduct, which the plaintiff neither alleged nor proved. However, if the plaintiff was a licensee, the trial court identified §342 of the Restatement (Second) of Torts as the applicable liability standards in its discussion of premises liability.

The plaintiff appealed to the Supreme Court. The Supreme Court noted that the trial court analyzed the issue of whether the plaintiff was a licensee on the assumption that Delaware's common law premises liability standard depends on which status, that of licensee or trespasser, the plaintiff occupied. That assumption was incorrect and contrary to Hoesch v. Nat'l R.R. Passenger Corp. 677 A.2d 29 (Del. 1996), which adopted the "willful and wanton" common law premises liability standard for both trespassers and licensees. The Hoesch decision clarified that the common law, not Delaware's Guest Premises Statute, defined the duty owed by industrial and commercial owners and occupiers of land to trespassers and guests without payment.

The Supreme Court clarified the correct rule to be applied in future cases by reaffirming that the Restatement rule is not Delaware's common law premises liability rule for trespassers and licensees. Rather, the Delaware common law rule is that property owners/possessors must refrain from willful and wanton conduct toward trespassers and licensees.

Case Law Alert - 2nd Qtr 2012