IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ROBERT P. JONES,

Plaintiff-beloW/Appellant,

)
)
)
)
v. ) C.A. NlSA-lO-Oll AML
)
DELAWARE TRANSIT )
CORPORATION, )

)
Defendant-beloW/Appellee. )

Submitted: July 20, 2016
Decided: October 13, 2016

ORDER

On appeal from the Court of Common Pleas: AFFIRMED.

l. This is an appeal from a Court of Common Pleas decision granting the
defendant’s motion for summary judgment. The decision denied the plaintiff’s
claim for additional benefits under Delaware’s personal injury protection statute.
The plaintiff argues that the lower court incorrectly concluded that a bus, on Which
the plaintiff Was vacuuming When he Was injured, Was merely the situs of his
injury rather than an active accessory in causing it. For the following reasons, the
Court of Common Pleas’ decision is affirmed
FACTUAL BACKGROUND

2. On March 14, 2014, Plaintiff Robert P. Jones Was Working for

Defendant Delaware Transit Corporation (“DART”) cleaning a DART bus. He

was using a vacuum cleaner that, when a button on the vacuum is pushed,
automatically hooks to the front door of the bus, covering the entire door.l On the
center of the vacuum unit is a reel on which there is an air hose, which is about an
inch thick and 40 feet long.2 After the vacuum was attached to the door, Jones
unraveled this hose and pulled it toward the back of the bus, intending to use it to
blow trash and dirt forward, toward the vacuum.3 While J ones was walking to the
back of the bus with the hose, he allegedly injured his back and left leg when the
hose got caught on the reel, jerking J ones backward.4

3. On January 15, 2015, Jones sued DART for his injuries in the Court
of Common Pleas, seeking personal injury protection (“PIP”) benefits. Under 21
Del. C. § 2118, otherwise known as the PIP Statute, registered Delaware motor
vehicles are required to obtain minimum insurance coverage for medical expenses
and lost wages. On June 4, 2015, DART moved for summary judgment, claiming
Jones’s injuries did not qualify for PIP coverage under Delaware law. Oral

argument was held on July 10, 2015. On September 30, 2015, the Court of

 

l Jones Dep. 16.

2 Id. ar 17, 20.

3 Id.at17-18,20,23-24.

4 Id. at 20, 24. Jones testified that: “You feel like you’re on a dog leash. You’re running pretty
good and all ofa sudden it stops on you.” Ia’. at 20.

2

Common Pleas granted DART’s Motion for Summary Judgment.5 Jones timely
filed an appeal on October 15, 2015.

4. The lower court held that “the vehicle in question was not an active
accessory in causing [Jones’s] injury,” and therefore Jones’s injury was “not the
type of accident encompassed by 21 Del. C. § 2118.”6 Applying Kelly v. State
Far'm Mutual lnsurance Co.,7 the lower court explained that “the vehicle must play
an ‘active role’ in causing the injury” and that a “vehicle is the mere situs of an
injury if the injury was in no way caused by the use or operation of the motor
vehicle or if the injury did not occur by virtue of the inherent nature of using a
motor vehicle.”8 The court ruled that: “Despite the fact that the vacuum attaches to
the vehicle to be cleaned, [and] the accident occurred while the [Jones] was
cleaning [DART’s] vehicle, [Jones’s] injury was in no way caused by the use or

operation of that vehicle. The bus was therefore the mere situs of the injury.”9

 

5 Jones v. Del. Transl`t Corp., C.A. No. CPU4-15-000259, at *2 (Del. Ct. Com. Pl. Sept. 30,
2015) (ORDER). The sole claim in Jones’s complaint was for lost wages, court costs, and
interest under the PlP statute. Pl.’s Opening Br. Al-A2. Although DART’s motion requested
“partial” summary judgment, see id. A57, the Court of Common Pleas’ ruling resolved the
entirety of Jones’s claim and therefore was a final, appealable order of the court.

6 Jones, C.A. NO. CPU4-15-000259, ar *2.

7 73 A.3d 926(1)@1. 2013).

8 Id. (citing Sierra v. Allstate Prop, & Cas. Ins. C0., 2013 WL 2636043, at *2 (Del. Super. June
12, 2013) aff’a', 83 A.3d 738 (Del. 2014) (TABLE); Friel v. Hartford Fire lns. C0., 2014 WL
1813293, at *5 (Del. Super. May 6, 2014), ajj‘"’d, 108 A.3d 1225 (Del. 2015) (TABLE)) (internal
quotations and brackets omitted).

