Barnes v. Hooper and Harrington Raceway, Inc.

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GREGORY L. BARNES and §
AMBER N. BARNES, § No. 53, 2024
§
Plaintiffs Below, § Court Below: Superior Court
Appellants, § of the State of Delaware
§
v. § C.A. No. S23C-04-007
§
KEVIN M. HOOPER and §
HARRINGTON RACEWAY, INC. §
d/b/a HARRINGTON RACEWAY & §
CASINO, §
§
Defendants Below, §
Appellees. §

Submitted: February 8, 2024
Decided: March 26, 2024

Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices.

ORDER

After consideration of the notice of appeal from an interlocutory order and the

exhibits, it appears to the Court that:

(1) Plaintiff-appellant Gregory L. Barnes was severely injured in a traffic

accident in June 2022. As alleged in the complaint filed in the Superior Court,

security personnel of defendant-appellee Harrington Raceway, Inc. (“Harrington”)

were informed at approximately 7:00 p.m. on June 16, 2022, that defendant-appellee

Kevin M. Hooper had parked his vehicle in a handicap-parking spot on Harrington’s

property. Although Hooper was a frequent patron of Harrington’s facility, he did
not enter the facility on the night at issue, nor does the complaint allege that

Harrington served Hooper alcohol that night. At approximately 9:00 p.m., someone

reported to the security personnel that Hooper was passed out in his vehicle. The

security personnel approached the vehicle and saw Hooper asleep inside, with an

open bottle of vodka between his legs and a large empty beer can in the center

console. The security personnel awakened Hooper, removed the alcohol from the

vehicle, and then allowed Hooper to drive away, without calling the police or trying

to prevent Hooper from leaving the premises. Within seconds of exiting

Harrington’s property onto South Dupont Highway, Hooper’s vehicle struck

Barnes’s motorcycle, causing catastrophic bodily injury to Barnes.

(2) Barnes and his wife brought suit against Hooper and Harrington. As to

Harrington, the complaint alleged that Harrington (i) negligently failed to train its

security personnel or to exercise reasonable care for the protection of third parties

when its personnel did not contact the police or otherwise stop Hooper from driving

away from its premises in an intoxicated state, and (ii) was vicariously liable for the

alleged negligence of its security personnel. Harrington moved to dismiss the claims

against it under Superior Court Rule of Civil Procedure 12(b)(6). The Superior

Court granted the motion. The court held that Harrington did not owe a duty to the

plaintiffs because (i) the accident did not occur on Harrington’s property and,

therefore, the complaint did not allege a basis for premises liability, and (ii) under

2
Delaware law, there is no cause of action against a tavern operator by a third-party

who is injured off-premises by a person who became intoxicated at the tavern (and,

in any event, the plaintiffs did not allege that Harrington served Hooper alcohol).1

The court also rejected the plaintiffs’ assertion that Harrington assumed a duty to the

plaintiffs under Section 324A of the Restatement (Second) of Torts2 when its security

personnel intervened by waking Hooper and taking his alcohol.3

(3) The Superior Court denied the plaintiffs’ application for certification of

an interlocutory appeal. The court held that its ruling on the motion to dismiss

decided a substantial issue of material importance because it considered the merits

of the case, not collateral matters.4 But the court concluded that the considerations

1
Barnes v. Hooper, 2024 WL 165987, at *2-3 (Del. Super. Ct. Jan. 12, 2024); see also id. at *2
(“It would be illogical for a dram shop to receive greater protections when it serves alcohol to a
patron than when it didn’t serve alcohol to the patron.”).
2
Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such
harm, or
(b) he has undertaken to perform a duty owed by the other to the third
person, or
(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.

RESTATEMENT (SECOND) OF TORTS § 324A.
3
See Barnes, 2024 WL 165987, at *3 (stating that “[a]ttempts to circumvent the lack of dram shop
liability using Section 324A have failed in previous cases,” discussing McCall v. Villa Pizza, Inc.,
636 A.2d 912 (Del. 1994), and also concluding that Harrington did not render services to Hooper
as required for liability under Section 324A).
4
Barnes v. Hooper, 2024 WL 467378, at *1 (Del. Super. Ct. Feb. 6, 2024).
3
set forth in Rule 42(b)(iii) did not weigh in favor of certification. The court rejected

the plaintiffs’ argument that Rule 42(b)(iii)(A)5 supported certification, concluding

that its decision was consistent with well-established case law regarding premises

and dram-shop liability and Section 324A of the Restatement.6 The court also

determined that Rule 42(b)(iii)(G)7 did not support certification because, although

the interlocutory order terminated the litigation against Harrington, the plaintiffs’

claims against Hooper remained pending.8 The court also concluded that

interlocutory review would not serve considerations of justice9 because, although

Barnes had suffered serious injuries and incurred hundreds of thousands of dollars

in medical expenses for which Hooper was underinsured, the court could not “allow

sympathy to outweigh the well-settled caselaw of this State and to allow a cause of

action to go forward when the Delaware legislature has declined the opportunity to

allow for such a cause of action.”10 Finally, the court concluded that the potential

5
See DEL. SUPR. CT. R. 42(b)(iii)(A) (providing that the trial court shall consider whether the
interlocutory order “involves a question of law resolved for the first time in this State” when
deciding whether to certify an interlocutory appeal).
6
Barnes, 2024 WL 467378, at *2.
7
See DEL. SUPR. CT. R. 42(b)(iii)(G) (providing that the trial court shall consider whether “review
of the interlocutory order may terminate the litigation” when deciding whether to certify an
interlocutory appeal).
8
Barnes, 2024 WL 467378, at *2.
9
DEL. SUPR. CT. R. 42(b)(iii)(H).
10
Barnes, 2024 WL 467378, at *2.
4
benefits of interlocutory review did not outweigh the inefficiency, disruption, and

cost of an interlocutory appeal.11

(4) We conclude that interlocutory review is not warranted in this case.

Applications for interlocutory review are addressed to the sound discretion of this

Court.12 In the exercise of its discretion and giving great weight to the trial court’s

view, this Court has concluded that the application for interlocutory review does not

meet the strict standards for certification under Supreme Court Rule 42(b).

Exceptional circumstances that would merit interlocutory review of the Superior

Court’s decision do not exist in this case,13 and the potential benefits of interlocutory

review do not outweigh the inefficiency, disruption, and probable costs caused by

an interlocutory appeal.14 The plaintiffs may seek review of the Superior Court’s

ruling after the claims against Hooper are resolved.

NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.
Chief Justice

11
Id.
12
DEL. SUPR. CT. R. 42(d)(v).
13
Id. R. 42(b)(ii).
14
Id. R. 42(b)(iii).
5