      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KAMIE PAGANO, Individually and             )
in Her Capacities as Administratrix of     )
THE ESTATE OF NICHOLAS                     )
RUSSO, and as Mother, Guardian             )
and/or Next Friend of ALESSA               )
RUSSO, the Minor Child of Nicholas         )
Russo,                                     )     C.A. No. N16C-01-222 ALR
            Plaintiffs,                    )
                                           )
      v.                                   )
                                           )
MICHAEL STRADLEY,                          )
                                           )
            Defendant.                     )

                              Submitted: May 6, 2017
                              Decided: June 21, 2017

                                         ORDER

               Upon Defendant’s Motion for Summary Judgment
                       as to Duty and Sudden Emergency
                                   DENIED

      This is a wrongful death action arising from the August 1, 2015 death of

Nicholas Russo in a traffic accident. Mr. Russo was operating a motorcycle with a

group of several other motorcyclists, traveling northbound on Route 13 near

Odessa, Delaware. Defendant Michael Stradley (“Defendant”) was operating a

2006 Chevrolet Colorado pick-up truck, also traveling northbound on Route 13.

Mr. Russo died when his motorcycle crashed after making contact with

Defendant‟s truck.
         Plaintiff Kamie Pagano initiated this action against Defendant pursuant to

Delaware‟s Wrongful Death Act1 on behalf of Mr. Russo‟s estate and as guardian

ad litem for Mr. Russo‟s daughter, Plaintiff Alessa Russo, (collectively

“Plaintiffs”). Although the Complaint set forth additional claims, the wrongful

death claims of the estate and the child are the only remaining claims. Trial is

scheduled for July 31, 2017.

         Defendant seeks a legal ruling from this Court that Defendant did not owe a

duty to Mr. Russo under the circumstances presented and, therefore, Plaintiffs

cannot establish a prima facie case for negligence. Specifically, Defendant first

claims that he did not have a duty to anticipate the negligent and reckless conduct

of Mr. Russo and/or the other motorcyclists with whom Mr. Russo was traveling.

Second, Defendant claims that he acted reasonably when he reacted to the sudden

emergency caused by the negligent and reckless conduct of Mr. Russo and/or the

other motorcyclists with whom Mr. Russo was traveling.            Plaintiffs oppose

Defendant‟s motion on the grounds that there are genuine issues of material fact in

dispute.

         Upon consideration of the Motion for Summary Judgment as to Duty and

Sudden Emergency filed by Defendant; Plaintiffs‟ opposition thereto; the facts,

arguments, and authorities set forth by the parties; the Superior Court Civil Rules;


1
    10 Del. C. § 3721 et seq.
                                          2
statutory and decisional law; and the entire record in this case, the Court hereby

finds as follows:

      1.     The Court may grant summary judgment only where the moving

party can “show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.”2 The moving party bears

the initial burden of proof and, once that is met, the burden shifts to the non-

moving party to show that a material issue of fact exists.3 At the motion for

summary judgment phase, the Court must view the facts “in the light most

favorable to the non-moving party.”4 In a negligence case, summary judgment is

appropriate where the Court determines that “no reasonable juror could find that

the plaintiff‟s negligence did not exceed the defendant‟s.”5

       2.    “In order to prevail in a negligence action, a plaintiff must show, by a

preponderance of the evidence, that a defendant‟s negligent act or omission

breached a duty of care owed to plaintiff in a way that proximately caused the

plaintiff injury.”6 Whether a defendant has a legal duty is a threshold question of




