            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    CYNTHIA E. MCGRELLIS,                     §
                                              §
          Plaintiff Below,                    §   No. 147, 2019
          Appellant,                          §
                                              §
          v.                                  §   Court Below—Superior Court
                                              §   of the State of Delaware
    JAMES BROMWELL and                        §
    JENNIFER BROMWELL,                        §   C.A. No. N17C-01-401
                                              §
          Defendant Below,                    §
          Appellee.                           §

                               Submitted: November 8, 2019
                                Decided: January 31, 2020

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

                                           ORDER

         After consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

         (1)    The plaintiff below-appellant, Cynthia E. McGrellis, filed this appeal

from a Superior Court decision granting the renewed motion for a directed verdict

filed by the defendants below-appellees, James Bromwell and Jennifer Bromwell.1

After careful consideration of the parties’ arguments on appeal, we affirm the

judgment of the Superior Court.



1
    McGrellis v. Bromwell, 2019 WL 1422901 (Del. Super. Ct. Mar. 29, 2019).
      (2)    The trial record reflects that, on December 31, 2016, McGrellis was

walking her leashed, 100-pound bulldog in the middle of the street outside of the

Bromwells’ house. As she walked by, she noticed a white dog and a black dog

barking in the front of the house. The black dog exited the house through the front

door and ran toward McGrellis. McGrellis recalled seeing black fur and landing on

the street. She did not see the black dog around her on the street, and was unsure if

the black dog ever made contact with her or left the Bromwells’ property.

      (3)    The Bromwell family regularly fostered rescue dogs, including the

black dog. James Bromwell described the black dog as docile and sweet, a Border

Collie/Lab mix, and weighing about 30 pounds. On December 31st, he heard barking

and looked outside his front door to see what was going on when the black dog

pushed her way outside. According to James Bromwell, he picked the dog up before

she made it made it past the area of the front steps. He also testified that the dog

never left the property or came into contact with McGrellis or her dog.

      (4)    After putting the dog back in his house, James Bromwell approached

McGrellis, helped her up, and walked her back to her house. McGrellis later went

to urgent care where she was diagnosed with a serious shoulder injury that required

surgery and physical therapy. According to Bromwell and certain medical records,

McGrellis initially indicated that she fell because her dog pulled her down.

      (5)    At the conclusion of McGrellis’s case, the Bromwells moved for

                                         2
judgment as a matter of law. They argued that McGrellis had not shown they had a

duty to prevent the dog from exiting their house or running around their property

and barking. The Superior Court denied the motion without prejudice. After the

second time the jury indicated they could not reach agreement on the first question

in the verdict form—whether the Bromwells were negligent in a manner that caused

McGrellis’s injuries—the Superior Court declared a mistrial.

      (6)    The Bromwells filed a renewed motion for direct verdict. They argued

that there was no duty to keep a dog confined inside a property where it cannot be

seen or heard by passerby. They also argued that McGrellis failed to prove their dog

caused her injuries. McGrellis opposed the motion. On March 29, 2019, the

Superior Court granted the motion, holding that the Bromwells did not owe a duty

to a passerby to keep their dogs unseen and unheard on their property. This appeal

followed.

      (7)    McGrellis’s arguments on appeal may be summarized as follows: (i)

the attorneys who represented her before she represented herself at trial were

unsatisfactory; (ii) the Superior Court failed to poll the jury; (iii) the Superior Court

should have given a jury instruction for unintentional infliction of emotional distress;

(iv) her case met the criteria for strict liability; (v) the Superior Court erred in

granting the renewed motion for judgment as a matter of law; and (vi) she suffered

serious and permanent injuries.

                                           3
       (8)     To the extent McGrellis asserts malpractice claims against her former

attorneys, those claims are not cognizable in this appeal. McGrellis next complains

that the jury was not polled. McGrellis did not raise this claim below so we review

for plain error.2 “Under the plain error standard of review, the error complained of

must be so clearly prejudicial to substantial rights as to jeopardize the fairness and

integrity of the trial process.”3

       (9)     The jury twice informed the court it could not reach unanimous

agreement. When the jury was summoned to the courtroom for the last time, the

jury foreman affirmed that he believed no further progress could be made toward

overcoming the impasse or reaching a verdict. Under Superior Court Civil Rule

31(d), a jury poll is only required at the request of the party or upon the court’s own

motion. Neither party made such a request here. McGrellis has not shown that the

Superior Court was required to poll the jury or that her substantial rights were

prejudiced by the lack of jury polling. Accordingly, there is no plain error.

       (10) McGrellis next contends that the Superior Court should have given a

jury instruction for unintentional infliction of emotional distress. McGrellis did not

request such an instruction in the proceedings below so we review for plain error.4

In her complaint, McGrellis asserted claims for negligence and strict liability. She


2
  Supr. Ct. R. 8; Beebe Med. Ctr. v. Bailey, 913 A.2d 543, 556 (Del. 2006).
3
  Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986).
4
  See supra n.2.
                                                4
did not, and never did, assert a claim for infliction of emotional distress. McGrellis

has not shown that the lack of a jury instruction for a claim she never asserted clearly

prejudiced her substantial rights or jeopardized the fairness and integrity of the trial

process. The lack of a sua sponte jury instruction for unintentional infliction of

emotional distress does not constitute plain error here.

       (11)     McGrellis also argues that her case satisfied the standard for strict

liability. In her complaint, McGrellis asserted a strict liability claim under 16 Del.

