   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
             IN AND FOR NEW CASTLE COUNTY

 THE ESTATE OF ERIC                   )
 GIVENS, SHERRIE                      )
 GIVENS as Administratrix of          )
 The Estate of Eric Givens,           ) C.A. No. N12C-10-041 CLS
 MARK GIVENS and                      )
 SHERRIE GIVENS, as                   )
 Parents of Eric Givens, and          )
 SHERRIE GIVENS and                   )
 SAMANTHA STRANICK as                 )
 Next Friends and Co-                 )
 Guardians Ad Litem for               )
 Khloe Givens, a Minor,               )
                                      )
     Plaintiffs,                      )
                                      )
               v.                     )
                                      )
 DELAWARE ELECTRIC                    )
 COOPERATIVE INC.,                    )
                                      )
     Defendant.                       )

                      Date Submitted: May 14, 2014
                      Date Decided: August 20, 2014

   On Defendant’s Motion for Partial Summary Judgment as to Plaintiffs’
                  Claim for Mental Anguish. DENIED.

                                 ORDER

Bruce C. Herron, Esq. Losco & Marconi, P.A., Wilmington, Delaware
19802. Attorney for Defendant Delaware Electric Cooperative Inc.

James S. Green, Sr. Esq. and Jared T. Green, Esq. Seitz, Van Ogtrop &
Green, P.A. Wilmington, Delaware 19899. Attorneys for Plaintiffs.

Scott, J.
                                     Introduction

       This is a wrongful death action brought by the mother of the decedent,

Eric Givens (“Mr. Givens”), as administratrix of the Estate of Eric Givens,

Mr. Givens’ father, and Samantha Stranick (“Ms. Stranick”), the mother of

Mr. Givens’ only child, Khloe Givens (“Khloe”) (collectively, “Plaintiffs”).

Khloe is a minor and has brought this action through her grandmother and

mother as Next Friends and Co-Guardians Ad Litem. Defendant Delaware

Electric Cooperative, Inc. (“Defendant”) has moved for partial summary

judgment on Plaintiffs’ claim that Khloe is entitled to damages for mental

anguish as a result of her father’s death. The Court has reviewed the parties’

submissions. For the following reasons, Defendant’s Motion for Partial

Summary Judgment as to Plaintiffs’ Claim for Mental Anguish is DENIED.

                                    Background1

       While Mr. Givens was cutting grass in the course and scope of his

employment on October 5, 2011, the tractor and mower that he was

operating became caught by a guy wire supporting a utility pole owned and

operated by Defendant. When Mr. Givens attempted to remove the wire, it

detached from its anchor, made contact with a live electrical wire,

electrocuted him and caused his death. On October 3, 2012, Plaintiffs filed


1
 The Court has presented the facts in the light most favorable to Plaintiffs as the nonmoving
parties.
                                            2
this against Defendant asserting claims of simple negligence and negligence

per se. In their Complaint, Plaintiffs alleged that Khloe suffered mental

anguish as result of her father’s death.

                                  Parties’ Contentions

          Defendant filed this motion for partial summary judgment as to

Khloe’s mental anguish based upon two grounds. First, Defendant argues

that Delaware decisional law requires that Plaintiffs show that Khloe

suffered a physical injury in order to recover on a claim for mental anguish.

Second, Defendant argues that any award for Khloe’s mental anguish would

be speculative since Khloe was only about six months old at the time of her

father’s death and was not old enough to have experienced a grieving

process. Defendant supports its second argument with deposition testimony

from both Khloe’s grandmother and mother in which they stated that they

were not aware of any developmental or emotional issues that Khloe may

have had.2

          Plaintiffs do not assert that Khloe has suffered physical injury.

Instead, they point to contrary Delaware case law to argue that physical

injury is not a prerequisite for a claim for mental anguish. In addition,

Plaintiffs argue that Khloe’s age at the time of her father’s death has no

bearing on her recovery for mental anguish since she is well aware who her

2
    Def. Mot., Ex. B., Sherrie Givens Dep. at 8:18-21; Ex. C., Stranick Dep. at 8:17-24.
                                              3
father is 3 and will experience the pain of the loss of her father for the rest of

her life.

