Ryan v. Sea Colony, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

COLLEEN RYAN, )
)
Plaintiff, )
)
v. ) C.A. No. N24C-07-161 FWW
)
SEA COLONY, INC., )
SEA COLONY SERVICES, CORP., )
SEA COLONY MANAGEMENT, INC., )
and SEA COLONY RECREATIONAL )
ASSOCIATION, INC., )
)
Defendants. )

Submitted: November 6, 2024
Decided: November 12, 2024

Upon Plaintiff Colleen Ryan’s Motion for Reargument Pursuant to Rule 59(e)
DENIED.

ORDER

David C. Malatesta, SHELSBY & LEONI, 221 Main Street, Wilmington, Delaware
19804, Attorney for Plaintiff Colleen Ryan.

Sarah B. Cole, Esquire, MARSHALL DENNEHEY, P.C., 1007 N. Orange Street,
Suite 600, P.O. Box 8888, Wilmington, Delaware 19899, Attorney for Defendant
Sea Colony Recreational Association, Inc.

WHARTON, J.
This 12th day of November 2024, upon consideration of the Motion for

Reargument Pursuant to Rule 59(e) of Plaintiff Colleen Ryan (“Ryan”)1 and the

Response in Opposition of Defendant Sea Colony Recreational Association, Inc.

(“Sea Colony”),2 and the record in this case, it appears to the Court that:

1. Ryan brought this action for personal injuries she alleged she sustained

while participating as an business invitee in the Operation SEAs the Day (“Seas the

Day”) celebration and parade in Bethany Beach, Delaware.3 In her Complaint she

described being directed to park in the overflow parking lot of Sea Colony, walking

into a grass area where she stepped into a large hole hidden by the evenly cut grass

causing her to severely twist her ankle.4

2. In its Motion for Judgment on the Pleadings, Sea Colony referenced its

Answer asserting an affirmative defense based on a liability waiver executed by

Ryan and attached to its Answer.5 The waiver states in part:

The undersigned recognizes that Operation Seas the Day,
Inc. has not undertaken any duty or responsibility for his
or her safety and the undersigned agrees to assume the full
responsibility for his or her safety and the undersigned
agrees to assume the full responsibility for all risk of
bodily injury, death, disability, and property damage as a
result of participating in the Warrior Beach Week. The
undersigned recognizes that these risks include: the risks

1
Pl.’s Mot. for Rearg. D.I. 14.
2
Def.’s Resp. in Opp., D.I. 15.
3
Compl. at ⁋⁋ 1, 8, D.I. 1.
4
Id. at ⁋ 8.
5
Def.’s Mot. Judg. on the Pleadings at ⁋ 2, D.I. 9.

2
from slips and falls…and attendance at the various other
events available during the above week. By my signature,
I hereby surrender any right to seek reimbursement from
Operation Seas the Day, Inc. and its directors, officers,
employees, volunteers and other agents for injury
sustained and liability incurred during my participation in
the activity described above…I KNOWINGLY AND
FREELY ASSUME ALL SUCH RISKS, both known and
unknown, EVEN IF ARISING FROM THE
NEGLIGENCE OF THE RELEASEES or others and
assume full responsibility for my participation.6

Sea Colony argued that, as alleged in the Complaint, the parking lot was being used

for overflow parking by Seas the Day for invitees like Ryan, and Sea Colony

permitted the invitees to park in its lot in order to facilitate their participation in the

parade.7 Sea Colony construed the liability waiver as unambiguous, not

unconscionable, and not against public policy, and, therefore enforceable against

Ryan.8

3. Ryan argued that Sea Colony was not entitled to any liability protection

because there was no agreement between herself and Sea Colony -- the waiver she

signed was with Seas the Day and does not mention or refer to Sea Colony9 -- and

disputed that Sea Colony’s was acting as an agent for Seas the Day.10 Finally, it

argued that even if Sea Colony was entitled to the benefit of the liability waiver, its

6
Id. at ⁋ 2 (quoting Participant Waiver attached to Sea Colony’s Answer at Ex. A).
7
Id. at ⁋ 6.
8
Id. at ⁋⁋ 7-11.
9
Pl.’s Resp. to Def.’s Mot. for Judg. on the Pleadings, at ⁋ 1, D.I. 11.
10
Id. at ⁋ 2.

3
negligent maintenance of the grass area was outside the scope of the waiver which

only contemplated a waiver for the physical activities in which Ryan chose to

participate as part of the event.11

4. Sea Colony noted the waiver is not limited to Seas the Day, but includes

its “agents.”12 And, in her Complaint, Ryan alleges she was directed to park in a

specific overflow parking lot owned and maintained by Sea Colony, thus denoting

an agency relationship between Seas the Day and Sea Colony.13 Additionally, the

range of risks the waiver includes was not limited to physical activities, but included

“attendance” at the events, which included attendance at the parade described in the

Complaint.14

5. On October 28, 2024 this Court granted Sea Colony’s Motion for

Judgment on the Pleadings.15 The Court held that the pleadings established: (1) an

agency relationship between Sea Colony and Seas the Day; (2) the waiver was

unambiguous, not unconscionable, and not against public policy; and (3) when she

was injured, Ryan was participating in a Seas the Day activity.16 Accordingly, the

11
Id. at ⁋ 3.
12
Def.’s Reply at ⁋ 3, D.I. 12.
13
Id. at ⁋ 2.
14
Id. at ⁋ 3.
15
Ryan v. Sea Colony, Inc. et al., 2024 WL 4625166 (Del. Super. Ct. Oct. 28,
2024).
16
Id. at *2. Ryan did not argue the waiver was unconscionable or against public
policy.

