SUPERIOR COURT
OF THE

STATE OF DELAWARE

VIVIAN L. MEDINILLA LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 NorTH KING STREET, SUITE 10400

WILMINGTON, DE 19801-3733

TELEPHONE (302) 255-0626

December 9, 2019

Emily P. Laursen, Esquire Louis J. Rizzo, Jr., Esquire
Kimmel, Carter, Roman, Peltz & O’Neill, P.A Rizzo & Darnall LLP

56 W. Main Street, Fourth Brandywine Plaza East

Floor Plaza 273 1523 Concord Pike, Suite 200
Newark, DE 19702 Wilmington, DE 19803

Re: Victoria L. Willon, et al. v. Duane D. Werb, C.A. No.: N17C-03-161
VLM

Dear Counsel:

This is the Court’s decision on Defendant Duane D. Werb’s Motion for Partial
Summary Judgment as to Plaintiffs’ Claims for Willful and Wanton Conduct and
Any Potential Demand for Punitive Damages. After consideration of all pleadings
and the oral arguments on December 2, 2019, for the reasons stated below,

Defendant’s Motion is GRANTED.

Factual and Procedural Background'

In December 2016, Plaintiff Sean A. Dotson and Plaintiff Victoria Willon
(“Plaintiffs”) were involved in a vehicular collision with Defendant Duane D. Werb
(“Defendant”), who was operating a vehicle owned by Ean Holdings, LLC (“Ean
Holdings”). Plaintiffs allege that this collision resulted in personal injuries and
damages to Plaintiffs. Plaintiffs allege that Defendant was negligent and/or careless,
reckless and wanton, and that Defendant’s conduct is imputed to Ean Holdings.

 

1 The Court’s recitation is based on Plaintiff's Complaint filed on March 23, 2017; Defendant
Duane D. Werb’s Motion for Partial Summary Judgment as to Plaintiff's Claims for Willful and
Wanton Conduct and Any Potential Demand for Punitive Damages filed on August 26, 2019;
and Plaintiff’s Response to Defendant’s Motion for Partial Summary Judgment as to Plaintiffs’
Claims for Willful and Wanton Conduct and Any Potential Demand for Punitive Damages filed
on November 22, 2019.
Plaintiffs request judgment against Defendants, jointly and severally, for their
general and special damages.

On August 26, 2019, Defendant filed Motion for Partial Summary Judgment as
to Plaintiffs’ Claims for Willful and Wanton Conduct and Any Potential Demand
for Punitive Damages. On November 22, 2019, Plaintiffs filed their Response. On
December 2, 2019, the Court heard oral argument.

Standard of Review

Under Superior Court Civil Rule 56, the burden of proof on a Motion for
Summary Judgment falls on the moving party to demonstrate that “there is no
genuine issues as to any material fact and that the moving party is entitled to
judgment as a matter of law.”” If the moving party satisfies its initial burden, the
non-moving party must sufficiently establish the “existence of one or more genuine
issues of material fact.”? Summary judgment will not be granted if there is a material
fact in dispute or if “it seems desirable to inquire thoroughly into [the facts] in order
to clarify the application of the law to the circumstances." In considering the
motion, “[a]ll facts and reasonable inferences must be considered in a light most
favorable to the non-moving party.”? However, the Court shall not “indulge in
speculation and conjecture; a motion for summary judgment is decided on the record
presented and not on evidence potentially possible.”

Discussion

The Delaware Supreme Court has indicated that “[t]here is a clear distinction
between wantonness and negligence, as the former term includes the elements of
consciousness of one’s conduct, realization of the probability of injury to another,

 

2 SuPER. CT. CIV. R. 56(C).

3 Quality Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488, 1995 WL 379125, at *3-4
(Del. 1995) (citing SUPER. CT. Civ. R. 56(C); Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979);
State v. Regency Group, Inc., 598 A.2d 1123, 1129 (Del. Super. 1991)).

4 Ebersole v. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962) (citing Knapp v. Kinsey, 249 F.2d 797
(6th Cir. 1957)).

5 Nutt v. A.C. & S. Co., 517 A.2d 690, 692 (Del. Super. 1986) (citing Mechell v. Palmer, 343
A.2d, 621 (Del. 1975); Allstate Auto Leasing Co. v. Caldwell, 394 A.2d 748, 752 (Del. Super.
1978)).

6 Inre. Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986), aff'd sub. nom. Nicolet, Inc. v.
Nutt, 525 A.2d 146 (Del. 1987).

2
and disregard of the consequences.”’ In other words, a “[w]illful or wanton

disregard of a plaintiff's rights—as opposed to negligence—reflects a ‘conscious
indifference’ or an ‘I-don't-care attitude.’’® However, if there is not sufficient
evidence to show the conduct rose to the level of recklessness, the Court may remove
from the trial the potential prejudice that may occur in the plaintiffs’ efforts to
support this allegation.’

Plaintiffs argue that because Defendant was involved in another car accident two
weeks prior to this collision, there are facts regarding that accident that may create
a viable claim for punitive damages. The theory advanced is that following the first
accident, Defendant made a choice not to seek medical treatment. Plaintiffs allege
that Defendant’s conscious decision to get behind the wheel of a motor vehicle
without any assurance that he could safely do so is a factual dispute for the jury to
consider for their punitive damage claim. This Court disagrees.

The Court originally denied prior dispositive motions to allow Plaintiffs to
conduct discovery to determine whether the level of impairment alleged supported
their claims for both compensatory and punitive damages. Having completed
discovery, the record presents no factual basis supporting a conclusion that
Defendant acted by “purpose or design,” or because of “conscious indifference” to
Plaintiffs’ safety.

