December 2016

Gym, Tan, Liability: You Going To The Gym This Christmas BRO?
This litigation arises from a Christmas morning slip and fall of a gym bound apartment resident. The resident filed a premise liability action against the apartment complex alleging it failed to use reasonable care to keep the common areas safe by removing snow and ice.
The apartment complex moved for summary judgment on essentially two grounds: the resident knowingly walked onto the snow and ice and the Continuing Storm doctrine. In denying the motion for summary judgment, the Delaware Superior Court reiterated the legal status classification that determine the duty owed to third parties. Restatement (Second) of Torts §343 (1965) (Trespassers, Licensees, Invitees).
In Delaware, a landowner has an affirmative duty to keep a premises reasonably safe by removing accumulations of snow and ice. The resident’s knowledge (or lack thereof) of the weather conditions, although possibly comparative negligence, is not required to establish a prime facie case. A caveat to a landowner’s general duty, the “Continuing Storm” doctrine permits a landowner to wait until the end of the storm, or a reasonable time thereafter, before commencing snow removal efforts. The resident testified the snow stopped falling after 11:00 p.m. and the accident occurred before sunrise on Christmas day. The court concluded that whether a reasonable time had elapsed was a question for the trier of fact.
For more information on this matter or other legal questions, feel free to contact any attorney in our Weightlifting Liability Department, Michael W. Mitchell or any attorney in our Liability Department.
Mujahid v. Iron Hill Apts. Assocs., LP, 2016 Del. Super. LEXIS 209, at *1 (Del. Super. 2016).
Guardado v. Roos Foods
On 11/29/16, the Delaware Supreme Court issued a Decision clarifying its 2013 Opinion in Campos v. Daisy Construction involving undocumented workers. In Campos, the Court found that an employer could not prove job availability within restrictions based on a job offer to the claimant when the claimant did not possess a valid social security number. The practical effect of this Decision was that it appeared impossible to prove availability of work within restrictions on any Termination Petition involving an undocumented worker, because these workers cannot be legally hired.
In Guardado, the Supreme Court clarified that employers may be able to demonstrate job availability to undocumented workers. An individualized determination must be made, based on a variety of factors including degree of physical impairment, age, education, background, work experience, and availability of work, and documented/undocumented status. There are many undocumented workers in the United States, and the Court felt that employers should present evidence regarding the prevalence of these workers in certain types of jobs in the relevant geographic area. Presumably this would be done through some sort of specialized labor market survey/vocational investigation.
An important lesson to be learned from Campos and Guardado is that employers should voluntarily utilize the Department of Homeland Security’s E-Verify System to check the Social Security number provided by each new employee. If you require assistance utilizing E-Verify or have any other questions regarding these Decisions, please contact one of our Workers’ Compensation attorneys.
Guardado v. Roos Foods, C.A. No. S15A-05-002 (Del. Nov. 29, 2016)

