Rose v. Cadillac Fairview Shopping Center Properties (Delaware) Inc., 94C-03-024

• Citation: 668 A.2d 782
• Decision Date: 18 May 1995
• Docket Number: No. 94C-03-024,94C-03-024
• Parties: Jane L. ROSE, Plaintiff, v. CADILLAC FAIRVIEW SHOPPING CENTER PROPERTIES (DELAWARE) INC., a Delaware corporation; JMB Retail Properties Company, a/k/a JMB Retail Properties Co., a/k/a JMB Retail Properties Co., Inc.; JMB Properties Company, a/k/a JMB Properties Co., a/k/a JMB Properties Co., Inc., a/k/a JMB Properties Company, Inc.; Sears, Roebuck and Co., a foreign corporation; and Abacus Corporation, a foreign corporation, t/a Abacus Security Services, Defendants. Civ. A. . Submitted:
• Court: Delaware Superior Court

Page 782

668 A.2d 782

Jane L. ROSE, Plaintiff, v. CADILLAC FAIRVIEW SHOPPING CENTER PROPERTIES (DELAWARE)

INC., a Delaware corporation; JMB Retail Properties

Company, a/k/a JMB Retail Properties Co., a/k/a JMB Retail

Properties Co., Inc.; JMB Properties Company, a/k/a JMB

Properties Co., a/k/a JMB Properties Co., Inc., a/k/a JMB

Properties Company, Inc.; Sears, Roebuck and Co., a foreign

corporation; and Abacus Corporation, a foreign corporation,

t/a Abacus Security Services, Defendants.

Civ. A. No. 94C-03-024.

Superior Court of Delaware,

Kent County.

Submitted: May 18, 1995.

Decided: Aug. 16, 1995.

Upon Consideration Of Defendant Sears, Roebuck and Company's Motion To Dismiss Plaintiff's Complaint Based on Superior Court Civil Rule 12(b)(b).

I. Barry Guerke, Parkowski, Noble & Guerke, Dover, Delaware, for Plaintiff.

Ann D. Carey, Elzufon, Austin & Drexler, Wilmington, Delaware, for Defendant Cadillac Fairview Shopping Properties (Delaware); CFUS Properties, Inc.; JMB Properties Company; and all other named JMB Entities.

William F. Taylor, Young, Conaway, Stargatt & Taylor, Wilmington, Delaware, for Abacus Corporation.

William J. Cattie, III, Heckler & Cattie, Wilmington, Delaware, for Sears, Roebuck and Company.

OPINION & ORDER

TERRY, Resident Judge.

This is a personal injury action in which plaintiff, Jane L. Rose ^*, was abducted from the Dover Mall parking lot and raped. Plaintiff alleges that the defendants who are

the owners and managers of the Dover Mall, the security company employed by the mall and the employer ("Sears"), were negligent in failing to provide adequate security in the parking lot. Before the Court is defendant Sears' Motion to Dismiss plaintiff's Complaint based on Superior Court Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

FACTS

On Sunday August 30, 1992, plaintiff was working for Sears as a part-time sales associate in the Dover Mall store. On Sundays Sears opened at 12:00 p.m. and employees were required to clock in within 5 minutes before or after 11:30 so as to prepare for the opening of the store. Plaintiff testified at her deposition that she normally would arrive on Sundays about fifteen to thirty minutes early, eat her lunch in the break room provided by Sears for its employees and then go to clock in and receive her cash register key.

That morning plaintiff got up too late to attend church services and decided to go to her boyfriend's house to see if he wanted to have breakfast with her. He did not, so plaintiff ate breakfast alone at Denny's near the mall after which she went directly to the parking lot at the mall and parked her car in the area where Sears had instructed its employees to park. Plaintiff testified she arrived between 10:35 and 10:40 and intended to go into Sears and read the paper in the break room until check-in time as there was usually a paper there. After parking, plaintiff was about to get out of her car when an unknown male robbed and abducted her. After raping her, the assailant drove plaintiff back to the mall parking lot, dropped her off and abandoned the car. Plaintiff went into Sears and informed her supervisor of what had happened. To date the perpetrator has not been found.

Under the lease between Sears and the mall ownership, the responsibility for the parking lot largely fell to mall management which undertook to provide security, illumination and maintenance. The lease requires the tenants to instruct employees to park in remote locations where patrons of the mall would not be likely to park. In addition, the lease requires the landlord to ensure that the parking lot be in a condition suitable for its intended use up to one hour prior to the opening of the tenant's facility. Sears instructed its employees, including plaintiff, to park in designated parking spaces which, however, were not marked as exclusively belonging to Sears' employees and customers were not precluded from parking there. Sears had installed an outside surveillance camera which panned the parking area designated for Sears employees to monitor the parking lot and some outside storage trailers. In addition, Sears security officers were available to escort employees to and from their cars if so requested. On the Sunday in question, there were other Sears employees already parked in the area designated for Sears employees including the car belonging to plaintiff's immediate supervisor.