4
Court determined that the injury Ryan alleged she sustained was one for which she

assumed full responsibility under the terms of the waiver and granted the Motion for

Judgment on the Pleadings.17

6. Ryan now moves for reargument. In her motion, she again argues that

the failure of the waiver to mention Sea Colony and the absence of a

principal/agency relationship between Sea Colony and of Seas the Day create

issues of material fact that should have precluded granting Sea Colony’s motion.18

She posits other non-agency relationships could have existed such as Sea Colony

being paid by Seas the Day for the use of the parking lot or Sea Colony treating her

as a licensee or public invitee.19 She adds that, although not alleged in the pleadings,

in fact, she and her family were staying a Sea Colony for the week, giving her certain

privileges to the property and the parking lot.20

7. Sea Colony opposes the motion on both procedural and substantive

grounds. It argues that Ryan simply rehashes her prior, unsuccessful arguments

regarding agency and improperly presents an affidavit in support of new facts.21 It

repeats its contention that there is no reasonable dispute, based on the pleadings, that

in allowing its parking lot to be used for overflow parking, Sea Colony was an agent

17
Id. at *2-3.
18
Pl.’s Mot. for Rearg., D.I. 14.
19
Id.
20
Id. Ryan attaches her affidavit in support of this additional fact. Id. at Ex. 1.
21
Def.’s Resp. in Opp. at ⁋⁋ 7-10.

5
of Seas the Day.22 Whether, as Ryan now contends, she was “authorized” to park in

the parking lot, or whether Sea Colony could have been paid by Seas the Day, the

fact remains that the Complaint alleges that Ryan was in Bethany Beach to

participate in Operation Seas the Day and was directed to park in the designated

overflow lot provided by Sea Colony.23 That those allegations establish an agency

relationship is unaffected by the new information Ryan offers.24 Finally, Sea Colony

argues the new, improperly added factual allegations, even if true, do not change the

material allegations of the Complaint, leaving the protections of the waiver intact.25

8. Pursuant to Superior Court Civil Rule 59(e), a motion for reargument

will be granted only if the Court has “overlooked a controlling precedent or legal

principles, or the Court has misapprehended the law or facts such as would have

changed the outcome of the underlying decision.”26 A motion for reargument is not

an opportunity for a party to either rehash arguments already decided by the Court

or present new arguments not previously raised.27 Therefore, to succeed on such a

motion, the moving party has the burden of demonstrating the existence of newly

22
Id. at ⁋ 7.
23
Id. at ⁋ 8.
24
Id.
25
Id. at ⁋ 10.
26
Janeve Co., Inc. v. City of Wilmington, 2009 WL 2386152, at *1 (Del. Super. July
24, 2009) (quoting Reid v. Hindt, 2008 WL 2943373, at *1 (Del. Super. July 31,
2008)).
27
See Reid, 2008 WL 2943373, at *1 (citations omitted).

6
discovered evidence, a change in the law, or manifest injustice.28 Correctly

understood, ‘“[A] motion for reargument properly seeks only a re-examination of

the facts at the time of the decision,’ therefore, affidavits may not be submitted in

support of a motion for reargument.”29 Rule 59(e) “does not provide for new

evidence in the form of affidavits not before the Court in the original motion.”30

9. Ryan’s reargument motion both rehashes arguments previously decided

and presents new arguments not previously raised. It also improperly injects new

evidence in the form of Ryan’s affidavit. Limiting the Court’s review to the record

at the time the Motion for Judgment on the Pleadings was before it, the Court

remains convinced that the Complaint alleges a principal/agent relationship between

Seas the Day and Sea Colony. Ryan and her family “were in Bethany Beach,

Delaware to participate in the Operation SEAs the Day celebration and parade as

invitees”31 They “were directed to park in the overflow parking lot of Sea Colony,

located on the corner of Westway Drive and Route 1, in Bethany Beach,

Delaware.”32 There is no dispute about the fact, which Sea Colony admits in its

28
Id.
29
Prevar Co. v. Hawthorne, 2010 WL 1367755, at *2 (Del. Super. Ct. Mar. 31,
2010) (quoting Maldonado v. Flynn, 1980 WL 2728 WL 22, at *3 (Del. Ch. 1980).
30
Santoro, Starr & Baffone, PA v. Lewis, 1995 WL 562158, at *2 (Del. Super. Ct.
1995).
31
Compl. at ⁋ 6, D.I. 1.
32
Id. at ⁋ 7.

7
Answer, that the parking lot was being used as parking for the Seas the Day event.33

Because the Sea Colony parking lot was an “overflow” lot for the event, parade

invitees such as Ryan were authorized by Sea Colony to use the lot in conjunction

with Seas the Day activities, just as Ryan alleges she did. As alleged in the

Complaint, it is apparent that both Sea Colony, by accepting “overflow” traffic, and

Seas the Day, by directing traffic to Sea Colony’s “overflow” parking lot, manifested

their assent to a principal/agent relationship.34 Further, the Court reaffirms its

conclusion that Sea Colony was protected by the waiver because the Complaint

alleges that Ryan suffered a fall while in attendance at a Seas the Day parade.

THEREFORE, for the reasons set forth above, Plaintiff Colleen Ryan’s

Motion for Reargument Pursuant to Rule 59(e) is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

33
Answer at ⁋ 7, D.I. 8.
34
See, Restatement (THIRD) of Agency § 1.01 (Am. Law Inst. 2006).

8