Buford v. Ligon, Jr.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DARRALYN BUFORD, )
)
Plaintiff, ) C.A. No. K17C-08-031 NEP
v. )
)
GREGORY E. LIGON, JR., )
) A CONSOLIDATION OF CASES:
Defendant/Third Party ) K17C-09-037: K17C-10-016;
Plaintiff, ) K17C-10-017; K17C-10-023;
v. ) N17C-10-261; N17C-10-262
)
DELAWARE STATE UNIVERSITY, )
)
Third-Party Defendant. )
Submitted: September 30, 2021
Decided: November 30, 2021
OPINION AND ORDER
Upon Defendant Delaware State University’s Motion for Summary Judgment
DENIED IN PART and GRANTED IN PART
On the Briefs:
Joseph J. Rhoades, Esquire, and Stephen T. Morrow, Esquire (argued), Rhoades &
Morrow LLC, Wilmington, Delaware, Attorneys for Plaintiff Shianta D. Moore.
James D. Taylor, Jr., Esquire, (argued) and Charles E. Davis, Esquire, Saul Ewing
Arnstein & Lehr LLP, Wilmington, Delaware, Attorneys for Defendant/Third-Party
Defendant Delaware State University.
Shae Chasanov, Esquire (argued), Swartz Campbell LLC, Wilmington Delaware,
Attorney for Defendant/Third-Party Plaintiff Gregory E. Ligon, Jr.
Primos, J.
Before this Court is a motion for summary judgment filed by Delaware State
University (hereinafter “DSU”), one of the defendants in this consolidated action.
The motion is opposed by the other defendant, Gregory E. Ligon, Jr. (hereinafter
“Ligon”), and by three of the six plaintiffs. This matter arises from an incident on
DSU’s campus during its homecoming festivities in 2015. There are six plaintiffs:
1) Shianta D. Moore (hereinafter “Moore”); 2) Jovaughn McNeal (hereinafter
“McNeal”); 3) Deoz’a Spriggs (hereinafter “Spriggs”); 4) Darralyn Buford; 5) the
Estate of Joseph Hatton;1 and 6) Melody Dale. Plaintiffs Moore, McNeal, and
Spriggs (hereinafter collectively “Plaintiffs”) are suing both Ligon and DSU.2
Following pre-trial discovery, DSU filed the instant motion. Moore filed a
brief in opposition to the motion, as did Ligon. McNeal adopted selected arguments
from both Moore’s and Ligon’s briefs.3 Spriggs adopted Moore’s brief in full and
Ligon’s brief in part.4 For the reasons that follow, DSU’s Motion for Summary
Judgment is DENIED IN PART and GRANTED IN PART.
I. FACTS
Viewing the events in the light most favorable to the non-moving parties, as
this Court must in considering DSU’s motion for summary judgment,5 these are the
relevant facts:
1
The Estate was substituted for Mr. Hatton as a party on August 11, 2021.
2
Darralyn Buford, Joseph Hatton, and Melody Dale did not sue DSU.
3
McNeal adopted Ligon’s answering brief regarding 1) “whether DSU owes a duty as a matter of
law;” and 2) “whether Ligon’s actions were a superseding cause of the subject collision.”
McNeal’s Opposition to DSU’s Mot. Sum. J. at 1-2. In addition, McNeal adopted Moore’s
Answering Brief regarding “whether Plaintiffs’ [sic] have established sufficient facts to establish
a punitive damage claim against Delaware State University.” Id.
4
Spriggs adopted “the statement of facts, authorities and arguments presented in the Answering
Brief of [Moore], along with Arguments I and II (and the authorities referenced therein) presented
in the Answering Brief of Defendant [Ligon].” Spriggs’s Opposition to DSU’s Mot. Sum. J. at 1.
5
See LaPoint v. AmerisourceBergen Corp., 970 A.2d 185, 191 (Del. 2009) (stating that on a
motion for summary judgment “the facts of record, including any reasonable inferences to be
drawn therefrom, must be viewed in the light most favorable to the nonmoving party.”).
