IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BRYAN CONNOLLY and SUSAN
CONNOLLY, Individually and as
Co-Administrators of the Estate of
ETHAN P. CONNOLLY,

C.A. No. N14C-08-006 FWW

Plaintifffs,

THETA CHI FRATERNITY, INC. and
ALPHA XI CHAPTER OF THE
UNIVERSITY OF DELAWARE,
Individually and as a chapter and agent
of the Theta Chi Fraternity, ALPHA
EPSILON PHI Sorority, Individually and
t/a PHI CHI CHAPTER, UNIVERSITY
OF DELAWARE, Individually and as
agent of ALPHA EPSILON PHI
Sorority, EXECUTIVE BANQUET &
CONFERENCE CENTER, CAPOZZOLI
CATERING OF DELAWARE, INC., a
Delaware Corporation, PLUMBERS &
PIPEFITTERS LOCAL NO. 74, ET. AL.
and THE PLUMBERS & PIPEFITTERS
SOCIAL CLUB,

V\./VVVVVVVVVVVVVVVVVVVVVVVV\/V

Defendants.

Submitted: November 28 and 29, 2017
Decided: February 28, 2018

MEMORANDUM OPIN]ON AND ORDER

Upon Defendant Alpha Epsilon Phi Sorority, Individually and t/a Phi Chi
Chapter’s Motion for Sumrnary Judgment Based upon Lack of Duty:
GRANTED.

Upon Defendant Alpha Epsilon Phi Sorority, Individually and t/a Phi Chi
Chapter’s Motion for Summary Judgrnent Based upon Ethan Connolly"s Reckless
Conduct and Comparative Negligence:

MOOT.

Upon Defendant University of Delaware’S Motion for Summary Judgment:
GRANTED.

Upon Defendant Capozzoli Catering of Delaware, Inc.’s Motion for Summary
Judgment:

GRANTED.

Upon Defendant Plumbers and Pipefltters Local N0. 74’s and Defendant The
Plumbers and Pipefltters Social Club’s Motion for Summary Judgment;
GRANTED.

Beverly L. Bove, Esquire, Vincent J. X. Hedrick, Esquire, Beverly L. Bove,
Attorney at LaW, 1020 W. 18th Street, P.O. Box 1607, Wilmington, Delaware 19899;
Attorneys for Plaintiffs Bryan Connolly and Susan Connolly, Individually and as
Co-Administrators of the Estate of Ethen P. Connolly.

Kevin J. Connors, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Nemours Building, 1007 N. Orange Street, Suite 600, P.O. Box 8888, Wilmington,
Delaware 19899; Attorney for Defendant Alpha Epsilon Phi Sorority, Individually
and t/a Phi Chi Chapter.

William E. Manning, Esquire, J ames D. Taylor, Esquire, Danielle N. Petaja, Esquire,
Saul Ewing Arnstein & Lehr LLP, 1201 N. Market Street, Suite 2300, Wilmington,
Delaware 19801; Attorneys for Defendant University of Delaware.

Colin M. Shalk, Esquire, Brian V. Dernott, Esquire, Casarino Christman Shalk
Ransom & Doss, P.A., 1007 N. Orange Street, Suite 1100, Wilmington, Delaware
19801; Attorneys for Defendant Capozzzoli Catering of Delaware, Inc.

Nancy Chrissinger Cobb, Esquire, Chrissinger & Baumberger, Three Mill Road,
Suite 301, Wilmington, Delaware 19806; Attorney for Defendant Plumbers &
Pipefltters Local No. 74 and Defendant The Plumbers and Pipefltters Social Club.

WHARTON, J.

I. INTRODUCTION

lt falls to the Court to perform the unhappy task of bringing more bad news to
people who have had far too much of that in recent years. On October 18, 2013,
University of Delaware student Ethan P. Connolly (“Ethan”), the l9-year-old son of
Bryan and Susan Connolly (“Connollys”) was killed when he walked in front of a
pickup truck. lt was 12:31 a.m. lt was dark. Ethan was crossing northbound
Delaware Route 896 south of Newark. He Was not crossing at the crosswalk with
lighted pedestrian crossing signals approximately 90 feet from where he was struck.
He was not wearing any reflective clothing, nor was he carrying a flashlight. Most
significantly, Ethan was grossly impaired due to acute alcohol intoxication. At
autopsy, he had blood alcohol concentrations of 0.232 g/dl (femoral blood), 0.227
g/dl (vitreous humor) and 0.304 g/dl (urine). He tested positive for marijuana

Ethan had been invited to an off-campus sorority “crush” party held at a
banquet facility not far from where he died. The facility was operated by a catering
company and owned by a labor union. Members of the union’s social club served
as bartenders. Bus transportation Was provided by the sorority to and from the event.
Ethan was killed prior to the busses departing from the event. Ethen had been
drinking before the event.

Ethan’s parents have brought this wrongful death suit against the University

of Delaware (“University”), the sorority and its local chapter, Alpha Epsilon Phi

(“Sorority”), the caterer, Capazzoli Catering of Delaware, Inc. (“Capozzoli”), and
the union and its social club, Plumbers & Pipefltters Local No. 74 (“Local 74”) and
The Plumbers & Pipefitters Social Club (“Social Club”).l The Connollys allege that
each defendant owed a duty to Ethan, breached that duty, and the breach of the duty
was the proximate cause of Ethan’s death. All defendants have moved for summary
judgment. Themes common to each motion are that the movant did not owe a duty
to Ethan, did not breach any duty it allegedly owed him, and Ethan’s conduct was
the proximate cause of his death, not anything the movant did or did not do. After
carefully considering all of the parties’ submissions and arguments, the Court finds
that on the night of his death, none of the defendants owed Ethan the duty the
Connollys allege each owed to him. None of the defendants breached any claimed
duty to Ethan and no action or inaction on the part of any defendant was a proximate
cause of Ethen’s death, The sad and inescapable truth is that Ethan, and only Ethan,
was responsible for his own death. Accordingly, applying Superior Court Civil Rule
56, all of the motions for summary judgment are GRANTED with the exception of
the Sorority’s motion based on Ethan’s reckless conduct and comparative

negligence, which is MOOT.

