Opinion
C.A. No. 08C-01-026.
Date Submitted: September 2, 2009.
Date Decided: November 19, 2009.
On Defendants' Motion for Summary Judgment.
DENIED.Marc P. Niedzielski, Esquire, Deputy Attorney General, State of Delaware Department of Justice, Wilmington, Delaware.
James D. Griffin, Esquire, Griffin Hackett, P.A., Georgetown, Delaware.
Dear Counsel:
Before the Court is Defendants' Motion for Summary Judgment. For the reasons set forth herein, the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
On or about February 2, 2006, a collision occurred between a vehicle driven by Stacey R. Youse and a vehicle operated by Randall Grunden ("Grunden"). Stacey's sister, Alyssa C. Youse, was a right front seat passenger in the vehicle driven by Stacey at the time of the accident.
Prior to the accident, Stacey was traveling southbound on Sussex County Road ("CR") 329. As she neared the intersection of CR 329 and CR 62, Stacey waited behind several vehicles for her turn to cross CR 62. Stacey eventually proceeded into the intersection and was struck by Grunden's vehicle, which was traveling eastbound on CR 62. Alyssa sustained serious injuries in the accident and died at the scene.
Alyssa's surviving family (collectively, "Plaintiffs") brought this action against Grunden and, because Grunden was driving a pickup truck owned by the Delaware Department of Transportation at the time the accident occurred, the State of Delaware. The Complaint alleges negligence on the part of Grunden and seeks to hold the State accountable for Grunden's negligence under the theories of respondeat superior, agency, and negligent entrustment. Grunden and the State (collectively, "Defendants") filed a counterclaim for indemnification against plaintiffs Stacey Youse, her father Christopher Youse, Sr., and her step-mother Michele Youse. Defendants have filed a Motion for Summary Judgment on several grounds. Briefing, including supplemental briefing at the Court's request, is complete and the issues presented are ripe for decision.
DISCUSSION
A. Standard of Review
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp., supra.
If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
B. Merits
Defendants present the following arguments in their Motion for Summary Judgment:
1) A survival action cannot be maintained by the Estate of Alyssa Youse where the record establishes there was no interval of conscious pain and suffering b etween the time of the accident and the time of Alyssa's death; and
2) Siblings and half-siblings cannot maintain a mental anguish claim under 10 Del. C. § 3724(d)(5) when the deceased's step-mother and father were alive at the time of the injury; and
3) Plaintiff Stacey Youse's negligence in failing to remain at a stop sign at the intersection of CR 329 and CR 62 was the superseding cause of the accident; and
4) The general release Plaintiffs executed on April 15, 2008, releases Defendants; and
5) The Court lacks personal jurisdiction over Defendants because Defendants were not served in accordance with the law.
In their Answering Brief, Plaintiffs concede Defendants are entitled to summary judgment with regard to the first two arguments presented. Accordingly, the Court need not consider the merits of these arguments and will consider the remaining issues before the Court in turn.
1. Plaintiff Stacey Youse's alleged negligence in failing to remain at a stop sign at the intersection of CR 329 and CR 62 was not, as a matter of law, the superseding cause of the accident.
Plaintiffs posit that Grunden was negligent in a variety of ways; in essence, they argue Grunden was speeding and failing to maintain a proper lookout at the time of the accident. Nevertheless, Defendants argue they are entitled to summary judgment because Stacey's failure to remain stopped at the stop sign until it was safe for her to proceed into the intersection was the superseding cause of the accident.
A plaintiff alleging negligence must show, by a preponderance of the evidence, that a defendant's negligent act or omission breached a duty of care owed to plaintiff in a way that proximately caused the plaintiff injury. Duphily v. Delaware Elec. Coop., Inc., 662 A.2d 821, 828 (Del. 1995). In other words, a finding that defendant was indeed negligent does not necessitate a finding that defendant's negligence proximately caused plaintiff's injury. Id. Delaware recognizes the traditional "but for" definition of proximate cause. Id. "[O]ur time-honored definition of proximate cause . . . is that direct cause without which [an] accident would not have occurred." Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
As the Duphily Court summarized the law of causation:
[A] proximate cause is one "which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred."
An intervening cause is one which comes into active operation in producing an injury subsequent to the negligence of the defendant. The mere occurrence of an intervening cause, however, does not automatically break the chain of causation stemming from the original tortious conduct. This Court has long recognized that there may be more than one proximate cause of an injury. In order to break the causal chain, the intervening cause must also be a superseding cause, that is, the intervening act or event itself must have been neither anticipated nor reasonably foreseeable by the original tortfeasor.