2
A. The October 24, 2015, Incident
Homecoming is an annual event hosted by DSU centered around a specific
football game where students and alumni are invited by DSU to celebrate and
socialize on DSU’s campus. On October 24, 2015, Ligon, an alumnus of DSU, was
a participant in the 2015 homecoming weekend (hereinafter “Homecoming”). DSU
planned and organized this event for several weeks, setting up various activities and
vendors to be held on campus.6 One of the events DSU set up was an alumni social
tent (hereinafter the “Alumni Tent”).7 The Alumni Tent was a place where students
and alumni came together to drink and socialize before, among other things, going
to an area known as the plots (hereinafter the “ Plots”) to eat, drink, and congregate.8
DSU is a “dry” campus. Ostensibly, neither possession nor consumption of
alcohol is allowed on campus, no matter the age of the individual. 9 Delaware State
University Police (hereinafter “DSUP”) was responsible for the safety and security
of students and visitors during Homecoming.10 However, during Homecoming
either DSUP did not enforce DSU’s “dry campus” policy, or enforcement was not a
high priority.11 Students and alumni freely roamed campus, more specifically the
6
DSU’s App. Ex. 8, Homecoming Events and Staff Assignments (listing the “schedule of events
and staff assignments for homecoming,” provided in an email sent by the Assistant Vice President
for Alumni Relations).
7
Id. (specifically referring to the “Alumni Tent” as the location for an event).
8
More than one of the plaintiffs visited the Alumni Tent before proceeding to the Plots.
9
Pl. Moore’s App. (hereinafter “Pl.’s App.”) Ex. 6, Dep. Tr. of Sgt. Gregory Elliott, Jr. at 37
(“There’s alcohol zero tolerance on campus . . . .”); Pl.’s App. Ex. 9, Dep. Tr. of Erinn Zirkle (DSU
Police Patrolman) at 33 (stating that DSU is a “dry campus” and does not allow alcohol
consumption by anyone, not just students).
10
Pl.’s App. Ex. 6, Dep. Tr. of Sgt. Elliott at 68 (answering in the affirmative as to whether DSUP
was responsible for the safety of visitors and students during homecoming).
11
“I’m not being the alcohol police where—we have a number of people on campus that day and
we’re just managing our programs and the event during the day.” Pl.’s App. Ex. 4, Dep. Tr. of
Harry Downes (DSUP Chief) at 31. Downes went on to state that monitoring alcohol use at
Homecoming was not a priority. Id. However, DSUP had issued drinking citations for students
on the Plots on previous occasions. Pl.’s App. Ex. 6, Dep. Tr. of Sgt. Elliott at 37. In addition,
3
Plots and the Alumni Tent, with drinks in their hands.12 In addition, there were no
DSUP officers assigned to the Plots during Homecoming,13 or observed and assigned
to “control vehicular traffic” around the Plots.14 Further, Harry Downes, Chief of
DSUP, acknowledged that there was a Homecoming plan, although it could not be
found, and that the Plots was not part of that plan.15
During Homecoming, Ligon was given a wristband and was served alcohol in
the Alumni Tent.16 Ligon had several drinks.17 Thereafter, he got into his vehicle
and drove to the Plots, which, as one plaintiff explained, is a normal thing to do.18
During prior homecomings DSU had provided courtesy shuttles to move people
Ligon stated, “It was a known thing [by students] you could openly just drink” in the Plots. Pl.’s
App. Ex. 3, Dep. Tr. of Ligon at 140.
12
Moore confirmed that a number of people were drinking in the Alumni Tent. Pl.’s App. Ex. 1,
Dep. Tr. of Moore at 53. She went on to say that people were consuming alcohol all around
campus, even drinking directly from “bottles of liquor.” Id. When asked specifically about the
Plots, she stated that people were drinking on the Plots and that “each sorority and fraternity [had]
their own alcoholic beverage, like their own juices.” Id at 54; cf. Pl.s App. Ex. 9, Dep. Tr. of
Zirkle at 33 (explaining that it would be a violation if people were consuming alcohol on the Plots).
