               IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

    RHONDA ELSEY-JONES,                            )
                                                   )
            Plaintiff,                             )
                                                   )
    v.                                             )    C.A. No.: N16C-09-078 EMD
                                                   )
    JACKIE GULLION as personal                     )    TRIAL BY JURY OF TWELVE
    representative of the ESTATE OF                )    DEMANDED
    CONNIE GULLION, and STEPHANIE                  )
    DELOACH,                                       )
                                                   )
            Defendants.                            )
                                                   )
                                                   )
    JACKIE GULLION as personal                     )
    representative of the ESTATE OF                )
    CONNIE GULLION,                                )
                                                   )
            Plaintiff,                             )
                                                   )
    v.                                             )
                                                   )
    STEPHANIE DELOACH,                             )
                                                   )
            Defendant.                             )

                                     Submitted: May 9, 2018
                                      Decided: June 5, 2018

             Upon Defendant Jackie Gullion’s Motion for Summary Judgment
                        GRANTED in part and DENIED in part
Upon Stephanie DeLoach’s Motion for Summary Judgment as to Claims of Rhonda Elsey-Jones
                                      GRANTED

                                       I. INTRODUCTION

         This case arises from two separate but related accidents on Interstate 95 (“I-95”). Connie

Gullion purportedly moved into Plaintiff Rhonda Elsey-Jones’ lane of traffic causing Ms. Elsey-

Jones to swerve off the roadway. Connie Gullion stopped her vehicle in the median and
attempted to cross the highway to reach Ms. Elsey-Jones’ car. At that point, Defendant

Stephanie DeLoach struck and killed Ms. Gullion as she attempted to walk across the highway.

        Ms. Elsey-Jones filed suit against Defendant Jackie Gullion, as personal representative of

the estate of Ms. Gullion (the “Estate”), and Ms. DeLoach. The Estate filed a cross claim against

Ms. DeLoach. On the same day, the Estate and Ms. DeLoach filed motions for summary

judgment against Ms. Elsey-Jones—Defendant Jackie Gullion’s Motion for Summary Judgment

(the “Gullion Motion”) and Stephanie DeLoach’s Motion for Summary Judgment as to Claims of

Rhonda Elsey-Jones (the “DeLoach Motion” and, collectively with the Gullion Motion, the

“Motions”). Ms. Elsey-Jones opposes the Motions.

        For the reasons set forth below, the Court GRANTS in part and DENIES in part the

Gullion Motion and GRANTS the DeLoach Motion.

                                         II. RELEVANT FACTS

        This case arises from two accidents on I-95 on October 5, 2014. Ms. Elsey-Jones was

driving on I-95 when Ms. Gullion purportedly moved into Ms. Elsey-Jones’ lane of traffic.1 Ms.

Elsey-Jones swerved to avoid an accident with Ms. Gullion’s vehicle.2 Ms. Elsey-Jones spun

clockwise and struck a cement culvert on the side of the road.3 Ms. Gullion parked her car in the

center median of the roadway.4 Two men quickly approached Ms. Elsey-Jones’ car.5 The men

helped Ms. Elsey-Jones over a metal barrier.6

        Ms. Gullion then attempted to cross the street from the median to Ms. Elsey-Jones’

vehicle.7 One of the men with Ms. Elsey-Jones said something about someone crossing the


1
  Gullion Mot. ¶ 2.
2
  Gullion Mot. ¶ 2.
3
  Compl. ¶ 6.
4
  Gullion Mot. ¶ 3.
5
  Deposition of Rhonda Elsey-Jones on April 11, 2017 (the “Elsey-Jones Depo”) at 62-63.
6
  Elsey-Jones Depo at 62-63.
7
  Gullion Mot. ¶ 3.

