Opinion
C.A. No. S13C-04-018 RFS
08-09-2016
PATRICK BLACK, Plaintiff, v. 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." If the movant is able to show "that the undisputed 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." 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." "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."
Super. Ct. Civ. R. 56(c).
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)).
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)).
Grasso v. First USA Bank, 713 A.2d 304, 307 (Del. Super. 1998).
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." 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." 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."
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)).
Id.
Jones v. Crawford, 1 A.3d 299, 303 (Del. 2010).
4. In support of its Motion, Defendant relies heavily on Johnson v. Hockessin Tractor, Inc. This reliance is unavailing. Johnson was decided in 1980, four years before the Delaware Legislature enacted the modified comparative negligence statute. 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 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."
420 A.2d 154 (Del. 1980).
Culver, 588 A.2d at 1097 (emphasis in the original).
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." 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. 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.
Johnson, 420 A.2d at 158.
Hansen v. Umtech Industriservice Und Spedition, GBmbH, 1996 WL 622557, at *10 (D. Del. July 3, 1996).
See Trievel v. Sabo, 714 A.2d 742, 745 (Del. 1998).
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'. 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.
Trievel, 714 A.2d at 745; Baker, 2011 WL 5622443 at *4. --------
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