13
Downes stated “No, [there were] no [DSUP Officers] assigned to the Plots.” Pl’s. App. Ex. 4,
Dep. Tr. of Downes at 119.
14
Id.15
Id. at 104-105.
16
For purposes of summary judgment, DSU concedes that it provided the alcohol in the Alumni
Tent. (Oral Argument, Sept. 30, 2021). This is consistent with multiple depositions. See Pl’s App.
Ex. 1, Dep. Transcript of Moore at 53 (explaining that there were many people drinking at the
Alumni Tent and “[t]hey had a bar set up”); Pl’s App. Ex. 7, Dep. Tr. of Kimani Robinson at 40
(answering “yes” to whether alcohol was served in the Alumni Tent); Pl’s App. Ex. 8, Dep. Tr. of
Donald Walker at 33-34, 40 (stating that alcohol was served and consumed in the Alumni Tent
and “everybody–or almost everybody is having some form or type of libations or whatever. It’s
just, it’s just on the campus during [H]omecoming”); Ligon’s App. Ex. 13, Dep. Tr. of McNeal at
12-13 (stating that he had to show his identification at the Alumni Tent and then was served
alcoholic mixed drinks).
17
DSU’s App Ex. 29, Dep. Tr. of Ligon at 26 (explaining that Ligon had several drinks from the
Alumni Tent); Pl.’s App. Ex. 7, Robinson Dep. at 76 (indicating that Ligon appeared drunk when
he initially got out of the car while it was moving backwards).
18
Ligon’s App. Ex. 13, Dep. Tr. of McNeal at 70 (explaining that “[s]ome people would drive
around to where—the way that you could drive [to the Plots]. Some people would.”).
4
around campus, but no such shuttles were used at Homecoming.19 On his way to the
Plots, Ligon had unfettered access to the school through open gates, specifically gate
III (hereinafter “Gate III”).20 There was no security detail guarding the entrance to
Gate III—one of the gates that led to the Plots—and there was no parking procedure
for invitees of Homecoming that would direct participants, upon entering Gate III,
to parking lots before gaining access to the end of University Drive, which bisects
the Plots.21
The Plots is divided by University Drive. University Drive ends at the
backside of the Plots, and the bisecting road is “narrow and small.”22 Further, “as
far as moving cars and people in and out [of the Plots], when it becomes crowded, it
becomes very confined.”23 For years prior to Homecoming, parking was allowed in
limited capacities along the Plots.24 On one side of the end of University Drive—
still part of the Plots as a whole—was the Kappa Alpha Psi plot (hereinafter the
“Kappa Plot”), a comparatively small, grassy fraternity area, but one of the most
19
DSU’s App. Ex. 29, Dep. Tr. of Ligon at 240-241 (stating that DSU provided courtesy shuttles
during homecoming from Defendant’s “freshman year up until [his] last year”).
20
Ligon drove on Frontage Road, exited campus onto College Road, and then entered back into
campus through Gate III. See Pl.’s App Ex. 3, Dep. Tr. of Ligon at 114-116.
21
Pl.’s App. Ex. 3, Dep. Tr. of Ligon at 122-124 (explaining that he neither saw, nor had contact
with, any DSUP officers on his way to the Plots); accord Pl.’s App. Ex. 7, Dep. Tr. of Robinson
at 23 (answering “no” to whether he had observed “any barriers or gates or other measures used”
to block vehicular traffic from the Plots). When answering whether there were “any gates or
barriers that blocked vehicular traffic in and around the Plots area,“ Sgt. Elliott stated, “There was
[sic] no barriers.” Pl’s App. Ex. 6, Dep. Tr. of Sgt. Elliott at 42. Gate III gives access to campus
from College Road, and according to emails between DSU employees, “that road is typically
blocked by campus police.” DSU’s App. Ex. 19, Traffic Restrictions During Events. Further, it
was typical to have an officer stationed “at each gate” (referring to Gate I, II, III) to direct the
traffic. Pl.’s App. Ex. 6, Dep. Tr. of Sgt. Elliott at 74.
