IN THE COURT OF COMMON PLEAS
FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

SHERITA LOWMAN, )

Plaintiff, §

v. § C.A. No. CPU4-l6-001147
LONNA CHERI SMITH, §
and CHARLES E. SMITH, )

Defendants- §

MEMORANDUM OPINION & ORDER

Submitted: August 17, 2017
Decided: September 25, 2017

Michael J. Hood, Esq. Anthony Forcina, Esq.
Michael J. Hood LLC Allstate Ins. C0. Staff Counsel
916 NeW Road 220 Continental Dr., Ste. 205
Wilmington, DE 19805 Newark, DE 19713
Attorneyfor Plainti]j’ Attomey for Defendants

WELCH, J.

This case concerns a vehicle accident in Which Plaintiff Sherita Lowman (“Plaintiff’)
suffered injuries as a result of the collision. Only Defendant Lonna Cheri Smith (“Defendant”)
and her counsel appeared for trial before the Court on June 27, 2017, as the parties had jointly
dismissed Defendant Charles Smith from the case. The Court reserved its decision and requested
supplemental briefing

Plaintiff submitted her Opening Brief on July 17, 2017. Defendant submitted her Response
Brief on August 3, 2017. Plaintiff filed its Reply Brief on August 17, 2017. This is the Court’s
Final Memorandum Opinion and Order after consideration of oral and documentary evidence
submitted at trial, arguments made at trial, supplemental briefing, and the applicable law. For the
reasons discussed beloW, the Court finds in favor of Plaintiff Sherita Lowman in the amount of
$3,000 plus costs.

§a_c£s_

Based on the testimony and evidence presented at trial, the Court finds the relevant facts
to be as follows.

On May 16, 2015, Plaintiff, an athletic seventeen-year-old student at Delcastle Technical
High School, Was scheduled to compete in three races at the state finals track meet: the four-by-
four relay, four-by-two relay, and hurdles. While traveling to the state fmals, Defendant rear-
ended the school bus that Was transporting Plaintiff and her team. Because Plaintiff Was seated on
the fifth row directly above a Wheel hub of the school bus, with her legs outstretched across the
aisle and resting on a diagonal seat, she complained of pain in her lower back and Was transported
to the emergency room of Bayhealth Kent General Hospital. The Emergency Department Chart

(“Report”) indicates that Plaintiff Was diagnosed With “pain in thoracic spine” and “paravertebral

muscle spasm.”l The Report’s “Results” section indicates that no lumbar spine fracture or thoracic
spine fracture were present.2 In the medical priority section (“Triage”), the Report indicates that
Plaintiff was complaining of lower back pain “Which is chronic for her from previous back
injury.”3 Under the physical examination of the musculoskeletal region, the Report indicates the
following issues:

Exam of the upper back and thoracic shows mild to moderate tenderness over

approximately the 7th thoracic vertebrae. There is a marked degree of thoracic

spine paravertebral spasm on the right and left side of the upper back. Exam of the

upper spine elicits a very definite ‘trigger point’ that seems to reproducibly elicit

the patient’s symptoms. . . . There is mild to moderate lumbosacral paravertebral

spasm on the right and left side of the low back. Unable to elicit a ‘trigger’ point.4
She Was prescribed eight-hundred grams of ibuprofen, Motrin.5 Under the “Discharge
Instructions” section, the Report states, “[y]our back pain is most likely caused by a strain of the
muscles or ligaments supporting the spine. Back strains cause pain and trouble moving because
of muscle spasms. They may take several weeks to heal. Usually they are better in days.”6

For treatment, the Report suggested: resting on a firm mattress; remaining active so as not
to sit or stand for more than thirty minutes at a time; not bending over or lifting anything over
twenty pounds; not twisting, reaching or performing work overhead; and applying ice packs to the
back every few hours for the first two to three days and then alternating between ice and heat.7

Plaintiff was advised to schedule an appointment with a doctor “if [her] back pain [was] not better

iii one Week.”8 Despite the emergency room visit, Plaintiff was able to compete in her last

 

l Plaintist Exhibit 1, Tab 1, at 5.
2 Id. at 6-7.

3 Id. at 2.

4 Id. at 4.

5 Id. at 5.

6 Id. at 9.

7 Id.

8 Id.

competition, hurdles. She testified at trial that she won the competition, but “won With tears.”
Plaintiff was absent from class as a result of the accident and graduated high school on time.

