                                         SUPERIOR COURT
                                           OF THE
                                     STATE OF DELAWARE
RICHARD R. COOCH                                              NEW CASTLE COUNTY COURTHOUSE
       RESIDENT JUDGE                                          500 NORTH KING STREET, SUITE 10400
                                                                WILMINGTON, DELAWARE 19801-3733
                                                                    TELEPHONE (302) 255-0664


       Tabatha L. Castro, Esquire                  Marc S. Casarino, Esquire
       The Castro Firm, Inc.                       Dana Spring Monzo, Esquire
       1719 Delaware Avenue                        Nicholas Wynn, Esquire
       Wilmington, Delaware 19806                  White and Williams, LLP
       Attorney for Plaintiffs                     824 North Market Street, Suite 902
                                                   Wilmington, Delaware 19801
       Leonard G. Villari, Esquire                 Attorneys for Defendants Blue
       Villari, Lentz & Lynam, LLC                 Diamond LLC and Parkway
       1600 Market Street, Suite 1800              Gravel, Inc.
       Philadelphia, Pennsylvania 19103
       Attorney Pro Hac Vice for Plaintiffs


              Re:       Thomas A Lynam, III and Antoinette M. Lynam, as Parents
                        and Natural Guardians of Thomas A. Lynam, IV, a minor, v.
                        Blue Diamond LLC and Parkway Gravel Inc. and Houghton’s
                        Amusement Park, LLC
                                 C.A. No. N14C-11-121 RRC

                                    Submitted: July 6, 2016
                                   Decided: October 4, 2016

                   On Defendants Blue Diamond LLC‟s and Parkway Gravel,
                    Inc.‟s Motion for Judgment on the Pleadings. DENIED.

   Dear Counsel:

                                    I.     INTRODUCTION

        Pending before this Court is Defendants Blue Diamond LLC‟s and Parkway
   Gravel, Inc.‟s (“Defendants”)1 Motion for Judgment on the Pleadings. In their
   complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding

   1
     Defendant Houghton‟s Amusement Park, LLC did not make an appearance in this case and had
   a default judgment taken against it on June 21, 2016.
his motocross bicycle on Defendants‟ motocross track. After riding off a jump,
Tommy landed, lost control of his motocross bicycle, and collided with a metal
shipping container near the track. Tommy apparently sustained serious injuries.
Plaintiffs‟ complaint raises one count of “negligence” as a theory for liability. 2
Although not listed as a separate count in their complaint, Plaintiffs allude in their
general “negligence” claim to a theory of reckless conduct by Defendants in
connection with the operation of the motocross track.

       In their motion, Defendants assert that their alleged behavior was, as a
matter of fact and law, neither negligent nor reckless. Alternatively, Defendants
raise an affirmative defense that they are released from any liability for negligent
or reckless conduct due to a release agreement (the “Release”) signed by the
Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as
a separate affirmative defense as a bar to recovery.

        Plaintiffs agree that they released Defendants from liability for Defendants‟
own “negligence.” However, Plaintiffs contend that Defendants‟ conduct
amounted to recklessness, and that Plaintiffs never released Defendants from
liability for their allegedly reckless conduct. In response to Defendants‟ claim that
Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision
with a metal shipping container was not contemplated at either the signing of the
Release or when Tommy began using the facilities.

       This Court concludes that the Release was not specifically tailored so as to
release Defendants from liability for their allegedly reckless conduct. The Court
also finds that the factual record is insufficiently developed to make a legal
determination of whether Defendants‟ conduct as a matter of law amounted to
recklessness. Finally, the Court concludes that it is premature at this juncture to
consider Defendant‟s affirmative defense.         Accordingly, the Court denies
Defendants‟ Motion for Judgment on the Pleadings.

                   II.   FACTUAL AND PROCEDURAL HISTORY
       On January 6, 2013, Tommy, then thirteen years old, was riding a motocross
bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the
track was advertised as being composed of “safe jumps.”3 While riding, Tommy
rode off a jump, made a hard landing, and was unable to stop in time before
colliding with a large metal shipping container.
2
    Compl. ¶¶ 79-87.
3
    Compl. ¶ 48.