22
Pl.’s App. Ex. 10, Dep. Tr. of Cpt. Kevin Kober at 35.
23
Id. at 57-58.
24
Id. at 34-36 (stating that DSU was aware that there “have been cars back in [the Plots] over the
years,” as “security had to get the cars out of the [Plots on previous occasions] because it’s . . . a
confined space”).
5
popular.25 Because of the small size of the Kappa Plot, people would typically stand
on the Kappa Plot and on the “street side.”26 On the other side of University Drive
there was a large grassy area consisting of all the other organizations’ designated
plots.
During Homecoming, as with past homecomings, it was a known fact and
“tradition” that the Plots was the place to gather after the football game.27 Numerous
individuals converged on the Plots after the game, and this put “way too many
people” into one area:28 people gathered on the Plots by at least the hundreds and
perhaps the thousands.29 In addition, participants assembled on University Drive,
either crossing from one side (the Kappa Plot) to the other, or standing on the road
to converse.30 There were multiple vehicles parked around the Plots during
25
Pl’s App. Ex. 7, Dep. Tr. of Robinson at 18 (“[T]he Kappa plot is one of the more popular so
we also have people on our plot. Because our plot is not that big, though, we have [people] on the
grass area as well as on the street side.”).
26
Id.
27
Id. at 29 (explaining that students who were not associated with Greek organizations knew to
come to the Plots during and after the football game because it was “[t]radition”); accord Pl’s App.
Ex. 3, Dep. Tr. of Ligon at 28 (“[B]ecause that’s where everyone goes after the football game. . .
. It’s tradition. Students, teachers, alumni, fraternities, [and] sororities.”)
28
Pl.’s App. Ex. 8, Dep. Tr. of Walker at 23; see also id. at 21 (describing the Plots “as the only
place to be . . . . That’s where everybody is. I mean it’s homecoming; the game’s over; so
everybody converges on the Plots to have a great time until we decide to go home.”).
29
It is undisputed there were a substantial amount of people at the Plots. The exact number varies
depending upon the individual providing testimony. See Ligon’s Answering Br. at 3 (pointing out
the varying answers about the number of people on the Plots during Homecoming ranging from
the hundreds to the thousands); Pl.’s App. Ex. 9, Dep. Tr. of Zirkle at 28 (stating that a “couple
hundred . . . sounds pretty accurate”).
30
Pl’s. App. Ex. 7, Dep. Tr. of Robinson at 20 (indicating that people would typically be standing
on University Drive between the two plot areas “traveling back and forth from the large grass,
which is where other Greek organizations are, and [the Kappa Plot]”). Robinson went on to state
that “the majority [of people] are was [sic], again, on [the Kappa] [P]lot, the street and the other
grassy area.” Id. at 54. Upon final questioning on the topic, he stated that not only would some
people be crossing the street, but others would be standing on the street for the sole purpose of
talking. Id. at 69.
6
Homecoming,31 and there were even some vehicles parked directly on the grassy
area itself.32 Parking in the Plots on both the grassy area and the street had been
allowed “over the years.”33
Upon entering the Plots, Ligon attempted to park alongside the Plots near
people standing on University Drive.34 The spot he chose had “little white marks”
that designated it as an official parking spot.35 Ligon was attempting to parallel park
in between other vehicles parked in front of him and/or behind him36 and a group of
people standing near the spot he wanted.37 When Ligon got halfway into the spot,38
he noticed the people immediately behind him through his rearview mirror, and,
while in reverse, he got out of his car to tell the people near the spot to move away.39
When he realized that his car had not stopped and was still going in reverse, 40 he
31
Pl’s. App. Ex. 8, Dep. Tr. of Walker at 29 (confirming that there were multiple vehicles parked
on University Drive close to where Ligon attempted to park).
