          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                        IN AND FOR NEW CASTLE COUNTY

MITCHELL RUOFF, individually              )
and as parent and next friend             )
of DANIELLE RUOFF, a minor,               )
                                          )
         Plaintiffs,                      )
                                          )
                       v.                 )       C.A. No. N14C-12-254 JRJ
                                          )
SANDRA LYNN DILKS, and                    )
BURRIS LOGISTICS,                         )
                                          )
         Defendants.                      )

                                        ORDER

         AND NOW TO WIT, this 16th day of June, 2015, upon consideration of

Sandra Lynn Dilks’ and Burris Logistics’ Motion to Dismiss pursuant to Delaware

Superior Court Civil Rules 9 and 12(b)(6), Plaintiffs’ Response in Opposition to

Defendants’ Motion to Dismiss, and Sandra Lynn Dilks’ and Burris Logistics’

Reply to Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss, IT

APPEARS THAT:

         1. This case arises out of an auto accident that occurred on October 14,

2014.1 On December 30, 2014, Plaintiffs Mitchell Ruoff and Danielle Ruoff

(“Plaintiffs”) filed a Complaint against Defendants Sandra Lynn Dilks and Burris

Logistics (“Defendants”) alleging they suffered personal injuries in the accident

1
    Compl. ¶ 5 (Trans. ID. 56532049).
                                          1
and the accident was directly and proximately caused by the Defendants’

negligence. 2

       2.    Plaintiffs allege that on October 14, 2014, Plaintiff Mitchell was

operating his vehicle in the left center lane of Interstate 95. 3 Due to traffic stopped

ahead, Plaintiff Mitchell began to slow his vehicle and came to a stop. 4 Plaintiffs

allege that Defendant Dilks, an employee of Defendant Burris Logistics, was

traveling directly behind Plaintiffs while operating a tractor trailer in the course

and scope of her employment. 5 Plaintiffs claim that Defendant Dilks failed to slow

the tractor trailer based on the traffic conditions and as a result collided with the

rear end of Plaintiffs’ vehicle. 6 Plaintiffs further allege that Defendant Dilks was

speeding in violation of 21 Del. C. § 4168(a), driving recklessly in violation of 21

Del. C. § 4175(a), and driving in a careless and inattentive manner in violation of

21 Del. C. §§ 4176(a) and 4176(b).7            Specifically, Plaintiffs contend that

Defendant Dilks was proceeding through a construction zone at 61 miles per hour

just three seconds before striking Plaintiffs’ car and Defendant Dilks never applied




2
  Id. ¶¶ 9–14, 18–23.
3
  Id. ¶ 5.
4
  Id.
5
  Id. ¶ 6.
6
  Id.
7
  Id. ¶ 8.
                                           2
the brakes. 8 Plaintiffs demand judgment against Defendants for general, punitive,

and special damages.

       3. On January 22, 2015, Defendants filed a Motion to Dismiss Plaintiffs’

claims for punitive damages pursuant to Delaware Superior Court Civil Rules 9

and 12(b)(6).9 Defendants argue Plaintiffs’ demand for punitive damages must be

dismissed under Rule 12(b)(6) because Plaintiffs have failed to allege any material

facts supporting a claim for “reckless and wanton and/or willful conduct,”10 and

failed to plead with particularity a demand for punitive damages pursuant to Rule

9(b). 11

       4. When considering a Motion to Dismiss under Superior Court Civil Rule

12(b)(6), the Court must assume that all well-pleaded facts in the complaint are

true. 12 “Dismissal is appropriate only if it appears with reasonable certainty that,

under any set of facts that could be proven to support the claims asserted, the

plaintiff would not be entitled to relief.” 13 Although the pleading threshold in

Delaware is low, “[a]llegations that are merely conclusory and lacking factual


8
   Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss, ¶¶ 2–6 (Trans. ID.
56849589). The Delaware State Police collision report states, “DelDot had signs and arrow
boards clearly posted warning drivers of the left lane closure leading up to the overpass.” See
Answers to Form 30 Interrogatories (Trans. ID. 56532049).
9
  Sandra Lynn Dilks and Burris Logistics Motion to Dismiss (Trans. ID. 56649406).
10
   Id. ¶ 9.
11
   Id. ¶ 12.
12
   Cornell Glasgow, LLC v. La Grange Properties, LLC, 2012 WL 2106945, at *7 (Del. Super.
2012).
13
   Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009) (internal quotations omitted).
                                               3
basis, however, will not survive a motion to dismiss.” 14 In considering a motion to

