Delaware Premises Liability

Key Points:

• The Supreme Court of Delaware confirms that willful and wanton common law premises liability standard applies to both trespassers and licensees.
• Defense practitioners must hold non-business invitee plaintiffs to this exacting standard.

Robert Simpson rode his bicycle on July 9, 2009, through an ungated entrance to a parking lot owned by Colonial Parking. Once inside the lot, Simpson's bicycle struck what was described as a "large pothole, which was protected by a traffic cone that he only saw after the accident." Simpson brought suit against Colonial Parking for the personal injuries he incurred on the grounds that Colonial Parking negligently failed to maintain the premises in a safe condition. Simpson averred that he was a licensee and that Colonial Parking breached its duty to him to keep its premises safe.

Both parties filed motions for summary judgment; Simpson contending on the one hand that he was a licensee, and Colonial Parking arguing on the other that he was a trespasser. The trial court, after oral argument, decided that Simpson possessed the status of trespasser and not a licensee, because he failed to demonstrate through discovery that Colonial Parking impliedly consented to his use of the parking lot, or that Simpson was otherwise privileged to use it. The trial court viewed Simpson's use of the parking lot as a one-time use merely for his own convenience. With Simpson's status as a trespasser, the trial court held that Colonial Parking's duty was to refrain from willful and wanton conduct and that Simpson had failed to allege or prove any such misconduct.

In its decision, the trial court referenced Section 342 of the Restatement (Second) of Torts as the applicable liability standard. Section 342 makes possessors of land liable to licensees if: (1) the possessor knows or has reason to know of a hazardous condition and should realize that it involves an unreasonable risk of harm to such licensees, should expect that they will not discover or realize the danger; (2) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved; and (3) the licensees do not know or have reason to know of the condition and the risks involved. Restatement (Second) of Torts § 342.

Simpson appealed to the Supreme Court of Delaware from the trial court's entry of summary judgment against him. The Supreme Court, in Simpson v. Colonial Parking, Inc., 36 A. 3d 333 (Del. 2012), used the occasion to clarify that the "willful and wanton" common law premises liability standard applies both to trespassers and licensees.

The Simpson Court noted that the trial court presumed that Delaware's common law premises liability standard was dependent upon whether Simpson was a licensee or trespasser. This presumption, according to the Supreme Court, was incorrect and contrary to the Supreme Court's decision in Hoesch v. Nat'l R.R. Passenger Corp., 677 A. 2d 29 (Del. 1996). The Hoesch case had identified the landowner's duty to refrain from willful or wanton conduct to a trespasser and a "guest without payment," the latter of which the Supreme Court equated to "licensee" status under the common law and the Delaware Guest Premises Statute, 25 Del. C. §1501. The Simpson Court reiterated and highlighted the Supreme Court's earlier pronouncement in Hoesch that the common law, and not the Guest Premises Statute, defined the duty to trespassers and guests without payment, i.e., licensees, owed by commercial and industrial owners and occupiers of land. Thus, the Supreme Court determined in Simpson that the common law standard applied because the case involved the premises liability of a commercial parking lot owner.

The Supreme Court also found that the trial court had reached the appropriate result because it had applied the "willful and wanton" liability standard due to its determination that Simpson was a trespasser. Yet, the Simpson Court was careful to point out that the trial court's decision was one of several cases after Hoesch to apply the Restatement's licensee liability rule incorrectly as the common law of Delaware. The Supreme Court reaffirmed that Section 342 of the Restatement (Second) of Torts is not the common law premises liability rule in Delaware applicable to trespassers and licensees. The Court noted that, to the contrary, Delaware's common law rule imposes a duty upon landowners and possessors to refrain from willful and wanton conduct to trespassers and licensees.

The Simpson opinion should finally resolve any misunderstanding regarding the correct liability standard applicable to landowners and possessors of land vis-à-vis trespassers and licensees. It also underscores the requirement that a plaintiff plead willful and wanton conduct against a landowner where the plaintiff may not be a business invitee, and to adduce facts through discovery to support that allegation. Most importantly, Simpson should move defense practitioners to utilize discovery to require such plaintiffs to identify all facts, witnesses and documents he or she intends to proffer to support the existence of willful and wanton conduct in order to test these proofs and premises liability claims via a dispositive motion.

*Kevin is a shareholder and the managing attorney of our Wilmington, Delaware, office. He can be reached at 302.552.4302 or kjconnors@mdwcg.com.

Defense Digest, Vol. 18, No. 3, September 2012