2
  Super. Ct. Civ. R. 56(c).
3
  Moore v. Sizemore, 405 A.2d 679, 680–81(Del. 1979).
4
  Brozka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
5
  Jones v. Crawford, 1 A.3d 299, 303 (Del. 2010).
6
  Pavik v. George & Lynch, Inc., 2016 WL 5335792, at *3 (Del. Super. Sept. 22,
2016) (quoting Duphily v. Del. Elec. Coop., Inc., 662 A.2d 821, 828 (Del. 1995)).
                                          3
law.7 “If the trial judge concludes that the defendant owed no duty of care to the

plaintiff at the time his or her injuries were sustained, the defendant is entitled to

summary judgment as a matter of law.”8

      3.     “Delaware tort law has long imposed a duty on motorists to use

reasonable care, drive at a reasonable rate of speed under the circumstances, and

slow or stop to avoid imminent danger, regardless of the posted speed limit.”9

Moreover, Delaware drivers have a statutory duty to operate their vehicles in a

careful and prudent manner to ensure the safety of other motorists and the public. 10

      4.     There are genuine issues of material fact in dispute. “Today, under

Delaware‟s comparative negligence statute the determination of the respective

degrees of negligence attributable to the parties almost always presents a question

of fact for the jury.”11 This case does not present the rare exception of a negligence



7
   Helm v. 206 Mass. Ave., LLC, 107 A.3d 1074, 1079 (Del. 2014) (citing Fritz v.
Yeager, 790 A.2d 469, 471 (Del. 2002)).
8
  Helm, 107 A.3d at 1079 (citing Kananen v. Alfred I. DuPont Inst. of the Nemours
Found., 796 A.2d 1, 7 (Del. Super. 2000)).
9
   Hudson v. Old Guard Ins. Co., 3 A.3d 246, 251 (Del. 2010) (internal citations
omitted).
10
   Floyd v. Lipka, 148 A.2d 541, 543–44 (Del. 1959). See, e.g., 21 Del. C. § 4144
(requiring drivers to exercise due care to avoid colliding with pedestrians on the
roadway); id. at § 4168(a) (“In every event, speed shall be so controlled as may be
necessary to avoid colliding with any person, vehicle or other conveyance on or
entering the highway, in compliance with legal requirements and the duty of all
persons to use due care.”).
11
   Helm, 107 A.3d at 1081 (emphasis in original) (citing Trievel v. Sabo, 714 A.2d
742, 745 (Del. 1998)).
                                          4
case that is susceptible to summary adjudication.12 It is not this Court‟s role to

weigh evidence or resolve factual conflicts.13 Rather, “if a rational trier of fact

could find any material fact that would favor the non-moving party in a

determinative way . . ., summary judgment is inappropriate.”14 Viewing the facts

in the light most favorable to Plaintiffs, a jury may find that Defendant did not act

reasonably under the circumstances presented. The jury will also be asked to

determine the cause of the accident and may reach the question of apportioning

negligence between Defendant and Mr. Russo. These are questions of fact that

remain in dispute.

      5.     In reaching this conclusion, the Court expressly rejects Defendant‟s

contentions with respect to duty on the grounds that adjudication of those claims


12
   See Helm, 107 A.3d at 1081 (citing Trievel, 714 A.2d at 745); Crawford, 1 A.3d
at 303; Manerchia v. Kirkwood Fitness & Racquetball Clubs, Inc., 2010 WL
1114927, at *2 (Del. Mar. 25, 2010).
13
   Cerberus Int’l, Ltd. v. Apollo Management, L.P., 794 A.2d 1141, 1149 (Del.
2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)).
14
   Espinoza v. Zuckerberg, 124 A.3d 47, 53 (Del. Ch. 2015) (omission in original)
(quoting Cerberus Int’l, Ltd., 794 A.2d at 1150). See also Buchanan v. TD Bank,
N.A., 2016 WL 3621102, at *2 (Del. Super. June 28, 2016) (noting that summary
judgment is rare in negligence actions “because the movant must show „not only
that there are no conflicts in the factual contentions of the parties but that, also, the
only reasonable inference to be drawn from the contested facts are adverse to the
plaintiff.‟”) (quoting Watson v. Shellhorn & Hill, Inc., 221 A.2d 506, 508 (Del.
1966))); Rowe v. Estate of McGrory, 2013 WL 2296076, at *2 (Del. Super. Apr.
12, 2013) (“Moreover, „if it appears [to the Court] that there is any reasonable
hypothesis by which the non-moving party might recover,‟ the motion will be
denied.”) (emphasis and alteration in original) (quoting Nationwide Mut. Ins. Co. v.
Flagg, 789 A.2d 586, 591–92 (Del. Super. 2001)).
                                           5
involves fact-finding which is contrary to a judicial determination as a matter of

law. In so ruling, the Court finds that Hudson v. Old Guard Insurance Co.15 is

distinguishable from the case before this Court. Unlike Hudson, this case does not

involve a sudden “dart out” by a cyclist onto the road from a driveway or sidewalk.