As a result of her injuries from the accident, Plaintiff attended physical therapy sessions at
Nemours/A.l. DuPont Hospital for Children (“Nemours”) from May 18, 2015 until August 18,
2015.9 She testified regarding her back pain that “some days Were better than others.” She testified
that she was familiar with the “pain scale” rating system at Nemours of 0 symbolizing no pain and
“10” symbolizing unbearable pain, as she had treated at Nemours for her lower back injury in
201.4.10 She testified that she was always honest with the physical therapist regarding her pain
level.

On May 18, 2015, Plaintiffs first appointment, the “Orthopaedic Patient History Form”
indicates that her pain was a “Level 4” while in the office_in between her denoted weekly low of
“Level 2” and high of “Level 6.”11 However, she later states that she is experiencing no pain.12
The Report states that Plaintiff “sustained a back strain,” but “may participate in track on
Wednesday 5/20/ 15 if her back pain is 3/ 10 or less.”13 Plaintiff was restricted from lifting over
ten pounds for two weeks, but was informed that she could resume all activities and lifting by June
if her back pain resolved.14 Plaintiff was prescribed two-hundred and fifty milligrams of Naprosyn

to replace the ibuprofen.15

 

9 Plaintiff’ s Exhibit 1, Tab 2; Defendant’s Exhibit 1, Tab 2. Whi'le both parties submitted the physical therapy
records into evidence, neither party’s exhibit is complete

10 On June 24, 2014, Plaintiff was diagnosed with “lumbar spondylolysis.” Defendant’s Exhibit 1, Tab 2, at 58. The
injury occurred on its own and was not the result of a vehicle accident. Nevertheless, Plaintiff admitted that this prior
injury resulted in very similar pain and treatment to the current injury, including the physical therapy recovery time
and limited track related activities. In March 2016, Plaintiff was involved in a vehicle collision with resulting back-
pain in Indiana While attending college.

11 Plaintiff’ s Exhibit 1, Tab 1, at 18.

12 Id. at 14.

13 Id. at 16, 86.

14 Id.

15 Id. at 16.

On May 26, 2015, Plaintiff returned to Nemours because of “[p]alpable muscle spasm to
entire lumbar spine” and indicated “Level 3” pain.16 A “brief course of outpatient [physical
therapy] was recommended.17 Plaintiff indicated “Level 5” pain post-treatment.18 On June 3,
2015, the Nemours’ records indicate that Plaintiff’ s pain was “gone” and she Was “pain-free.”19
Plaintiff’ s restrictions were lifted.20

On June 8, 2015, Plaintiff’s assessment notes “increased soft tissue spasm of BL thoracic
and lumbar paraspinals . . . in addition to hypomobility of lumbar spine and SIJ dysfunction.”21
Plaintiff’s pain level was noted as “Level 3.”22 On June 10, 2015, Plaintiff believed there was a
“decrease in pain overall,” indicating “Level 2” pain.23 She continued to “exhibit innominate
rotation” at the beginning of the session, but Was noted as responding well to physical therapy
treatment.24 On June 17, 2015, Plaintiff indicated that although her pain was “Level 0” at the
appointment, her pain had been a “ Level 10” the day before when she started work because she
was often standirig.25 She had “[o]ccasional persistent pinching and limited core stability
impacting participation” during her physical therapy.26 Plaintiff noted no pain at her appointment
and stated that her pain level had improved by her physical therapy visit on June 19, 2015, but she

was having problems sleeping in her bed.27 The Nemours records note the same assessment

concerns as on June 17, 2015.28

 

16 Id. at 2.

17 Id. at 4.

18 Id.

19 Defendant’s Exhibit l, Tab 2, at 100.
20 Plaintist Exhibit l, Tab 2, at 87.
21 Id. at 7.

22 Id. at 6.

23 Id. at 10.

24 Id. at 11.

25 Id. at 22.

26 Id. at 23.

27 Id. at 27.

28 Id. at 28.

On June 21, 2015, Plaintiff traveled with the girl scouts to Europe for a week trip in Paris
and England that was scheduled during Plaintiffs sophomore year of high school. She testified
that it was “very painful” to sit on the plane, walking around as a tourist was difficult, and she was
unable to enjoy certain amusement park rides because the operators would not allow individuals
with back-pain on the ride. On cross-examination, Plaintiff admitted that she had not complained
of these problems to her physical therapist when she returned from the ten-day trip. Indeed,
Nemours’ records on July 6, 2015 indicate that Plaintiff “reported good tolerance to walking and
traveling activities while away overall, but she did experience a few isolated episodes of low back
pain and one episode of L LE symptoms.”29 Plaintiff reported “Level 3” pain at her July 6, 2015
appointment30

