SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlVlAN L. MEDlNlLLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, sulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

October 16, 2018

Emily P. Laursen, Esquire R. Stokes Nolte, Esquire
LaWrance S. Kimmel, Esquire Wilks, Lukoff & Bracegirdle, LLC
Kimmel, Carter, Roman, Peltz 4250 Lancaster Pike, Suite 200

& O’Neill, P.A. Wilmington, Delaware 19805

56 West Main Street, 4th Floor
Christiana, Delaware 19702

Re: Victoria L. Willon and Sean A. Dotson v. Duane D. Werb and EAN
Ho!dings, LLC
Case No.: N17C-03-161 VLM

Dear Counsel:

This Court has reviewed Defendant EAN Holdings, LLC’s (“EAN”) Motion
to Dismiss. Pursuant to Superior Court Rule of Civil Procedure lZ(b)(6), this Court
finds that dismissal is not Warranted at this juncture. The Motion to Dismiss is
DENIED With a limited discovery provision more fully set out beloW.

The allegations in this Complaint arise from a motor vehicle accident that
occurred on December 29, 2016. 1 Defendant Duane D. Werb (Defendant) is alleged
to have been liable after his vehicle struck Plaintiff Sean A. Dotson’s vehicle, Which
then struck Plaintiff Victoria L. Willon’s vehicle.2 Defendant Was operating a
vehicle owned and rented from EAN at the time of the accident on December 29,
2016.3 The record reflects that he required a rental vehicle because, approximately

 

l Compl.1l l.
2 Id.

3 Id.; Pl.’s Answering Br. at 6-7.

two weeks before this accident, he had been involved in another motor vehicle
accident on December 13, 2016 when he drove his vehicle into a storefront on
December 13, 2016.4 It was later determined that Defendant suffered from a medical
condition that may have affected his ability to operate either vehicle.

Defendant filed this Motion to Dismiss the Count of Negligent Entrustment
on July 3, 2018. Plaintiffs alleges that “Defendant EAN Holdings negligently
entrusted its vehicle to Defendant Werb when Defendant EAN Holdings knew or
should have known that Defendant Werb would act negligently in a manner that
would cause injury and damages to another person or vehicle.”5 Defendant filed an
Opening Brief in Support of its Motion to Dismiss Complaint on July 17, 2018.
Plaintiffs’ filed an Answering Brief in Opposition to Defendant EAN Holdings,
LLC’s Motion to Dismiss Complaint on August 6, 2018. Defendant filed a Reply
Brief on August 14, 2018. A hearing was held on August 27, 2018 where this Court
deferred decision.

Standard 0 Rev:`ew

Under a motion to dismiss f`or failure to state a claim under Rule 12(b)(6),
“all well-pleaded allegations must be accepted as true.”6 Vague allegations may be
“well-pleaded if they give the opposing party notice of the claim.”7 Further, the
“Court must draw all reasonable inferences in favor of the non-moving party.”8 A
party seeking dismissal of a complaint under Rule 12(b)(6) must be denied if the
non-moving party “may recover under any reasonably conceivable set of
circumstances susceptible to proof under the complaint.”9

Discussion

In order to prove a Negligent Entrustment cause of action, it requires a
showing of “l) entrustment of the automobile, 2) to a reckless or incompetent driver

 

4 Pl.’s Answering Br. at 2.

5 Compl. 11 5.

6 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

7 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (citation omitted).
8 Id. at 897 (citing Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998)).

9 Spence, 396 A.2d at 968.

whom (3) the entrustor has reason to know is reckless or incompetent and (4)
resulting damages.”1° Generally, “the owner of an automobile is not liable for
injuries negligently caused by its operation by one whom the owner has permitted
to use the vehicle, absent some agency relationship between the owner and the
operator.”11 Although generally an owner is not liable for injuries, if an owner
allows another person to operate his vehicle, and the owner knows the operator “to
be so reckless or incompetent that the automobile becomes a dangerous
instrumentality, the owner may be liable for damages arising from the driver’s
negligent operation of the vehicle”12 Before an owner will be found liable for
negligent entrustment “an unusually high test of foreseeability must be met.”13

This Court agrees that a separate duty should not be imposed on EAN to
determine the medical health of an individual before they rent their vehicles, and this
ruling does not impose such a duty. Instead, as was discussed during oral arguments
and in the written pleadings by EAN, this Court also agrees with EAN that if an
individual with visible signs of impairment had presented to EAN seeking to rent a
vehicle, a viable claim of Negligent Entrustment would survive a 12(b)(6) dismissal.
EAN conceded that the “classic example” of an individual appearing intoxicated at
the rental car counter, renting a car, and subsequently getting into an accident would
establish that the negligence was reasonably foreseeable.14

Here, Plaintiffs have not been provided an opportunity to conduct discovery
as to what observations were made to representatives of EAN when the vehicle was
rented to Defendant. As conceded by Plaintiffs, if there were no visible signs that
would have placed EAN on notice that Defendant’s operation of the vehicle would
be reckless or incompetent, then the count should be dismissed, and may be so in
due time. However, at this juncture, Plaintiffs should have an opportunity to find
out what observations were made by EAN to determine if it would have been
reasonably foreseeable to EAN that they were renting to a reckless or incompetent
operator at the time the vehicle was rented. The discovery is limited to what

 

10 Fisher v. Novak, 1990 WL 82153, at *2 (Del. Super. June 6, 1990) (citations omitted).
11 Fisher, 1990 WL 82153, at *2 (citing Smilh v. Callahan, 144 A. 46 (Del. 1928)).
12 Id. (citing Blashfield, Automobile Law and Practice, § 254.22 (1966)).

13 Eberl v. Jackson, 2005 WL 2660052, *2 (Del. Super. Sept. l9, 2005) (citing Shonts v.
McDOwell, 2003 wL 22853659, at *2 (Del. super. Aug. 5, 2003)).

14 Def.’s Mot. to Dismiss 11 4.

observations were made at the time the vehicle was rented. Plaintiff is not permitted
to get into issues of what EAN knew or should have known regarding Defendant’s
medical condition that may have made it unsafe for him to operate a vehicle. For
the reasons stated above, Defendant’s Motion to Dismiss is DENIED.

IT Is so oRDERED. //%

ZVivian L. Medinilla
Judge

 

oc: Prothonotary

