Martineza v. Towne Estates Condominium Owners Association Inc. et al
Filing
191
MEMORANDUM OPINION regarding Motions for Summary Judgment and Motions in Limine (see D.I. 133 , 136 , 138 , 141 , and 143 ). Signed by Judge Richard G. Andrews on 5/28/2014. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LISA ANN MARTINEZA,
Plaintiff,
v.
TOWNE ESTATES CONDOMINIUM
OWNERS ASSOCIATION, INC., et al.,
Civil Action No. 1: 12-cv-779-RGA
Defendants.
TERRANCE BOWMAN and JANELLE N.
STEVENSON,
Third-Party Plaintiffs,
v.
PETTINARO CONSTRUCTION CO., et al.
Third-Party Defendants.
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MEMORANDUM OPINION
Timothy A Dillon, Esq., McCann & Wall, LLC, Wilmington, DE; Jenimae Almquist, Esq.
(argued), Messa & Associates, P.C., Philadelphia, PA, attorneys for the Plaintiff.
Kevin J. Connors, Esq. (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington,
DE, attorney for the Defendants Towne Estates Condominium Owners Association, Inc., Towne
Estates Condominium Association, Towne Estates Council, Conway Management Group, LLC,
and Conway Management LLC.
Joseph S. Naylor, Esq. (argued), Swartz Campbell, LLC, Wilmington, DE, attorney for the
Defendants Terrance Bowman and Janelle Bowman.
David G. Culley, Esq. (argued), Tybout Redfearn & Pell, Wilmington, DE, attorney for the
Defendant Pettinaro Construction, Inc.
Donald L Gouge, Jr., Esq. (argued), Donald L. Gouge, Jr., LLC, Wilmington, DE, attorney for
the Defendants William R. Dennis, Jr. and Dennis Home Inspections, Inc.
May
2%_, 2014
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AN~~ATES
DISTR CT UDGE:
Presently before the Court for disposition are Defendants Terrance Bowman and Janelle
N. Stevenson's Motion for Summary Judgment (DJ. 138), Third-Party Defendants Dennis Home
Inspections, Inc., and William R. Dennis, Jr.'s Motion for Summary Judgment (DJ. 136),
Defendants Conway Management Group LLC, Conway Management LLC, Towne Estates
Condominium Association, Towne Estates Condominium Owners Association Inc., and Towne
Estates Council's Motion for Summary Judgment (DJ. 143), and Third-Party Defendant
Pettinaro Construction Co., Inc. 's Motion for Summary Judgment (DJ. 133). These matters
have been fully briefed. (DJ. 139, 140, 155, 172, 151, 166, 167, 173, 144, 145, 157, 158, 174,
134, 137, 151, 156, 164, 168, 185, 188). The Court heard oral argument on the motions on
April 17, 2014. (DJ. 189). For the reasons set forth herein, the Defendants' and the ThirdParty Defendants' Motions for Summary Judgment are GRANTED IN PART and DENIED IN
PART.
BACKGROUND
Procedural Background
Lisa Ann Martineza ("Plaintiff') filed this action against the Defendants Terrance
Bowman, Janelle N. Stevenson, Towne Estates Condominium Owners Association, Inc., Towne
Estates Condominium Association, Towne Estates Council, Emory Hill Real Estate Services,
Inc., Conway Management Group LLC, Conway Management LLC, and Curtissa Mack on June
20, 2012. (D.I. 1). Emory Hill Real Estate Services, Inc. was dismissed from the case with
prejudice on May 29, 2013. (DJ. 81). The Defendants Terrance Bowman and Janelle N.
Stevenson then filed a Third-Party complaint against Pettinaro Construction Co., Inc., Dennis
Home Inspections, Inc., and William R. Dennis, Jr. (DJ. 82).
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The Defendants
Towne Estates is a 111 unit condominium complex located in Wilmington, Delaware.
(D.I. 1 at 4). It was built by Defendant Pettinaro in about 1988. (D.I. 82 at 3). Defendant Mr.
