IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NANCY HART, an individual, and
SCOTT HART, her husband,

Plaintiffs,

Vv.

(

(

(

(

(

DANIEL PARKER, an individual

, an individual,

THE ESTATE OF DANIEL ( C.A. No. N19C-01-087 CLS
PARKER deceased, DANIEL (
PARKER SR, MICHAEL (
PARKER, LINDA WOTHERS, (
(
(
(
(

jointly, severally and/or in the

alternative,
Defendants.
ORDER
Upon Defendants Daniel Parker Sr., Michael Parker, and Linda Wothers’s Motion
to Dismiss
Granted.

Date Submitted: July 23, 2019
Date Decided: October 29, 2019

Melissa L. Rhoads, Tighe & Cottrell, PA, Wilmington, Delaware, Attorney for
Plaintiffs.

Lisa M. Grubb, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware, Attorney for Defendants.

SCOTT, J.
Before the Court is a Motion to Dismiss from Defendants Daniel Parker Sr.,
Michael Parker, and Linda Wothers (“Defendants”). For the following reasons,
Defendants’ motion to dismiss is GRANTED.

Background

Plaintiffs Nancy Hart and Scott Hart (“Plaintiffs”) filed a complaint on
January 10, 2019 alleging negligence against Daniel Parker and the other defendants.
Plaintiffs’ claims arise out of a car accident that occurred on January 13, 2017
between Daniel Parker and Nancy Hart. Plaintiffs allege Daniel Parker’s actions
caused injuries to Plaintiffs. Plaintiffs allege that Defendants were negligent in
supervising and monitoring Daniel Parker.

Parties’ Assertions

On May 23, 2019, Defendants filed a Motion to Dismiss in Lieu of Answer,
Defendants argue that Plaintiffs failed to state a claim upon which relief can be
granted pursuant to Superior Court Civil Procedure Rule 12(b)(6). Defendants argue
that Plaintiffs failed to allege that Defendants were involved in the January 13th car
accident or owned the motor-vehicle driven by Daniel Parker. Defendants further
argue that they owed no duty to Plaintiffs.

On June 26, 2019, Plaintiffs filed their Response to Defendants’ Motion to
Dismiss. Plaintiffs point out that the Uniform Collison Report shows that Mr. Parker

was lost at the time of the accident, could not remember what happened in the
accident, was the subject of a Missing Person’s report, and possibly had dementia.!
From these facts, Plaintiffs argue, it is fair and reasonable to infer that Defendants
negligently failed to ensure that Mr. Parker did not leave a place of supervision
without a helper or was otherwise alone in the vehicle. Plaintiffs argue that
Defendants’ duty stems from the Restatement (Second) of Torts §§ 319 and 324A
and not only by virtue of the parent-child relationship.

On July 1, 2019, Defendants filed their Rebuttal to Plaintiffs’ Response.
Defendants argue that Restatement (Second) of Torts §§ 319 and 324 are inapplicable
to the instant case and have never been applied to make children responsible for the
actions of their parent/step-parent. Defendants further argue that both §§ 319 and
324 require that the tortfeasor “take charge” of another; Plaintiffs failed to allege
that Defendants took charge of Mr. Parker.

Standard of Review

This Court’s standard of review on a motion to dismiss is well-settled. The
Court must accept all well-pleaded facts as true and draw all reasonable inferences
in favor of the nonmoving party. The motion will be denied when the plaintiff can

prove any facts entitling him to relief.’

 

' Compl. Ex. A.

* Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1989).

3 Snence v. Funk, 396 A.2d 967, 968 (Del. 1978); Suit v. American Sleep Medicine,
Inc., 2011 WL 4688730, at *1 (Del. Super. Sept. 28, 2011).

3
Discussion
Restatement (Second) of Torts § 319 states:

One who takes charge of a third person whom he knows or should know
to be likely to cause bodily harm to others if not controlled is under a
duty to exercise reasonable care to control the third person to prevent
him from doing such harm.’

According to Comment (a) to § 319, it applies in two situations: 1) when the actor
has charge of one or more classes of persons to whom the tendency to act injuriously
is normal; and 2) when the actor has charge of a third person who does not belong
to such a class but who has a peculiar tendency so to act of which the actor from
personal experience or otherwise knows or should know.° Section 319 applies when

an actor “takes charge” of another.
Restatement (Second) of Torts § 324A states:

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 § 319 (Am. Law Inst. 1965).
> Id.
6 Td. § 324A.
Section 324A applies when an actor undertakes to render services for Person A
which the actor should recognize as necessary to protect Person B. For example, if
Electric Company (Person A) fixes a broken light for Grocery Store but leaves the
fixture insufficiently attached so that it falls on Customer (Person B), then Electric
Company is liable to Customer.’ Section 324A applies when an actor “undertakes”
to render services for another.

Plaintiffs failed to properly plead a claim for negligence against Defendants.®
Plaintiffs’ complaint does not establish how Defendants undertook to care for Mr.
Parker or took charge of Mr. Parker. Indeed, Plaintiffs’ complaint does not even
establish the familial relationship between Defendants and Mr. Parker. Instead,
Plaintiffs merely name each Defendant individually and use the same nine
paragraphs to say that each Defendant breached a duty by failing to “supervise and
monitor” Mr. Parker. This Court has never recognized a general duty of a child to
care for his or her aging parent. Therefore, because Plaintiffs have failed to allege
how Defendants undertook to care for or took charge of Mr. Parker, Plaintiffs have

failed to show how Defendants owed a duty to Plaintiffs.

 

? Td. (illustration 1).

8 Super. Ct. Civ. R. 9(b); see Doe 30’s Mother vy. Bradley, 58 A.3d 429, 443 (Del.
Super. 2012) (noting that the plaintiff usually is only required to allege facts out of
which a duty is implied).
Conclusion
Plaintiffs have failed to state a claim upon which relief can be granted.
Accordingly, Defendants’ Motion to Dismiss is GRANTED.

IT IS SO ORDERED.

BA tH )

The Honorabl¢Calvin L. Scott, Jr.
