Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CARRIE J. SCHOTT and WILMER W. SCHOTT, Plaintiffs, v. UNITED STATES POSTAL SERVICE and CITY OF DOVER, Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No.: 06-499

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT, CITY OF DOVER'S, MOTION TO DISMISS IN LIEU OF AN ANSWER I. Statement and Nature of Case On August 14, 2006, Plaintiffs, Carrie J. Schott ("Carrie") and Wilmer W. Schott ("Wilmer"), filed their Complaint claiming personal injury and loss of consortium, respectively, as a result of an alleged slip-and-fall by Carrie. Although a waiver of service was executed as to Defendant, City of Dover ("City"), in September 2006, it was not filed and did not appear on the Court's docket until December 19, 2006. Thereafter, Plaintiffs' counsel granted defense counsel an extension of time in which to file a responsive pleading, which was confirmed by defense counsel.1 City leased land in Dover, Delaware to the United States of America ("USA") on September 6, 1962.2 The lease, with a term of thirty (30) years, was renewable by USA or its assigns, for up to 25 additional years, pursuant to paragraph four of the lease. 3 The lease has

1

Letter from John A. Macconi, Jr., Esq. to Benjamin A. Schwartz, Esq. dated December 22, 2006 attached as Exhibit 1. 2 Assignable Ground Lease between the City of Dover and the United States of America dated September 6, 1962 attached as Exhibit 2. 3 Id. at ¶ 4.

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 2 of 9

continually been renewed by USA and/or its assigns since the original term ended, and is currently in effect for the contemplated land. The following provision was included in the lease: The tenant, at tenant's own cost and expense, shall maintain the demised premises, including all buildings, structures and improvements constructed thereon, in good condition of repair and in compliance with all requirements of law.4 Shortly after the lease was first entered into, a United States Post Office building was constructed on the land, at 55 The Plaza, Dover, Delaware. Plaintiffs' suit centers on an alleged slip-and-fall sustained by Carrie on the land. On August 14, 2004, she was walking toward the Post Office's main entrance on a sidewalk in front of the building. Two persons, also walking on the sidewalk, approached from the opposite direction, so Carrie stepped off the sidewalk and onto the aligning grass. When she did so, she stepped on an exposed tree root that Plaintiffs have described as "protrud[ing] above the ground level," and "clear."5 Her foot slipped off the root and she fell.

II.

Plaintiffs fail to state a claim upon which relief may be granted, and their action must be dismissed, because Defendant had relinquished possession and control of the leased property. A. Standard of Review

In deciding a motion to dismiss, a plaintiff's allegations must be accepted as true,6 and dismissal is warranted if it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."7 In addition to the Complaint's allegations, a court may consider "exhibits attached to the [C]omplaint, matters of public record, and

4 5 6 7

Id. at ¶ 24. Plaintiffs' Complaint at ¶ 11. See Hishon v. King, 467 U.S. 69, 73 (1984). Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 3 of 9

documents that form the basis of a claim."8 Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) shall be treated as motions for summary judgment when matters outside the pleadings are presented to the court.9 B. Lessors who relinquish possession and control of leased property owe no duty to persons entering that property with respect to conditions thereon and cannot be held liable for injuries to those persons.

Established federal and state court precedent provides that a lessor who no longer has possession or control over leased property owes no duty to third persons coming upon the property with respect to conditions thereon, and is not liable for injuries to those persons.10 In Larson v. Straff,11 the Third Circuit Court of Appeals stated that, generally, "[a] landlord owes no duty to persons coming upon the premises for conditions present at the time of the tenant's entrance,"12 essentially echoing Restatement (Second) of Torts § 356.13 The Court was asked to decide post-trial questions, including whether proper instructions were given by the trial court to the jury about this issue. Additionally, the Court termed the rule a rigid one of nonliability, and provided that there are only a couple of narrow exceptions to it.14

Brown v. Daniels, 128 Fed. Appx. 910, 913 (3rd Cir. 2005)(citations omitted)(attached as Exhibit 3); Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3rd Cir. 2004). 9 FED R. CIV. P. 12(b). 10 E.g., Larson v. Straff, 340 F.2d 180 (3d Cir. 1964); Volkswagen of America, Inc. v. Costello, 880 A.2d 230 (Del. 2005). Cf. Craig v. A.A.R. Realty Corporation, 576 A.2d 688 (Del. Super. Ct. 1989)(holding that non-possessory landowners must exercise control amounting to actual management of leased premises to have duty to protect tenants' invitees from criminal attacks on premises). 11 340 F.2d 180 (3d Cir. 1964). 12 Id. at 186. 13 Section 356 of the Restatement (Second) of Torts states: Except as stated in §§ 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession. RESTATEMENT (SECOND) OF TORTS § 356 (1965). 14 Larson, 340 F.2d at 186.
8

