Turner v. Ass'n of Owners of Bethany Seaview Condo.

• Decision Date: 26 April 2013
• Docket Number: C.A. No. S11C-12-010 RFS
• Parties: RE: Ty Turner v. Association of Owners of Bethany Seaview Condominium
• Court: Delaware Superior Court

RE: Ty Turner
v.
Association of Owners of Bethany Seaview Condominium

C.A. No. S11C-12-010 RFS

SUPERIOR COURT OF THE STATE OF DELAWARE

DATE SUBMITTED: February 25, 2013
April 26, 2013

RICHARD F. STOKES
JUDGE

Stephen P. Norman, Esquire

Nicholas M. Tyler, Esquire

Dear Counsel:

This is a personal injury action which plaintiff Ty Turner ("plaintiff") has brought against defendant Association of Owners of Bethany Seaview Condominium ("defendant" or "Association") seeking recovery for damages he allegedly suffered on defendant's property. Plaintiff has filed a motion for partial summary judgment, arguing there are no factual issues as to portions of his case. This is my decision denying the pending motion.

Bethany Seaview Condominium consists of six units and the Association is composed of the owners of the six individual units. Carol Byrne owns Unit 2 at Bethany Seaview

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Condominium. The hedges in front of the units are on defendant's common property. Sometimes, individual owners trim the hedges; other times, independent contractors are hired to trim the hedges. In this case, Carol Byrne hired plaintiff to trim the hedges in front of her unit. Even though she hired him, everyone agrees the work was for the benefit of the Association.

Plaintiff undertook the job on June 22, 2011. He set a ladder on a board which was a part of a boardwalk located in the defendant's common area. Plaintiff alleges he fell off the ladder and injured himself. He describes what happened in his deposition testimony as follows:

Well, I was up on the ladder trimming the top of the hedge and all of a sudden the ladder went wobbly and I turned because the ladder was shaking or wobbling or leaning, whatever, I knew I wasn't going to be able to stand on the ladder so I kind of, like, turned around so I could jump and most of my body landed in the hedge I was trimming and that was pretty much it. And then I discovered that the reason for it was because it was a deck board that wasn't properly fastened and my ladder was on the edge of the board which caused it to see-saw which caused me to fall, to lose my balance and I tried to protect myself.¹

Plaintiff alleges injury to his foot from this accident. Paul C. Kupcha, M.D., defendant's expert, has submitted a report concluding the injuries were related to the fall from the ladder. However, this conclusion is based upon the assumption that the information plaintiff provided is true and correct. In other words, the causality conclusion is based upon the factual finding that the injuries occurred when plaintiff fell off the ladder.

Plaintiff submitted an engineering report which concludes that if the ladder had been placed on a loose board, then the ladder could have become unstable, thereby causing plaintiff to fall. This report also explains that after the accident, a board was located in front of Unit 2 that had screws in it which differed from those of the other boards. Significant to the report's

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conclusion of causality is that plaintiff's ladder was placed on a loose board.

Defendant's designated representative for the taking of deposition testimony was Tom Corrigan.² He testified to the following.

Q. Are there inspections of the boardwalk completed by the Association?
A. No.
Q. Are there any other inspections that are made by anyone else of the boardwalk that you know of?
A. No.
Q. Is the Association responsible for the maintenance and repair of the boardwalk?
A. Yes.
Q. How does the Association make sure that the boardwalk is left in a safe condition?
A. That's really by the physical activity on the boardwalk, the people walking to the beach, walking out of their units, walking into their units. If there were an issue, it would be addressed.
***
Q. Was the Association aware of the defect alleged in Mr. Turner's complaint?
A. The Association wasn't aware of any defects.

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***
A. To the best of my knowledge, the boardwalk is structurally sound. Every board around unit two is structurally sound and was and has been.
Q. So, the answer here is based upon the fact that, upon your inspection after the injury, the boardwalk appeared sound and the planks were all screwed in?
A. Not only that, but also I received no indication from any of the other owners, directly or through the renters, that there was a structural defect in the boardwalk. There had been no report of that to me so...
Q. But there were no inspections before this incident?
A. No.³

Each unit owner who was deposed generally testified that he or she was unaware of any issues concerning the subject boardwalk. They explained that they were up and down the boardwalk on a regular basis, walking on it and sweeping it. Also, they looked at the boardwalk regularly, and none of them ever saw a loose board.

Plaintiff argues he is entitled to summary judgment on the grounds defendant admits it breached its duty to inspect the boardwalk where plaintiff was injured and defendant's own medical expert has concluded a fall from the ladder caused plaintiff's injuries.

The standard for summary judgment is well-established in Delaware. When the moving party supports its summary judgment motion with evidence that no genuine issue of material fact exists, the burden shifts to the non-moving party to establish the existence of issues of material fact in dispute.⁴ The Court must view the facts in a light most favorable to the non-moving

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party,⁵ but uncontroverted evidence in support of summary judgment must be considered as true.⁶ If, after viewing the evidence in the light most favorable to the non-moving party, the Court finds no genuine issues of material fact exist, then summary judgment is appropriate.⁷ If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate.⁸

Plaintiff argues that the Supreme Court's decision in the case of Scott v. Harris ("Scott")⁹ has "refined" this summary judgment standard with the following ruling:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts .... When

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