                                                       2
road.8 Ms. DeLoach was also driving on I-95 at this time. Ms. DeLoach struck Ms. Gullion as

Ms. Gullion attempted to cross the highway.9 Ms. Elsey-Jones “heard a thud,” turned to the left,

and saw Ms. Gullion’s body on the ground.10

        Corporal Joseph Aube of the Delaware State Police responded to the scene of the

accident. Corporal Aube created an accident report regarding the near miss between Ms. Elsey-

Jones and Ms. Gullion (the “Police Report”).11 Corporal Aube then created a report regarding

the fatal collision between Ms. DeLoach and Ms. Gullion (the “Collision Report”).12 The

Collision Report states that Ms. DeLoach noted she was traveling nearly 60 mph in a 55 mph

zone.13 The Collison Report further notes that pedestrians are prohibited on the highway due to

the high speed on I-95.14

        Ms. Elsey-Jones went for an initial consultation with a chiropractor, Dr. Scott Evan

Rosenthal, on October 13, 2014.15 Ms. Elsey-Jones complained of leg pain, lower back pain, and

headache. Dr. Rosenthal created a treatment plan for Ms. Elsey-Jones.

        On April 21, 2015, counselors for Ms. Elsey-Jones at Turnaround, Inc. created a report

which found that Ms. Elsey-Jones’ conditions improved since the incident. However, the

counselors also found that Ms. Elsey-Jones still experienced some problems from “a number of

stressful events in the last year, including witnessing a driver get killed on the highway and

distressed family relations. . . .”16




8
  Elsey-Jones Depo at 63.
9
  Gullion Mot. ¶ 3.
10
   Elsey-Jones Depo at 63, 66-67.
11
   Gullion Mot., Ex. C.
12
   Gullion Mot., Ex. D.
13
   Id.
14
   Id.
15
   Gullion Mot., Ex. F.
16
   Gullion Mot., Ex. G.

                                                 3
           On September 12, 2016, Ms. Elsey-Jones filed suit for: (1) negligence against the Estate;

and (2) negligence against Ms. DeLoach.17 The Estate filed cross claims against Ms. DeLoach

on November 11, 2017.18 On March 9, 2018, the Estate filed the Gullion Motion and Ms.

DeLoach filed the DeLoach Motion. On March 26, 2018, Ms. Elsey-Jones filed the Response to

Defendant Stephanie DeLoach’s Motion for Summary Judgment (the “DeLoach Response”) and

the Response to Defendant Jackie Gullion’s Motion for Summary Judgment (the “Gullion

Response”).

           On May 9, 2018, the Court held a hearing (the “Hearing”) on the Gullion Motion,

DeLoach Motion, DeLoach Response, and the Gullion Response.

                                  III. PARTIES’ CONTENTIONS

A.         THE GULLION’S MOTION

           The Estate argues that the case should be dismissed because Ms. Elsey-Jones was not in

the zone of danger and Ms. Elsey-Jones failed to provide evidence of physical injury. Regarding

the physical injury, the Estate contends that Ms. Elsey-Jones’ licensed clinical social workers

lack the specialized training to testify regarding psychology or psychiatry. Further, there is no

indication of any physical manifestation of an injury resulting from emotional distress.

B.         THE DELOACH’S MOTION

           Ms. DeLoach claims that the case should be dismissed because: (1) Ms. Elsey-Jones did

not witness the impact between Ms. Gullion and Ms. DeLoach; (2) Ms. DeLoach was not acting

improper or unreasonable on the roadway; and (3) Ms. Elsey-Jones failed to present medical

opinion to support physical injury relating the traumatic experience.




17
     Compl.
18
     D.I. 5.

                                                   4
C.     THE DELOACH RESPONSE AND GULLION RESPONSE

       In the Gullion Response, Ms. Elsey-Jones argues that she was in the zone of danger and

produced admissible evidence of physical injury resulting from the negligent infliction of

emotional distress (“NIED”). Ms. Elsey-Jones stated that she has an emotional scar that is not

able to heal. Further, two social workers reported that Ms. Elsey-Jones’ physical injuries are in

part physical manifestations of the grief from witnessing Ms. Gullion’s death.

