Koutoufaris v. Dick

• Decision Date: 26 November 1991
• Citation: 604 A.2d 390
• Parties: John KOUTOUFARIS and Marlene Koutoufaris, Defendants Below, Appellants, v. Deborah M. DICK, Plaintiff Below, Appellee, Cross Appellant, v. Roger M. KEITH, Defendant Below, Cross Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 390

604 A.2d 390

John KOUTOUFARIS and Marlene Koutoufaris, Defendants Below, Appellants, v. Deborah M. DICK, Plaintiff Below, Appellee, Cross Appellant, v. Roger M. KEITH, Defendant Below, Cross Appellee.

Supreme Court of Delaware.

Submitted: Nov. 26, 1991.

Decided: Feb. 10, 1992.

Appeal from Superior Court. Affirmed.

Stephen B. Potter (argued), Potter, Crosse and Leonard, P.A., Wilmington, for appellants and cross appellee.

Randall E. Robbins (argued), and Barbara H. Stratton, Ashby, McKelvie & Geddes, Wilmington, for appellee, cross appellant.

Before CHRISTIE, C.J., HORSEY, MOORE and WALSH, JJ., and HARTNETT, Vice Chancellor, (sitting by designation pursuant to Del. Const. art. IV, § 12), constituting the Court en banc.

WALSH, Justice:

This is an appeal from a decision of the Superior Court that denied motions for judgment notwithstanding the verdict ("judgment n.o.v.") and/or the grant of a new trial following a jury award of $600,000 for an assault and abduction suffered by plaintiff-appellee, Deborah Dick. The incident giving rise to plaintiff's claim occurred in the parking lot adjacent to her place of employment, Blue Coat Inn ("BCI") in Dover. The jury determined that the assault resulted from the failure of the owners of the lot, John and Marlene Koutoufaris and Roger Keith, to provide adequate lighting and security. Post-trial, the trial judge absolved Keith of liability but refused to disturb the verdict as to the Koutoufarises. The Koutoufarises appeal from the denial of judgment n.o.v. or a new trial. Plaintiff cross-appeals from the granting of judgment n.o.v. in favor of Keith and the earlier grant of summary judgment regarding punitive damages. We conclude that there was no error in the trial court's post-trial rulings or in its earlier granting of summary judgment. Accordingly, we affirm.

I

At the time of the incident in question, the plaintiff, a college student, was working as a summer waitress at BCI. On the evening of August 14, 1988, she left her place of employment and walked to the far end of the restaurant parking lot where she had parked her car. Because the restaurant had closed and the parking lot was deserted, plaintiff had asked a busboy to accompany her to her car. He did so but when they came within sight of her car the busboy returned to the restaurant. After she entered her vehicle and started the engine, plaintiff rolled down the window and waited for the engine to warm up because it had been experiencing starting problems. While she waited she began transferring her tip money from her pockets to her purse. An assailant, who has never been identified, reached through the open window, unlocked the door and forced his way into the vehicle. The assailant punched plaintiff in the face and drove off with her while holding her in a headlock. He drove to a nearby cornfield, raped her and then fled with her car keys. Although tied with jumper cables, plaintiff managed to free herself and run to a nearby residence. She was treated for her physical and sexual injuries at a local hospital.

The area where the assault occurred was in a portion of the parking lot farthest from the restaurant. All employees except Mrs. Koutoufaris were required to park there. It was partially obscured by high bushes and not easily visible from the adjacent highway. Prior to the assault on plaintiff, other waitresses had complained to BCI management about the parking policy and inadequate lighting. A lighting expert testified on plaintiff's behalf that lighting in the area where the assault occurred was far below minimum industry standards. There was also evidence that the BCI parking lot had a history of criminal activity. In the four years prior to the assault on plaintiff, police records reflect that fourteen minor crimes, such as theft and vandalism, occurred in the restaurant vicinity, most within the BCI parking lot. While none of the incidents resulted in physical injury, the majority involved BCI employees as victims and none resulted in arrests.