9 Jone.s', C.A. No. CPU4-15-000259, at *2.

THE PARTIES’ CONTENTIONS

5. J ones contends the lower court “incorrectly determined that 21 Del. C.
§ 2118 did not apply to [Jones’s] injury since the injury would not have occurred
but for the existence of the vehicle because the vacuum does not function unless it
is hydraulically sealed to the bus.”lo Jones argues that, under Kelly, the bus was an
active accessory in causing his injury because “if the bus is taken out of th[e]
factual scenario, there is no way the injury could have occurred.”ll Jones argues
that the bus “is much more than the platform [Jones] is occupying when the injury
occurs.”12 J ones contends that, for the vacuum to operate, the bus must be
manipulated - for example, the bus’s rear door must be left open and the bus kept
running.13 J ones further argues that “the use and operation of the specific vehicle
involved in the incident (i.e., the bus) includes the cleaning of the vehicle utilizing
a piece of machinery specifically designed to attach to the vehicle (i.e., the
vacuum). As such, since the injury involved the use and operation of the bus
occupied by [Jones], the bus cannot be considered the mere situs of the injury.”14

6. DART responds that the record does not support the contention that

the vacuum cannot operate without the bus present, the bus running, or the bus

 

10 Pl.’s Opening Br.3,11.

“ ld. at 10 (citing Kelzy, 73 A.3d 926 (t)el. 2013)).
12 Pl.’s Opening Br. 11.

‘3 1a at 10.

14 Id. at 12; Pl.’s Reply Br. 7.

5

door bein o en.] DART ar ues the vacuum is “a se arate unit with a separate
g 19 g P

power source and is fully functionable and operational irrespective if the bus is on

”'6 DART contends the lower court correctly applied

or off, or even present.
Delaware precedent when it held that the bus was not an active accessory in
causing Jones’s injury.]7
ANALYSIS

7. In considering an appeal from a Court of Common Pleas decision, this
Court’s role is to review challenged factual findings of the lower court to
determine if they sufficiently are supported by the record and are the product of an
orderly and logical deductive process.18 If substantial evidence supporting the
factual findings exists, this Court must accept the lower court’s ruling and may not
make its own factual findings, weigh evidence, or make credibility
determinations19 As to questions of law, such as decisions regarding summary

l

judgment,20 this Court reviews such rulings de nova2 “A decision granting

summary judgment will be affirmed if it appears that there are no genuine issues of

 

15 Def.’s Resp. Br. 10-11.

'6 1a at 10.

" Id. at 11.

‘8 Levm v. Bouvier, 287 A.2d 671, 673 (Del. 1972).

19 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).

20 Jackson v. Walgreens Corp., 2013 WL 2145938, at *2 (Del. Super. May 15, 2013) (citing
Newlowne Vz`ll. Serv. Corp, v. Newtowne Ra'. Dev. Co., 772 A.2d 172, 174-75 (Del. 2001)).

2‘ Downs v. smze, 570 A.2d 1142, 1144 (Del. 1990).

5

material fact and the moving party is entitled to judgment as a matter of law.”22

On all such questions, this Court reviews the appeal on the record and does not

1'23

conduct a new tria The facts of record “must be viewed in the light most

favorable to the non-moving party.”24

8. The limited issue here is whether Jones’s injury “involved a motor
vehicle” within the meaning of 21 Del. C. § 2118. Section 2118(a)(2)(c) states:
“The coverage required by this paragraph shall apply to each person occupying
such motor vehicle and to any other person injured in an accident involving such
motor vehicle, other than an occupant of another motor vehicle,”25 To determine
whether an accident “involved a motor vehicle,” the Court must analyze whether
“the vehicle was an active accessory in causing the injury,” meaning the bus has to
be “something less than proximate cause in the tort sense and something more than
. . . the mere situs of the injury.”26

9. Similar Delaware cases provide helpful guideposts to distinguishing
whether a vehicle is an active accessory or merely the situs of an injury. For

example, in Sanchez v. American Indepena’ent Insurance Co., the Delaware

Supreme Court held that a vehicle was the mere situs of the plaintiff accidentally

 

22 Jackson, 2013 WL 2145938, ar *2 (citing New¢owne Vill. Serv. Corp., 772 A.2d at 174-75)
(internal quotations omitted).

22 10 Del. C. § 1326; super. Ct. Civ. R. 72(g).

24 Willzams v. Geier, 671 A,2d1368, 1376 (Del. 1996).

25 21 Del. C. § 2118(3)(2)(6).

26 Kelzy, 73 A.3d 31932.

being shot.27 “Although [the plaintiff] was shot while he was sitting in the car, his
location was the only connection between the injury and the vehicle.”28 The
plaintiff “could just have easily been walking or riding a bike through the

”29 The Court concluded “there was no causal

intersection when he was shot.
connection between [the plaintiff s] use of the vehicle and his injuries.”30

10. Likewise, in Friel v. Hartfora’ Insurance Co., this Court held that the
vehicle was not an active accessory in causing the plaintiffs injury but was the
mere situs of the injury.31 In Friel, the plaintiff arrived at Costco in his truck with
pallets of product to deliver. While standing on the back of his truck, the plaintiff
bent down to attach chains to a pallet and injured his back.32 The chains were
provided by his employer and used to attach the pallets to a forklif`t.33 This Court
explained that the injury occurred “after [the plaintiff] bent down to hook the

chains to a pallet”; the chains “were not attached to the truck and were not a part of

the truck”; and the plaintiff “picked up the chains [] at the warehouse and

 

22 886 A.2d 1278 (Del. 2005) (TABLE).