 

lAll other defendants have been dismissed.
4

II. FACTUAL AND PROCEDURAL CONTEXT
The University of Delaware prohibits most possession, use, or consumption
of alcohol on-campus.2 Student organizations may serve alcohol at on-campus
functions or events but are required to obtain the explicit, prior approval of the
Director of the University Student Centers.3 As a result, many students and student
organizations host events off-campus in order to consume alcohol. In light this
practice, the University warned:
The University accepts no responsibility for the
possession, use, consumption, manufacture, sale, or
distribution of alcoholic beverages by students off-
campus, including at events or functions sponsored in
whole or in part by one or more student organizations or
individuals A student hosting or attending an off-campus
function should be aware of the applicable laws regarding
alcohol and should be aware that the University may also
pursue student conduct charges for such behavior.4
In the fall of 2013, Ethan Connolly was a 19-year-old sophomore at the
University of Delaware.5 On the evening of October 17, 2013, the Sorority hosted

an off-campus “crush” party6 at the Executive Banquet & Conference Center

 

2 Def. University of Delaware Op. Br. Mot. Summ. J., D.I. 267, Ex. 20 at 11-12.

3 Id. at 11.

4Id. at 12-13.

5 Def. Plumbers & Pipefitters Local No. 74 Op. Br. Mot. Summ. J., D.I. 259 at 4.

6 The “crush” party was a social function held by the Sorority where members were
permitted to invite either one or two guests as a date to the invitation only event.

5

(“Banquet Center”) south of Newark, Delaware,7 Ethan was invited to attend the
crush party by Sorority member Stephanie Auerbach (“Stephanie”).8

The Banquet Center is owned by Local 74.9 At the time of the crush party,
Capozzoli was a tenant of` Local 74 and operated a catering business out of the
Banquet Center.10 Local 74 maintained the sole liquor license for the Banquet
Center.11 The Social Club, an affiliate of - but a separate legal entity from - Local
74, was solely responsible for distributing any and all alcohol from the bar of the
Banquet Center.12

Ethan and Stephanie made plans to meet prior to the crush party to “pre-
game.”13 Stephanie advised Ethan that she had tequila and eight beers for him.14
Texts from Ethan confirm his attendance and consumption of alcohol at the pre-
game.15 The crush party began at approximately 10:30 p.m. and ended at

approximately 12:30 a.m.16 Ethan and Stephanie used a bus provided by the Sorority

 

7 Def. Plumbers & Pipefitters Local No. 74 Op. Br. Mot. Summ. J., D.I. 259 at 4.
8 Id. '

9 Def. Capozzoli Catering of Delaware, Inc. Op. Br. Mot. Summ. J., D.I. 257 at 6.
10 Id.

11 Ia’.

12 Ia'.

13 Def. University of Delaware Op. Br. Mot. Summ. J., D.I. 267, at 8. “Pre-
gaming” is the name given to drinking before an event at which more drinking will
occur.

14 Ia’.

15 Ia'.

16 Def. Plumbers & Pipefitters Local No. 74 Op. Br. Mot. Summ. J., D.I. 259 at 4.

6

to get from campus to the Banquet Center.17 Once the partygoers boarded the buses
on campus, and before they exited, the Sorority checked the partygoers for alcohol
or drinking containers.18

Upon exiting the buses, partygoers were frisked by Social Club employees
and females were bag checked by a Capozzoli employee.19 After being checked, the
partygoers formed two lines to enter the Banquet Center - one for those 21 and older
and one for those under 21.20 Attendees 21 and older showed identification to
Capozzoli employees to procure a wristband, thereby verifying they were of legal
drinking age, while those under 21 were allowed to enter without showing
identification.21 Inside the Banquet Center, two Social Club employees monitored
the venue, the bathrooms, and the foyer leading into the venue, while three licensed
Social Club employees staffed a cash bar.22 The bartenders were instructed to card
anyone who looked under age and to refuse service to anyone who appeared
inebriated, additionally the bartenders were instructed never to serve more than one

drink per patron at a time.23

 

17 Pltfs.’ Ans. Br. Mot. Summ. J., D.I. 318 at 3.

18 Def. Plumbers & Pipefitters Local No. 74 Op. Br. Mot. Summ. J., D.I. 259 at 4-
5.

19 Id. at 5.

20 Id. at 6.

21 Id.

22 Def. Capozzoli Catering of Delaware, Inc. Op. Br. Mot. Summ. J., D.I. 257 at 5.
23 Def. Plumbers & Pipefitters Local No. 74 Op. Br. Mot. Summ. J., D.I. 259 at 6.

7

Once Ethan arrived his activities and movements at the Banquet Center are
unclear. No one has testified seeing Ethan attend the crush party, drinking any
alcohol at the crush party, or knowing why he left the crush party and was walking
in the roadway.24

At approximately 12:31 a.m., Linwood McLean was driving northbound on
Route 896.25 At that moment, Ethan and two other males - Daniel Bernstein and
David Muir - were crossing the highway (away from the Banquet Center.)26 None
of the men was wearing any reflective material or carrying any type of flashlight or
other lighting device, and as they crossed in front of McLean’s vehicle, the left side
of the vehicle collided with Ethan and Bernstein.27 As the buses left the party to
return to campus, attendees riding the buses saw Ethan lying on the ground after he
Was hit.28 Ethan Was pronounced dead at 12:53 a.m. on October 18, 2013.29

The police report indicates that the roadway was dark but there was a lighted
pedestrian crosswalk approximately 90 feet from the collision scene.30 Additionally,

at autopsy Ethan’s blood alcohol concentrations were 0.232 g/dl (femoral blood),

 

24 Def. University of Delaware Op. Br. Mot. Summ. J., D.I. 267 at 8-9.
25 Id. at 9.

26 Id.

27 Ia'. at 10.

28 Pltfs.’ Ans. Br. Mot. Summ. J., D.I. 316 at 7.

29 Def. University of Delaware Op. Br. Mot. Summ. J., D.I. 267 at 10.
30 Id.

0.227 g/dl (vitreous humor), and 0.304 g/dl (urine).31 His urine tested positive for
the presence of cannabinoids.32 He was not wearing a wristband.33

On November 29, 2016, the Connollys filed their Third Amended Complaint
(“TAC”) against Defendants for the wrongful death of Ethan Connolly,34 All
Defendants filed Motions for Summary Judgment. The Connollys responded
opposing each Defendant’s Motion for Summary Judgment. The parties appeared
before the Court for oral argument on November 28 and 29, 2017.

III. STANDARD OF REVIEW

Superior Court Civil Rule 56(c) provides that summary judgment is
appropriate when “there is no genuine issue of material fact. . .and the moving party
is entitled to judgment as a matter of law.35 The moving party initially bears the
burden of establishing both of these elements; if there is such a showing, the burden
shifts to the non-moving party to show that there are material issues of fact for
resolution by the ultimate fact-finder.36 The Court considers the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any” in determining whether to grant summary judgment.37 Summary

 

31 Ia’. at ll

32 Id.

33 Def. Capozzoli Catering of Delaware, Inc. Op. Br. Mot. Summ. J., D.I. 257, at 6.
34 D.I. 198.

35 Del. Super. Ct. Civ. R. 56(c).

36 See, Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citations omitted).
37Del. Super. Ct. Civ. R. 56(c).

judgment will be appropriate only when, upon viewing all of the evidence in the
light most favorable to the non-moving party, the Court finds that there is no genuine
issue of material fact.38 When material facts are in dispute, or “it seems desirable to
inquire more thoroughly into the facts to clarify the application of the law to the
circumstances,” summary judgment will not be appropriate.”39 However, when the
facts permit a reasonable person to draw but one inference, the question becomes
one for decision as a matter of law.40
IV. THE PARTIES’ CONTENTIONS
A. The Sorority.

