Black v. Chromascape, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PATRICK BLACK, :
:
Plaintiff, :
:
v. : C.A. No. S13C-04-018 RFS
:
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.”1 If the movant is able to show “that the undisputed
1
Super. Ct. Civ. R. 56(c).
1
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.”2 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.”3
“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.”4
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.”5 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.”6 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.”7
4. In support of its Motion, Defendant relies heavily on Johnson v. Hockessin
Tractor, Inc.8 This reliance is unavailing. Johnson was decided in 1980, four years before the
Delaware Legislature enacted the modified comparative negligence statute.9 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
2
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)).
3
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)).
4
Grasso v. First USA Bank, 713 A.2d 304, 307 (Del. Super. 1998).
5
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)).
6
Id.7
Jones v. Crawford, 1 A.3d 299, 303 (Del. 2010).
8
420 A.2d 154 (Del. 1980).
9
10 Del. C. § 8132.
2
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.”10
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.”11 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.12 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.13
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’.14 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.
10
Culver, 588 A.2d at 1097 (emphasis in the original).
11
Johnson, 420 A.2d at 158.
12
Hansen v. Umtech Industriservice Und Spedition, GBmbH, 1996 WL 622557, at *10 (D. Del. July 3, 1996).
13
See Trievel v. Sabo, 714 A.2d 742, 745 (Del. 1998).
14
Trievel, 714 A.2d at 745; Baker, 2011 WL 5622443 at *4.
3
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
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