28 Id. 31*2.

22 Id.

30 Ia’. at *3.

31 2014 WL 1813293, at *4 (Del. Super. 2014); see also Sierra, 2013 WL 2636043, at *2
(“Indeed there is no particular significance to the fact that Plaintiff was touching a vehicle at the
time he hurt his lower back reaching for a chain. His hand could have been touching anything
and the injury would still have occurred.”).

32 Frzel, 2014 WL 1813293,31*1.

32 181

transported them in the truck in anticipation of the pallet stop.”34 The Friel Court
therefore held: “The injury was in no way caused by [the] use or operation of the
motor vehicle, except as a stationary platform from which product was being
unloaded The injury did not occur by virtue of the inherent nature of using a
motor vehicle.”35

11. In contrast, the Delaware Supreme Court found that the vehicle was
an active accessory, not merely the situs of the injury, in State Farm Mutual Auto.
Insurcmce Co. v. Buckz`ngham.36 In Buckingham, the plaintiffs earlier driving
allegedly kicked up rocks, hitting another driver’s vehicle and provoking that
driver to attack the plaintiff.37 The Buckingham Court held that the plaintiffs
vehicle was “not simply the situs of the attack rather, it was an ‘active accessory’
in the incident provoking the attack that caused [the plaintiff s] injuries.”38

l2. Similarly, the Delaware Supreme Court concluded the vehicle in Kelly
was an active accessory in causing the plaintiffs injuries.39 In Kelly, the plaintiff
was trimming tree branches and using a truck to pull away falling branches to

avoid hitting power lines. He tied one end of a rope to a branch and the other end

to the truck, which was operated by someone else. While the plaintiff Was in a tree

 

22 1a at *4.
22 181 at *5 (citing Kel¢y, 73 A.3d ar 931 n.29).
26 919 A.2d 111, 1114 (Del. 2007).
37
1a
22 ld.
22 Kezzy, 73 A.3d a1933.

cutting a branch, the person in the truck accelerated, causing the rope to snap and
the branch to recoil, break from the tree, and strike the power line, which knocked
the plaintiff from the tree.40 The Kelty Court held that, unlike the vehicles in other
cases (e.g., Sanchez41) that “had a negligible impact on the events” causing the
plaintiffs’ injuries, the force exerted by the truck on the rope and branch led to the
plaintiffs injuries, and therefore the truck was an active accessory in causing the
plaintiffs injuries.42

13. Based on Delaware law and the record, the DART bus was not an
active accessory in causing Jones’s injuries. Jones injured himself when the air
hose, which was attached to the vacuum, became entangled on the reel, also
attached to the vacuum, and jerked him backward. Even if this Court assumes the
vacuum only operates when it is connected to the bus, that is not enough under
these circumstances to conclude that the bus is more than the mere situs of the
injury. In Friel, the Court concluded that the plaintiffs injury occurred after the
plaintiff hooked the chains to the vehicle.43 Similarly, Jones’s injuries did not

occur until after he attached the vacuum, a separate unit, to the bus, Nevertheless,

 

442 181. 81928.

41 Sanchez, 886 A.2d 1278; see also Campbell v. State Farm Mut. Auto, Ins. Co., 12 A.3d 1137
(Del. 2011) (denying the plaintiffs claim for PIP benefits because her injury was caused by a
closing garage door and: “The fact that a device inside a vehicle was used to close the garage
door, which had been opened by a button on a wall, does not transform the incident into an
‘automobile accident.”`).

42 1<811y, 73 A.3d 31933.

42 Friel, 2014 WL 1813293,811*4.

nothing relating to the vacuum’s connection to the bus caused Jones’s injuries. As
in Scmchez, the vehicle had nothing more than a negligible effect on the events.44

14. In addition, Jones’s arguments regarding leaving the rear door open or
the bus running in order to operate the vacuum have no merit. Leaving the bus’s
door open has no relation to Jones’s injuries, which were caused by the vacuum’s
air hose getting stuck on its reel, all of which are contained on the vacuum unit.
The bus is more akin to the vehicles in Sanchez and Friel than those in
Buckz'ngham and Kelty. Had Jones been standing on the ground next to the bus
while pulling on the air hose, the injury still would have occurred because the bus
was a stationary platform on which J ones was pulling the vacuum hose, Jones’s
injuries were in no way caused by the use or operation of the bus, and therefore the
bus was the mere situs of the injuries.

For the foregoing reasons, the Court of Common Pleas’ September 30, 2015

decision is AFFIRMED.

IT IS SO ORDERED. ‘/~
j .

Abig 01.~£6086"§8,186§6

Original to Prothonotary
cc: Douglas T. Walsh, Esquire
Gary S. Nitsche, Esquire

 

44 Sanchez, 886 A.2d 1278; see also Kelty, 73 A.3d at 933 (“ln contrast, the vehicles in Scmchez
and Campbell had a negligible impact on the events that caused the respective plaintiffs’
injuries.”).

10