C. § 3053F.5 McGrellis expressly waived her strict liability claim when the parties

discussed the jury instructions with the judge at a pretrial conference. She cannot

change her mind and revive that claim now.

       (12) McGrellis next challenges the Superior Court’s granting of the renewed

motion for a directed verdict. We review a trial court’s decision on a motion for

directed verdict to determine “whether the evidence and all reasonable inferences

that can be drawn therefrom, taken in a light most favorable to the nonmoving party,

raise an issue of material fact for consideration by the jury.”6 A defendant is entitled

to judgment as a matter of law when the plaintiff fails to establish a prima facie case

of negligence.7 The elements of a negligence claim are: (i) the defendant owed the



5
  Under this statute, a dog owner is liable for any injury to a person that is caused by their dog,
unless the injured person was attempting to commit a crime on the property of the dog owner, was
committing a crime against a person, or was abusing the dog.
6
  Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2002).
7
  Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007).
                                                5
plaintiff a duty of care; (ii) the defendant breached that duty; and (iii) the defendant’s

breach was the cause of the plaintiff’s injury.8

       (13) The Superior Court did not err in concluding that the Bromwells did

not owe a duty of care to McGrellis. To determine whether one party owed a duty

of care, Delaware courts will generally consult the Restatement (Second) of Torts.9

As the Superior Court noted, McGrellis did not identify anything in the Restatement

to support her position that the Bromwells were required to keep their dogs from

escaping the house and running into their yard. Section 290 of the Restatement

requires a person to know the qualities and habits of humans and animals.10 Section

302 of the Restatement states that a “negligent act or omission may be one which

involves an unreasonable risk of harm to another through…the foreseeable action

of…an animal.”11 This Court has held that “[o]ne’s duty encompasses protecting

against reasonably foreseeable events.”12

       (14) The Superior Court correctly found that the Bromwells could not

reasonably foresee that one of their dogs leaving the house and running onto their

property might cause a passerby to be startled and fall onto the street. There was no

evidence presented at trial to suggest that the Bromwells’ dog had previously


8
  New Haverford P’ship v. Stroot, 772 A.2d 792, 798 (Del. 2001).
9
  Riedel v. ICI Americas, Inc., 968 A.2d 17, 20 (Del. 2009), overruled on other grounds by Ramsey
v. Georgia S. Univ. Advancement Ctr., 189 A.3d 1255 (Del. 2018).
10
   Restatement (Second) of Torts § 290(a).
11
   Restatement (Second) of Torts § 302(b).
12
   Delmarva Power & Light Co. v. Burrows, 435 A.2d 716, 718 (Del. 1981) (emphasis added).
                                               6
escaped the house or charged a passerby. There was no evidence presented at trial

that the dog was a dangerous breed or vicious. The absence of such evidence

distinguishes this case from the “dog fright” negligence cases in other jurisdictions

that McGrellis relies upon to argue that the Bromwells owed a duty to keep their

dogs from alarming a passerby.13

       (15) In opposing the renewed motion for a directed verdict, McGrellis raised

§ 4.02.001C of the New Castle County Code for the first time. This section requires

that dogs be kept under restraint at all times.14 Under the Code, “[r]estraint means

any dog secured by a leash or lead not exceeding twenty (20) feet in length, within

the real property limits of its owner(s), or within a vehicle being driven or parked on

the streets.”15 Even if McGrellis had raised this code section in a timely manner, the

evidence presented at trial reflects that the Bromwells’ dog was within the real

property limits of its owners at the time of the incident and was therefore under

restraint as defined in § 4.02.001A of the Code.


13
   See, e.g., Farrior v. Payton, 562 P.2d 779, 785 (Haw. 1977) (reversing entry of directed verdict
for defendants on negligence claim arising from plaintiffs falling off a rock wall while avoiding
what they believed to be an imminent attack by a German Shepherd because the defendants knew
of the dog’s propensity to charge passerby); Machado v. City of New York, 365 N.Y.S.2d 974, 979
(N.Y. App. Div. 1975) (denying motion to dismiss negligence claim arising from plaintiff slipping
and falling after she was startled by German Shepherd charging fence where the defendant knew
the dog had a propensity to charge at and frighten strangers). McGrellis also cites “dog fright”
strict liability cases, but as previously discussed she waived her strict liability claim before trial.
See, e.g., Morris v. Weatherly, 488 N.W.2d 508, 510 (Minn. Ct. App. 1992) (affirming the trial
court findings that dog owners were strictly liable under Minnesota statute for injuries suffered by
a cyclist and mail carrier who were startled, but not touched, by dogs).
14
   New Castle Cty. C. § 4.02.001(C)(1).
15
   New Castle Cty. C. § 4.02.001A.
                                                  7
      (16) McGrellis also failed to identify a special relationship between herself

and the Bromwells that would impose a heightened duty upon the Bromwells. On

appeal, McGrellis seems to suggest that the Bromwells had special duties as a result

of their regular fostering of dogs. But she did not raise this argument below and she

identifies no authority that people who foster dogs owe special duties to people who

pass by their homes.

      (17) Finally, McGrellis raises the injuries she suffered. As discussed above,

the Superior Court did not err in determining that the Bromwells did not owe a duty

to McGrellis. Having carefully considered the parties’ positions, we conclude that

the Superior Court did not err in granting the Bromwells’ renewed motion for

judgment as a matter of law.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                       BY THE COURT:

                                       /s/ James T. Vaughn, Jr.
                                       Justice




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