The wrongful death claim against the Sorority alleges that both the national
sorority and its local chapter owed a duty to Ethan to manage and oversee the local
chapter’s operations and the activities of its members as well as the provision and
use of alcohol in connection with the crush party in a “reasonably prudent manner
and/or assumed such a duty.”41 Count lIl of the TAC alleges that the Sorority
negligently breached its duty to Ethan in that it: l) relied on underage members who

had themselves taken part in activities involving alcohol and who had taken “oaths

 

38 Singletarry v. Amer. Dept. Ins. Co. 2011 WL 607017 at *2 (Del. Super.) (citing
Gill v. Nationwide Mut. Inc. Co., 1994 WL 150902 at *2 (Del. Super.)).

39 Ebersole v. Lowengrub, 180 A.2d 467, 468-69, (Del. 1962) (citing Knapp v.
Kinsey, 249 F.2d 797 (611‘ Cir. 1957)).

40 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

41TAC,D.I. 198 at Counts III, IV.

10

of secrecy and loyalty to the brotherhood [sic], to manage the local sorority and its
activities and to manage its risk management policies;” 2) failed to provide effective
supervision and control over the local sorority’s officers and members and pledge
activities of the local sorority; 3) failed to implement reasonable measures to enforce
risk management policies prohibiting the use of alcohol during all activities; 4) failed
to provide reasonable safeguards and restrictions to prevent underage drinking and
excessive drinking and supervision of underage persons serving alcohol to others; 5)
failed to implement reasonable measures to prohibit the excessive consumption of
alcohol at the crush party; 6) failed to implement reasonable measures to enforce
state law and University and Sorority policies against underage drinking and hazing;
7) failed to implement reasonable measures to stop underage drinking and hazing
which it knew or should have known were occurring at the local sorority; 8) failed
to discipline local sorority members for engaging in underage drinking and alcohol
related initiation activities; 9) failed to train local sorority members on risk
management and various other policies and procedures; 10) delegated the non-
delegable duty of safety to others; ll) failed to assure that Ethan returned to campus
on the bus on which the Sorority transported him to the crush party; 12) failed in its
duty under DiOssi v. Maroney42 to anticipate that Ethan might consume beverages

and thereafter be exposed to hazards; 13) pursuant to Furek v. University of

 

42 584 A.2d 1361 (Del. 1988).
ll

Delaware,43 failed in its duty to Ethan to exercise reasonable care in transporting
him to the Banquet Center by completing the task of returning him to campus; and
14) was otherwise negligent.44

ln Count IV the TAC alleges that the Sorority was wanton, willful, and/or
reckless in that the Sorority: l) knew or should have known of the “unparalleled
dangers associated with the ‘big brother’ [sic] and family drink ritual, of hazing,
alcohol abuse, and inept risk and crisis management within fraternal [sic]
organizations;”45 2) upon information and belief, had available to it information
about the risks of alcohol at sorority events; 3) upon information and belief, knew
that its risk and crisis management policies were not working; 4) upon information
and belief, knew of and failed to supervise or implement reasonable controls over
the traditions of the local sorority, including excess alcohol consumption, hazing,
and other activities that resulted in Ethan’s death; and 5) breached its duty to Ethan
by its acts and omissions in instituting and enforcing wholly inadequate and
dangerous policies and procedures for managing the local sorority,46

The Sorority advances two arguments in its Opening Brief in support of its

Motion for Summary Judgment Based on Lack of Duty. First, it argues that the

 

43 594 A.2d 506 (Del. 1991).
44 TAC, D.I. 198 at Count lll.
45Ia'. at Count IV.

461a'.

12

Sorority is entitled to summary judgment as a matter of law because the Connollys
are unable to make out a prima facie case against it because they have no qualified
and reliable opinion of an expert establishing a standard of care.47 Second, it argues
that it is entitled to summary judgment because it owed no duty to Ethan,48
ln its Answering Brief in Opposition to the Sorority’s Motion for Summary
Judgment, the Connollys argue that their two experts, Russell Kolins and Norman J.
Pollard, Ed.D., are qualified experts who have articulated the appropriate standard
of care for the Sorority.49 They further argue that where there is a logical basis for
the testimony, the credibility and weight of the testimony of expert witnesses is to
be determined by the jury.50 The Connollys assert that the Sorority owed a duty to
Ethan, notwithstanding the absence of Dram Shop liability, based on business
premises liability and common law tort liability, including under Sections 284, 302,
323 and 324 of the Restatement (Second) of Torts.51
In reply, the Sorority argues that the Connollys fail to address the merits
of its contentions regarding the opinions of Mr. Kolins and Dr. Pollard and only

address their expert witnesses’ qualifications.52 Further, the Sorority argues it cannot

 

47 Def. Alpha Epsilon Phi Sorority Op. Br. Mot. Summ. J., D.I. 271 at 11.
481d. at 13.

49Pltfs.’ Ans. Br. Mot. Summ. J., D.I. 318 at ll-l4.

5°Ia’.

5'Ia'. at 15-34.

52 Def. Alpha Epsilon Phi Reply Br. Mot. Summ. J., D.I. 338 at 1-2.

13

have any premises liability since nothing, including Ethan’s fatality, occurred on any
property of the Sorority.53 Finally, to the extent it voluntarily undertook any duty
under the Restatement (Second) of Torts to Ethan to provide transportation to and
from the party, the Sorority never breached that duty because Ethan, voluntarily and
without notice, left the party prior to its conclusion and before the departure of the
return transportation54

B. The University.

Count V of the TAC alleges that the University negligently caused Ethan’s
death,55 In that count, the Connollys allege that the University owed the same duty
to Ethan that the Sorority did and negligently breached that duty in virtually all of
the same ways that they allege that the Sorority breached its duty to Ethan.56 They
do not allege business premises liability against the University, however.
Additionally, they allege that the University failed to implement reasonable safety
procedures for off campus events.57 Count VI alleges wanton, willful, and/or
reckless misconduct on the part of the University.58 The language of Count VI tracks

the language of Count IV which alleges wanton, willful and reckless misconduct on

 

53Ia’. at 4.