                                          2
       Prior to granting Tommy admission to the Blue Diamond facilities to ride
his motocross bicycle, Blue Diamond required Tommy‟s father to sign a release
agreement. The Release, entitled “Parental Consent, Release and Waiver of
Liability, Assumption of Risk and Indemnity Agreement,” stated that Plaintiffs
understood the “risks and dangers of serious bodily injury” posed by motocross
and relieved Defendants from liability for their own negligence.4 The Release also
released Defendants from liability for injuries suffered by Plaintiffs through their
own negligence.5

       In their complaint, Plaintiffs allege that Defendants negligently allowed the
container to remain on the premises at an unsafe distance from the motocross
track.6 While Plaintiffs do not specifically allege recklessness as a separate claim
for recovery, but rather include it in a single count of “Negligence,” Plaintiffs‟
complaint references reckless conduct as another potential theory of recovery.7
Plaintiffs, however, now agree that their claims of negligence are barred by the
Release.8 But Plaintiffs assert that the Release did not specifically address or
contemplate potential claims against Defendants for “reckless” behavior.9




4
  Defs.‟ Mot. for J. on the Pleadings, Ex. A.
5
  Defs.‟ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor‟s
Assumption of the Risk Acknowledgment,” that Defendants reference in their motion as another
reason they are not liable for Plaintiffs‟ injuries. However, it appears from the motion and
subsequent filings that the release signed by Tommy is only mentioned in passing, and is not
relied upon by Defendants. The release signed by Tommy‟s father is the determinative release in
the case at bar.
6
  Compl. ¶¶ 79-87.
7
  Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants‟ failure to
exercise reasonable care as alleged above comprised outrageous conduct under the
circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.”
Compl. ¶ 87. The Complaint also alleges that Tommy‟s injuries were caused by the “reckless
indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track
was “reckless[ly] design[ed].” Compl. ¶ 49.
8
  At oral argument, Plaintiffs‟ counsel answered in the affirmative when the Court asked “Am I
understanding Plaintiffs‟ position correctly when I read the papers to say that Plaintiffs are not
alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC
Motocross et al., C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT)
[hereinafter Oral Arg. Tr.].
9
  Defs.‟ Mot. for J. on the Pleadings, Ex. A.


                                                3
                                       III.    ANALYSIS

                                   A. Standard of Review

       Under Superior Court Civil Rule 12(c), a party may move for judgment on
the pleadings after the pleadings are closed.10 The standard of review in the
context of a motion for judgment on the pleadings requires a court to “accept all
the complaint‟s well-pleaded facts as true and construe all reasonable inferences in
favor of the non-moving party.”11 “The motion will be granted when no material
issues of fact exist, and the moving party is entitled to judgment as a matter of
law.”12 “The standard for a motion for judgment on the pleadings is almost
identical to the standard for a motion to dismiss.”13

      B. The Parties Agree that the Release Bars Plaintiffs’ Recovery Against
                           Defendants for Any Negligence
      Defendants contend that the executed Release bars recovery for negligence.
At oral argument on this motion, Plaintiffs agreed (Plaintiffs‟ filings were not
explicit on this point) that the Release bars recovery for injuries resulting from
Defendants‟ allegedly negligent conduct.14 Although Plaintiffs are residents of
Pennsylvania, the parties agree that Delaware law applies to the present motion, as
Defendants are Delaware businesses and the incident giving rise to the case at bar
occurred in Delaware.

      Under Delaware law, parties may enter into an agreement that relieves a
business owner of liability for injuries to business invitees that result from the


10
    A judgment on the pleadings is based only upon a review of Plaintiffs‟ complaint and
Defendants‟ answer. However, under Rule 12(c), “If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded by the Court, the
motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at
bar, Defendants introduced the two executed releases as exhibits to their motion. However, the
releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should
be treated as a motion for judgment on the pleadings.
11
    Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del.
Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del.
Super. Aug. 8, 2012)).
12
   Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb.
4, 2009).
13
   Id. (internal quotation marks omitted).
14
   See Oral Arg.Tr. at 6.


