Fleischmann v. Blue Surf Condo., LLC, No. S17C-08-022 ESB, 2019 Del. Super. LEXIS 184 (Super. Ct. Apr. 8, 2019)

Property owners owe business invitees a duty to provide a safe “ingress and egress,” including a duty to warn or protect against hazards on adjacent property, depending on where the defect is.

The plaintiff filed suit after she fell in a broken concrete hole a few feet from the defendant’s property. The accident occurred as she was leaving the property after eating there with her family. The defendant filed a motion for summary judgment, arguing it had neither a duty to repair nor a duty to warn the plaintiff of the sidewalk defect where she fell. On the duty to repair, the court found no statutory obligation to repair the defect. That duty was squarely with the Town. The court stated clearly that a “duty to pay” is legally distinct from the “duty to repair,” and the property owner had the former, not the latter. On the duty to warn issue, the concrete hole was a few feet off the property owner’s building and in the area of ingress/egress, and therefore, a duty to warn existed. The court reminded the parties that “obviously, there comes a point where the defect would be too far away” so as not to require a warning. The court held it was premature to rule on the issue of “open and obvious defect.” Summary judgment was granted on the duty to repair, but denied on the duty to warn.


Case Law Alerts, 3rd Quarter, July 2019

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