Bowman purchased the condominium unit at issue in about 2004 with the intent that his fiancee,
Defendant Janelle Stevenson, and he would live there once they were married. (D.I. 155 at 8).
In 2006, after Mr. and Mrs. Bowman 1 lived at the unit for a period of time, Mr. Bowman let the
unit to Defendant Curtissa Mack. 2 Ms. Mack rented the unit from 2006 to late August 2011.
Id. At all relevant times the Towne Estates Defendants "owned, operated, managed,
maintained, controlled and/or were responsible for the safety" of the condominium complex.
(D.I. 1 at 2). The Conway Defendants were contracted by the Towne Estates Defendants to
manage the condominium complex.
The Incident
On August 15, 2011, the Plaintiff, who had been hired by Ms. Curtissa Mack to help
clean and repair the condominium unit, fell at least ten feet after reaching across a second floor
balcony railing to drop a bag of trash to the lower floor. (D.1. 155 at 8). Because of the
accident, the Plaintiff "suffered multiple fractures of [her] wrists, hips, pelvis, and ribs, a grade 3
liver laceration, and a traumatic head injury resulting in memory impairment." Id. at 9.
The balcony railing was designed to be removable, as the condominium layout required
that any furniture being moved to the second floor had to be transported through the balcony
opening. Id. at 8. When the apartment was initially built, the balcony railing had been attached
by a lag hook system, which was designed by the third-party defendant Pettinaro. (D.I. 164 at
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2
Mrs. Janelle N. Stevenson married Mr. Bowman and now goes by Mrs. Janelle N. Bowman. (DJ. 139 at 5).
The Court entered a default judgment against Ms. Curtissa D. Mack on October 10, 2012. (DJ. 33).
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9). However, at some unknown time, the lag hook system was replaced with an L-bracket
system. (D.I. 155 at 8). When properly attached, the L-bracket system secured the balcony rail
with four L-brackets, two on each side of the railing. Id.
On the day of the accident Ms. Mack's brother, Mr. Jahmal Mack, removed the railing
from the wall so that furniture could be moved out of the apartment. (D.I. 139 at 13). After
removing the railing, the railing was placed in one of the two bedrooms on the upper floor. Id.
Once the furniture was moved, the railing was replaced; however, it is unknown whether or not
the railing was attached to the wall at the time that the Plaintiff fell. Id. at 8.
LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.
R. C1v. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the
moving party may be discharged by demonstrating that there is an absence of evidence
supporting the non-moving party's case. Celotex, 477 U.S. at 325.
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Williams v. Borough a/West Chester, Pa., 891F.2d458, 460-61 (3d Cir. 1989). A non-moving
party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
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particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
other materials; or (B) showing that the materials cited [by the opposing party] do not establish
the absence ... of a genuine dispute .... " FED. R. C1v. P. 56( c)( 1).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only ifthe evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49.
If the non-moving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof, the moving party is entitled to judgment as a
matter oflaw. See Celotex Corp., 477 U.S. at 322.
"Under Delaware law, to prevail on a claim of negligence, a plaintiff must prove (1) that
the defendant owed the plaintiff a duty of care, (2) that the defendant breached that duty, (3) and
that the plaintiffs injury was proximately caused by the breach of that duty." Ha/chuck v.
Williams, 635 F. Supp. 2d 344, 346 (D. Del. 2009).
ANALYSIS
Mr. and Mrs. Bowman
Mr. and Mrs. Bowman ("Bowman Defendants") argue that their Motion for Summary
Judgment should be granted for two reasons: (1) that they owed no duty of care to the Plaintiff
and (2) that they were not the proximate cause of the Plaintiffs accident.
Duty of Care
Legal Standard
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Delaware law requires that landlords "[p]rovide a rental unit which shall not endanger the
health, welfare or safety of the tenants or occupants and which is fit for the purpose for which it
is expressly rented," and that landlords "[m]ake all repairs and arrangements necessary to put
and keep the rental unit and the appurtenances thereto in as good a condition as they were, or
ought by law or agreement to have been, at the commencement of the tenancy .... " 25 Del.