                                                4
owner‟s negligent conduct.15 However, the release must be unambiguous, not
unconscionable, and not against public policy.16 Further, the release must be
“„crystal clear and unequivocal‟ to insulate a party from liability for possible future
negligence.”17

      In Ketler v. PFPA, LLC, the Delaware Supreme Court recently determined
the validity of a release waiving liability for negligence.18 The release in Ketler
provided:

          „I understand and voluntarily accept this risk and agree that [the
          defendant] . . . will not be liable for any injury, including,
          without limitation, personal, bodily, or mental injury . . .
          resulting from the negligence of [the defendant] or anyone on
          [the defendant‟s] behalf whether related to exercise or not.
          Accordingly, I do hereby forever release and discharge [the
          defendant] from any and all claims, demands, injuries,
          damages, actions, or causes of action.‟19

The Delaware Supreme Court held that the release was sufficiently clear and
unequivocal, and that it expressly released the defendant from any and all causes of
actions relating to the defendant‟s own negligence.20 Defendants rely heavily on
this case, asserting that it applies to claims of reckless conduct.21

      The Release that Plaintiffs executed in this case is also sufficiently “clear
and unequivocal.” The Release provides:
          3. I consent to the Minor‟s participation in the Event(s) and/or entry into
          restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH
          RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL
          RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES
          FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR

15
   Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and
releases that relieve a proprietor from liability for its own negligent activities).
16
   Id. at 747-48.
17
   Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal
quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del.
1972)).
18
   Ketler, 132 A.3d at 747.
19
   Id.
20
   Id.
21
   Oral Arg. Tr. at 14-16.


                                              5
           DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE
           NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.

           4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO
           SUE the . . . track owners, [and] owners and lessees of premises used to
           conduct the Event(s) . . . all for the purposes herein referred to as
           “Releasees,” FROM ALL LIABILITY TO ME, THE MINOR, [and] my
           and the minor‟s personal representatives . . . FOR ANY AND ALL
           CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF
           INJRY, including, but not limited to, death or damage to property,
           CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR
           OTHERWISE.22

Similar to the language at issue in Ketler, the Release expressly states that the
signor assumes responsibility for injuries caused by Defendants‟ own negligent
conduct. The release also expressly states that the Defendants are released from
any and all causes of action that may arise from Defendants‟ negligent conduct.
Accordingly, this Court agrees with the parties that the Release validly exculpates
Defendants from liability for their own negligence.

       Defendants also rely on Lafate v. New Castle County23 and Devecchio v.
Delaware Enduro Riders, Inc.24 to support their position that the Release waives
claims of reckless conduct. Both Lafate and Devecchio concern agreements that
released the tortfeasors from liability for their own negligent conduct. Both cases
also discussed whether the language of the releases was sufficiently tailored to
release the tortfeasor‟s negligent conduct. In Lafate, this Court refused to grant the
defendant‟s motion for summary judgment on grounds that the release did not
clearly and unambiguously release the tortfeasor from claims that it was
negligent.25 In Devecchio, this Court granted the defendant‟s motion for summary
judgment because the plaintiff signed a valid covenant not to sue for injury
resulting from the plaintiff‟s own negligence.26

22
   Defs.‟ Mot. for J. on the Pleadings, Ex. A (emphasis added).
23
   1999 WL 1241074 (Del. Super. Oct. 22, 1999).
24
   2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
25
   The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court
found that while the agreement did “speak[] of „any and all injuries which may be suffered by
[players] during [their] participation,‟” the absence of the word “negligence” insufficiently
insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL
1241074, at *4.
26
   In Devecchio, the defendant owned a motorcycle race track that required riders to sign
agreements releasing the defendant from liability for injuries resulting from both the riders and
the defendant‟s negligence. The release pertaining to the defendant‟s negligence expressly used


                                                 6
       Defendants‟ reliance on these cases in light of Plaintiffs‟ potential claim of
reckless conduct is inapposite. Because the parties have agreed that Defendants
are insulated from claims of negligence, the question of whether the release clearly
and unambiguously insulates the defendants from liability for their own negligent
conduct is moot. Neither the holding in Lafate nor in Devecchio relate to
allegations of reckless conduct. Accordingly, because Plaintiffs now assert that
Defendant‟s conduct was reckless, Lafate and Devecchio are distinguishable from
the case at bar.