       In the DeLoach Response, Ms. Elsey-Jones argues that although she did not see the car

impact Ms. Gullion, she witnessed the accident when viewed as a whole. Next, speeding—even

five miles over the speed limit—is negligence that is a proximate cause to the death of Ms.

Gullion. Third, Ms. Elsey-Jones restates her arguments made in the Gullion Response about the

expert testimony.

D.     THE HEARING

       At the Hearing, the Estate and Ms. DeLoach argued that there are two main issues: (1)

Ms. Elsey-Jones was not in the zone of danger; and (2) Ms. Elsey-Jones failed to identify a

qualified expert to prove proximate cause between the trauma and physical manifestations of the

emotional pain.

       Ms. Elsey-Jones argues that she was in the zone of danger. This was a continuing

negligence. Ms. Elsey-Jones had just been run off the road and exited her vehicle before hearing

a vehicle strike Ms. Gullion as she attempted to cross the highway. Based on all of the

surrounding circumstances, Ms. Elsey-Jones was in the zone of danger and reasonable feared for

her safety.

       Ms. Elsey-Jones argues that they have the two social workers or alternatively, that they

do not need an expert in this case. Ms. Elsey-Jones argues that the two social workers work in a



                                                 5
trauma center and are qualified to render their opinion regarding Ms. Elsey-Jones’ physical

manifestations of emotional distress. Alternatively, Ms. Elsey-Jones argues that they do not need

an expert witness in this case to show proximate cause. Ms. Elsey-Jones sued for negligence and

emotional distress in this case is a part of damages and not an independent claim—such as

negligent infliction of emotional distress. Counsel for Ms. DeLoach and the Estate were

scheduled to depose the social workers on May 9, 2018.

         Upon questioning from the Court, Ms. Elsey-Jones also clarified that the claims for

emotional distress relate only to a negligence claim and not a NIED claim. Ms. Elsey-Jones

contends that Ms. Elsey-Jones’ emotional injuries are part of her pain and suffering damages

asserted in her two negligence claims. Accordingly, Ms. Elsey-Jones claims that no expert is

required to testify about the mental anguish as it will be part of her testimony.

                                       IV. STANDARD OF REVIEW

         The standard of review on a motion for summary judgment is well-settled. The Court’s

principal function when considering a motion for summary judgment is to examine the record to

determine whether genuine issues of material fact exist, “but not to decide such issues.”19

Summary judgment will be granted if, after viewing the record in a light most favorable to a

nonmoving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law.20 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted.21 The moving party bears


19
   Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
20
   Id.
21
   See Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244
at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).

                                                            6
the initial burden of demonstrating that the undisputed facts support his claims or defenses.22 If

the motion is properly supported, then the burden shifts to the non-moving party to demonstrate

that there are material issues of fact for the resolution by the ultimate fact-finder.23

                                                 V. DISCUSSION

A.       NEGLIGENCE

         To prove negligence, a plaintiff must show: (1) duty; (2) breach; (3) causation; and (4)

harm.24 Motorists have a duty to maintain a proper lookout while traveling on a roadway.25 In

fact, Delaware courts “have laid down the rule in a number of cases that at crossings the drivers

of all motor vehicles must be highly vigilant and maintain such control that, on the shortest

possible notice, they can stop their cars so as to prevent danger to pedestrians having the right to

cross the streets at crossings and to rely on the drivers of automobiles not to run them down, and

we have categorically said that ‘care at street crossings is the highest duty of motorists.’”26

         Motorists and pedestrians generally owe a duty to one another while crossing a roadway.

However, there are some exceptions. A pedestrian is not negligent in assuming that he or she is

safe from danger when on a sidewalk.27 Additionally, a motorist is not negligent in failing to

anticipate that pedestrian will jump out between parked cars.28

         All the duties between a motorist and pedestrians appear to be connected to one another.