Code§ 5305(a)(2) & (4). However, a landlord that lacks both possession and control of the
leased property is generally not liable to injuries of third-parties for "physical harm caused by
any dangerous condition which comes into existence after the lessee has taken possession."
Volkswagen ofAm., Inc. v. Costello, 880 A.2d 230, 233 (Del. 2005) (internal citations and
quotation marks omitted and emphasis added). Thus, "the duty of the landlord is to maintain the
premises in a reasonably safe condition, and to undertake any repairs necessary to achieve that
end. Thus, if a landlord can be found to have breached this duty and an injury found to have
resulted as a proximate cause of that breach, liability may ensue." Powell v. Megee, 2004 WL
249589 at *2 (Del. Super. Jan. 23, 2004) (internal quotation marks and citations omitted).
Delaware law defines a landlord to be:
a. The owner, lessor or sublessor of the rental unit or the property of which it is a
part and, in addition, shall mean any person authorized to exercise any aspect of the
management of the premises, including any person who, directly or indirectly,
receives rents or any part thereof other than as a bona fide purchaser and who has
no obligation to deliver the whole of such receipts to another person; or
b. Any person held out by any landlord as the appropriate party to accept
performance, whether such person is a landlord or not; or
c. Any person with whom the tenant normally deals as a landlord; or
d. Any person to whom the person specified in paragraphs (l 5)b. and c. of this
section is directly or ultimately responsible.
25 Del. Code§ 5141(15).
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Discussion
The Bowman Defendants make two arguments based upon a lack of duty of care. First,
they argue that Mrs. Bowman does not owe the Plaintiff a duty of care because Mrs. Bowman
was neither an owner of the property nor its landlord. Second, the Bowman Defendants argue
that they do not owe the Plaintiff a duty of care as she is a third-party. The Court will address
these two arguments in tum.
Mrs. Bowman
Mrs. Bowman argues that summary judgment should be granted in her favor as she is not
a co-owner of the condominium unit, has never possessed any interest in the unit, has not had
any contact or communication with Ms. Curtissa Mack or the Plaintiff, and has not had any
involvement with the rental property. (D.I. 139 at 24). The Plaintiff argues that Mrs. Bowman
was herlandlord. (D.I. 155 at 16).
As evidence, Mrs. Bowman cites to the deposition of Ms. Curtissa Mack, Mr. Bowman,
and herself to support her arguments. Mrs. Bowman stated in her deposition, "I haven't had a
lot to do with the condo. My husband handles all business matters." (D.I. 139-1 at 21).
Furthermore, when answering the question, "Did you have any issues with the way that Curtissa
Mack kept the property during the time she lived there?," Mrs. Bowman responded, "That
would be something you need to ask - - address with my husband. I - - I didn't handle any
relations with her, to be honest." Id. at 22. Mrs. Bowman also cites her husband's testimony.
Mr. Bowman stated at his deposition that he acquired the condominium unit in 2004, two years
before Mr. and Mrs. Bowman got married. Id. at 25. Mrs. Bowman also points out that when
Ms. Curtissa Mack was asked at a deposition, "Did you ever have any interaction with [Mrs.
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Bowman]?" Ms. Curtissa Mack responded, "I think I met her on one occasion. I'm not sure
what the conditions were. But I do recall seeing her at the apartment once." (D.1. 139-2 at 8,
9). Ms. Mack also testified at her deposition that she paid Mr. Bowman, and not Mrs. Bowman,
for the rent. Id. at 9.
The Plaintiff argues that, "At a minimum, the facts as to Mrs. Bowman's involvement
with the property and her actions in collecting rent give rise to a factual issue which cannot be
resolved as a matter oflaw." (D.I. 155 at 16). The Plaintiff argues that Mrs. Bowman did have
an interest in the property at issue because she co-habited with her husband in the unit. (D.I.