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 4 of 9

In Volkswagen of America, Inc. v. Costello,15 the Delaware Supreme Court reached the same conclusion by slightly different means, relying instead on Restatement (Second) of Torts § 355.16 The case involved a physically injured employee of a lessee company and a second company that leased a facility to the lessee, but that did not completely relinquish possessory control of the facility.17 The Court ultimately reversed the trial court's judgment for a variety of reasons, but not before, most pertinently, discussing a lessor's duty to third persons upon leased property. Quoting from Restatement (Second) of Torts § 355, the Court stated that "a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession."18 The Court also acknowledged an exception to the rule ­ namely, when a lessor retains a degree of control over the leased property.19 In the present case, City owed no duty to Carrie with respect to the tree root and cannot be held liable for her alleged injuries because it relinquished possession and control of the land upon its being leased to USA. Nor can City be held liable on Wilmer's claim as it is merely derivative of his wife's claim.20 City has not possessed the land since September 6, 1962, and instead USA and its assigns have as evidenced by the lease's continually being renewed and in effect. Further, a United States Post Office building was erected shortly after the lease's origination, a building that has always been, and continues to be, used by the United States Postal Service. There has been no
15 16

880 A.2d 230 (Del. 2005). Id. at 233. 17 Id. at 231-32. 18 Id. at 233. The beginning phrase of Restatement § 355, omitted by the Court, is "[e]xcept as stated in §§ 357 and 360-362 . . . ." 19 Volkswagen of America, Inc., 880 A.2d at 233. 20 See Rizzo v. E.I. duPont de Nemours & Company, 1989 Del. Super. LEXIS 450, at *11 (loss of consortium claims are derivative claims)(attached as Exhibit 4); Beatty v. Smedley, 2003 Del. Super. LEXIS 437, at *2 n.1 (same)(attached as Exhibit 5).

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 5 of 9

suggestion made that, at any time since the lease's inception, City has held a possessory interest in the land. City has similarly not exerted control over any part of the land at any time since September 6, 1962, either directly or indirectly. Specifically, City has not itself, nor has it indirectly by instructing or requiring things of USA and/or its assigns. Rather, the parties agreed at the time of the lease, by the provision stated above, that USA alone would be responsible for maintaining the premises. That shift of responsibility simultaneously, and consequently, shifted control to USA. As stated previously, the lease has continually been in effect since its inception, with USA, and not City, having the same responsibility and control. This result is the same regardless of whether the tree root is considered a condition existing at the time of, or after, the lease, under Larson and Volkswagen of America, Inc. and Sections 355 and 356 of the Restatement (Second) of Torts. Subject to a few narrow exceptions, that are inapplicable in the present case, a lessor owes no duty to persons entering leased property with respect to conditions on the property, whether they existed at the time of the lease or came into existence afterward. While it may seem illogical to do so, even assuming,

arguendo, that the tree root was, forty-four years ago, exactly as it was on the day of Carrie's alleged fall is of no matter. Any duty associated with the root would be of USA, not City. The same is true of post-lease conditions, as explained above. Finally, as mentioned, there are exceptions to the general rule, albeit narrow exceptions. Nevertheless, none of them are applicable in the present case. The exceptions are provided in Restatement §§ 357-362. Those explored by Larson and Volkswagen of America, Inc. are contained in the Restatement and are not in addition thereto. For ease of reference, the

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 6 of 9

Restatement sections have been attached to this memorandum of law. 21 Because an exceptionby-exception "contrast" analysis to the present case would become cumbersome, and for the sake of brevity, City contends, again, that none of the exceptions apply in this case. Each one considers factual circumstances different than exist in this case, including an affirmative act on lessor's part, such as repairing the leased land or retaining control over it, and undisclosed dangerous conditions known to the lessor. Because the attached exceptions represent the only ones to the general rule, and because none apply here, the general rule applies to obviate a duty on City's part, as lessor, to Carrie. Consequently, as City owed no duty to Carrie, it cannot be held liable for her alleged injuries or on Wilmer's derivative claim.

III.

Plaintiffs fail to state a claim upon which relief may be granted, and their action must be dismissed, because the tree root was an "open and obvious" condition. A. Standard of Review

In deciding a motion to dismiss, a plaintiff's allegations must be accepted as true,22 and dismissal is warranted if it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."23 In addition to the Complaint's allegations, a court may consider "exhibits attached to the [C]omplaint, matters of public record, and documents that form the basis of a claim."24 Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) shall be treated as motions for summary judgment when matters outside the pleadings are presented to the court.25

21 22 23 24

Sections 357-362 of the Restatement are attached as Exhibits 6 through 11, respectively. See Hishon, 467 U.S. at 73. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Brown, 128 Fed. Appx. at 913 (citations omitted)(attached as Exhibit 3); Lum, 361 F.3d at 222 FED R. CIV. P. 12(b).

n.3.
25

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 7 of 9

B.

A landowner has no duty to cure a condition upon land where that condition is "open and obvious."