Rather, a reasonable jury could conclude that Defendant had sufficient time under

the circumstances to exercise reasonable care in order to avoid a foreseeable

accident with Mr. Russo. Moreover, the Court finds that Defendant‟s reliance on

Bullock v. State16 is misplaced. Bullock does not support Defendant‟s claim for

judgment as a matter of law.        Rather, Bullock supports the proposition that

comparative negligence is a question for the jury.17 Specifically, the Bullock Court

reversed a vehicular manslaughter conviction on the grounds that the trial court

erred in its instruction to the jury by not properly presenting the law for the jury to

decide whether the victim‟s comparative negligence was foreseeable.18

       6.    Likewise, the Court expressly rejects Defendant‟s contentions with

respect to sudden emergency on the grounds that adjudication of those claims also

involves fact-finding which is contrary to a judicial determination as a matter of

law. The sudden emergency doctrine provides that an individual faced with a

sudden emergency of another‟s creation is not negligent if the individual “makes

15
   3 A.3d 246 (Del. 2010).
16
   775 A.2d 1043 (Del. 2001).
17
   See id. at 1050–52.
18
   See generally id. at 1044–47.
                                          6
such choice as a person of ordinary prudence placed in such a position might make

. . . .”19 However, this Court notes that the sudden emergency doctrine “is not an

exception to the general rule that one must act as a reasonably prudent person

would under the same circumstances.”20 Rather, “an emergency . . . is merely one

of the circumstances to be considered by the fact finder”21 in order to determine

“whether a reasonable person under the same circumstances would have chosen the

same course of action.”22 The question of whether Defendant operated his vehicle

with due care as opposed to negligence is a question of fact that must be resolved

by a jury.23

      7.       For the reasons stated, the Court hereby finds that, when viewing the

evidence and drawing all reasonable inferences in a light most favorable to the

Plaintiffs, the non-moving parties, there are genuine issues of material fact in

dispute and judgment as a matter of law is inappropriate.


19
   Dadds v. Pa. R.R. Co., 251 A.2d 559, 561 (Del. 1969).
20
   State v. Greenley, 2003 WL 21040317, at *2 (Del. Super. May 6, 2003) (quoting
Dadds, 251 A.2d at 561).
21
   Dadds, 251 A.2d at 561.
22
   Miglino v. Adkins, 1991 WL 269924, at *3 (Del. Super. Dec. 11, 1991) (citing
Dadds, 251 A.2d at 561).
23
   See Delmarva Power & Light v. Stout, 380 A.2d 1365, 1368 (Del. 1977);
Murray v. Shank, 2011 WL 1419402, at *1–2 (Del. Super. Apr. 13, 2011); Storm v.
NSL Rockland Place, LLC, 898 A.2d 874, 887 (Del. Super. 2005) (citing Cook v.
E.I. DuPont de Nemours & Co., 2001 WL 1482685, at *5 (Del. Super. Ct. Aug. 20,
2001)); Uphsur v. Bodie’s Dairy Mkt., 2003 WL 21999598, at *4 (Del. Super. Jan.
22, 2003) (citing Frelick v. Homeopathic Ass’n of Del., 150 A.2d 17, 19 (Del.
Super. 1959))
                                         7
    NOW, THEREFORE, this 21st day of June, 2017, Defendant’s Motion

for Summary Judgment as to Duty and Sudden Emergency is hereby

DENIED.

    IT IS SO ORDERED.

                              Andrea L. Rocanelli
                              ______________________________
                              The Honorable Andrea L. Rocanelli




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