54Id. at 5-8.

55TAC, D.I. 198 at Count V.
56Ia’.

57Ia’.

58Ia'. at Count VI.

14

the part of the Sorority.59 ln addition, Count VI alleges that the University, by acts
and omissions in encouraging off campus events, created an unreasonable risk of
injury or death to Ethan.60

In its Motion for Summary Judgment, the University asserts that it had no duty
to Ethen since the doctrine of in loco parentis no longer applies in Delaware, and
Furek does not suggest any duty to Ethan.61 Moreover, the Connollys cannot; l)
identify a standard of care accepted throughout the higher education community; 2)
identify an act or omission by the University that breached the applicable standard
of care and was the proximate cause of Ethen’s death; or 3) explain why Ethan Was
not solely responsible for his own death.62

In their Answering Brief in Opposition the University’s Motion for Summary
Judgment, the Connollys advance the same arguments they made regarding Mr.
Kolins and Dr. Pollard’s testimony as to standard of care that they made in opposing
the Sorority’s motion.63 The Connollys further assert that the University owed a
duty to Ethan based on common law principles.64 They also adopt and incorporate

their arguments in opposition to the motions for summary judgment of Capozzoli

 

59Ia’.

60Ia'.

61Def. University of Delaware Op. Br. Mot. Summ. J., D.I. 267 at 19.
62Ia'. at 2.

63Pltfs.’ Ans. Br. Mot. Summ. J., D.I. 321at 19-22.

44Id. at 23-30.

15

and Local 74.65 Finally, they argue that the question of Ethan’s comparative
negligence is one for the jury.66

The University makes five points in reply. First, it points out that one of the
cases the Connollys rely upon to establish a duty to Ethan on the part of the
University, Marshall v. University of Delaware,67 was decided prior to the Supreme
Court’s decision in Farek, and a different result obtained for the University’s second
motion for summary judgment decided after Farek.68 Farek and subsequent cases
make it clear that the University is not responsible for injuries occurring at off-
campus student social events.69 Second, the University disputes the notion that the
issues raised in its motion are fact issues for the jury instead of legal issues for the
Court, arguing that the determination of whether a duty exists is a legal question.70
Third, the University argues that Dr. Pollard fails to identify a source of the duty he

claims the University owed to Ethen.71 Fourth, the alleged breach of the purported

 

65Ia'. at 28.

461a’. at 30-35.

47 1986 WL 11566 (Del. Super.) (cited by the Connollys in their Answering Brief,
D.I. 321 at 26-27, Ex. CC, as 1986 Del. Super. Lexis 1374 (Del. Super. Oct. 8,
1986)).

48 Def. University of Delaware Reply Br. Mot. Summ. J., D.I. 338 at 5-6; See,
Marshall v. University of Delaware, 633 A.2d 370 (Table) (Del. 1993); 1993 WL
385114 (Del.).

69Ia'. at 6.

70la'. at 7.

71Id. at 8-10.

16

duty owed by the University to Ethan was not the proximate cause of his death, and,
fifth, Ethan’s own choices were the proximate cause of his death.72
C. Capazzoli.

The Connollys allege in the TAC that Capozzoli’s “negligent, reckless, willful
and wanton, and intentional conduct” was a proximate cause of Ethan’s death.73
Specifically, they allege that Capozzoli: 1) failed to properly maintain, secure, and
monitor the Banquet Center; 2) failed to monitor, secure, or otherwise protect its
underage patrons from consuming alcohol at the Banquet Center; 3) failed to
adequately inspect, monitor, and supervise the Banquet Center to ensure that
underage patrons were not being served alcohol; 4) failed to stop consumption of
alcohol by underage patrons who were being served alcohol at the Banquet Center;
5) failed to train and supervise its employees to ensure that underage patrons were
not being served alcohol; 6) hired incompetent, negligent, and reckless employees
to monitor, ensure, and inspect the Banquet Center to prevent underage patrons from
being served alcohol; 7) delegated its non-delegable duty of safety to others; 8) failed
to prevent Ethan from leaving the Banquet Center on foot, thereby creating an
unreasonable risk of his injury and death; 9) failed in its duty under DiOssi to

anticipate that Ethan might consume alcohol and thereafter be exposed to hazards;

 

721d. at 10-12.
73 TAC, D.I. 198 at Count VII.

17

10) pursuant to Farek, failed in its duty to Ethan to exercise reasonable care in
transporting him to the Banquet Center by completing the task of returning him to
campus; and 11) was otherwise negligent.74

Capozzoli advances two primary arguments in support of its Motion for
Summary Judgment, both based on its position that it owed no duty to Ethan. First,
it argues that one of the Connollys’ expert witnesses impermissibly offered a legal
opinion it had a legal duty to Ethen, when in fact, it did not.75 Second, it argues that
the Connollys’ attempt to impose a non-delegable duty on it amounts to an attempt
to circumvent the Delaware Supreme Court’s long history of decisions rejecting
Dram Shop and Social Host liability.76 Capozzoli’s Opening Brief contains an
extended exegesis of the Delaware Supreme Court’s case law on Dram Shop and
Social Host liability in support of its argument that Delaware courts are clear that no
viable cause of action exists against a commercial dispenser of alcohol or a social
host for an injury suffered or inflicted by an intoxicated person.77 Capozzoli also

joins in the Motions for Summary Judgment of all Co-Defendants.78 Specifically it

 

74Ia’.

75 Def. Capozzoli Catering of Delaware, Inc. Op. Br. Mot. Summ. J., D.I. 257 at 10.
741a'. at 11-27.

77Id. at 26.

78 D.I. 281.

18

joins the University’s motion in its entirety, Section 2 of the Sorority’s motion based
on lack of duty79 and Sections 1,2, and 3 of Local 74’s motion.SO

Although they acknowledge that Capozzoli is not liable for Ethan’s death
under a theory of Dram Shop liability, the Connollys maintain that Capozzoli is
liable for Ethan’s death based on business premises liability, social host liability and
common law restatement of torts liability adopted in Delaware.81 Further, they
incorporate the positions they have taken in opposition to the motions for summary
judgment of the Sorority, the University, and Local 74.82

Capozzoli rejects the Connollys’ argument that it is liable for Ethan’s death
under either § 324 or § 323 of the Restatement (Second) of Torts as such an argument
constitutes an impermissible end run around the Delaware Supreme Court’s refusal

to impose Dram Shop and Social Host liability.33 Further, Capozzoli insists that it

 

79 Section 2 of the Sorority’s motion argues that summary judgment is appropriate
because the Connollys are unable to make out a prima facie case as to the
applicable standard of care in the absence of a qualified and reliable expert
opinion. See D.I. 271 at 11-13.