                                Standard of Review

       “Generally speaking, issues of negligence are not susceptible of

summary adjudication.” 4 Nevertheless, the Court may grant summary

judgment if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

summary judgment as a matter of law.” 5 The moving party bears the initial

burden of showing that no material issues of fact are present. 6 Once such a

showing is made, the burden shifts to the non-moving party to demonstrate

that there are material issues of fact in dispute.7 In considering a motion for

summary judgment, the Court must view the record in a light most favorable

to the non-moving party. 8


                                      Discussion

       The first issue presented by Defendant’s motion is whether the minor

child of a decedent may recover damages for mental anguish in a wrongful


3
  See Pl. Resp. to Def. Mot., Ex. A, Stranick Dep. at 11:10-14.
4
  Ebersole v. Lowengrub, 180 A.2d 467, 469 (1962).
5
  Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
6
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
7
  Id. at 681.
8
  Burkhart, 602 A.2d at 59.
                                            4
death action without a showing of physical injury. Under Delaware’s

Wrongful Death Statute,9 a judge or jury may award damages for “[m]ental

anguish resulting from such death to the surviving spouse and next-of-kin of

such deceased person.” 10 While the Statute permits such claims, it does not

define “mental anguish” nor set forth the elements necessary to prevail on

such a claim. 11

       The Delaware Supreme Court considered whether physical injury was

necessary for a claim for mental anguish in Mergenthaler v. Asbestos

Corporation of America, 12 an action not involving wrongful death. In that

case, the spouses of workers who had been exposed to asbestos claimed to

have suffered mental anguish due to the fear of developing cancer while

laundering their spouses’ alleged asbestos-contaminated clothing. 13 In

finding that the plaintiffs-spouses could not cover for mental anguish, the

Court stated:

       In any claim for mental anguish, whether it arises from witnessing the
       ailments of another or from the claimant's own apprehension, an
       essential element of the claim is that the claimant have a present
       physical injury. 14 Here, plaintiffs-spouses concede that they have

9
  10 Del. C. § 3724.
10
   § 3724(d)(5).
11
   § 3724; Spencer v. Goodill, 2009 WL 3823217, at *3 (Del. Super. Nov. 13, 2009).
12
   480 A.2d 647 (Del. 1984).
13
   Id. at 649.
14
   Id. at 651 (citing Robb v. Pennsylvania Railroad Company, Del.Supr., 210 A.2d 709
(1965); Cosgrove v. Beymer, D.Del., 244 F.Supp. 824 (1965); Mancino v. Webb,
Del.Super., 274 A.2d 711 (1971); Amader v. Johns-Manville Corp., E.D.Pa., 514 F.Supp.
1031 (1981); Tysenn v. Johns-Manville Corp., E.D.Pa., 517 F.Supp. 1290 (1981)).
                                          5
       suffered no physical injury due to wrongful asbestos exposure.
       Therefore, that concession is dispositive of this case.15

       Since Mergenthaler, this Court has encountered some difficulty in

determining whether evidence of physical injury is required to succeed on a

claim for mental anguish in wrongful death actions.16 In one wrongful death

suit, Okie v. Owens,17 the Court examined the reasonableness of a jury

award for mental anguish to the parents of an adult child lost in an

automobile accident. The Court found that the award was unreasonably low,

despite the fact that neither parent had suffered any physical injury as a

result of their loss. 18 In Roberts v. Delmarva Power & Lighting Co., another

wrongful death action, the Court acknowledged that it did not require a

showing of physical injury to reach its conclusion in Okie. 19 Nevertheless,

the Court granted summary judgment in favor of the defendant and, based on

a straightforward application of the Supreme Court’s holding in

Mergenthaler, found that claims for mental anguish in wrongful death

actions were barred absent a showing of physical injury. 20

15
   Id. (citing Tysenn, 517 F.Supp. 1290, and Cathcart v. Johns-Manville Corporation, Pa.Super.,
471 A.2d 493, 507-510 (1984)).
16
   Spencer, 2009 WL 3823217; Roberts v. Delmarva Power & Light Co., 2 A.3d 131, 142-43
(Del. Super. 2009); Okie v. Owens, 1985 WL 189292 (Del. Super. Oct. 16, 1985).
17
   Okie, 1985 WL 189292 (Del. Super.)
18
   Id. at *6; While the Court in Okie did permit an award for mental anguish in the absence of
physical injury, the Court notes that it also stated that it was not reviewing the jury’s application
of substantive law to the facts of the case. Id. at *4. In addition, the Court did not cite to
Mergenthaler.
19
   Roberts, 2 A.3d at 143.
20
   Id.
                                              6
       In Spencer v. Goodill, 21 the Court was unwilling to interpret the