32
The video exhibit provided by DSU shows the Plots at the time of the incident. It appears from
the video that two vehicles are in the middle of the Plots, with another three vehicles on the right
side in the grassy area. See DSU’s App. Ex. 38. Further, the video shows vehicles parked around
the Plots. Id. Ligon testified that there were typically vehicles parked on the grassy area itself,
including on Homecoming, and trucks would hop over the curb to get onto the Plots. Pl’s App. Ex.
3, Dep. Tr. of Ligon at 244-45. Additionally, Captain Kober testified that he saw vehicles on the
grassy area of the Plots when he arrived on the scene of the incident. Pl.’s App. Ex. 10, Dep. Tr.
of Cpt. Kober at 63.
33
Pl.’s App. Ex 10, Dep. Tr. of Cpt. Kober at 34-36.
34
Pl’s App. Ex. 3, Dep. Tr. of Ligon at 42.
35
Id. at 34.
36
Ligon testified that he “believes” there was a car in front but not behind. Id. at 38. Walker
testified, “I know there was a car directly behind [Ligon]. Initially I thought that there was a car in
front of him. But after I thought about it a little more there wasn’t a car in front of him.” Pl.’s
App. Ex. 8, Dep. Tr. of Walker at 29-30. In either scenario, there were other vehicles parked near
Ligon.
37
Pl’s App. Ex. 3, Dep. Tr. of Ligon at 37-39.
38
Id. at 44 (noting that his “car was at an angle” and he was “cutting the wheel” to get into the
spot).
39
Id. at 45-46; accord Pl.’s App. Ex. 8, Dep. Tr. of Walker at 29 (“[B]ecause he was trying to back
in that spot and people were standing there, and that’s when he tried to tell people, I guess, to
move.”).
40
Ligon claims that he relied on a safety feature of his car that would allegedly stop it
automatically. In his criminal trial, this Court found such reliance to be “negligent.” DSU’s App.
7
jumped back in. Instead of pressing the brake, Ligon accidently pressed the gas and
drove up a curb onto the Plots, eventually reaching an approximate speed of 25 miles
per hour.41
Ligon’s car injured multiple people—most severely Moore by pinning her
against a tree.42 Ligon alleges that he was knocked out by his steering wheel and
lost consciousness during “the four or five second[]” drive.43 Paramedics arrived on
scene but were “substantial[ly]” delayed because of the “concert”-like scene of the
Plots.44
B. Prior Shooting Incident-April 2015
A shooting incident had occurred on the Plots in April 2015, only a few
months prior to Homecoming. Stacy Downing, DSU’s Vice President for Student
Affairs at the time of Homecoming, answered in the affirmative when asked whether
the shooting was “due to people gathering on the Plots.”45 Kimani Robinson, a
fraternity member at the time of the shooting, indicated that there were “[a] couple
hundred” people on the Plots before the shots went off.46 In response to the shooting,
DSU closed the Plots for several months.47 Downing recalls putting “restrictions on
what could happen in that area as far as sanctioned student activities . . . until [there
Ex. 44, Crim. Trial Tr. at C-44 (“Mr. Ligon’s reliance upon the automatic safety feature was itself
a negligent reliance.”).
41
DSU’s App. Ex. 36, Expert Rep. of John D. Struble at 31.
42
Ligon’s car door was open while he was in reverse. Moore was caught by the driver’s side door
and was wedged between the door and a tree. See DSU’s App. Ex. 32, Dep. Tr. of Reconstructionist
Corporal Brian Wood at 34.
43
DSU‘s App. Ex. 44, Crim. Trial Tr. at C-45.
44
Pl.’s App. Ex. 2, Dep. Tr. of Michelle Zaffora at 14, 36-37 (“So there’s a five minute lag in
patient care with me arriving on the scene and me getting to the patient, which is a substantial gap.