On July 8, 2015, Plaintiff reported “Level 3” pain and numbness in her left leg pre-
appointment and “Level 1” pain post-appointment.31 On July 15, 2017, she reported “Level 0”
pain and overall improvements in pain levels and activity tolerance; the physical therapist noted
her exercises indicated “continued pain.”32 Plaintiff indicated “Level 1” pain post-treatment33 On
July 17, 2015, Plaintiff indicated “Level 0” pain before and after treatment34 The Nemours’
records state that “She went swimming yesterday with good tolerance and decreased back pain.”35
The “Assessment” section notes “improved activity tolerance and soft tissue mobility today, which

is correlated to decreased pain.”36 During her July 20, 2015 visit, Plaintiff indicated that “some

pain in her low back” occurred when she ran after a basketball, but she indicated “Level 0” pain

 

29 Id. at 31.

30 Id.

31161'. at 35-36.

32 Id. at 43-44.

32 Id. at 44.

34 Defendant’s Exhibit l, Tab 2, at l6l.
35 Id.

36 Id. at 162.

at the appointment.37 On July 22, 2015, Plaintiff again reported “Level 0” pain and “overall good
activity tolerance” with stiffness complaints in her lower back.38 The Nemours’ records indicate
that Plaintiff “demonstrated improvements in lumbosacral mobility.”39 Plaintiff indicated “Level
0” pain post-treatment40

On July 27, 2015, Plaintiff complained of “increased L LE symptoms and low back pain

”41 The Nemours’ records indicate that these

over the weekend without any specific triggers.
symptoms limited her “activity level.”42 Plaintiff indicated “Level 0” pain before and after
treatment.43 On July 31, 2015, Plaintiff reported that the back pain in her left side had resolved,
but “some stiffness” remained.44 She indicated “Level 0” pain before and alter treatment45

On August 3, 2015, the Nemours’ records note, “[s]he reports that she has been feeling
better and denies pain in the L LE since last session.”46 The records indicate that Plaintiff has
“improve[d] core strength, but remains limited in ability to engage abdominals dynamically, Which
is limiting return to sport specific activities.”47 Plaintiff indicated “Level 0” pain before and after
treatment.48

During her August 10, August 14, and August 18, 2015 appointments, Plaintiff does not
t_49

complain of pain in her lower back and indicates “Level 0” pain before and after treatmen

Nemours’ records for August 14, 2015 indicate that Plaintif “remains challenged in achieving self

 

32 Id. at 163.

38 Plaintist Exhibit l, Tab 2, at 55.

39 Id. at 56.

40 Id.

41 Id. at 59.

42 Id. at 60.

43 Id. at 59-60.

44 Defendant’s Exhibit 1, Tab 2, at 168.
45 Id. at 168-69.

46 Id. at 170.

47 Id. at l7l.

48 Id. at 170-71.

49 Plaintiff’s Exhibit 1, Tab 2, at 71-72, 79-80; Defendant’s Exhibit l, Tab 2, at 174.

7

management of her back pain” because she failed to follow the physical therapist’s
recommendations for home exercise.50 Likewise, despite the notation that Plaintiff “denies any
pain today” during her August 18, 2015 appointment, her assessment notes, “[s]pasm in
paraspinals remains present but is improved.”51 On August 24, 2015, Plaintiff s final physical
therapy appointment, the Nemours’ records state that Plaintiff “has achieved all goals at this time
and denies any subjective complaints or activity limitations at this time.”52 Following this final
appointment, Physical therapy appointments were discontinued and Plaintiff was “cleared for full
physical activity without restrictions.”53

At trial, Plaintiff testified that after the vehicle accident she Was unable to compete in
swimming competitions during the summer of 2015 and track competitions during the fall. She
testified that she Worked at Forwood Manor, a senior living community in Wilmington, baking
and serving cupcakes, but had trouble lifting and carrying the cupcake trays. She also Worked at
Cupcake Heaven, but stopped working there in August 2015 because of school commitments lf
her back bothered her at work, Plaintiff would take ibuprofen or sit down to alleviate the stress on
her back. She testified that she had problems sleeping unless her posture was horizontally or
vertically straight.

