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«Submitted: August 22, 2011 Decided: August 30, 2011 Upon Defendant Dover Downs, Inc.’s Motion for Summary Judgment. GRANTED. MEMORANDUM OPINION ...»

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Plaintiff )

) C.A. No. 10C-06-180 RRC

v. )




Defendant )




Submitted: August 22, 2011

Decided: August 30, 2011 Upon Defendant Dover Downs, Inc.’s Motion for Summary Judgment.



Philip T. Edwards, Esquire and Lauren A. Pisapia Cirrinicione, Esquire, Murphy & Landon, Wilmington, Delaware, Attorneys for Plaintiff Erma Brown.

Daniel L. McKenty, Esquire and Michael J. Logullo, Esquire, Heckler & Frabizzio, Wilmington, Delaware, Attorneys for Defendant Dover Downs, Inc.


I. Introduction This motion for summary judgment arises from injuries sustained by Plaintiff Erma Brown (“Plaintiff”) when she fell while getting into a bathtub in the bathroom of her room at Defendant Dover Downs, Inc. (“Defendant”); at the time of this incident, Plaintiff was a guest, and thereby a business invitee, of Defendant, a Delaware hotel and casino. Although Defendant adhered to a policy of providing bathmats for each of its rooms, there was apparently no such bathmat in Plaintiff’s room. Thus, the crux of Plaintiff’s claim of negligence is that Defendant owed her a duty to provide a bathmat for her room’s bathtub, and that Defendant’s failure to provide a bathmat was the cause of her instant injuries.

The question of whether an innkeeper owes a legal duty to its guests to provide a bathmat appears to be one of first impression in Delaware. Nonetheless, a review of cases from other jurisdictions reveals that the overwhelming majority rule is that no such duty exists. The underlying rationale of the majority rule, take together with the truism that “the risks inherent in bathing or showering are open, apparent, and obvious to anyone who has ever taken a bath or shower,” 1 is persuasive to this Court. Consequently, this Court joins the majority of jurisdictions and holds that Defendant did not owe Plaintiff a legal duty to provide a bathmat. Given that the existence of a duty is a necessary element of a negligence claim, it follows that Plaintiff is precluded recovering from Defendant.

In turn, there are no remaining genuine issues of material fact with respect to Plaintiff’s claim. Accordingly, Defendant’s motion for summary judgment is GRANTED.

–  –  –

The facts of this case, as set forth in Plaintiff’s complaint, are quite straightforward and are not contested or contradicted by Defendant’s motion for summary judgment. Plaintiff is a resident of the State of New Jersey; she was a guest of Defendant on September 9, 2009. 2 As Plaintiff was entering the shower in her hotel room, she slipped and fell; Plaintiff’s complaint alleges that she remained in the bathtub for several hours, until a hotel maid entered the room and called an ambulance. 3 According to Plaintiff, the bathtub did not contain any See Jones v. Abner, 335 S.W.3d 471, 476 (Ky. Ct. App. 2011).

–  –  –

bathmat or other non-slip finish. 4 Defendant’s representative acknowledged that, on the date of the incident, Defendant maintained a policy of providing rubber bathmats for its rooms’ showers. 5 III. Contentions of the Parties A. Defendant’s Contentions Defendant argues in support of its motion that the majority of courts that have considered this issue have determined that an innkeeper does not owe a duty to provide a bathmat for use by guests. 6 Defendant further notes that the majority of courts have held that the inherently slippery nature of a wet bathtub is an “open and obvious” condition, of which an innkeeper defendant has no duty to warn or otherwise address. 7 Defendant cites the case of Brault v. Dunfey Hotel Corporation, 8 a case from the United States District Court of the Eastern District of Pennsylvania, which provides a very thorough overview of nationwide cases addressing this issue; it is Defendant’s position that, consistent with the majority view articulated and analyzed in Brault, this Court should hold that Defendant had no duty to provide guests a bathmat or otherwise warn guests of the inherently slippery nature of a wet bathtub. To the extent Plaintiff invokes Defendant’s policy of providing bathmats to establish Defendant’s negligence, Defendant asserts that its voluntary provision of bathmats is merely a “courtesy and extra safety precaution” and does not establish or engender a legal duty to provide such mats. 9 Finally, Defendant argues that there is no evidence that a bathmat would have prevented Plaintiff’s fall. 10

–  –  –

Plaintiff invokes the general proposition that a landowner owes a duty to business invitees to make the premises reasonably safe and to warn of any

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Pltf.’s Opp’n. to Mot. for Summ. J. Ex. 1 (Q. “On September 9, 2009, Dover Downs had a policy which required that a rubber mat be supplied in every guest bathroom [] which contained a bathtub?” A. “Yes.”).

