Rawls v. The Commons at Stones Throw, et al., No. N17C-08-163 FWW, 2021 WL 306398 (Del. Super. Ct. Jan. 29, 2021)

Superior Court reiterates that traversing in the dark without taking reasonable care to protect yourself is comparative negligence.

The plaintiff filed a lawsuit alleging he sustained injuries when he fell into a drainage ditch at the Commons at Stones Throw. Rawls alleged that the defendant allowed a dangerous and defective condition to exist that caused him to fall and suffer injuries. The defendant moved for summary judgment on a number of grounds, including a lack of duty, lack of liability expert and that the plaintiff was comparatively negligent. The defendant acknowledged it was responsible for maintenance and repair of the area where the plaintiff fell. The court found that the issue of duty depended on a number of factors for the jury to determine, but that the plaintiff was comparatively negligent. It would be for the jury to apportion his negligence. He testified that “he ran through a grassy field, at night, which was both unmarked and unlit,” after admitting to being unfamiliar with the property. This evidence establishes that the plaintiff did not take reasonable care to protect himself. A lit, marked sidewalk was available to him and obviously was a safer and more prudent path of travel. Alternatively, he could have simply walked through the field, or used his phone to light his way. Because of his own negligence, the plaintiff failed to discover or protect himself against the danger. Moreover, since the description of his conduct comes from his own deposition testimony, there is no factual dispute about his actions. In sum, running in the dark and failing to take precautions for one’s own well-being does constitute comparative negligence (though it will be a jury issue on apportionment).

 

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