. . .
In short, a superseding cause is a new and independent act, itself a proximate cause of an injury, which breaks the causal connection between the original tortious conduct and the injury. If the intervening negligence of a third party was reasonably foreseeable, the original tortfeasor is liable for his negligence because the causal connection between the original tortious act and the resulting injury remains unbroken. If, however, the intervening negligence was not reasonably foreseeable, the intervening act supersedes and becomes the sole proximate cause of the plaintiff's injuries, thus relieving the original tortfeasor of liability.Duphily, 662 A.2d at 829 (internal citations omitted) (emphases in original or supplied by the Duphily Court).
As in Duphily, the question in this case is whether the issue of superseding causation may be determined as a matter of law. Delaware courts have consistently held that the issue of proximate cause usually involves questions of fact to be submitted to the fact-finder. See, e.g., Laws v. Webb, 658 A.2d 1000, 1007 (Del. 1995), overruled on other grounds. Whether a particular act is the proximate cause of an injury must "be determined, on the facts, upon mixed considerations of logic, common sense, justice, policy and precedent." Chudnofsky, 208 A.2d at 518. Similarly, the matter of superseding causation is fact-driven. "Considerations of foreseeability and what a reasonable person would regard as highly extraordinary are factual questions ordinarily reserved for the jury." Duphily, 662 A.2d at 831. Only when there can be no reasonable difference of opinion as to whether an intervening cause is abnormal, unforeseeable, or extraordinarily negligent, should the question be determined by the Court as a matter of law. Id.
The Court observes that, generally speaking, a superseding cause involves the act or omission of a third party. However, assuming arguendo that a plaintiff's action could be considered a superseding cause, the Court is convinced that there could be a reasonable difference of opinion as to whether Stacey's negligence was, in fact, the superseding cause of the plaintiffs' injuries in this case. When deposed, Stacey testified her view of Grunden's vehicle was blocked. Stacey testified she remained stopped at the stop sign at the intersection in question "the time that I was taught to stay at a stop sign and look". She further testified that she "always" looks twice in each direction before crossing an intersection. Evidence has been presented that both Stacey and Grunden were using their cell phones at the time of, or shortly before, the accident. When deposed, Grunden testified he was not familiar with the intersection where the accident occurred. Plaintiffs and Defendants dispute whether Grunden was speeding and, if he was, whether or not Grunden would have been able to avoid the accident had he not been. This case is exactly the type of negligence case that should be submitted to a jury for fact finding. The Court concludes, based on the current state of the record, there is evidence to support the finding that Stacey's actions were not "abnormal, unforeseeable, or extraordinarily negligent" and, therefore, declines to hold her actions were, as a matter of law, the superseding cause of the accident.
2. The general release executed by Plaintiffs on April 15, 2008, was properly voided and does not release Defendants from any liability.
State Farm Insurance Company ("State Farm") insured the vehicle driven by Stacey on the date of the accident. State Farm offered to pay the limit of the policy ($50,000.00) to the Plaintiffs (excluding Stacey) to settle their claims against Stacey by way of a general release executed on April 15, 2008 ("the General Release"). In exchange, the surviving father, step-mother, siblings, step-siblings, and half-siblings released "Stacey Youse her heirs, executors, administrators, agents and assigns, and all other persons (including, but not limited to any individual, vicarious or by operation of law, claims against Christopher W. Youse, Sr.), firms or corporations liable or, who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, liens, subrogations, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries and damages, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 27th day of June, 2007 at or near Sussex County, Delaware."
The General Release incorrectly identified the date of the accident as June 27, 2007, when, in fact, the accident at issue occurred on or about February 2, 2006. On March 6, 2009, State Farm and the Youses voided the General Release and executed a new release ("New Release"). The New Release properly identified the date of the accident at issue and specifically exempted the Defendants in this case from any release of liability. The New Release provides, in relevant part, "Releasors do not diminish, release or waive their right to pursue the present action pending in the matter of Christopher W. Youse, Sr., et al. v. Randall Grunden and the State of Delaware, Civil Action No. 08C-01-026 THG pending at the date of this release in Superior Court, Sussex County, Delaware. The execution of this Release by the undersigned Releasors, will act to void and cancel the [General Release] dated April 15, 2008."
Defendants contend that the General Release controls and acts to protect Defendants from liability. Furthermore, Defendants assert the New Release could not replace the General Release because there was no consideration to support the contract.