It is undisputed that Defendant suffers from a medical condition that was
unknown at the time of the first accident. A diagnosis of his medical condition was
not available until months after the second accident nor were restrictions placed upon
his driving until after he received his diagnosis. Nevertheless, Plaintiffs rely on a
medical record entry following this accident to suggest that he may have known he

 

1 Francois v. Elom, No. CV N15C-05-191 FWW, 2017 WL 168867, at *2 (Del. Super. Ct. Jan.
17, 2017) (citing Bailey v. Pennington, 406 A.2d 44, 46 (Del. 1979) (quoting Gallegher v. Davis,
183 A. 620, 622 (Del. Super. 1936))).

8 Td. (quoting Kalb v. Council, 2013 WL 1934665, at *4 (Del. Super. May 8, 2013) (quoting
Eustice v. Rupert, 460 A.2d 507, 509 (Del. 1983))); see Estate of Rae v. Murphy, 956 A.2d 1266,
1270 (Del. 2008) (citing Porter v. Turner, 954 A.2d 308, 2008 WL 2474770, at *3 (Del. 2008)
(quoting Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983) (citations
omitted))).

9 See Estate of Alberta Rae v. Murphy, No. CIV.A.05C-01-087 WCC, 2006 WL 1067277, at *1
(Del. Super. Ct. Mar. 13, 2006), aff'd sub nom. Estate of Rae v. Murphy, 956 A.2d 1266 (Del.
2008) (citing Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987). (“There is no
contention here that Jardel’s conduct was intentional or malicious. Its actions must therefore be
tested under the standard of recklessness . . . . it is clear that the evidence did not suffice for
submission to the jury of the issue of punitive damages.”)).

3
was suffering from symptoms related to his medical condition that should have
prompted him to receive medical treatment. In other words, following Angelo v.
Dean,'® that the issue of Defendant’s mental state raises a genuine issue of material
fact for the jury.

This Court distinguishes this case from Angelo. In Angelo the defendant
allegedly had: (1) been on notice of her sickness prior to the collision at issue; (2)
not been driving herself for some time based on this knowledge; and (3) specifically
engaged in driving that resulted in the collision at issue, “to prove to her husband
that she could drive by herself.”'' Additionally, the Angelo defendant’s health issues
and inability to drive was supported by an affidavit submitted by the investigating
officer.!* In that case, the Superior Court also considered statements allegedly made
by defendant regarding her own awareness of her health issues and inability to
drive.!3 Here, the record is devoid of any sworn testimony or affidavits regarding
Defendant’s health or his ability to drive prior to the second collision. Furthermore,
there are no alleged statements by Defendant for this Court to consider. For these
reasons, this Court does not find that Defendant’s mental state raises a genuine issue
of material fact.

Moreover, Plaintiffs concede that there is nothing in the medical records to
suggest that Defendant was told to seek treatment following his first accident.’
Therefore, where Defendant was not told to seek treatment, and where there is no
evidence of any recommendations, advice or orders surrounding his ability to drive,
it cannot be said that Defendant failed to seek treatment nor that he made a choice
to decline an evaluation. Plaintiff suggests that i/Defendant had sought treatment
two weeks prior, he may have learned of his diagnosis and may have known or been
prohibited from driving. This argument requires the Court to make speculation upon
speculation. Plaintiffs argument asks the Court to assume that: (1) the prior collision
was caused by Defendant’s medical condition; (2) following the collision, Defendant
became aware of a medical condition; (3) after becoming aware of his condition,

 

10 See generally Angelo v. Dean, No. 80C-MR-27, 1982 WL 172857 (Del. Super. Ct. Dec. 6,
1982) (denying defendant’s motion for partial summary judgment on plaintiffs’ claim for
punitive damages where defendant’s state of mind was determined to be a genuine issue of
material fact).

7d at *1.

12 Td.

13 Id.

'4 The first collision referred to in this case involved property damage only and there was no
evidence of personal injury to warrant medical treatment.

4
Defendant refused to seek medical treatment or evaluation; and (4) Defendant then,
with this knowledge, recklessly decided to drive his vehicle in conscious disregard
for the safety of others. Where the Court shall not “indulge in speculation and
conjecture[,]”'> the Court finds that the record lacks factual basis to support these
assumptions.

Although, the question of punitive damages is ordinarily an issue for the trier of
fact,'° the Superior Court has indicated that such an award is appropriate only when
Plaintiff can establish a prima facie case that Defendant exhibited willful and wanton
disregard for the safety of others.'’ Here, Plaintiffs are unable to establish a prima
facie case. In considering all facts and reasonable inferences in a light most
favorable to Plaintiffs, and in avoiding speculation and conjecture, this Court finds
that there are no genuine issues of material fact. For this reason, Defendant is
entitled to Partial Summary Judgment as to Claims of Willful and Wanton Conduct,
Defendant’s Motion for Partial Summary Judgment as to Any Potential Demand for
Punitive Damages is GRANTED.

 

“ ViviartL. Medinill
Judge

 

\5 In re. Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986), aff'd sub. nom. Nicolet, Inc. v.
Nutt, 525 A.2d 146 (Del. 1987).

16 Carter v. Principe, No. CV N17C-05-353 MMBJ, 2019 WL 193138, at *2 (Del. Super. Ct. Jan.
15, 2019).

17 Estate of Rae v. Murphy, 956 A.2d 1266, 1270 (Del. 2008) (citing Porter v. Turner, 954 A.2d
308, 2008 WL 2474770, at *3 (Del. 2008)); see Ford v. Taylor, No. CV $16C-08-013 RFS, 2018
WL 6016573, at *3 (Del. Super. Ct. Nov. 15, 2018) (“In order for an award of punitive damages
to be appropriate the Plaintiffs must establish that the Defendant exhibited a willful or wanton
disregard for the safety of others.”).

     
 
 
