                   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



PATRICK BLACK,                                      :
                                                    :
                 Plaintiff,                         :
                                                    :
           v.                                       :             C.A. No. S13C-04-018 RFS
                                                    :
CHROMASCAPE, INC., a foreign                        :
corporation, d/b/a AMERICMULCH,                     :
                                                    :
                 Defendant.                         :



                                                   ORDER

                                Upon Defendant’s Motion for Summary Judgment
                                Based Upon Plaintiff’s Contributory Negligence
                                                   Denied

           AND NOW TO WIT, this 9th day of August, 2016, upon consideration of Defendant’s

Motion for Summary Judgment Based Upon Plaintiff’s Contributory Negligence, IT APPEARS

THAT:

           1.        This case arises out of Plaintiff, Patrick Black’s (“Plaintiff”), allegations against

Defendant, Chromascape, Inc., a foreign corporation, d/b/a Amerimulch (“Defendant”), for

negligence and/or recklessness in failing to adequately design, manufacture, or inspect the Mega

Mite mulch-dyeing machine it sold to Plaintiff’s employer. Defendant moved for summary

judgment on February 15, 2016.

           2.        A motion for summary judgment pursuant to Superior Court Civil Rule 56 will be

granted when “there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.”1 If the movant is able to show “that the undisputed


1
    Super. Ct. Civ. R. 56(c).

                                                        1
facts support [its] claims or defenses, the burden shifts to the non-moving party to demonstrate

that material facts remain in dispute for resolution by the ultimate fact-finder.”2 While the Court

is required to view the evidence in a light most favorable to the non-moving party, “the opponent

cannot create a genuine issue of material fact through bare assertions or conclusory allegations.”3

“If the record indicates that a material fact is disputed, or if further inquiry into the facts is

necessary to clarify the application of the law, summary judgment will not be granted.”4

        3.       Under Delaware’s comparative negligence statute, which is codified at 10 Del. C.

§ 8132, a plaintiff cannot recover if he acted more negligently than the defendant. In other

words, “if the plaintiff’s contributory negligence is 51% or greater, it is an absolute bar to

recovery according to the Delaware statute.”5 On the other hand, “if the plaintiff’s contributory

negligence is 50% or less, the plaintiff is permitted to recover, although the recovery is reduced

proportionally.”6      Summary judgment is appropriate only after a determination that “no

reasonable juror could find that the plaintiff’s negligence did not exceed the defendant’s.”7

        4.       In support of its Motion, Defendant relies heavily on Johnson v. Hockessin

Tractor, Inc.8 This reliance is unavailing. Johnson was decided in 1980, four years before the

Delaware Legislature enacted the modified comparative negligence statute.9 At the time of the

Johnson decision, the Delaware Supreme Court applied the common law contributory negligence

doctrine. “Under Delaware’s common law contributory negligence doctrine, if the plaintiff’s


2
  Image Hair Solutions Med. Ctr. v. Fox Television Stations, 2016 WL 425158, at *3 (Del. Super. Jan. 29, 2016)
(quoting Gerstley v. Mayer, 2015 WL 756981, at *3 (Del. Super. Feb. 11, 2015) (internal quotation marks omitted)).
3
  E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 53 (Del. Super. 1995) (citing Martin v. Nealis
Motors, Inc., 247 A.2d 831, 833 (Del. 1968)).
4
  Grasso v. First USA Bank, 713 A.2d 304, 307 (Del. Super. 1998).
5
  Baker v. East Coast Prop., Inc., 2011 WL 5622443, at *4 (Del. Super. Nov. 15, 2011) (quoting Culver v. Bennett,
558 A.2d 1094, 1099 (Del. 1994)).
6
  Id.
7
  Jones v. Crawford, 1 A.3d 299, 303 (Del. 2010).
8
  420 A.2d 154 (Del. 1980).
9
  10 Del. C. § 8132.

                                                        2
negligence was a proximate cause of his or her own injury, in any respect, that negligence was an

absolute bar to the plaintiff’s recovery.”10

        5.       Contrary to Defendant’s contentions, the similarities between the facts in Johnson

and the facts of the present case are of no consequence. Before the enactment of the current

comparative negligence statute, if the trial court found any negligence whatsoever on the

plaintiff’s part, it was “duty-bound to enter judgment as a matter of law.”11 Now, however, if the

trial court finds any negligence on the plaintiff’s part, an additional determination must be made,

which cannot be made as a matter of law. That determination, of course, is proportionality,

which must be made by the jury.12 Because of this additional step, only in rare cases will the

evidence require a finding by the trial court that the plaintiff’s negligence exceeded that of the

defendant’s.13

        6.       Defendant also relies on Trievel v. Sabo and Baker v. East Coast Properties in

support of its Motion. Summary judgment was granted in those cases because the evidence

clearly demonstrated that the plaintiffs’ negligence exceeded the defendants’.14 Viewing the

facts in a light most favorable to the non-moving party, the Court is not convinced that no

reasonable juror could find that Plaintiff’s negligence did not exceed Defendant’s negligence.

This is not one of those rare cases.




10
   Culver, 588 A.2d at 1097 (emphasis in the original).
11
   Johnson, 420 A.2d at 158.
12
   Hansen v. Umtech Industriservice Und Spedition, GBmbH, 1996 WL 622557, at *10 (D. Del. July 3, 1996).
13
   See Trievel v. Sabo, 714 A.2d 742, 745 (Del. 1998).
14
   Trievel, 714 A.2d at 745; Baker, 2011 WL 5622443 at *4.

                                                      3
      NOW, THEREFORE, this 9th day of August, 2016, Defendant’s Motion for Summary

Judgment Based Upon Plaintiff’s Contributory Negligence is DENIED.

      IT IS SO ORDERED.

                                                             /s/ Richard F. Stokes

                                                      ______________________________

                                                          The Honorable Richard F. Stokes



cc:   Prothonotary’s Office
      Matthew R. Fogg, Esquire
      Debra C. Aldrich, Esquire
      Kevin J. Connors, Esquire




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