dismiss under Rule 12(b)(6), the court generally may not consider matters outside

the complaint. 15     However, documents that are integral to or incorporated by

reference in the complaint may be considered. 16

       5. A claim of negligence must be pleaded with particularity under Superior

Court Civil Rule 9(b). “Rule 9(b) ensures that a defendant is put on sufficient

notice so that it may defend itself against a plaintiff’s allegations.” 17

       6. Punitive damages are recoverable where the defendant’s conduct exhibits

a wanton or willful disregard for the rights of plaintiff. 18               Wanton or willful

conduct must reflect a ‘conscious indifference’ or ‘I don’t care’ attitude.19 The


14
   Brevet Capital Special Opportunities Fund, LP v. Fourth Third, LLC, 2011 WL 3452821, at
*6 (Del. Super. 2011).
15
   Super. Ct. Civ. R. 12(b).
16
   In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 70 (Del. 1995). Superior Court Civil
Rule 3(h)(1) provides that, “[i]n any action involving a claim for personal injuries, the plaintiff
shall attach and file with the complaint the following: (I) Answers to interrogatories appearing in
Superior Court Civil Rule Form 30; (II) Photocopies of existing documentary evidence relating
to special damages . . . .” Consistent with Rule 3, Plaintiffs filed Form 30 Interrogatories with
the Complaint, which included the Delaware State Police collision report. Trans. ID. 56532049.
17
   WP Devon Assocs., L.P. v. Hartstrings, LLC, 2012 WL 3060513, at *4 (Del. Super. 2012).
18
   Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983) (internal citations omitted).
19
   Id. In Porter v. Turner, the Delaware Supreme Court affirmed an award of punitive damages
after finding sufficient evidence to support a finding that the driver exhibited willful and wanton
disregard for the rights of other motorists when he ran a red light. 954 A.2d 308, 312 (Del.
2008). The evidence presented at trial indicated that the defendant faced a red light for eight
seconds and, nevertheless, accelerated his tractor trailer through the intersection. Id. The
Supreme Court found that, if believed by the jury, they could reasonably find that that conduct
constituted willful and wanton disregard of the safety of others. Id. In contrast, in Estate of Rae
v. Murphy, a wrongful death case, the Delaware Supreme Court affirmed the trial court’s finding
that the facts did not rise to the level of willful and wanton conduct necessary to support a claim
for punitive damages. 956 A.2d 1266 (Del. 2008). In that case, the defendant was driving
slightly over the speed limit, turned his head to speak to the passenger in his car as he
                                                4
Delaware Supreme Court has explained that, “[o]rdinarily, questions of gross

negligence and willful or wanton conduct are for the jury and are not susceptible of

summary adjudication.” 20 Thus, “[w]here the evidence supports a reasonable

inference that Defendant’s conduct meets the standard for recovering punitive

damages, the question of punitive damages is typically for the trier of fact.” 21

       7. Viewing the pleadings in the light most favorable to Plaintiffs, Plaintiffs

have alleged sufficient facts to withstand a motion to dismiss. The allegations

made in the Complaint are pleaded with sufficient particularity to put Defendants

on notice of their claim.

       NOW THEREFORE, Defendants’ Motion to Dismiss is DENIED.

IT IS SO ORDERED.




                                                     Jan R. Jurden, President Judge



approached an intersection, and ran a red light causing a collision with the decedent’s vehicle. Id.
at 1270. The Supreme Court found that the facts only established that the defendant was
negligent and stated that those facts “alone [did] not elevate the culpability of his conduct from
negligence to the level of ‘conscious indifference’ or exhibit an ‘I don’t care’ attitude.” Id.
20
   Brown v. United Water Delaware, Inc., 3 A.3d 272, 276 (Del. 2010), as modified (Aug. 27,
2010).
21
   NVF Co. v. Garrett Snuff Mills, Inc., 2002 WL 130536, at *4 (Del. Super. 2002) (“Under the
usual standard, the issue of punitive damages, like the issue of negligence, is typically reserved
for the finder of fact.”); Howell v. Kusters, 2010 WL 877510, at *2 (Del. Super. 2010) (finding
that a reasonable fact finder could determine that the defendant acted with a willful and wanton
disregard for the safety of others because the defendant was traveling up to twenty miles per hour
over the speed limit as she approached an intersection with a red light, went straight through the
intersection without applying her breaks at any time, and was talking on her cell phone).
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