The Court need not address the issue of whether the language of the General Release would serve to protect Defendants because the Court determines that the General Release was properly voided and the New Release properly executed in its place.
A release is a contract. A General Release may act to bind parties that were not party to the contract, itself. Nevertheless, the general contract rules apply to the voiding of a contract. In this case, the original contract (the General Release) improperly identified the date of the accident. The parties to the original contract agreed to void the contract and issue another in its place. Whether a third party was attempting to use the original contract as a shield to liability is irrelevant. Moreover, consideration was supplied by the parties to the New Release. Prior to the execution of the New Release, either party could have claimed that the terms of the General Release did not apply, because the General Release did not properly identify the date of the accident. Instead, each party agreed to relinquish its rights to challenge the applicability of the General Release and to execute the New Release.
The New Release does not exempt Defendants from liability. Defendants' Motion for Summary Judgment is denied on this count.
3. The Court has personal jurisdiction over Defendants because objections to service of process were waived by Defendants' conduct.
Defendants contend this Court lacks personal jurisdiction over the State of Delaware because service was not made in accordance with Superior Court Civil Rule 4(f)(1)(IV) and 10 Del. C. § 3103(c). Rule 4(f) reads, in pertinent part: "Service of process; how made. (1) Summons. Service of summons shall be made as follows: . . . (IV) Upon a municipal corporation or other governmental organization subject to suit by delivering a copy of the summons, complaint and affidavit, if any, to the chief executive officer thereof or by serving copies thereof in the manner prescribed by law for the service of summons upon such defendant."
Section 3103 (c) of Title 10 of the Delaware Code prescribes the manner of service upon a State agency as follows: "No service of summons upon the State, or upon any administrative office, agency, department, board or commission of the state government, or upon any officer of the state government concerning any matter arising in connection with the exercise of his or her official powers or duties, shall be complete until such service is made upon the person of the Attorney General or upon the person of the State Solicitor or upon the person of the Chief Deputy Attorney General."
Under Delaware law both the State's chief executive officer and the Attorney General, State Solicitor or Chief Deputy Attorney General should have been served in order to perfect service in this case. See Drake v. State, 1979 WL 195352, at *2 (Del. Super. Nov. 5, 1979). The State of Delaware was served "by leaving in Frederic Shrank, Legal Department, hands a true and correct copy of the said Writ together with a copy of the Summons/Complaint" on Wednesday, February 20, 2008. The Sheriff's Return indicates that Grunden was served personally on February 21, 2008.
Defendants argue that the State was not properly served and the Court agrees. However, the Court concludes that the State's conduct since objecting to service in its Answer operates to waive its original objection.
Service of process is required in order for the court to have personal jurisdiction over the defendant. 62B Am. Jur. 2d Process § 4. Any objection to service must be made by way of the defendant's answer or by way of a motion to dismiss under Superior Court Civil Rule 12(b). Hornberger Mgmt. Co. v. Haws Tingle Gen. Contractors, Inc., 768 A.2d 983, 987 (Del. Super. 2000). In the case at bar, Defendants raised a general objection to service in their Answer.
While a party may raise lack of personal jurisdiction in its answer, "[a]sserting a personal jurisdiction defense in an answer does not preserve the defense in perpetuity." Id. (citation omitted). The Superior Court in and for New Castle County carefully considered the constitutional impact on a defendant's due process rights as well as case law from other jurisdictions before concluding that the "defendant's conduct was inconsistent with its defense of lack of personal jurisdiction" and, as a result, that the defendant had waived its personal jurisdiction defense by implication. Id. at 989.
In this case, the State raised a boilerplate objection to service in its Answer filed March 18, 2008. However, the State failed to file a follow-up motion to dismiss for improper service. Meanwhile, the State participated in a scheduling conference, participated in an office conference, participated in the amendment of the scheduling order, engaged in discovery (including the taking and defending of several depositions, the submitting of a request for admissions to Plaintiffs, and the requesting of Stacey's cell phone records), all without raising the issue of improper service again. The Court finds, as a matter of law, that the State's failure to prosecute the question of personal jurisdiction for a period exceeding one year while actively participating in case management and discovery served to waive its defense of lack of personal jurisdiction. Defendants' Motion for Summary Judgment on this basis is also denied.
CONCLUSION
For the reasons set forth above, Defendants' Motion for Summary Judgment is denied, excluding the two issues resolved by concession.
IT IS SO ORDERED.