                                  SUPERIOR COURT
                                        OF THE
                                STATE OF DELAWARE

E. SCOTT BRADLEY                                                          1 The Circle, Suite 2
             JUDGE                                                   GEORGETOWN, DE 19947


                                     May 7, 2018


Edward C. Gill, Esquire                          David C. Malatesta, Jr., Esquire
Law Office of Edward C. Gill, P.A.               Kent & McBride, P.C.
16 N. Bedford Street                             824 N. Market Street, Suite 805
P.O. Box 824                                     Wilmington, DE 19801
Georgetown, DE 19947

      RE: Brian Taylor v. Green Acres Farm, Inc., and Jonathan Hurd
          C.A. No.: S17C-01-012 ESB

Dear Counsel:

      This is my decision on the Amended Motion for Summary Judgment filed by

Defendants Green Acres Farm, Inc., and Jonathan Hurd in this personal injury action

arising out of a motor vehicle collision where Plaintiff Brian Taylor drove his

motorcycle into the back of Hurd’s dump truck. Hurd was an employee of Green

Acres Farm, Inc. Hurd was driving a Green Acres dump truck when he pulled out of

a farm field and onto Dairy Farm Road and headed northbound. Prior to turning onto

Dairy Farm Road, Hurd came to a complete stop and looked both ways. Hurd saw a

black sport utility vehicle approximately a quarter of a mile down the road, but he did

not see Taylor’s motorcycle. Hurd pulled out onto Dairy Farm Road and was on it

for approximately 9.9 seconds and had traveled 136.9 feet when his dump truck was
struck in the rear by Taylor’s motorcycle. Taylor survived the accident, but has no

recollection of the events leading up to it.

       Taylor filed a complaint alleging that Hurd was negligent in (1) failing to yield

the right of way, (2) operating a vehicle at a speed greater than able to avoid a

collision, (3) careless and inattentive driving, and (4) reckless driving. Taylor alleges

that Green Acres is vicariously liable for Hurd’s actions.

       I have granted the Amended Motion for Summary Judgment filed by Green

Acres and Hurd because the evidence established that Taylor was at fault.

                                  STANDARD OF REVIEW

       This Court will grant summary judgment only when no material issues of fact

exist, and the moving party bears the burden of establishing the non-existence of

material issues of fact.1 Once the moving party meets its burden, the burden shifts to

the non-moving party to establish the existence of material issues of fact.2 The Court

views the evidence in a light most favorable to the nonmoving party. 3 Where the

moving party produces an affidavit or other evidence sufficient under Superior Court

Civil Rule 56 in support of its motion and the burden shifts, the non-moving party


       1
           Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
       2
           Id. at 681.
       3
           Id. at 680.

                                                2
may not rest on its own pleadings, but must provide evidence showing a genuine

issue of material fact for trial.4 If, after discovery, the non-moving party cannot make

a sufficient showing of the existence of an essential element of the case, then

summary judgment must be granted.5 If, however, material issues of fact exist or if

the Court determines that it does not have sufficient facts to enable it to apply the law

to the facts before it, then summary judgment is not appropriate.6

                                          DISCUSSION

       In order to survive a motion for summary judgment, Taylor must adequately

establish all of the elements essential to his case that he would have the burden to

prove at trial.7      Negligence is not presumed.8          In Delaware, a negligence claim

requires a plaintiff to “prove by a preponderance of the evidence that the defendant’s

actions breached a duty of care in a way that proximately caused the plaintiff’s

injuries.”9 When the plaintiff’s claim involves bodily injuries, “the casual connection



       4
           Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
       5
        Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992);
Celotex Corp., 477 U.S. 317 (1986).
       6
           Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
       7
           Roache v. Charney, 38 A.3d 281, 286 (Del. 2012).
       8
           Wright v. Adams Market, LLC, 2015 WL 900806, at *1 (Del. Super. Mar. 2, 2015).
       9
           Roache, 38 A.3d at 286.

                                                  3
between the defendant’s alleged negligent conduct and the plaintiff’s alleged injury

must be proven by direct testimony of a competent medical expert.”10 Where the

nonmoving party fails to produce sufficient proof of an essential element of that

party’s case, the moving party is entitled to summary judgment.11 This Court will not

draw unreasonable inferences in favor of the nonmoving party.12

                                 The Accident Investigation

      Delaware State Police Officer Nicholas Demalto investigated the accident.

The accident occurred on Dairy Farm Road at 3:41 p.m. on September 3, 2015. The

weather conditions were good. The roadway was dry and it was daylight. Dairy

Farm Road is a two lane road with the north and south bound lanes separated by a

yellow line. Dairy Farm Road is straight with a vertical curve present and cresting

prior to the area of the collision. The speed limit is 45 miles per hour. Taylor struck

the left rear corner of Hurd’s dump truck in the northbound lane of travel. Officer

Demalto identified the point of impact between Taylor’s motorcycle and Hurd’s dump

truck and measured the distance between the point of impact and the point where

Hurd left a field path and turned onto Dairy Farm Road. This distance was 110.6 feet.

      10
           Id.
      11
        Manerchia v. Kirkwood Fitness and Racquetball Clubs, Inc., 992 A.2d 1237, 2010 WL
1114927, at *2 (Del. Mar 25, 2010)(Table).
      12
           Smith v. Delaware State University, 47 A.3d 472, 477 (Del. 2012).