155 at 12). However, the Plaintiff provides no evidentiary or legal citation that Mrs. Bowman
owned an interest in the unit. The Plaintiff also asserts that Mrs. Bowman "had the authority to
collect rent" which would qualify her as a landlord. Id. To support this claim, the Plaintiff
cites to the deposition testimony of Mrs. Bowman, in which Mrs. Bowman indicated that on one
occasion she "went over to get money from the client, from the renter." (D.I. 155-2 at 3).
The Court finds that no reasonable juror could conclude that Mrs. Bowman's picking up
a single rent check satisfies the statute's definition of a landlord. Specifically, Mrs. Bowman
was not "held out by [Mr. Bowman] as the appropriate party to accept performance" as would be
required by 25 Del. Code § 5141 (l 5)(b). The Plaintiff has put forward no evidence to counter
Mrs. Bowman's showing that she did not manage the rental of the condominium unit. Finally,
the Plaintiff has put forward no evidence that Mrs. Bowman owned any interest in the unit. For
these reasons, Mrs. Bowman's Motion for Summary Judgment is granted as the Court finds that
no reasonable juror could find that Mrs. Bowman had a duty of care to the Plaintiff.
Duty Owed to a Non-Lessee
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The Bowman Defendants argue that they did not have a duty to the Plaintiff because the
Plaintiff is a third-party and not a tenant. (D.I. 139 at 17-19). The Plaintiff contends that the
Bowman Defendants owed her a duty of care. (D.I. 155 at 15-16). The Plaintiffs argument is
premised on the theory that the existence of a removable railing is in and of itself dangerous and
preexisted Ms. Curtissa Mack's occupation of the condominium unit. The Plaintiff further
argues that as the condition preexisted Ms. Curtissa Mack's possession of the property, under
both common law and 25 Del. Code§ 5305, the Bowman Defendants' duty to provide a safe
property, and to repair it, was not terminated. The Court finds that the existence of a possibly
dangerous removable railing prior to Ms. Curtissa Mack taking possession of the unit is
sufficient to create a genuine dispute as to a material fact relating to a breach of a duty of care.
Proximate Cause
Legal Standard
Delaware law defines proximate cause as "causation which in a natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury and without which
the result would not have occurred." Ha/chuck, 635 F. Supp. 2d at 346 (internal quotation
marks and brackets omitted). However, intervening causes do not automatically cut off
proximate cause. Instead, the intervening act "must have been unforeseeable to the original
tortfeasor," which is typically a question for the trier-of-fact. Id. at 347. "Only in cases where
no reasonable difference of opinion as to the conclusion to be reached on the question of whether
an intervening cause is abnormal, unforeseeable, or extraordinarily negligent, should the question
of proximate cause be determined by the Court as a matter oflaw." Id. (internal brackets and
quotation marks omitted).
Discussion
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The Bowman Defendants argue that the injuries to the Plaintiff were solely caused by
Ms. Curtissa Mack and were not a result of their actions. (D.I. 139 at 19). The Bowman
Defendants provide several supporting arguments, most notably that it was Ms. Curtissa Mack
and her family's act of not properly reattaching the railing that was the proximate cause of the
Plaintiffs accident. Id at 22, 23. The Plaintiff responds by stating that the Bowman
Defendants' arguments amount to "an argument of superseding, intervening cause which must
go to a jury." (D.I. 155 at 18). The Court agrees. It is a genuine material disputed question of
fact whether the mere existence of the removable system itself was dangerous. Furthermore, as
the Bowman Defendants knew that the bannister would be removed at various times during the
condominium unit's occupation, it is disputed whether the railing being insufficiently reinstalled
would be "abnormal, unforeseeable, or extraordinarily negligent." There exist genuine disputed
material facts. The Court denies the Bowman Defendants' Motion for Summary Judgment as it
relates to proximate cause.
William R. Dennis, Jr. and Dennis Home Inspections, Inc.
William R. Dennis, Jr. and Dennis Home Inspections, Inc. ("Home Inspector
Defendants") argue that the third-party plaintiffs have not established that the Home Inspector
Defendants owed a duty of care to the Bowman Defendants. (D.I. 136 at 4).