50 Those sections argue that there is no Dram Shop liability in Delaware (Section l),
a premises liability claim fails as a matter of law (Section 2), and the claims of the
estate also fail as a matter of law (Section 3). See Plumbers & Pipefitters Local No.
74 Mot. Summ. J., D.I. 259.

51 Pltfs.’ Ans. Br. Mot. Summ. J., D.I. 314 at 1.

77Ia'. at 24.

45 Def. Capozzoli Catering of Delaware, Inc. Reply Br. Mot. Summ. J., D.I. 327 at
3-8.

19

cannot be liable under a premises liability theory because there was no property
nexus to Ethan’S injury.84
D. Local 74 and the Social Club.

The wrongful death claim against Local 74 and the Social Club is found at
Count Vlll if the TAC.85 lt is identical to the claim against Capozzoli.86

Like Capozzoli, Local 74 argues in its Motion for Summary Judgment that
the absence of Dram Shop liability in Delaware precludes liability as to it.87 lt also
maintains that it has no premises liability as a landholder because Ethan was not
killed at the Banquet Center.88 Finally, it argues that the estate’s claims fail as a
matter of law because Ethan was killed instantly.89

The Connollys again acknowledge the absence of Dram Shop liability in
Delaware, but maintain nonetheless that Local 74 is liable for Ethan’s death on
premises liability and common law tort theories.90 They also incorporate their
arguments in opposition to the motions for summary judgment of the Sorority, the

University and Capozzoli.91 Lastly, they point out that no survivorship claim was

 

84Ial. at 9-11.

55 TAC, D.l. 198 at Count Vlll.

46Ia’. at Count Vll.

57 Def. Plumbers & Pipefitters Local No. 74 Op. Br. Mot. Summ. J., D.l. 259 at 13.
88Ia'. at 19.

89Ia’. at 27.

°°Pltfs.’ Ans. Br., D.l. 287 at 9-15.

91 Ia'. at 15.

20

plead on behalf of Ethan’s estate, so there is no predicate upon which to grant
summary judgment as to the non-existent survivorship claim, a point later
acknowledged at argument by Local 74 and the Social Club.92

Like Capozzoli, Local 74 and the Social Club see the Connollys’ negligence
claims as nothing more than Dram Shop claims which are not recognized under
Delaware law.93 They also deny premises liability for the same reason as Capozzoli
-the fact that Ethan was not killed on the premises of the Banquet Center.94

V. DISCUSSION

Five general points of contention emerge from the parties’ briefs and oral
arguments: l) whether any or all of the defendants had a duty to Ethen based on a
theory of premises liability; 2) whether Delaware’s prohibition of Dram Shop and
Social Host liability necessarily forecloses all of the Connollys’ tort liability claims;
3) whether any or all of the defendants had a duty to Ethan based on common law
tort principles; 4) whether, to the extent any or all defendants had a duty to Ethan,
that duty was breached; and 5) if any duty to Ethan was breached, whether the breach
of that duty was the proximate cause of Ethan’s death. The Court address each of

these issues in turn, but does not address issues argued by the Sorority and the

 

9ZIa'. at 21.

95 Def. Plumbers & Pipefitters Local No. 74 Reply Br. Mot. Summ. J., D.I. 336 at 7-
13. `

941a'.at14-15.

21

University relating to the Connollys’ expert witnesses, Mr. Kolins and Dr. Pollard.
While the Court has some sympathy for the positions of the Sorority and the
University, the issues raised concerning the Connollys’ experts are better resolved
in the context of the motions in limine, which are now moot in light of the Court’s
decisions on the motions for summary judgment.

Additionally, it is necessary to address the state of the factual record about
what Ethan did or did not do at the crush party. The Connollys provided an
interrogatory answer in which they identified a number of people whom they
represent have knowledge that Ethan was inside the Banquet Center and consumed
alcohol at the event.95 None of these witnesses was deposed by any party and the
Connollys have not provided affidavits from any of them. The Connollys have
proffered neither the substance, nor the details of any particular potential witness’
testimony. lnformation such as how long Ethan remained at the party, how much he
drank there, how he procured the alcohol, whether he had a wristband or not, and if
so, how he obtained it, how visibly intoxicated he appeared at the party, when and
how he left the party, who, if anyone observed him leave the party, and what he did
after he left the party before he was killied is completely absent from the record. ln
short, the most the Connollys arguably can be said to have established as far as a

factual record is that Ethan went to the crush party on a bus provided by the Sorority,

 

95 Pltfs.’ Ans. Br., D.l. 314 at 8, Ex. M at Ans. to lnterrogatory l.
22

went inside the Banquet Center, consumed an unknown amount of alcohol procured
by unknown means, and left sometime before the party ended. ln contrast, a strong
argument can be made that the Connollys have not established even that much, since
those facts are merely lawyers’ representations about what potential witnesses would
say. Nevertheless, the Courts accepts that the Connollys’ representations, limited as
they are, are true for purposes of deciding these motions.

Unfortunately for the Connollys, the near total lack of detail about what Ethan
did at the crush event, and more importantly, what any of the defendants did at the
crush event, leaves the allegations of the TAC either without evidentiary support or
without relevance. These factual deficiencies otherwise might set the Court off on
the task of parsing the minutiae of the TAC, while applying the requisite inferences
in favor of the Connollys, in what likely would be a futile search for potential
genuine issues of material fact for a jury’s consideration. Ultimately, however, that
task is unnecessary because it is clear to the Court that under no theory of liability
advanced by the Connollys did any defendant breach any duty it owed to Ethan.
Moreover, even if any defendant breached a duty it owed to Ethan, the proximate
cause of Ethan’s death was his own conduct, not the breach of a duty by any
defendant

A. All Claims Based on Premises Liability Fail.

23

lt seems tautological to Say that in order for a business to be liable to a plaintiff
on a theory of premises liability, the claimed injury must have occurred on the
business’ premises. lndeed, Delaware law is just so. ln Rogers v. Christiana School
District,96 the issue before the court was whether the school district could be liable
for the off-campus suicide of a student. There, the Delaware Supreme Court noted
that Section 323 of the Restatement (Second) of Torts, which sets out the
requirements for an assumed duty of care for another, such as one assumed by a
business, only applies the duty of care to a person physically on the premises of the
entity owing the duty.97 Yet, the Connollys argue business premises liability claims
against the Sorority, Capozzoli, Local 74 and the Social Club, and curiously, even
the University (by incorporating the arguments they made in their opposition to the
motions for summary judgment of Capozzoli and Local 74 and the Social Club.)
These claims fail because Ethen was killed on Route 896, a public roadway, and not
on the property of any defendant

The cases cited by the Connollys to support their premises liability claims -
DiOSsi, Farek, and Jardel, Inc. v. Haghes98 - do not support their position. Each of
those cases addresses the defendants’ liability in the context of injuries occurring on

the defendants’ property.