Sears has moved to dismiss contending that worker's compensation provides the exclusive remedy for the injuries sustained by plaintiff or in the alternative that Sears owed no duty of care to plaintiff because the lease agreement between the owners of the mall and Sears placed security obligations for the parking lot on the mall owners. Plaintiff and the other defendants oppose this motion arguing that worker's compensation is not the appropriate remedy because the incident did not occur in the course of or arising out of the employment. ¹

They also oppose Sears' second argument by asserting that the issue is not yet ripe since discovery has not been completed pursuant to the scheduling order entered in this case.

STANDARD OF REVIEW

Although this is a motion to dismiss, Sears has submitted evidence outside of the pleadings including deposition testimony and other documentary evidence. Consequently, the motion shall be treated as one for summary judgment. Shultz v. Delaware Trust Co., Del.Super., 360 A.2d 576, 578 (1976). A motion for summary judgment requires the court to examine the record to determine whether any genuine issues of material fact exist. Burkhart v. Davies, Del.Supr., 602 A.2d 56, 59 (1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1946, 118 L.Ed.2d 551 (1992). If, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact, summary judgment is appropriate. See Nash v. Connell, Del.Ch., 99 A.2d 242, 243 (1953). However, summary judgment may not be granted when the record indicates a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances. Ebersole v. Lowengrub, Del.Supr., 180 A.2d 467, 470 (1962). In making its determination, the Court will consider the pleadings, depositions, answers to interrogatories, admissions on file and affidavits. Super.Ct.Civ.R. 56(c).

DISCUSSION

The first issue is whether or not plaintiff's tort action against her employer, Sears, is barred by the "exclusivity defense" found in 19 Del.C. § 2304. That statute provides:

Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.

Thus, in order for Sears to prevail on the exclusivity defense, it must prove (1) plaintiff is an employee, (2) plaintiff suffered a "personal injury" and (3) the injury arose out of and in the course of employment. Battista v. Chrysler Corp., Del.Super., 454 A.2d 286, 288 (1982). The parties do not dispute that plaintiff was an employee of Sears and that she suffered a personal injury. The key dispute between the parties is whether the injury she suffered arose out of and in the course of her employment.

The requirements "arising out of" and "in the course of" employment are two separate requirements both of which must be met for worker's compensation to be applicable. Dravo Corp. v. Strosnider, Del.Super., 45 A.2d 542, 543 (1945), citing, Children's Bureau of Delaware v. Nissen, Del.Super., 29 A.2d 603 (1942). The term "in the course of employment" refers to the time, place and circumstances of the injury. Dravo, 45 A.2d at 543. "It covers those things that an employee may reasonably do or be expected to do within a time during which he is employed and at a place where he may reasonably be during that time." Id., at 543-44. The term "arising out of employment" relates to the origin of the accident and its cause. Id. at 544. The court in Dravo said:

It is sufficient if the injury arises from a situation which is an incident or has a reasonable relation to the employment, and that there be some causal connection between the injury and the employment.

Id. Thus, in order to be compensable, the injury must have been caused in a time and place where it would be reasonable for the employee to be under the circumstances. Also, there must be a reasonable causal connection between the injury and the employment.

To determine whether plaintiff's injury arose in the course of employment, the defendant must show first that the parking lot was part of the employer's premises in order to overcome the "going and coming" rule and second that her arrival forty-five to fifty minutes early was a reasonable amount of time prior to the commencement of her work so as to bring it within the "work day."

As a general rule, an injury occurring while an employee is on his way to work or on his way home from work is noncompensable under the "going and coming rule of employer nonliability." Histed v. E.I. du Pont de Nemours & Co., Del.Supr., 621 A.2d 340, 343 (1993), citing, Bernadette's Hair Designers v. Incollingo, Del.Super., C.A. No. 89A-JN-10, Babiarz, J., 1990 WL 105023 (July 16, 1990). An exception to this rule has developed, known as the "premises" exception. See, 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 15.11 (1993). Under this exception, once an employee reaches the premises of his employer he is covered by worker's compensation. Id. In a majority of jurisdictions, the premises of an employer includes the parking lot, regardless of whether or not the lot is owned or controlled by the employer. LARSON at §§ 15.42(a)-(c).

This rule is recognized in Delaware. In Quality Car...