Discussion
The Home Inspector Defendants are third-party defendants. There is no independent
claim on the part of the Plaintiff against the Home Inspector Defendants. Therefore, the present
issue is whether there is a duty of care owed by the Home Inspector Defendants to the Bowman
Defendants.
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The Home Inspector Defendants point to the absence of evidence that they owed any duty
of care to the Bowman Defendants and the absence of evidence as to what such a duty would
involve. Indeed, no party has provided any evidence detailing the duty of care that was owed by
the Home Inspector Defendants to the Bowman Defendants. The Bowman Defendants state
only, "[T]o the extent that this Court somehow determines that the Bowmans are potentially
liable to Plaintiff based on some longstanding defect that was present when Mr. Bowman
purchased the Unit in 2006 [sic], including the original railing as modified with the L brackets,
the Inspection Defendants are liable in whole or in part for the same." (D.I. 151 at 4).
Delaware law requires that the plaintiff, or here the third-party plaintiff, prove by a
preponderance of the evidence the existence of a duty between the two parties. Halchuck, 635
F. Supp. 2d at 346. The Bowman Defendants' cursory statement that the Home Inspector
Defendants should be liable if the Bowman Defendants are liable is insufficient to satisfy this
burden. Therefore, as the Bowman Defendants have not established that there was a duty of
care owed to them by the Home Inspector Defendants, the Home Inspector Defendants' Motion
for Summary Judgment is granted. 3
Towne Estates and Conway Management
Towne Estates Condominium Owners Association, Inc., Towne Estates Condominium
Association, Towne Estates Council, Conway Management Group, LLC., and Conway
Management, LLC, ("Towne Estates and Conway Management Defendants") argue that their
Motion for Summary Judgment should be granted for three reasons: (1) that they do not owe the
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The Court notes that the proforma contract that the Home Inspector Defendants submitted to the Court as
representing the contract that would have been signed by the Bowman Defendants purports to cap liability at $820,
which is twice the cost of the inspection. (D.I. 186 at 2). The Court also notes that the Bowman Defendants offer
no argument why the Home Inspector Defendants would have any duty of care to Mrs. Bowman, since she was not a
purchaser of the property for which they did the home inspection.
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Plaintiff a duty of care, (2) that the Plaintiffs retained expert is not qualified to opine on topics
relating to the Towne Estates and Conway Management Defendants, and (3) the Lessee (Ms.
Curtissa Mack) was the superseding and intervening cause of the accident and thus they were not
the proximate cause of the injuries. (See D.I. 144 at 9, 13).
Discussion
Towne Estates and Conway Management Defendants argue that their responsibilities are
limited by the Enabling Declarations and the Management Agreement. The Plaintiff argues that
the Towne Estates and Conway Management Defendants had a duty of care to the Plaintiff as a
landlord.
The condominium unit at issue is owned by Mr. Bowman, not the Towne Estates and
Conway Management Defendants. The obligations of the Towne Estates and Conway
Management Defendants is governed by the condominium declaration. See Goss v. Coffee Run
Condo. Council, 2003 WL 21085388 at* 2 (Del. Ch. Apr. 30, 2003). A condominium
declaration is nothing more than a regular contract and is therefore interpreted as such. See
Council ofDorset Condo. Apartments v. Gordon, 801A.2d1, 5 (Del. 2002).
The responsibilities of the condominium owners and the Towne Estates Condominium
complex are defined in the Enabling Declarations. Relevant portions of these declarations read:
Article 8: Unit Description
A. Each unit consists of:
(1) The volumes or cubicles of space within its title lines as shown on the
Declaration Plan enclosed by and measured horizontally from the
unfinished inner surfaces of the perimeter walls dividing the Unit, and
vertically from the unfinished inner surfaces of the ceiling and floor of
the Unit;
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(3) The decorated inner surfaces of all said walls, ceilings and concrete
slabs consisting of paint, plaster, plasterboard, wallpaper, carpeting,
floor tiles and other floor coverings, moldings and baseboards, railings,
and all other finishing materials of a similar nature, affixed or installed
as part of the physical structure of the Unit;
B. Excluded from each Unit shall be:
(3) Structural parts and supports contained within any Unit.