There is no indication that a motorist owes a duty to not strike another pedestrian within


22
   See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
23
   See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
24
   Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010).
25
   See Fernandez v. Davis, 1991 WL 113607, at *2 (Del. Super. June 4, 1991), aff'd, 608 A.2d 726 (Del. 1991).
26
   Armor v. Mink, 100 A.2d 226, 228–29 (Del. Super. 1953).
27
   Biddle v. Haldas Bros., 190 A. 588, 595 (Del. Super. 1937) (“This also is to be said: a pedestrian has a right upon
the sidewalk, or that space set aside for pedestrians, which is superior to the right of motor vehicles; and a pedestrian
is not negligent in assuming that he is safe from the danger of automobiles passing on the adjacent roadway, nor is a
pedestrian negligent in failing to anticipate that the driver of an automobile will so operate his car as to endanger his
safety.”)
28
   See Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010).

                                                           7
someone’s view. A potential exception to this situation is if the plaintiff was within the zone of

danger seeking negligent infliction of emotional distress or intentional infliction of emotional

distress.

        Under a straight claim of negligence, Ms. Gullion owed a duty of care to Ms. Elsey-Jones

as a fellow motorist. The Court holds that, absent more, Ms. DeLoach did not owe any duty to

Ms. Elsey-Jones to not strike a pedestrian in Ms. Elsey-Jones’ presence. The Court does not see

a logical extension of the generally accepted principles to provide Ms. DeLoach owed a duty to

someone observing the accident between Ms. DeLoach and Ms. Gullion. Unless the “zone of

danger” situation exists (discussed below), the Court cannot discern where would the duty end—

e.g., people at ground level at any observable distance, people in surrounding buildings that

witness the accident, etc. The Court will not adopt this potentially “slippery slope” extension of

negligence claims by an observer of an accident.

B.      ZONE OF DANGER

        Ms. Elsey-Jones clarified that she is not asserting a NIED claim against the Estate or Ms.

DeLoach. As such, the Court grants the relief sought in the Gullion Motion and the DeLoach

Motion with respect to any NIED claims that may have been raised. The Court still needs to

address “zone of danger” as it relates to Ms. Elsey-Jones’ negligence claim against Mr.

DeLoach.29




29
 At the Hearing, Ms. Elsey-Jones clarified that she is not making a NIED claim against Ms. DeLoach or the Estate.
Despite this clairification, Ms. Elsey-Jones does make a “zone of danger” allegation in paragraph 9 of her
Complaint. See Compl. ¶ 9.

                                                        8
        The legal issue of “zone of danger” is best addressed in NIED cases.30 “The zone of

danger is that area where the negligent conduct causes the victim to fear for his own safety.”31

“Thus, in order to be in the zone of danger a plaintiff must show that the negligent conduct

caused the plaintiff to fear for her own safety.”32 Additionally, the plaintiff must suffer some

outrage “within the immediate zone of danger of the negligent act.”33 In Delaware, the plaintiff

must be within the path of the oncoming car. Delaware relies upon The Restatement (Second) of

Torts § 313 for the zone of danger. In fact,

        It illustrates a mother who witnesses her child negligently struck by a vehicle and
        suffers emotional distress resulting in bodily injury as a result. Under the zone of
        danger rule, the mother’s emotional distress is compensable only if she were in path
        of the oncoming car.34

        In this case, Ms. Elsey-Jones had the near collision with Ms. Gullion and swerved off the

road. Ms. Elsey-Jones stated that she suffered “an emotional scar that [she] has not been able to