Def.’s Mot. for Summ. J. at 3.


1988 WL 96814 (E.D. Pa. 1988).

–  –  –

concealed or latent dangers. 11 Plaintiff asserts that Defendant “should have expected plaintiff would fail to protect herself from the danger posed by the slippery bathtub because [Defendant] failed to provide her with the very thing she needed to protect herself from the danger, which was a bathmat.” 12 Plaintiff further argues that the reasonableness of an innkeeper’s failure to place a bathmat “is a question that triggers material issues of fact that must be determined by the jury.” 13 Plaintiff contends that Defendant’s policy of placing a bathmat in its bathrooms establishes a “subjective recognition” on the part of Defendant that its bathtubs posed an unreasonable risk of harm to business invitees in the absence of a bathmat. 14 With respect to Defendant’s articulation of the majority view regarding the lack of an innkeeper’s tort duty to provide bathmats, Plaintiff argues that Defendant is proposing a “stricter” standard to the innkeeper/gust relationship;

Plaintiff asserts that the “open and obvious” characterization of the danger is relevant only to Plaintiff’s comparative negligence, a factual issue for the jury, and not to the existence, vel non, of Defendant’s duty in tort to provide a bathmat. 15 According to Plaintiff, “[t]here is a clear issue of fact as to whether [Defendant] was obligated to provide [a] bathmat to [Plaintiff].” 16 IV. Standard of Review Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 17 The moving party bears the burden of demonstrating that no material issues of fact are in dispute and that it is entitled to judgment as a matter of law. 18 Pltf.’s Opp’n. to Mot. for Summ. J. at 1.

–  –  –

Super. Ct. Civ. R. 56(c).

Sterling v. Beneficial Nat’l Bank, N.A., Del. Super., C.A. No. 91C-12-005, Ridgely, P.J.

(Apr. 13, 1994) (Mem. Op.).

Once the non-moving party has been afforded the opportunity to show a genuine issue of material fact in dispute, the burden returns to the moving party to demonstrate the absence of such disputes. 19 Disputes regarding immaterial issues of fact will not preclude summary judgment; 20 if the disputed facts could have no bearing on the analysis or resolution of the parties’ claims, then any such disputed facts are immaterial. 21 The Court must view the record in a light most favorable to the nonmoving party. 22 However, the opposing party may not merely assert the existence of a disputed issue of fact; the opponent of a motion for summary judgment “must do more than simply show that there is some metaphysical doubt as to material facts.” 23 A prerequisite for liability in tort is the existence of a legal duty to the plaintiff. The existence of a duty is entirely a question of law for the Court “to be determined by reference to the body of statutes, rules, principles and precedents which make up the law.” 25 As previously stated by this Court, “[n]eedless to say, if the defendant establishes that it owed no duty to the plaintiff, ipso jure, it has established that it is entitled to summary judgment as a matter of law.” 26 Super. Ct. Civ. R. 56(e); Mann v. Oppenheimer & Co., 517 A.2d 1056, 1060 (Del.


Brzoska v. Olson, 668 A.2d 1355, 1365 (Del. 1995) (citing State Farm Mut. Auto. Co.

v. Mundorf, 659 A.2d 215, 217 (Del. 1995)).

See, e.g., Mundorf, 659 A.2d at 217 (holding that the factual dispute as to whether a policyholder received a contractually required renewal premium notice could have no effect on the resolution of the case because the insurer was nonetheless required by law to send a termination notice; accordingly, the dispute was deemed immaterial as a matter of law.) Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 560 (Del. Super. Ct. 1989).

