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Thursday, October 17, 2019

Del. SC: Business not responsible for biker's injuries

By Jessica M. Karmasek | Feb 22, 2012


DOVER, Del. (Legal Newsline) - The Delaware Supreme Court last week ruled in favor of a business, which was sued by a man who was injured after his bicycle hit a pothole in its parking lot.

The plaintiff, Robert E. Simpson, sued Colonial Parking in November 2010.

Simpson was riding his bicycle through Colonial's parking lot in Wilmington on July 9, 2009.

Simpson passed through an ungated entrance to the lot, located on Pennsylvania Avenue. After he entered the lot, his bike struck a large pothole, which was marked by a traffic cone. He testified he didn't notice the cone until after hitting the hole.

He sued Colonial for his injuries, claiming that it had failed to maintain a safe premises, thereby breaching a duty it owed to Simpson as a "licensee."

The New Castle County Superior Court granted summary judgment in favor of Colonial.

In its ruling, the court described it as a "one-shot occasion" where Simpson rode his bike across the parking lot, merely for his own benefits.

Therefore, Colonial's only duty was to refrain from "wilful and wanton" conduct, which Simpson hadn't alleged or proved, it said.

Simpson appealed the ruling to the state Supreme Court, claiming that the lower court erred by holding he was a trespasser and not a licensee when he used Colonial's lot as a shortcut.

The state's high court, in its Feb. 13 opinion, affirmed the superior court's ruling.

In its six-page opinion, the Court said commercial property owners/occupiers are held to the same common law standard whether or not the claimant is a licensee or a trespasser -- namely, to refrain from wilful and wanton conduct.

"The trial court analyzed the issue of whether Simpson was a licensee on the assumption that Delaware's common law premises liability standard depends on which status -- that of licensee or trespasser -- Simpson occupied," Justice Jack B. Jacobs wrote for the Court.

"That assumption was incorrect as it is contrary to the law most recently pronounced by this Court in Hoesch v. National Railroad Passenger Corp."

In Hoesch, the Court expressly adopted the "willful and wanton" common law premises liability standard for both trespassers and licensees.

However, the Court said because the superior court properly applied the "wilful and wanton" liability standard after it determined Simpson's status as a trespasser, the court reached the correct result.

"To clarify the correct rule to be applied in future cases, we re-affirm that the restatement rule is not Delaware's common law premises liability rule for trespassers and licensees," Jacobs wrote.

"Rather, the Delaware common law rule is that property owners/possessors must refrain from willful and wanton conduct toward trespassers and licensees alike."

From Legal Newsline: Reach Jessica Karmasek by email at

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