30
   To prove NIED, a plaintiff must show: “(1) negligence causing fright to someone; (2) in the zone of danger; (3)
producing physical consequences to that person as a result of the contemporaneous shock.” See Rhinehardt v.
Bright, 2006 WL 2220972, at *5 (Del. Super. July 20, 2006) (citing Snavely ex rel. Snavely v. Wilmington Med. Ctr.,
Inc., CIV.A. 82C-SE-53, 1985 WL 552277, at *1 (Del. Super. Mar. 18, 1985)).
31
   Snavely, 1985 WL 552277, at *4.
32
   Id.
33
   Allison v. J.C. Bennington Co., 1996 WL 944908, at *2 (Del. Super. Aug. 6, 1996) (citing Robb v. Pennsylvania
Railroad Co., 210 A.2d 709 (Del. 1965)).
34
   Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812 (Del. Super. 2009) (citing Restatement (Second) of
Torts § 313, cmt. d); see also DeAguiar v. County of Suffolk, 734 N.Y.S.2d 212, 213 (N.Y. App. Div. 2d Dept. 2001)
(finding that a sister was not in the zone of danger “merely by following the decedent on the same road and around
the same curve” after seeing a cloud of dust and her brother bleeding on the ground). But see Armstrong v. A.I.
Dupont Hosp. for Children, 60 A.3d 414, 423 (Del. Super. 2012) (finding that NIED “is a viable cause of action
where the negligence is continuing and occurs in the third person’s presence” in a medical malpractice case. The
Court distinguished its decision from Snavely because the medical negligence was a continuing negligence and not a
“moment-in-time act of negligence”). To make a claim for NIED where the plaintiff feared for a third person
outside the zone of danger, the court will factor:

        (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a
        distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff
        from the sensory and contemporaneous observance of the accident, as contrasted with learning of
        the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely
        related, as contrasted with an absence of any relationship of the presence of only a distant
        relationship.

Armstrong, 60 A.3d 414 at 425 (citing Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968)).


                                                        9
heal.”35 Further, Ms. Elsey-Jones states that she suffered the emotional scar from “[t]he death of

someone and the near death of myself. . . . [b]ecause I almost ran into a concrete wall trying to

stop my vehicle.”36

        After the near collision, two men came to help Ms. Elsey-Jones out of her vehicle. At

that point, the two men helped Ms. Elsey-Jones over a metal barrier “up a little ways” from Ms.

Elsey-Jones’ car.37 Then, one of the men said something about a person crossing the road. Ms.

Elsey-Jones heard a thud and when she looked over, Ms. Gullion was laying on the ground. Ms.

DeLoach struck Ms. Gullion nearly sixty feet from Ms. Elsey-Jones’ car while Ms. Elsey-Jones

was behind a metal barrier.38 Ms. Gullion’s body landed nearly fifty feet from Ms. Elsey-Jones’

car.39 Ms. Elsey-Jones is not related to Ms. Gullion and nothing in the record indicates any other

close relationship between the two.

        On the factual record, Ms. Elsey-Jones was not in the zone of danger in such a manner

that Ms. DeLoach owed Ms. Elsey-Jones a duty of care. Ms. Elsey-Jones was at least sixty feet

from the accident and fifty feet from where Ms. Gullion landed. Ms. Elsey-Jones did not witness

the actually accident between Ms. DeLoach and Ms. Gullion but learned of it from another

observer. Moreover, Ms. Elsey-Jones has an absence of any relationship to Ms. Gullion. The

Court, therefore, finds that Ms. Elsey-Jones cannot assert a NIED or a negligence claim against

Ms. DeLoach.




35
   Elsey-Jones Depo at 12.
36
   Elsey-Jones Depo at 13.
37
   Elsey-Jones Depo at 63.
38
   Deposition of Corporal Joseph Aube on January 8, 2018 (the “Corporal Depo”) at 35.
39
   Id.