        Finally, the Court considers whether, for purposes of this motion,
recklessness is subsumed in negligence, and is therefore barred as a form of
negligence. Prosser and Keeton on Torts is particularly informative, providing
that “such [exculpatory] agreements [that expressly exempt defendants from
liability for their negligent conduct] generally are not construed to cover the more
extreme forms of negligence, described as willful, wanton, reckless or gross, and to
any conduct which constitutes an intentional tort.”27 Adopting Prosser and
Keeton’s interpretation, this Court finds that although the Release does insulate
Defendants from liability for negligent conduct, it does not bar claims of “more
extreme forms of negligence,” such as “reckless” conduct.28

the word “negligence.” This Court found that the release using the word “negligence” was
sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its
own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del.
Super. Nov. 30, 2004).
27
   W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)).
Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See,
e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999
WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).
28
   Additionally, the Delaware Civil Pattern Jury Instructions for negligence and recklessness are
substantially different. The Delaware Civil Pattern Jury Instruction for negligence provides:

           This case involves claims of negligence. Negligence is the lack of
           ordinary care; that is, the absence of the kind of care a reasonably prudent
           and careful person would exercise in similar circumstances. That standard
           is your guide. If a person‟s conduct in a given circumstance doesn‟t
           measure up to the conduct of an ordinarily prudent and careful person,
           then that person was negligent. On the other hand, if the person‟s conduct
           does measure up to the conduct of a reasonably prudent and careful
           person, the person wasn‟t negligent.

Del. Super. P.J.I. Civ. § 5.1 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928.
On the other hand, the Delaware Civil Pattern Jury Instruction for reckless conduct states:


                                                7
  C. A Motion for Judgment on the Pleadings is Inappropriate at this Juncture in
               Light of any Undeveloped Claims of Reckless Conduct

       Although Tommy‟s father‟s execution of the Release precludes recovery
from Defendants on a theory of “negligence,” Plaintiffs assert that the Defendants‟
conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of
the complaint that Defendant‟s conduct was reckless, but Plaintiffs did make it
apparent in the complaint that it was an intended theory of liability.29 In their
briefing and at oral argument, Plaintiffs suggested that Defendants, among other
things, had been aware of previous collisions with the shipping container, and that
their ignorance of these prior incidents amounts to reckless behavior.30
Accordingly, the Court must determine whether the Release bars Plaintiffs from
asserting claims resulting from injuries caused by Defendants‟ reckless conduct.

      Courts in Delaware have a strong preference for resolving cases on their
merits, or at least allowing discovery to proceed such that additional evidence in
support of the parties‟ contentions can be developed.31 While this preference is not



           Reckless conduct reflects a knowing disregard of a substantial and
           unjustifiable risk. It amounts to an “I don‟t care” attitude. Recklessness
           occurs when a person, with no intent to cause harm, performs an act so
           unreasonable and so dangerous that he or she knows, or should know, that
           harm will probably result.

Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928.
It is apparent from a comparison of the two different jury instructions that negligence conduct
requires a departure from the ordinary standard of care exhibited by the reasonably prudent
person, an objective standard. However, in contrast, it appears from the pattern jury instructions
that reckless conduct requires a subjective “I don‟t care” attitude that evidences an even greater
departure from the ordinary standard of care, amounting to an unreasonable conscious disregard
of a known risk.
29
   Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track,
which was intentionally constructed next to the pre-existing intermodal container, requires riders
to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶
49. Moreover, Plaintiffs allege that Tommy‟s injuries were “a direct and proximate result of the
negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.
30
   Pl.‟s Suppl. Resp. in Opp‟n to the Mot. for J. on the Pleadings, at 2.
31
   Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530
(Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov.
18, 2004), Sup. Ct. Civ. R. 56.


                                                8
outcome-determinative, the preference for resolving cases on the merits is a strong
factor in determining whether to grant or deny a dispositive motion.

       Plaintiffs, at oral argument and in their response to the motion, argue that
they are entitled to recovery based on Defendants‟ allegedly reckless conduct. The
parties agree that this theory is separate from the one count of “negligence” listed
in the complaint.32 The operative language of the Release does not explicitly
enumerate or contemplate recklessness as a theory of recovery barred by the
Release. Under Delaware law, as provided in Ketler, a release must be “clear and
unambiguous” in order to effectively release the business owner from liability.33

       This Court finds that the language of the release is not “clear and
unambiguous” with respect to Defendants‟ liability for their own allegedly reckless
conduct. In Ketler, the release at issue specifically used the word “negligence,”
and stated that Defendants “will not be liable for any injury, including, without
limitation, personal, bodily, or mental injury . . . resulting from the negligence of
[the defendants].” The Delaware Supreme Court held that this language satisfied
the “clear and unequivocal” standard and upheld the language of the agreement.