Plaintiff contends that although she received a scholarship to Indiana Institute of
Technology for her athletic ability, she would have received a larger scholarship, or a scholarship

to a more prestigious school if she was able to compete during the summer and fall of 201 5.54 She

testified that she did not feel as though her lower back was completely healed even after the

 

50 Defendant’s Exhibit l, Tab 2, at 174.

51 Plaintiffs Exhibit l, Tab 2, at 79-80.

52 Defendant’s Exhibit l, Tab 2, at 178.

55 Id. at 191.

54 Plaintiff testified that a division two school, Tiffiri Uiiiversity, offered her a larger scholarship after it received her
track times during her senior year, but it was too late as she had signed With another school by this time.

8

physical therapy ended, so she did not compete in indoor triple jump during her senior year. She
admitted to participating in the four-by-four relay, hurdles, and high-jump for the indoor track
season, and four-by-four relay, hurdles, and triple jump for the outdoor track season.

During her freshman year of college, Plaintiff testified that she “did very Well,” placing
All-American indoor and outdoor for hurdles, and eighth All-American indoor for triple jump.
Currently, Plaintiff participates in the sixty meter hurdles, triple jump, and multi-events. She also
testified on direct examination that she has been weight training this year and is “back to where
[she] needs to be.”

x Standard of Review

As trier of fact, the Court is the sole judge of the credibility of each fact witness and any
other documents submitted to the Court for consideration.55 If the Court finds that the evidence
presented at trial contains conflicts, it is the Court's duty to reconcile these conflicts_if reasonably
possible_in order to find congruity.56 lf the Court is unable to harmonize the conflicting
testimony, then the Court must determine which portions of the testimony deserve more weight in
its final judgment.57 In ruling, the Court may consider the witnesses’ demeanor, the fairness and
descriptiveness of their testimony, their ability to personally Witness or know the facts about Which
they testify, and any biases or interests they may have concerning the nature of the case.58

In civil actions, the burden of proof is by a preponderance of the evidence.59 “The side on
which the greater Weight of the evidence is found is the side on which the preponderance of the

evidence exists.”00

 

55 See Nat’l Grange Mut. Ins. Co. v. Nelson F. Davis, Jr., et. al., 2000 WL 33275030, at *4 (Del. Com. Pl. Feb. 9,
2000) (Welch, J.).

50 See id.

57 See id.

58 See State v. Westfall, 2008 WL 2855030, at *3 (Del. Com. Pl. Apr. 22, 2008).

59 See Gregory v. Frazer, 2010 WL 4262030, at *l (Del. Com. Pl. Oct. 8, 2010).

00 See Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967).

9

Discussion

Preliminarily, the Court notes that both parties agreed before trial_in accordance with the
December 5, 2016 pretrial conference-that liability and proximate cause were not in dispute. The
parties also agreed that expert testimony was unnecessary as Plaintiff conceded she was not
arguing permanency.01 Defendant agrees that Plaintiff suffered an injury, but disputes the severity.
Defendant argues that Plaintiff s muscle spasms are the only “objective finding that would result
in an award of damages.”02

In Delaware, Defendant is liable for all damages caused by her tortious injury to Plaintiff.03
This includes “aggravation of a preexisting condition.”04 Hence, Defendant is liable to Plaintiff
for general compensatory damages based on bodily harm and emotional distress that resulted from
Defendant’s negligence65 Compensatory damages include pain and suffering.00 Because Plaintiff

does not allege that she suffered emotional distress because of her injuries, the Court will not

address the mental aspect of pain and suffering damages.07

 

01 Plaintiffs Opening Brief, Exhibit B; Defendant’s Answering Brief at l.

02 Defendant’s Answering Brief at 8. The rationale behind Defendant’s argument seems misplaced In reviewing a
jury award of zero damages, Delaware Couits have found that an objective injury demands compensation; however,
this does not prevent a trial court, as fact finder, from considering a plaintiff' s “subjective complaints” if the Court
deems the complaints credible See, e.g., Hedenberg v. Best, 2005 WL 1953038, at *1-2 (Del. Super. July ll, 2005).
05 See F. Giovannozzi & Sons v. Luciani, 18 A.2d 435, 436 (Del. Super. 1941).

04 See Benn v. May, 2006 WL 8427234, at *4 (Del. Com. Pl. Mar. 9, 2006) (internal quotation marks omitted)
(quoting Maier v. Santucci, 697 A.2d 747 (Del. 1997)).