                                                       10
C.      MEDICAL EXPERTS – PHYSICAL MANIFESTATIONS

        “The law of Delaware is well settled that a claim of negligent infliction of emotional

distress or mental anguish may not be maintained in the absence of evidence of a present

physical injury.”40 Claims of physical injury “cannot be transitory, non-recurring phenomena to

be . . . legally recognized [as] caused by emotional distress.”41 Allegations of “sleeplessness and

nausea” have been found sufficient to support emotional distress for negligent infliction for

emotional distress on a motion to dismiss standard.42

        At this point in the civil action, Ms. Elsey-Jones presented sufficient evidence of physical

injury. Ms. Elsey-Jones testified that she experienced inability to sleep, inability to drive I-95,

heaviness in her legs, hyper vigilant, and problems eating, walking, sleeping, loss of

concentration, and nervousness. These problems began the day after the incident and continued

at least for several weeks. Ms. Elsey-Jones’ counselors at Turnaround, Inc. stated that Ms.

Elsey-Jones’ physical injuries are physical manifestations of the grief she endured as a result of

the incident.

        Ms. Gullion and Ms. DeLoach argue that expert testimony is required to establish

proximate cause between the claims injury and the mental effect of the negligence.43 For

physical injuries as a part of damages of a negligence claim, an expert is not required if a

layperson would be able to form an intelligent judgment without the aid of a medical expert.44

Mental anguish damages relating to physical injuries from negligence also may not require an

expert. When the mental anguish directly flow as a natural consequence of the wrongful act and


40
   McKnight for McKnight v. Voshell, 513 A.2d 1319 (Del. 1986) (citing Mergenthaler v. Asbestos Corp. of
America, 480 A.2d 647, 651 (Del. 1984)).
41
   See Rhinehardt, 2006 WL 2220972, at *5.
42
   Drainer v. O'Donnell, 1995 WL 338700, at *3 (Del. Super. May 30, 1995).
43
   See Collins v. African Methodist Episocopal Zion Church, 2006 WL 1579718, at *4-5 (Del. Super. Mar. 31,
2006).
44
   See id.

                                                      11
physical injuries, then expert testimony of the physical injuries, if necessary, may be sufficient

for the mental anguish damages.45

        Ms. Elsey-Jones’ relies upon two licensed clinical social workers, Danielle Branch and

Karen Taylor, to establish that her physical injuries resulted from the emotional distress of the

incident. However, a social worker cannot provide expert testimony absent any specialized

training in the field.46 It does not appear that Ms. Branch and Ms. Taylor are qualified as experts

in medicine, physiology or psychiatry. However, Ms. Gullion and Ms. DeLoach have had an

opportunity to depose Ms. Branch and Ms. Taylor. The parties should provide additional

guidance on Ms. Branch and Ms. Taylor and consider a motion in limine as to whether they can

provide any opinion testimony.

        Regardless, as long as Dr. Rosenthal is qualified to testify about Ms. Elsey-Jones’s

physical injuries from the car accident, then no further expert testimony may be required to link

the mental anguish to the accident or physical injuries. As clarified at the Hearing, Ms. Elsey-

Jones is not arguing that her mental distress damages are part of a NIED claim but, instead, are a

component of her “pain and suffering” damages and will be testified to at the trial. The Court

may need to draft a limiting instruction for the jury on this point and will address this at the pre-

trial conference.




45
   Re Bangs v. Follin, 2016 WL 6875959, at *2 (Del. Super. Nov. 21, 2016), as amended (Nov. 28, 2016) (not
requiring expert testimony for mental anguish stemming from injuries from falling through a floor).
46
   See Vohrer v. Kinnikin, 2014 WL 1203270, at *6 (Del. Super. Feb. 26, 2014).

                                                      12
                                       VI. CONCLUSION

       For the reasons set forth herein, the Gullion Motion is GRANTED as to any NIED claim

and DENIED as to the negligence claim, and the DeLoach Motion is GRANTED as to any

claim asserted by Ms. Elsey-Jones.

Dated: June 5, 2018
Wilmington, Delaware
                                          /s/ Eric M. Davis
                                          Eric M. Davis, Judge




                                            13