 

96 73 A.3d 1 at 7 (Del. 2013).
ala at 8-9.
98 523 A.2d 518 (Del. 1987).

24

Plaintiff Dion DiOssi appealed the Superior Court’s decision granting the
defendants’ summary judgment motion.99 The defendants were social hosts who
employed the plaintiff to provide valet parking services for a large party at their
house.100 Hundreds of people attended the party, many of them too young to drink
legally.101 After the party, an intoxicated, underage party-goer struck the plaintiff
while still on the defendants’ property.102 The Superior Court held that the
defendants, as social hosts, had no duty to provide safe premises to the plaintiff1°3
The Supreme Court reversed in what it described as a “novel” holding, ruling that
the defendants “had a duty to provide a reasonably safe work place for the plaintiff
who was on the premises as a business visitor.”104 The Court cautioned, however:

Because our holding sustaining a claim against a social
host is a novel one, we deem it important to emphasize
what we do not decide. Our holding may not be read to
extend the liability of a social host for the injuries of other
guests which are caused by tortious conduct attributable to
the social host’s dispensing of alcoholic beverages.

Nor do we pass upon the liability of the social host (a) to
third parties injured off the premises or (b) for the tortious
acts of adult guests on the premises. Recovery in such
instances implicates the extension of the liability of social

hosts arising out of the mere dispensing of alcoholic
beverages in the absence of a property nexus or the

 

99DiOssi, 548 A.2d at 1362.
loold_

101 Id

1991a'. at 1263.

‘95Ia’. at 1362.

1°4Id. at 1368-89.

25

involvement of minors. We leave such considerations to
another day.105

DiOssi, then, recognizes a cause of action against a social host (and, presumably, a
dram shop) on a premises liability theory, but not on a social host or dram shop
theory. That cause of action must arise from an injury sustained on the defendant’s
property, because the duty of the defendant to the plaintiff only extends to providing
safe premises while the plaintiff is present The fact that Ethan was killed away from
the Banquet Center means that DiOssi offers no support for any theory of premises
liability against any defendant

Furek was an action brought by a student for injuries sustained in a fraternity
hazing incident at the University.1°6 Furek suffered first and second degree chemical
burns when a lye-based liquid oven cleaner was poured on his face, back, and neck
during a fraternity “Hell Night” initiation.107 After a trial at which the University
and an individual fraternity brother were found liable for the Furek’s injuries, the
Superior Court granted judgment notwithstanding the verdict in favor of the
University, leaving the individual defendant liable for the entire $30,000.00

award.108 The primary issue on appeal was what duty the University had, if any, to

 

‘°5Id. at 1369.

l99Farek, 594 A.2d at 509.
497Id. at 509-10.

195[a'. at 509.

26

protect Furek from the hazing activities of the fraternity and its members.109 The
Supreme Court considered and rejected at least two theories of liability against the
University. Specifically, it rejected a theory of liability based on § 319 of the
Restatement (Second) of Torts that the University had a duty to Furek based on a
special relationship arising out of its responsibility to control third persons having
dangerous propensities.110 lt also rejected a theory of liability based on Restatement
§ 324A relating to assumed duties since the duty the University assumed “to regulate
and enforce hazing was not directed to, or intended as a substitute for, the duty owed
by the fraternity to Furek.”111 The University’s duty of rule promulgation and
enforcement was separate from a duty the fraternity may have had to Furek.112
Nevertheless, the Supreme Court found that the University did have a duty to
Furek based on two separate theories of liability. The Court held that the University
had assumed a duty of protection based on Restatement § 323, which addresses the
duty owed by one who assumes direct responsibility for the safety of another through
the rendering of services in the area of protection.113 Whether any defendant had
such a duty toward Ethan is discussed below in Section V. C. The other duty the

University was found to owe Furek was based on its status as the owner of the land

 

l09Ia'. at 514.
llOlal. at 519.
111la'. at 520.
112 Ia'
113 [d

27

on which the fraternity where the incident occurred was located. The University
had a duty to regulate and supervise foreseeable dangerous activities on its property,
a duty which extended to the negligent or intentional conduct of third parties, but
was limited to instances where the University had control.114 lt is clear, therefore,
that Furek cannot justify any theory of liability against any defendant here based on
premises liability, since Ethan was killed elsewhere.

Finally, the third case cited by the Connollys, Jara’eZ, is similarly unhelpful.
The plaintiff in Jardel was an employee of a tenant in a shopping mall and was
abducted and raped while leaving her employment.115 The jury awarded damages
against both the owner of the mall, Jardel Co., lnc., and its parent company in not
providing adequate security in the mall parking lot.116 At trial, Jardel acknowledged
that the plaintiff was the beneficiary of its rental agreement with her employer and
that the attack occurred on leased premises, but denied that it owed plaintiff a duty
to provide for her safety.117 The Supreme Court held, based on Restatement § 344,
that While Jardel was not an insurer of public safety, it had a residual obligation of
reasonable care to protect business invitees from the criminal acts of third persons.118

Jardel, however, cannot be read to extend that residual duty of a possessor of land

 

'14Ia’. at 522.

415 Jardel, 523 A.2d at 521.
ll6Ia’. at 521-22.

ll7Ia'. at 523.

1'9Id. at 525.

28

to protect a business invitee from injuries sustained once the invitee has left the

business premises, especially where the former invitee’s injuries were occasioned

by that person’s own behavior.

B. Delaware’s Prohibition on Dram Shop and Social Host Liability
Forecloses All of the Connollys’ Tort Liability Claims Where Ethan’s
Intoxication Forms the Basis of the Defendant’s Liability.