Responsibility for safety in the parking lot was a matter of considerable dispute at trial because of the complex rental arrangement which the Koutoufarises had established. The Koutoufarises and Roger Keith (who is Mrs. Koutoufaris' brother) were the owners of the premises, including the restaurant and the parking lot. As lessors they rented the restaurant and parking lot to BCI, a corporation of which Koutoufarises were the sole stockholders. Both Koutoufarises were active in the management of BCI. The lease between the Koutoufarises and their corporate alter ego, BCI, provided that the lessee shall be responsible "for any and all reasonable maintenance of said buildings, including plumbing, heating and electrial [sic] installation, as well as ground maintenance, sea wall repair, etc...." The lease was silent on the question of responsibility for safety or security of any part of the premises, including the parking lot. At some point after the lease had been executed, the Koutoufarises transferred certain maintenance responsibilities to a partnership, "JOMAR Enterprises", of which they were the sole partners.

The Koutoufarises advance several claims of error concerning evidentiary rulings of the trial court and instructions to the jury. In her cross-appeal, plaintiff contends that the trial court erred in granting judgment n.o.v. to Keith and in denying her claim for punitive damages. In supplemental briefing, the parties also dispute the question of whether plaintiff is limited to a remedy under workmen's compensation. These contentions will be separately addressed.

II

At the outset, we note that certain claims of error asserted by the Koutoufarises are not properly before this Court for review and will thus not be considered on their merits. Their claims relating to the issues of foreseeability and proximate cause, denominated as such, were not the subject of either a motion for directed verdict or for judgment n.o.v. Thus, those assertions cannot be raised here for the first time. Peters v. Gelb, Del.Supr., 314 A.2d 901 (1973); Supr.Ct.R. 8.¹ Similarly, the contentions that the verdict was excessive and that the jury was erroneously instructed regarding plaintiff's claim for future medical expenses, pain and impairment were not included in the alternative motion for judgment n.o.v. or for a new trial and are now barred from review. Supr.Ct.R. 8.

III

The principal area of dispute at trial, and on appeal, concerns the legal standard which measures the duty of the landowners, the Koutoufarises and to a limited extent, Keith, with respect to the safety of plaintiff. The trial court's ruling in this regard was made through rejection of a proposed jury instruction and confirmed post-trial, in a decision denying judgment n.o.v. We review this determination de novo, as a clear question of law. Fiduciary Trust Co. v. Fiduciary Trust Co., Del.Supr., 445 A.2d 927 (1982).

It was plaintiff's contention at trial that she was a business invitee and that the Koutoufarises, as owners of the parking lot, breached a duty to warn or protect her against unreasonable danger. The Koutoufarises argued that, as a matter of law, they owed no duty to plaintiff but if the question of liability were deemed a factual one, the jury should be instructed that any such duty should be gauged under the standard reflected in Restatement (Second) of Torts § 343A(1) which provides:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

The trial judge refused to instruct the jury under the Restatement standard, ruling that § 343A created an absolute bar to recovery by a business invitee that was incompatible with the doctrine of comparative negligence established by statute in Delaware in 1984.² The Koutoufarises argue that the knowledge, or more precisely lack of knowledge, of the business invitee is an element of recovery concerning which plaintiff has the burden of proof and the application of theories such as contributory negligence or assumption of risk cannot serve to relieve plaintiff of that burden. The issue thus posed is whether § 343A represents a limitation on a landowner's duty which subsists independent of the concept of comparative negligence. Or stated differently, whether knowledge by a business invitee of a hazard on the property is a total bar to recovery or merely serves to reduce recovery.

There is a split of decisional authority on the question of whether the knowledge element under § 343A defines the landowner's duty of reasonable care. The schizophrenic nature of the comments to § 343A have perhaps added to the confusion. For example, comment d provides, in part:

... Such knowledge of the violation [of a duty of care by a possessor of land] is material only in determining whether the visitor is to be charged with contributory negligence, or assumption of risk, in coming in contact with the dangerous condition.

Although this passage implies that the knowledge element is viewed as assumption of risk, comment e suggests a different perspective:

e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require...