05 See Jagger v. Schiavello, 93 A.3d 656, 667 (Del. Super. 2014) (“General compensatory damages may be awarded
without regard to out of pocket losses and are those such that the law presumes to be the natural and probable
consequences of the defendants’ Wrongful conduct.”); see also RESTATEMENT (SECOND) OF TORTS § 905 (1979).

00 See Re Bangs v. Follin, 2016 WL 6875959, at *2 (Del. Super. Nov. 21, 2016) (“Both mental and physical pain
and suffering may be recovered in a personal injury action Where there is physical injury related to the tort . . . .”);
RESTATEMENT (S ECOND) OF TORTS § 904, cmt. c (1979) (“If bodily harm of any kind is alleged, physical pain and
suffering resulting from it can be shown Without any specific allegation. In other words, it is regarded as general
damages.”).

07 See Hendricks v. Tmnfio, 2000 WL 33653410, at *l (Del. Com. Pl. Dec. ll, 2000) (addressing the physical pain
aspects of pain and suffering damages); see also Brewington v. Allstate Ins. Co., 2013 WL 7871591, at *2 (Del.
Com. Pl. Jan. 17, 2013).

10

The Delaware Supreme Court has refused to calculate pain and suffering damages based
on a per diem calculation that is fixed on a pre-determined daily rate.08 The Supreme Court views
the per diem calculation as arbitrary and speculative since each person’s experience of pain is
unique.09 As “[t]here is no market price for a scar or for a loss of hearing since the damages are
not measured by the amount for which one would be Willing to suffer harm,” the amount of
recovery is discretionary. 70

Instead of a rigid “mathematical index” that gives an “illusion of precision,” the fact-finder
should be guided by common sense.71 In this regard, the inquiry is one of reasonableness.72 To
determine a reasonable amount the Court must evaluate the claim under the specific circumstances
of the case.75 The Restatement suggests:

The length of time during Which pain or other harm to the feelings has been or

probably Will be experienced and the intensity of the distress are factors to be

considered in assessing the amount of damages. In determining this, all relevant
circumstances are considered, including sex, age, condition in life and any other

fact indicating the susceptibility of the injured person to this type of harm.74
The Court does not make its determination lightly-thorough consideration underlie the Court’s
following damage award. After careful examination of the medical records and consideration of
Plaintiff s testimony, the Court finds that Plaintiff has proven by a preponderance of the evidence
that she is entitled to $3,000 iii damages. Plaintiff suffered a lower back injury as a result of the

vehicle collision; however, her ability to compete immediately after her emergency room visit, her

indicated pain level during her visit to Europe, self-assessments during physical therapy, and

 

00 See Henne v. Balick, 146 A.2d 394, 397-98 (Del. 1958).

09 See id. at 398.

70 RESTATEMENT (SECOND) oF ToRTs § 912 cmt. b (1979).

71 See 2 STEIN oN PERSONAL INJURY DAMAGES TREATISE § 8:10 (3d ed. 1997); RESTATEMENT (SECOND) 0F TORTS §
912 cmt. b (1979).

72 See Turner v. Vineyard, 80 A.2d l77, 180 (Del. 1951) (“To overthrow an award of damages assessed by the trial
judge, the defendants must show that it was so excessive as to be one that the trial court could not reasonably make.”).
75 See Dana Cos., LLC v. Crawford, 35 A.3d 1110, 1113 (Del. 2011).

74 RESTATEMENT (SECOND) oF ToRTs § 905 cmt. i (1979).

ll

progress during physical therapy were factored into the Court’s decision.75 Finally, while Plaintiff
Was quite credible, the Court gave no weight to her speculative assertions that she Would have
received greater scholarships if she had not been injured. Plaintiff failed to prove these assertions
by a preponderance of the evidence.
Conclusion
For the foregoing reasons, the Court hereby enters judgment for Plaintiff in the amount of
$3,000, plus pre- and post-judgment interest at the legal interest rate according to 6 Del. C. § 2301 ,

et seq.
IT ls so oRDERED this 24 ‘h day of september, 2017.

amc M¢ d

John K/Welch, Judge

cc: Ms. Tamu White, Chief Civil Clerk

 

75 Plaintiff s positive attitude While treating, and cheerful disposition at trial, did not negatively affect the Court’s
analysis. See Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975) (“plaintiffs claim for damages is not limited by any
failure on her part to complain of pain”).

12