Delaware, despite repeated attempts to have it do so, has not recognized, either
legislatively or judicially, a cause of action based on Dram Shop or Social Host
liability. On that point, all parties are agreed, making unnecessary a deep dive into
Dram Shop and Social Host jurisprudence Nonetheless, the Connollys do claim
common law tort liability against each defendant ln order to understand why the
absence of a Dram Shop Act or Social Host Act is such an impediment to liability
here, it is necessary to look at the rationale for the exclusion.

ln Wright v. Moffitt119 the issue on appeal after the Superior Court had
dismissed the complaint was whether a customer who purchased and drank alcohol
in a tavern for about six hours, apparently being served even after he was intoxicated,
had a cause of action, either at common law or statutorily, against the tavern owner

for injuries he sustained when he left the bar on foot and was struck by an automobile

crossing the highway outside of the tavern.120 The Delaware Supreme Court held

 

119 437 A.2d 554 (Del. 1981).
'99 The Court notes that the relevant facts in Wright, while approximating the
relevant facts here, arguably present an even stronger case for liability. Due to the

29

that no such cause of action existed in Delaware, noting that “generally, the common
law did not enforce a cause of action against a tavern owner for personal injury to a
patron (or third person) resulting from or ‘caused’ by the voluntary intoxication of
the patron.”121 The Court quoted with approval, the Maryland Court of Appeals:

Apart from statute, the common law knows no right of

action against a seller of intoxicating liquors, such as, for

“causing” intoxication of the person whose negligent or

willful wrong has caused injury. Human beings, drunk or

sober, are responsible for their own torts. The law (apart

from statute) recognizes no relation of proximate cause

between a sale of liquor and a tort committed by a buyer

who has drunk the liquor.122
Put another way, it is the consumption of alcohol, not the sale of alcohol that is the
proximate cause of any injuries sustained or caused by the intoxicated person. 123 The
Supreme Court also declined to recognize a right of action based on violations of the
Alcoholic Beverage Control Act since the legislative purpose of its relevant sections
was to “protect the public, not to protect one who has drunk alcoholic beverages

from the consequences of his own intoxication.” 124

 

procedural posture in Wright the Court was required to take as true the allegation
that Wright became intoxicated in the tavern. Here, while the Court must view the
evidence in the light most favorable to the Connollys, far fewer facts are in the
record to support an inference that Ethan became intoxicated at the crush party,

191 Wright 475 A.2d at 555.

199Ia'. (quoting State v. Hatfiela', 78 A.2d 754, 756 (Md. Ct. App. 1951)).

195 Wright, 437 A.2d at 555.

194Ia'. at 557.

30

ln the nearly four decades since Wright was decided, neither the Supreme
Court, nor the General Assembly has altered these basic principles. Whether the
intoxicated person injured a third party after drinking at a bowling alley,125 the
intoxicated person was a minor who injured a third person after leaving a tavern,126
the tavern-defendant undertook a duty not to leave a helpless intoxicated person,
who later injured himself`, in an unsafe position by taking physical control of that
person,127 or the intoxicated tortfeasor had consumed alcohol at the home of a social
host as well as a tavern,128 the immunity of those who served alcohol to either an
intoxicated patron or guest (regardless of whether the patron or guest was a minor)
was affirmed.129

Of particular relevance here is the Supreme Court’s refusal in McCall v.
Village Pizza to recognize a cause of action based on Restatement (Second) of Torts

§ 324130 where the Court rejected an indirect attack on Dram Shop immunity through

 

195 Samson v. Smith, 560 A.2d 1024 (Del. 1989).
129 Oakes v. Megaw, 656 A.2d 914 (Del. 1989).
127127McCall v. Villa Pizza, Inc. 636 A.2d 912 (Del. 1994).
199 Shea v. Matassa, 918 A.2d 1090 (Del. 2007).
199 The fact that the intoxicated guest who caused the plaintiff’ s injury in DiOssi
was a minor was irrelevant to the court’s determination that the defendants had a
duty to provide a safe premises to DiOssi. The same duty would have obtained
had the tortfeasor been an adult
159 Section 324 provides:

Duly of One Who Takes Charge of Another Who is Helpless

31

the application of § 324 to commercial vendors of alcoholic beverages.131 The Court
noted that it has “consistently held that there is no statutory or common law cause of
action by one injured off the tavern premises by an intoxicated person, whether the
injured person be the patron or a third-party.”132 “Positing tavern owner liability
under § 324 implicates the same policy considerations we have repeatedly held are
within the province of the legislature.”133

The Connollys allege that the Sorority either owed or assumed a duty to
Ethen to manage and oversee the activities of the Sorority in a reasonably prudent
manner in general, and in particular, with respect to events involving alcohol.134 All
of the alleged breaches of those alleged duties, except two involving transporting
Ethen to and from the crush event, involve providing him with alcohol.135 Dram

Shop and Social Host immunity bars those alcohol related claims.

 

One who, being under no duty to do so, takes charge of another who is
helpless adequately to aid or protect himself is subject to liability to the
other for any bodily harm caused to him by

(a) the failure of the actor to exercise reasonable care to secure the safety
of the other while within the actor’s charge, or

(b) the actor’s discontinuing his aid or protection, if by doing so he leaves
the other in a worse position than when the actor took charge of him.
151McCall, 636 A.2d at 913-14.
159Id. at 913.
155Ia’. at 914.
154 TAC, D.l. 198, Count lll at 111 54,55.
155Ia'., Count lll at 11 56.

32

The Connollys allege that the University owed Ethen the same duties as the
Sorority.136 They also allege that the University breached those duties in the
identical manner that they allege the Sorority breached them.137 For obvious reasons,
the University makes no claim of Dram Shop or Social Host immunity, but bases its
Motion for Summary Judgment on other grounds which are discussed elsewhere.

The Connollys’ claims against Capozzoli, Local 74, and the Social Club are
identical.138 The only duties they allege these three defendants owed to Ethan are
the same duties they allege the Sorority and University owed him.139 Most of the
specific allegations that these defendants breached these duties are allegations that
they failed to prevent minors from obtaining or consuming alcohol at the Banquet
Center.140 Again, these allegations run afoul of the defendants’ Dram Shop
immunity and are barred. The Connollys also claim that these defendants failed to
properly maintain, secure and monitor their premises.141 This claim fails for the
same reason that all claims of premises liability fail - Ethen was not killed at the
Banquet Center. Finally, the Connollys claim that these three defendants breached

a duty to Ethen by failing to prevent him from leaving the Banquet Center and failing

 

1541a'., Count V at 1111 66,67.

157Ial., Count V at 11 68.

15111a’., Count VII at ‘|l 79, Count Vlll at 11 82.
159Ial., Count Vll at 11 78, Count Vlll at 11 81.
1491a’., Count Vll at 11 79, Count Vlll at 11 82.
1411d_

33

to ensure he returned to campus safely.142 These claims are an attempt to impose
liability based on the theory that these defendants assumed a duty of protecting Ethan
from harm away from their premises. The Court views this argument as an
impermissible attempt to circumvent Dram Shop immunity, something which
Delaware has never permitted.