       Turning to the Release that Plaintiffs executed, this Court finds that the
Release is silent as to claims of recklessness. The Release does not mention
“reckless” conduct, and instead only expressly refers to injury caused by
Defendants‟ “negligence.” In the absence of such language, the Release does not
clearly and unambiguously exculpate Defendants from liability for their own
reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs‟
claim of recklessness.34

32
   Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d
902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and
noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the
plaintiff must articulate „facts that suggest a wide disparity between the process [] used . . . and
that which would have been rational.‟” J.L. states that a complaint pleading ten pages of facts to
support a claim of gross negligence or recklessness was sufficient to meet the pleading standard).
Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court
Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the
opportunity to amend their complaint.
33
   Ketler, 132 A.3d at 747.
34
   Because the Court finds that Defendants‟ release does not explicitly bar claims of “reckless”
conduct, this Court does not reach the question of whether such a release is potentially
permissible under Delaware law. However, this Court notes that other jurisdictions have
differing perspectives on whether exculpatory agreements barring claims for recklessness, gross
negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation,


                                                 9
      This Court holds that the Release does not bar claims of reckless conduct.
This Court expresses no opinion at this juncture as to whether Plaintiffs ultimately
can establish claims against for recklessness. Accordingly, the Court denies
Defendants‟ Motion for Judgment on the Pleadings, and will grant Plaintiffs leave
to conduct further discovery with the option of potentially amending the complaint
in support of their contention that Defendants‟ conduct was “reckless.”35


    D. The Court does Not Reach Defendant’s Argument under the Doctrine of
                             Assumption of the Risk

       Finally, Defendants‟ contend that Plaintiffs assumed the risk of injury from
Defendants‟ alleged reckless conduct. However, the record has not been
sufficiently developed to determine whether Defendants‟ conduct was reckless or
whether Plaintiffs assumed the risk of injury from Defendants‟ allegedly reckless


Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from
Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in
Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that
exculpatory agreements can release a party only for simple negligence, and not from willful and
wanton negligence. 532 P.2d 372, 377 (Colo. App. 1974). Similarly, in Wheelock v. Sport Kites,
Inc., the United States District Court for the District of Hawaii held that a release was invalid
with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw.
1993). The above annotation suggests that a common reason to not enforce such an agreement is
because they are void against the state‟s public policy.
        Alternatively, other jurisdictions have upheld agreements that exculpate business owners
for reckless conduct or strict liability. For example, in Murphy v. N. Am. River Runners, Inc., the
West Virginia Supreme Court discussed the matter, stating:

           Generally, in the absence of an applicable safety statute, a plaintiff who
           expressly and, under the circumstances, clearly agrees to accept a risk of
           harm arising from the defendant‟s negligent or reckless conduct may not
           recover for such harm, unless the agreement is contrary to public policy.
           When such an express agreement is freely and fairly made, between two
           parties who are in equal bargaining position, and there is no public interest
           with which the agreement interferes, it will generally be upheld.

412 S.E.2d 504, 508-09 (W. Va. 1991).
35
   Delaware Courts have previously allowed such an amendment to be made. As this Court held
in Guy v. Phillips, a party may amend a complaint following additional discovery when the
amended count arises out of the same factual basis for the original complaint. 1997 WL 524124
(Del. Super. July 2, 1997).


                                                10
conduct.36 Accordingly, the Court does not reach this contention at this stage of
the litigation.

                                   IV.     CONCLUSION
      Defendant‟s Motion for Judgment on the Pleadings is DENIED. The Court
has enclosed an Order establishing a Scheduling Conference in this case.

                                                             Very truly yours,

                                                              /s/ Richard R. Cooch
                                                             Richard R. Cooch, R.J.

oc:    Prothonotary




36
   In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp
Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable
from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised
explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the
employment agreement, the decedents signed an agreement that provided employees expressly
assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the
risk of death, the Court found that “when [the decedents] signed the releases, even a poorly
informed American had to have appreciated that working in Afghanistan involved the general
risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The
complaint offers no reason to find that any plaintiff here was probably unaware of the general
risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light
most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the
shipping container, since they allege that they were unable to inspect the track prior to Tommy
using it. Accordingly, Defendants‟ reliance on Deuley is inapposite since it could be determined
that a collision with the metal shipping container was not contemplated by the Plaintiffs when
they signed the Release.



                                                11
