SMITH v. HENDERSON, 737 A.2d 531 (Del. 1999)

Smith v. Henderson.

No. 329, 1998.Supreme Court of Delaware.
August 10, 1999.

Appeal from the Superior Court, Sussex County, CA 95C-11-015.

REVERSED AND REMANDED

Unpublished Opinion is below.

GARY D. SMITH and LOIS J. SMITH, Plaintiffs Below, Appellants v. SHERRY HENDERSON and MILDRED HARLEY, Defendants Below, Appellees. No. 329, 1998. Supreme Court of Delaware. Submitted: June 8, 1999. Decided: August 10, 1999.

Court Below: Superior Court of the State of Delaware in and for Sussex County Civil Action No. 95C-11-015.

Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.

ORDER
This 10th day of August, 1999, upon consideration of the briefs and arguments of the parties, it appears to the Court that:

1) Gary D. Smith and Lois J. Smith appeal from the Superior Court’s dismissal of their personal injury claims. Appellants contend that the trial court erred in: (i) ruling that the Premises Guest Statute was an available defense; (ii) finding that Gary was a guest without payment; and (iii) finding that there was no evidence of wanton conduct. We hold that the Premises Guest Statute is applicable, but that the question of whether Gary was a guest without payment should have been decided by the jury. We decline to rule on the last issue, since this case will be retried and the question of wantonness, if relevant, will be decided on a different record.

2) At the time of his injury, Gary was a security guard working for a company that provided security for mobile home parks. The guards occasionally brought messages to the residents when the resident could not be contacted by telephone. Gary received a message for Sherry Henderson, a resident and fellow security guard, at about 11:30 p.m. on the evening of the incident. He drove to Sherry’s home and, when he saw that lights were on and the door was open, he approached the front door. As Gary started to knock on the screen door, he was attacked by a dog that was tied up outside the house.

3) Sherry’s husband, John Henderson, owned the dog and knew that the dog had attacked other people in the past. Sherry was unaware of those incidents and testified that the dog was passive and friendly. The mobile home in which Sherry and John were living was leased to Mildred Harley, John’s mother. Harley also testified that the dog was friendly and obedient.

4) The first issue is whether Sherry is protected by the Premises Guest Statute, which provides:

No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others.

25 Del. C. § 1501. Gary argues that, since Sherry was not a tenant or owner of the property, she should not be considered an occupier allowed to rely on the statute.

5) The Superior Court correctly rejected this argument. This Court has held that the term “occupier” means owners in actual possession as well as “possessors, tenants, and landlords who physically control and exercise dominion over identifiable real interests.” Stratford Apartments, Inc. v. Fleming, Del.Supr., 305 A.2d 624,626 (1973). In other words, a person rightfully in possession of the property is an “occupier.” Sherry lived on the premises with the tenant’s knowledge and permission. Therefore, she was protected by the Premises Guest Statute.

6) The next issue is whether Gary should be classified as a “guest without payment” under the statute. Under Stratford, that determination turns on whether Henderson “received and expected [a] benefit of value” from Gary’s presence. Ibid. The benefit may not be de minimus, but it need not be financial. Ibid. The record establishes that Gary was attempting to deliver a message, while on duty as a security guard, and that this was a service provided to all of the community residents. We are satisfied that this evidence, viewed in the light most favorable to Gary, raises an issue of material fact for the jury to decide. Mazda Motor Corp. v. Lindahl, Del.Supr., 706 A.2d 526, 530 (1998). Accordingly, we reverse and remand for a new trial.

7) The remaining issue is whether the trial court erred in finding that there was insufficient evidence to support a finding of wantonness. Since there will be a new trial, and therefore a new record, we decline to review the trial court’s factual determination on this point.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, REVERSED and the matter is REMANDED for a new trial. Jurisdiction is not retained.