C. Defendants Owed Common Law Tort Duties to Ethen Only to the Extent
They Assumed Such Duties.

lt is clear that neither Capozzoli, Local 74, nor the Social Club assumed any
duties toward Ethan for anything he did, or that happened to him, away from the
Banquet Center. The University not only did not assume any duty to Ethan, it
expressly disclaimed any duty toward students engaged in off-campus drinking
activities, warning students that it refused to accept responsibility for the use or
consumption of alcoholic beverages by students off-campus at events sponsored by
student organizations 143

The Sorority, however, did undertake to provide transportation from campus
to the Banquet Center and back to campus. ln fact, the Sorority required attendees
to ride the busses it provided. The Connollys argue that this duty assumed by the
Sorority necessarily included a duty to ensure that Ethan got on the bus after the

event. ln Furek, the Supreme Court recognized that § 323 addresses the duty owed

 

142 161
145 Def. University of Delaware Op. Br. Mot. Summ. J., D.l. 267, Ex. 20 at ll-l2.

34

by one who “assumes direct responsibility for the safety of another through the
rendering of services in the area of protection.”144 The service in the area of
protection by which the Sorority assumed direct responsibility for Ethan’s safety
was transporting him to and from the event. The reason the Sorority provided
transportation is obvious. lt did not want impaired attendees (including Ethan)
driving to and from the event, which was beyond reasonable walking distance from
campus, thereby endangering themselves and others. Providing safe bus
transportation was the extent of the duty the Sorority assumed.

D. No Defendant Breached a Duty to Ethan.

Having determined that the only Defendant owing a duty to Ethan that
extended beyond the Banquet Center was the Sorority, the Court turns to the question
of whether the Sorority breached that duty. ln other words, did the Sorority breach
the duty it assumed under § 323 to transport Ethen to and from the crush event
safely? lt did not lt is undisputed that Ethan was killed before the crush event ended
and that the Sorority fulfilled its duty to provide transportation back to campus for
all who remained at the party. This situation was not one where the Sorority left a
grossly intoxicated Ethan behind at the Banquet Center. Nor was it one where the
Sorority barred Ethan from getting on a return bus. lt was Ethan’s premature and

volitional departure from the party that prevented him from taking advantage of the

 

111Furek, 590 A.2d at 520.
35

transportation service that the Sorority had provided. No Sorority member did
anything that increased the risk of harm to Ethan or prevented him from taking
advantage of the transportation service that defined the responsibility for Ethan’s
safety assumed by the Sorority.145 The Court simply does not accept, nor find any
warrant for, the Connollys’ contention that the duty the Sorority assumed extended
to preventing Ethan from leaving the Banquet Center, ultimately perhaps to the
extent of restraining him if necessary.

E. Ethan’s Own Conduct Was the Proximate Cause of His Death.

The above discussion is arguably simply prologue to determining if the acts,
or failures to act, of any defendant were a proximate cause of Ethan’s death, No
matter Whether a defendant had a duty to Ethan, and no matter whether a defendant
breached a duty to Ethan, if that breach was not a proximate cause of Ethan’s death,
no liability can be ascribed to that defendant

To establish causation, the Connollys must prove that “a reasonable
connection” exists “between the negligent act or omission of the defendant and the
injury which the plaintiff has suffered,” allowing for the possibility that there may
be more than one proximate cause of an injury.146 Delaware’s “‘time-honored

definition of probable cause’ has been the ‘but for rule.”’147 ln Delaware, proximate

 

145See Jain v. State, 617 N.W. 2d 293 (lowa 2000).
149 Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991).
147Ia'. (quoting Chaa’nofs'ky v. Ea'wara's, 208 A.2d 516, 518 (Del. 1965)).

36

cause is defined as “. . .the direct cause without which the accident would not have
occurred. More fully stated, it is to be determined, on the facts, upon mixed
considerations of logic common sense, justice, policy and precedent.”148
“But for” proximate causation is not limitless, however. “A proximate cause
is one which in natural and continuous sequence, unbroken by any eri`cient
intervening cause, produces the injury and without which the result would not have
occurred.”149 Juxtaposed, then, against the concept of “but for” proximate causation
is the countervailing notion of remote, or intervening/superseding, causation. A
prior and remote cause will not support liability if the remote cause:
did nothing more than furnish the condition or give rise to
the occasion by which the injury was made possible if
there intervened between such prior of remote cause and
the injury a distinct, successive, unrelated and efficient
cause of the injury even though such injury would not have
happened but for such condition or occasion.15°
While ordinarily questions of probable cause are to be submitted to the trier
of fact for determination, that is so only if the inferences to be drawn from the

undisputed material facts are reasonably capable of more than one conclusion.151

Here, there can be but one conclusion of proximate cause. lnformed by the

 

148 Chudnofsky, 208 A.2d at 518.

149 Duphilly v. Del. Elec. Coop., Inc. 662 A.2d 821, 829 (Del. 1995) (lnternal
citations omitted; emphasis in original.).

159McKeon v. Goldstein, 164 A.2d 260, 262 (Del. 1960).

lslld_

37

understanding that the common law recognizes no relationship of probable between
the seller of alcohol and one who commits a tort after consuming the alcohol, and
that “human beings, drunk or sober, are responsible for their own torts,” the Court
finds that Ethan’s own volitional conduct was the sole proximate cause of his death.
Every untoward consequence that befell Ethan on the night he died was a direct
result of his own volitional conduct lt is beyond dispute that the reason Ethan
stepped in front of the pick-up truck that killed him was his own gross impairment
He was responsible for “pre-gaming” with beer and tequila before the crush event.
He was responsible for drinking at the event. He was responsible for the high levels
of alcohol in his system. He was responsible for the marijuana detected in his urine.
He was responsible for leaving the Banquet Center before the party ended. He was
responsible for foregoing the safety of bus transportation back to campus. He was
responsible for attempting to cross Route 896 approximately 90 feet from the
crosswalk with lighted pedestrian signals. He was responsible for attempting that
crossing without a flashlight or reflective clothing. Any other interpretation of those
facts in order to ascribe liability to any of these defendants would require a radical
reframing of the Court’s understanding of proximate cause.
VI. CONCLUSION
Therefore, for the reasons set forth above, and because there are no issues of

material fact and each movant is entitled to judgment as a matter of law, Defendant

38

Alpha Epsilon Phi Sorority, lndividually and t/a Phi Chi Chapter’s Motion for
Summary Judgment is GRANTED. Its Motion for Summary Judgment Based upon
Ethen Connolly’s Reckless Conduct and Comparative Negligence is MOOT.
Defendant University of Delaware’s Motion for Summary Judgment is GRANTED.
Defendant Capozzoli Catering of Delaware, lnc.’s Motion for Summary Judgment
is GRANTED. Defendant Plumbers and Pipefitters Local No. 74’S and Defendant

Plumbers and Pipefitters Social Club’s Motion for Summary Judgment is

1

irris W. AlWharl¢on, J.

GRANTED.

IT IS SO ORDERED.

39