Brzoska, 668 A.2d at 1364 (quoting Matsushita Elec. Ind.Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

See, e.g., Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2002) (“In order to be held liable in negligence, a defendant must have been under a legal obligation-a duty-to protect the plaintiff from the risk of harm which caused his injuries.”) (citation omitted).

Id. (“Whether a duty exists ‘is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.’”) (citations omitted).

Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 880 (Del. Super. Ct. 2005); see also Kananen v. Alfred I. DuPont Inst. of Nemours Found., 796 A.2d 1, 4 (Del. Super. Ct.

2000) (“If the court finds that the defendant owes no duty of care to the plaintiff, the defendant is entitled to summary judgment as a matter of law.”) (citations omitted).

–  –  –

The singular issue for this Court to determine is whether Defendant, as an innkeeper, owed a duty to Plaintiff, its business invitee, to place a bathmat in her room’s bathtub. This is apparently a question of first impression in Delaware;

consequently, this Court has undertaken a review of cases from other jurisdictions which have addressed this issue.

–  –  –

As relevant to this case, Delaware’s tort duty to affirmatively act is guided by the Restatement (Second) of Torts. 27 With respect to innkeepers, the Restatement (Second) of Torts § 314A(1)-(2) obligates innkeepers “to protect [their guests] against unreasonable risk of physical harm.” 28 Consequently, the operative inquiry is whether the inherently slippery nature of a wet bathtub surface presents an “unreasonable” risk of harm, thereby obligating Defendant to affirmatively act to protect to Plaintiff.

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Defendant cites a number of cases from other jurisdictions which have analyzed the instant issue. The most comprehensive such case appears to be See, e.g., Reidel v. ICI Americas, Inc., 968 A.2d 17, 20 (Del. 2009) (“Generally, to determine whether one party owed another a duty of care, we follow the guidance of the Restatement (Second) of Torts.”) (citations omitted).

See also Britt v. Campbell & Bru-Bre, 1987 WL 28318, at *2 (Del. Super.) (“An innkeeper is under a duty to its guests to take reasonable action to protect them against reasonable harm.”) (citing RESTATEMENT (SECOND) OF TORTS 314A.).

Brault v. Dunfey Hotel Corporation,29 a 1988 case from the United States District Court for the Eastern District of Pennsylvania. In Brault, the plaintiff, a 14 year old girl, slipped while in the shower at the Tobacco Valley Inn in Windsor, Connecticut; she testified that, as she stepped into the bathtub, she observed some “brownish-gray” strips in the bottom of the bathtub. 30 The plaintiff testified that she believed these strips were present to prevent someone from slipping while in the shower, and that she believed she was safe because of the strips; 31 ultimately, however, it was revealed that these “strips” were simply stains in the bottom of the bathtub. 32 Given that the incident occurred in Connecticut, Connecticut law controlled the extent of the defendant’s duty; this issue had not been addressed by the Connecticut courts, thereby requiring the District Court to “predict” Connecticut law on this issue. 33 The Brault Court noted the “dearth” of case law pertaining to slip and fall accidents in bathtubs. 34 Nonetheless, the Court undertook a thorough review of the most relevant cases from Ohio, New Mexico, Florida, Massachusetts, Indiana, New Jersey, New York, Washington, Colorado, Hawaii, and several federal courts. 35 Based on its review and analysis of these

cases, the Brault Court stated:

–  –  –

Id. at *5 (“Connecticut law controls substantive questions of law in this case. The parties have not cited any Connecticut decisions concerning the potential liability of a hotel for an invitee who sustains an injury while using the hotel’s bathtub. Furthermore, this Court has not found any Connecticut decisions directly on point.”).


–  –  –

Accordingly, the Brault Court held that Connecticut would align itself with this majority view that the defendant did not owe the plaintiff a duty to supply a bathmat and, in turn, granted a directed verdict for the defendant. 37 More recently, in 1998, the Court of Appeals of Ohio similarly confirmed that the majority view does not impose a duty on innkeeper’s to

install a bathmat:

–  –  –

The most recent case on point located by this Court is Jones v.

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