language from Mergenthaler, “any claim for mental anguish,” as broadly as

it did in Roberts. 22 The Court found that, since Mergenthaler was not a

wrongful death suit, the Supreme Court could not have intended for its

holding to apply in wrongful death suits. 23 This contrary conclusion was

reached after the Court performed a detailed analysis of the Wrongful Death

Statute’s history and plain language, Delaware case law permitting mental

anguish claims without evidence of physical injury, and Pattern Civil Jury

Instruction § 22.8 (“Damages Recoverable in a Wrongful Death Claim”). 24

In reviewing the statutory history, the Court recognized that the current

wrongful death statute “allowed damages for ‘mental anguish’ to

compensate the ‘real injury caused by the death of a [loved one]: the

emotional pain of the loss.’” 25 As for the plain language of the Statute, the

Court observed that “[n]either the dictionary definition of ‘mental anguish’

nor the dictionary definition of ‘emotional distress’ requires ‘physical injury’

as a prerequisite to recovery.” 26 The Court considered the limited class of

close family members permitted to pursue mental anguish claims under the

21
   2009 WL 3823217.
22
   Id. at *6.
23
   Id.
24
   Id. at *3. The holding in Spencer was followed by the District Court of Delaware in Barkes v.
First Corr. Med., 2010 WL 883739 (D. Del. Mar. 9, 2010).
25
   Id. (quoting John E. Babiarz, Jr., A New Wrongful Death Act for Delaware, Del. Lawyer 20
(Fall 1982)).
26
   Id. at *4.
                                            7
Statute as the General Assembly’s lack of intent to limit recovery to only

those plaintiffs who suffered physical injury. 27 The Court noted that

“Superior Court Pattern Civil Jury Instruction § 22.8 defines ‘mental

anguish’ as ‘encompass[ing] the grieving process associated with the loss of

a loved one[;]’” and that the “instruction does not specifically provide that

physical injury is required.”28

       The Court finds it persuasive that Mergenthaler did not involve a

claim for wrongful death and that its holding was not based on cases

involving claims for wrongful death. 29 Based upon these distinctions and

the thorough analysis set forth in Spencer, the Court finds that Plaintiffs are

not required to show that Khloe suffered physical injury to prevail on a

claim for mental anguish in this wrongful death action. Thus, summary

judgment is not appropriate on this ground.




27
   Id.
28
   Id.
29
   Robb v. Pennsylvania Railroad Company, Del.Supr., 210 A.2d 709 (1965)(plaintiff alleged
mental anguish after her automobile was struck by a train, but she escaped); Cosgrove v. Beymer,
D.Del., 244 F.Supp. 824 (1965)(Plaintiff-daughter alleged mental anguish after seeing
defendant’s car strike her father, who survived); Mancino v. Webb, Del.Super., 274 A.2d 711
(1971)(parents sought to recover damages for mental anguish after minor-daughter was willfully
assaulted by another child); Amader v. Johns-Manville Corp., E.D.Pa., 514 F.Supp. 1031
(1981)(Husband and wife sought recovery for emotional distress and anguish based on husband’s
development of asbestosis); Tysenn v. Johns-Manville Corp., E.D.Pa., 517 F.Supp. 1290 (1981)
(wife alleged mental anguish due to fear of contracting asbestos-related disease after her husband
was exposed to asbestos); Cathcart v. Johns-Manville Corporation, Pa.Super., 471 A.2d 493,
507-510 (1984)(wife alleged negligent infliction of emotional distress based on her exposure to
asbestos particles in husband’s clothing).
                                            8
        Defendant’s argument that an award for Khloe’s mental anguish

would be speculative based on her age at the time of her father’s death is

unavailing. The jury instruction defining “mental anguish” permits the jury

to “consider that the grieving process, accompanied by its physical and

emotional upheaval, will be experienced differently by different people, both

in its intensity and in its duration.”30 It further states that “[t]here is no fixed

standard or measurement” and that the jury “must determine a fair and

adequate award through the exercise of [its] judgment and experience after

considering all the facts and circumstances presented to [it] during the

trial....” 31 Following this language, the jury will be able to measure whether

Khloe is entitled to damages for mental anguish while taking into

consideration all of the facts and circumstances, which may include her age.

As for Defendant’s argument that there is no evidence of Khloe’s mental

anguish, Khloe’s grandmother and mother may testify regarding those

facts. 32




30
   Del. P.J.I Civ. § 22.8 (2000).
31
   Id.
32
   See Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, 1213-14 (Del. 2002)(“The trial
judge correctly rejected [the defendant’s] motion on the ground that other siblings confirmed the
close relationship among family members”).
                                            9
                              Conclusion

      For the foregoing reasons, Defendant’s Motion for Partial Summary

Judgment as to Plaintiffs’ Claim for Mental Anguish is DENIED.

IT IS SO ORDERED.

                                           /s/Calvin L. Scott
                                           Judge Calvin L. Scott, Jr.




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