Judge denies Wawa's motion in 'hoagie guts' lawsuit

By Sara McCleary | Oct 31, 2017

WILMINGTON, Del. (Legal Newsline) –  A Delaware court has denied a convenience store’s motion for summary judgment and for a protective order in a slip-and-fall dispute.

Plaintiff Lisa Donovan filed the case against Wawa Inc. on May 6, 2016, alleging that she slipped and fell on pieces of a sandwich that had been dropped in the store’s parking lot on June 5, 2014. Donovan asserts that Wawa had been negligent in its duty to a customer to exercise reasonable diligence to keep the property in safe condition.

On May 18, the defendant filed a motion for summary judgment, arguing that the standard of keeping the property safe allows for a reasonable period of time to discover the condition, which the plaintiff did not take into consideration. 

The defendant also argued in the motion that Donovan’s failure to identify a liability expert is damaging to her case, because an expert’s opinion is required to establish proximate cause.

Judge Calvin L. Scott Jr.  

The court, however, found that a liability expert is not necessary to establish negligence because, as Judge Calvin L. Scott Jr. wrote in the court’s opinion, “whether Defendant was negligent in cleaning up ‘hoagie guts’ in its parking lot, is within the intelligence of a layperson.” 

However, the court did agree that an expert is needed to establish the plaintiff’s allegation that Wawa “failed to maintain the premises up to the applicable codes and regulations.”

The court denied the defendant’s motion for summary judgment.

In the same ruling, the court addressed the plaintiff’s June 5 motion to compel discovery, along with the defendant’s response of a motion for a protective order. 

The defendant argued that the plaintiff had already conducted extensive discovery, including deposing six store associates, and that any further discovery “is cumulative, unduly burdensome, and unnecessarily expensive compared to the needs of the case, the amount in controversy, and the issues at stake in this litigation,” wrote Scott.

As such, Wawa sought a protective order to prevent Donovan from further deposing associates or other discovery, arguing that allowing the plaintiff to do so will not result in further information relevant to the case and that the information is subject to privilege.

The court found that the defendant did not sufficiently show that the information can be considered privileged and denied the motion for a protective order. Instead, the court granted in part the plaintiff’s motion to compel discovery, imposing limits on the information the plaintiff was allowed to seek through further discovery.

“The Court finds that Plaintiff is not entitled to compel discovery about criminal activity on Defendant’s premises, information related to ‘the high number of intoxicated customers/patrons frequenting the store,’ or why Defendant’s store changed from a ‘24-hour’ store to an ‘18-hour’ store,” wrote Scott. 

“The Court believes that this information is not relevant, nor will answers to these requests lead to information relevant or pertinent to this litigation.”

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