                                                4
The dump truck was 26.3 feet long, which when added to the point of impact of 110.6

feet results in the dump truck’s total distance of 136.9 feet. Officer Demalto also

conducted acceleration tests to determine the travel time for the dump truck from the

point of entry onto Dairy Farm Road to the point of impact. The tests were conducted

using the same dump truck, loaded under similar cargo weight, and with a driver who

did the same type of work for Green Acres as did Hurd. The acceleration tests

considered both normal and full acceleration.

      Green Acres and Hurd retained David Rineholt of Collision Technologies LLC

to investigate the accident and reach an opinion as to the cause of it. Rineholt found

that Hurd’s dump truck entered onto Dairy Farm Road approximately 110.6 feet south

(prior to) the point of impact. Taking into consideration the acceleration rate, length

of the dump truck and the distance between the entry of the dump truck onto Dairy

Farm Road and the point of impact, Rineholt concluded that it took the dump truck

approximately 9.9 seconds to go from the point of entry to the point of impact. Put

another way, the dump truck was on Dairy Farm Road for 9.9 seconds and had

traveled 136.9 feet before Hurd’s motorcycle ran into the back of it. Using the 45

miles per hour speed limit as the speed of Taylor’s motorcycle, Rineholt concluded

that Taylor’s motorcycle would have been located approximately 653 feet prior to the

point of impact when Hurd’s dump truck entered onto Dairy Farm Road. Assuming

                                           5
higher rates of speed for Taylor’s motorcycle put his motorcycle further away from

the point of impact. Taking into consideration a 1.6 to 2.0 second perception/reaction

time, left Taylor with at least 7.9 seconds to avoid Hurd’s dump truck. Given all of

this, Rineholt concluded that (1) Hurd’s dump truck did not dart out into the path of

Taylor’s motorcycle, and (2) the collision was caused by Taylor’s misjudgment of his

closing speed to the rear of Hurd’s dump truck or Taylor’s simple lack of attention.

      Viewing the facts in a light most favorable to Taylor, there are simply no set

of facts that provide him with an avenue to recovery. In order to meet his burden,

Taylor had to at least establish all of the essential elements that are necessary to his

claims. The record is devoid of any facts that Hurd breached a duty of care he owed

to Taylor. There is simply no evidence that Hurd pulled out in front of Taylor. The

record demonstrates that Hurd had established himself properly on Dairy Farm Road.

Taylor’s argument that because he ran into the back of Hurd’s dump truck

automatically establishes negligence on the part of Hurd is baseless. The fact that an

accident occurred is not evidence of negligence. Without any knowledge about the

accident, and more importantly, without an expert to establish causation of the

accident, Taylor simply has been unable to establish the essential elements of his

claims. This is a case, which by its nature, requires expert analysis. It is not a simple

case of Hurd pulling out in front of Taylor. If that were the case, then the accident

                                            6
would not have happened 110.6 feet down the road from where Hurd entered onto

Dairy Farm Road. Instead, this case requires expert analysis to determine the cause

of it. Hurd retained an expert to analyze the accident and reach certain conclusions

about who caused it. Hurd’s expert concluded that Taylor’s negligence caused the

accident and that Hurd was in no way at fault. Taylor does not have an expert and

cannot challenge Hurd’s expert’s conclusions. Taylor also cannot challenge the facts.

Taylor cannot say that Hurd pulled out in front of him and he cannot say that he was

paying attention to the road in front of him. Quite simply, Taylor is unable to

challenge the facts or Hurd’s expert’s opinions about who caused the accident.

                                   Other Motions

      Taylor filed a Motion for a Daubert Hearing and a Motion to Strike. Taylor

wants a Daubert Hearing so that he can challenge the work done by Demalto and

Rineholt in reconstructing the accident. I have denied it. There is nothing unusual

generally about accident reconstruction and Taylor has not pointed out a good reason

for having a Daubert hearing in this case. Demalto made certain measurements

regarding Hurd’s point of entry onto Dairy Farm Road and the point of impact

between Hurd’s dump truck and Taylor’s motorcycle.           He also supervised the

acceleration tests for the dump truck. Rineholt reviewed Demalto’s work, performed

his own analysis of the accident, and offered several opinions about the cause of the

                                          7
accident. There is nothing unusual about any of this work. Quite simply, a party is

not entitled to a Daubert hearing in every case that involves expert testimony. The

Court still retains discretion as to whether to grant or deny such a request depending

on the circumstances.13 I have concluded that this case presents nothing but the usual

accident reconstruction analysis and that no Daubert hearing is necessary.

       Taylor also wants to strike Officer Demalto’s opinions about the cause of the

accident. That issue is moot since I only relied on Rineholt’s opinions. I viewed

Demalto’s work as being factual in nature.

                                    CONCLUSION

       The Amended Motion for Summary Judgment filed by Defendants Green Acres

Farm, Inc., and Jonathan Hurd is GRANTED and the Motion for a Daubert Hearing

and a Motion to Strike filed by Plaintiff Brian Taylor are DENIED.

       IT IS SO ORDERED.

                                          Very truly yours,

                                          /s/ E. Scott Bradley

                                          E. Scott Bradley

ESB/sal
cc: Prothonotary


       13
         Kuhmo Tire Company v. Carmichael, 526 U.S. 137, 152 (1999); see also Minner v.
American Mortgage & Guaranty Company, 791 A.2d 826, 844-45 (Del. Super. Ct. 2000).

                                             8