Article 13: Units - - Their Maintenance and Repairs
B. It shall be the responsibility of the Council to maintain, repair or replace:
(1) All portions of the Unit which contribute to the support of the Building,
including main bearing walls, but excluding painting, wallpapering,
decorating or other work on the interior surfaces of walls, ceilings and
floors within a Unit.
(2) All portions of a Unit which constitute a part of the exterior of the
Building including any balcony or patio.
(3) All Common Elements including those located within a Unit.
C. It shall be the responsibility of each Unit Owner with reference to that Owner's
Unit
(1) Except for those portions of the Unit mentioned and described in Article
12(B) above, to maintain, repair and replace at such Owner's own
expense all portions of the Unit which may cause injury or damage to
the other Units or to the Common Elements.
(5) To maintain, repair and replace ... all non-load bearing interior walls,
floors and partitions and windows and doors in the Unit.
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(D.I. 144-1 at 2, 3, 6-8).
Furthermore, Towne Estates Condominium Association engaged Conway Management
Group, LLC. The two parties entered a management agreement. Two relevant sections read:
2.5
Maintenance of Common Elements
Subject to the directions of the [Board of the Towne Estates Condominium
Association], [Conway Management Group, LLC] shall cause the common
elements of the Property to be maintained according to appropriate
standards of maintenance consistent with the character of the Property.
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[Conway Management Group, LLC,] Not Responsible for Maintenance of
Individual Units
[Conway Management Group, LLC,] shall have no authority or
responsibility for maintenance or repairs to individual units in the Property.
Such maintenance and repairs shall be the sole responsibility of the owners
individually.
[Conway Management Group, LLC,] will provide
maintenance and construction services to individual units at the request of
unit owner for a negotiated contract price.
(D.I. 144-2 at 3, 4).
The Court finds that these contracts, as a matter of law, do not create a relevant duty of
care on the part of the Towne Estates and Conway Management Defendants to the Plaintiff. As
to the Towne Estates Defendants, the Enabling Declarations draw a clear line between elements
of the condominium that are outside the owned units, or inside the owned units, but considered
shared, i.e., loadbearing walls and plumbing, and elements that are inside the units but are not
shared. The Towne Estates Defendants have responsibilities for the former, but not the latter.
The railing in this case is located inside the unit, is not load bearing, is not a shared element with
any other unit owner, and therefore is the responsibility of the individual condominium unit
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owner. Furthermore, Article 8(A) § 3 clearly defines interior railings as part of the
condominium unit, and not as part of the common elements of the condominium.
As for the Conway Management Group Defendants, the management agreement states
that Conway Management Group, LLC, is not responsible for anything inside the unit. As here
the railing is clearly inside the unit, the management agreement imposes no contractual duty on
the Conway Management Group to do anything in relation to the railing, including checking it
for safety or repairing it.
The Plaintiff argues that because the Enabling Declarations provide "authorization and
right to manage the condominium," the Towne Estates and Conway Management Defendants
should be considered landlords. (D.I. 158 at 15). The Court disagrees. While the Plaintiff has
cited to six portions of the Enabling Declarations as evidence for her argument, no cited portion
provides authorization to either enter the apartment to alter or repair the railing or a duty to have
identified the railing as a hazard. The Plaintiff's only citation to the Enabling Document that
could provide a duty is described by the Plaintiff as stating, "The right of access to individual
units by Towne Estates was 'irrevocable' and expressly includes the right to make repairs,
replacements or improvements to the Common elements 'and to the Unit itself."' Id.