Federal court precedent has routinely provided that where a condition upon land is "open and obvious," no duty is imposed upon the landowner with regard to the condition or its cure.26 In Centanni v. United States Postal Service, 27 the plaintiff brought suit for personal injuries sustained as a result of a fall on United States Post Office grounds.28 As she proceeded along a sidewalk on the grounds, she encountered a woman in her path and left the sidewalk to "take a 'short-cut' between a live oak tree and the building."29 Although posts and a chain fence had been erected to deter such short-cuts, other postal service patrons had broken the chains and damaged the fence.30 The plaintiff's foot caught on one of the chains during her attempt to maneuver through the area, and she fell on the tree's roots.31 The Court, in granting the

defendant's motion to dismiss, held that, primarily because the roots and damaged fencing were obvious to passers-by, they could not constitute unreasonably dangerous conditions and defendant, therefore, had no duty to cure them.32 In Brown v. United States of America,33 the plaintiff was traversing United States Post Office grounds with which he was familiar when his foot was caught on an exposed oak tree root.34 The plaintiff fell and sustained personal injury.35 The Court held that, although the tree root was a potentially dangerous condition, the defendant had no legal duty to warn about, or

26

E.g., Centanni v. United States Postal Service, 2004 U.S. Dist. LEXIS 3050 (E.D. La.)(attached as Exhibit 12); Brown v. United States of America, 861 F.Supp. 539 (W.D. La. 1994). 27 2004 U.S. Dist. LEXIS 3050 (E.D. La.)(attached as Exhibit 12). 28 Id. at *1. 29 Id. at *1-2. 30 Id. at *2. 31 Id. 32 Id. at *8-10. 33 861 F.Supp. 539 (W.D. La. 1994). 34 Id. at 540. 35 Id.

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 8 of 9

cure, it because it was "obvious, easily avoidable . . . and . . . known to the [plaintiff]."36 To impose such a duty, reasoned the Court, "would put a severe burden on virtually all landowners to remedy a risk that does not merit such a burden."37 In the present case, the tree root was "open and obvious" which obviated a duty on City's part to remedy the condition in any way. The cited cases plainly provide that where a condition upon land is obvious, even if potentially dangerous, the landowner has no duty as to the condition. Plaintiffs reveal that the tree root was obvious to Carrie by the language in their own Complaint, describing it as "protrud[ing]" and "clear." Therefore, a duty must necessarily not be attributed to City. The analysis is as straightforward as it appears. This conclusion is bolstered by Carrie's decision to step off the sidewalk and Brown's rationale. When Carrie chose to step off the sidewalk, regardless of her motive for doing so, she knowingly subjected herself to an obvious condition. Because her foot landed directly on that condition, and not simply near it, so as to avoid a mishap, is of no matter. She confronted an evident risk and lost, but cannot now hold another responsible for that decision. Were she allowed to do so would be to place a severe, unmeritorious burden on City, as stated in Brown.

36 37

Id. at 542-43 (citations omitted). Id. at 543.

Case 1:06-cv-00499-GMS

Document 7

Filed 01/12/2007

Page 9 of 9

IV.

Conclusion and Prayer for Relief Based on the foregoing, Plaintiffs' action against Defendant City of Dover should be

dismissed.

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

/s/ John A. Macconi, Jr. ________________________________________________ DANIEL A. GRIFFITH, ESQ. (Del. Bar ID No. 4209) JOHN A. MACCONI, JR., ESQ. (Del. Bar ID No. 4430) 1220 North Market St., 5th Floor P.O. Box 130 Wilmington, DE 19899-0130 Counsel for Defendant City of Dover DATED: January 12, 2007

Case 1:06-cv-00499-GMS

Document 7-2

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 1 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 2 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 3 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 4 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 5 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 6 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 7 of 8

Case 1:06-cv-00499-GMS

Document 7-3

Filed 01/12/2007

Page 8 of 8

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 1 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 2 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 3 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 4 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 5 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 6 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 7 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 8 of 9

Case 1:06-cv-00499-GMS

Document 7-4

Filed 01/12/2007

Page 9 of 9

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 1 of 7

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 2 of 7

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 3 of 7

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 4 of 7

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 5 of 7

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 6 of 7

Case 1:06-cv-00499-GMS

Document 7-5

Filed 01/12/2007

Page 7 of 7

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 1 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 2 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 3 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 4 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 5 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 6 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 7 of 8

Case 1:06-cv-00499-GMS

Document 7-6

Filed 01/12/2007

Page 8 of 8

Case 1:06-cv-00499-GMS

Document 7-7

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-8

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-9

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-10

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-11

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-12

Filed 01/12/2007

Page 1 of 1

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 1 of 7

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 2 of 7

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 3 of 7

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 4 of 7

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 5 of 7

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 6 of 7

Case 1:06-cv-00499-GMS

Document 7-13

Filed 01/12/2007

Page 7 of 7