Decorating For Christmas Is More Hazardous Than The Workplace.
            In Sherwood v. Art Floor, the Superior Court affirmed the Board’s determination that the claimant lacked credibility when alleging that he sustained a hand and elbow injury due to a work accident because the claimant deliberately did not tell his medical providers about falling off a ladder while hanging Christmas lights a week prior to the work accident.
            The claimant suffered a work accident for which his employer acknowledged a lower back injury. Almost two years later, the claimant filed a Petition seeking compensation for hand and elbow injuries which he alleged were caused by the work accident. It was discovered that the claimant, only weeks prior to the work accident, had an unrelated accident, in which he sought medical care for his right hand. The claimant was decorating for Christmas, standing on a ladder and hanging lights, when he fell from the ladder.
The Board concluded that the hand and elbow injuries were unrelated to the work accident, and instead were caused by the earlier Christmas-related accident. The Superior Court affirmed this decision, stating that it was supported by substantial evidence, as the Board explained that it did not find the claimant credible with regard to his allegation that the hand and elbow injuries were caused by the work accident. The Board noted that the claimant did not disclose his fall from the ladder at any of his medical examinations for his work-related back injuries, even presenting to a different hospital after each accident. The claimant had an incentive to allege the injuries occurred during the work accident, as he did not have health insurance at the time of the first fall and he was suffering through financial hardship, facing foreclosure on his home – the home he was attempting to decorate at the time of the first fall. To show this financial motive, the Board allowed testimony with regard to the claimant’s recent efforts to “undo” a prior annuity settlement for a workers’ compensation injury in Pennsylvania that occurred years earlier, claiming such financial hardship. The claimant’s lack of credibility due to his omissions of the first fall and financial incentive undermined the claimant’s medical expert’s opinion that the injuries occurred during the work accident, as the claimant’s medical expert had minimal to no knowledge of the claimant’s first fall. The court affirmed this decision, thus showing that in this circumstance, getting into the Christmas spirit truly can be more hazardous than the workplace. For more information on this or any legal questions, feel free to contact any attorney in our Christmas Decorating Hazard Department or our Workers’ Compensation Department.
Sherwood v. Art Floor, Inc., 2012 Del. Super. LEXIS 445 (September 18, 2012).

Suing Your Employer Without Naming The Employer, Like Calling A flying Deer Without A Red Nose “Rudolph”:
 Title VII Compliant Dismissed Due To Insufficient Pleading
The Civil Rights Act of 1964 includes Title VII which “prohibits employment discrimination based on race, color, religion, sex and national origin.”[1] The law provides for the protection of employees from employer discrimination. Therefore, a complaint alleging a violation of Title VII must include both the basis of discrimination (i.e. race, color, etc.), as well as the employer during the time of the alleged discrimination.
In Burton v. Sussex County Council, Plaintiff Stacie Burton, proceeding pro se and having been granted in forma pauperis status, brought a claim under Title VII alleging workplace discrimination against Sussex County Council, as well as various employees of the same. In dismissing the complaint for failure to state a claim, the Court found that Plaintiff had failed to “indicate by whom the plaintiff was employed” as well as the basis for the discrimination alleged. In finding that no employer was named in the complaint, the Court noted that while the complaint suggested that Sussex County Council is the employer, the complaint did not directly “state who employs plaintiff.” Further, the Court noted that while several individual defendants were named in the complaint, none of the allegations equated to the conclusion that any were “employers” as required by Title VII.
Despite the deficient claim submitted by Plaintiff, the Court did provide leave for her to refile an amended employment discrimination claim, recognizing that she “must be held to less stringent standards than . . . lawyers.” Overall, this claim not only recognizes the difference in standards for claims brought pro se, but also provides an overview of Title VII claims and the standards for who qualifies as an “employer” based on a plaintiff’s pleadings. The moral of this story, one must be specific as to who the employer is when suing them, and remember, not all flying deer have a red nose and are named “Rudolph”.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Burton v. Sussex County Council, et al., Civ. No. 16-645-SLR (D. Del. Oct. 26, 2016).

This Day in Legal History: December 16, 2014
Apple Inc. wins an antitrust lawsuit accusing it of blocking competing music providers in its iTunes 7.0 update; the company proved that its upgrades were product improvements and that consumers were still able to access music purchased elsewhere.

Staff Personal Interest
Attorney John Gilbert is celebrating his 13th anniversary with the Firm. Thank you John for your continued dedication and we hope for many more years.
Attorney’s Greg Skolnik & Mike Mitchell  are giving back to our community by coaching Mock Trial at Mt. Pleasant High School. We are proud of their continued involvement.
Staff members at Heckler & Frabizzio have been donating to charities for the past two months. We donated 3 boxes full of non-perishable food items to St. Patrick Church in Wilmington, Delaware as well as a large box of pet supplies to the Delaware SPCA. Our team is continuing to donate goods that will be delivered to charities at the end of the month. We encourage you to follow our lead and give back this holiday season!
Heckler & Frabizzio wishes you are your family
Merry Christmas,
                       Happy Holidays and,
                                  Happy New Year!