However, a closer inspection of the section cited to by the Plaintiff, Article 12(D), indicates that
the right of entry is limited to (1) "conducting pest extermination," (2) "inspecting and making
repairs, replacements or improvements to the Common Elements," (3) "prevent damage to the
Common Elements," (4) "to abate the violation of any laws, orders, rules or regulations of
governmental authorities having jurisdiction," and (5) to correct a condition that is in violation of
another unit's mortgage. (D.1. 158-13 at 5 (emphasis added)). The Enabling Documents do not
create a right of entry or duty to inspect that would be granted to a landlord. Therefore, no
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reasonable jury could find that the Towne Estates and Conway Management Defendants were
landlords under 25 Del. C. § 5141 (15).
The Towne Estates and Conway Management Defendants have raised sufficient evidence
with the Court to show that they had no duty of care to the Plaintiff. As the Plaintiff has failed
to rebut this evidence, the Towne Estates and Conway Management Defendants' Motion for
Summary Judgment is granted.
Pettinaro Construction Co., Inc.
Pettinaro argues that it was not the proximate cause of the accident because (1) the railing
attachment system as originally installed in the unit was altered, and (2) there is no evidence that
a defect of the original railing system resulted in the accident.
Discussion
Pettinaro argues that it cannot be the proximate cause of the accident as the railing system
that it installed had been altered. (D.I. 134 at 12). Pettinaro had originally installed a lag screw
system to secure the loft railing. Id. This lag screw system had been replaced by an unknown
subsequent owner or occupant with the L-bracket system that was in use on the day of the
accident. Id. at 13. The Plaintiff argues that the accident was not the result of the type of
removable system used to secure the railing, but instead was the result of the re movability of the
railing itself. (D.I. 164 at 17).4 As support for this argument, the Plaintiffs expert states,
Due to the design of the loft with a single access by a spiral stairway, the removable
guard at the wall opening in the second floor loft was provided to facilitate the
movement of furniture into and out of the loft area. There was no feasible method
to move large pieces of furniture such as a mattress or dresser into or out of the
bedrooms on the loft level other than using the subject opening overlooking the
lower level. There was no safe method to provide a removable guard at the
4
The Bowman Defendants assert that if it is determined that the Plaintiff is liable due to a longstanding defect in the
railing, Pettinaro would be liable in whole or in part for the same. (DJ. 151 at 4).
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incident location due to the removal of the guard, either inadvertently or
deliberately, creat[ing] a foreseeable fall hazard.
(D.I. 156-2 at 11 ).
Pettinaro has failed to provide the Court with sufficient evidence to demonstrate an
absence of a genuine material fact that a superseding cause cut off Pettinaro' s liability.
Specifically, there exists a genuine material dispute as to whether removing the lag screw system
was a superseding cause that cut off liability. The question whether the alteration of the system
used to secure the railing acted as a superseding cause is properly a jury question. The Court
denies Pettinaro' s motion for summary judgment.
Conclusion
For the reasons above, the Court will GRANT IN PART AND DENY IN PART
Defendants Terrance Bowman and Janelle N. Stevenson's Motion for Summary Judgment (D.1.
138), GRANT Third-Party Defendants Dennis Home Inspections, Inc., and William R. Dennis,
Jr.'s Motion for Summary Judgment (D.I. 136), GRANT Defendants Conway Management
Group LLC, Conway Management LLC, Towne Estates Condominium Association, Towne
Estates Condominium Owners Association Inc., and Towne Estates Council's Motion for
Summary Judgment (D.I. 143), DENY Third-Party Defendant Pettinaro Construction Co., Inc.'s
Motion for Summary Judgment (D.1. 133). Third-Party Defendants Dennis Home Inspections,
Inc., and William R. Dennis, Jr.'s Motion In Limine To Bar The Testimony of Fleisher Forensics
(D.I. 136) is DISMISSED AS MOOT. Defendants Conway Management Group LLC, Conway
Management LLC, Towne Estates Condominium Association, Towne Estates Condominium
Owners Association Inc., and Towne Estates Council's Motion to Preclude Trial testimony of
Plaintiff's Proffered Expert, Walter Green, (D.I. 141) is DISMISSED AS MOOT.
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An appropriate order will be entered.
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