We’re usually able to get to people within a minute or two. I would say there was some kind of
entry challenge . . . [of] people . . .[r]efusing to move.”).
45
Pl.’s App. Ex. 5, Dep. Tr. of Stacy Downing at 57-58.
46
Pl’s. App. Ex. 7, Dep. Tr. of Robinson at 74.
47
Pl.’s App. Ex. 5, Dep. Tr. of Downing at 94-95.
8
was] time to talk about, again, recap what we could do to improve events in that
area.”48 There was an analysis of whether the activities held on the Plots were
“safe.”49 However, because Homecoming was an “informal event where people do
gather,” not a “sanctioned student event[],” it did not “fall under the parameters” of
the alleged new policies arising from the shooting and the restrictions were not put
in place,” 50 despite the fact, as Downing acknowledged, that Homecoming was an
“event [that] brings[] hundreds of alum [sic] on campus to gather in a certain
place.”51
The Plots had been an area of focus for DSUP prior to Homecoming: one
DSUP officer stated, “There have been, you know, times where there’s [sic] been
fights on the Plots area.”52 With regard to the campus generally, another DSUP
officer stated, “There may have been a minor one [vehicle-on-pedestrian accident
during a prior homecoming] in other parts of the parking lot or things like that.
Nothing to [this] level . . . [and] scale.”53
II. PROCEDURAL HISTORY
Ligon faced criminal charges of vehicular assault and driving under the
influence (DUI) relating to his actions during Homecoming. Prior to the criminal
trial, which was held in December 2016, the vehicular assault charges were re-
indicted from charges requiring criminal negligence to charges requiring the lesser
standard of ordinary negligence. 54 Ligon provided sworn testimony during the
48
Id. at 95.
49
Id. at 98.
50
Id. at 99.
51
Id. at 99-100.
52
Pl.’s App. Ex. 6, Dep. Tr. of Sgt. Elliott at 53.
53
Pl.’s App. Ex. 10, Dep. Tr. of Cpt. Kober at 69.
54
Both degrees of vehicular assault, as re-indicted, required proof of ordinary negligence rather
than criminal negligence. See State v. Ligon, 2016 WL 4375251, at *2 (Del. Super. Aug. 12, 2016)
(“The statutory burden for Vehicular Assault in the First Degree requires the State to prove DUI,
negligence, and serious physical injury. Vehicular Assault in the Second Degree contains different
9
criminal trial, which lasted three days, from December 6 to December 8, 2016.55
This Court found Ligon guilty of one count of first-degree vehicular assault, four
counts of second-degree vehicular assault, and DUI.56
The six plaintiffs in this case filed their respective complaints in the second
half of 2017.57 On July 19, 2018, all cases were consolidated for purposes of
discovery, liability, and damages, without prejudice for any party to move at a later
date to bifurcate trials on damages.
As noted previously, only Moore, McNeal, and Spriggs filed direct claims
against DSU, but DSU is a party to all of the individual actions through Ligon’s
claims against DSU for contribution and indemnification (i.e., either cross-claims or
third-party claims as appropriate).58
The Court heard oral argument on DSU’s motion for summary judgment on
September 30, 2021.
III. PARTIES’ CONTENTIONS
DSU advances two main arguments with respect to whether DSU is liable for
Plaintiffs’ injuries. The first is that this incident was not foreseeable to DSU as a
matter of law. The second is that Ligon’s actions were a superseding cause, thereby
eliminating any of DSU’s potential negligence as a factor resulting in Plaintiffs’
burdens of proof depending on whether alcohol is a factor. Counsel for Ligon was aware that the
State was charging Ligon with DUI, should have been aware of the statutory provisions in 11 Del
C. § 628A, and thus should have been prepared for a possible re-indictment based on the alcohol
factor.”).
55
See generally DSU’s App. Ex. 36 (listing the witnesses who testified, provided written
statements, and gave depositions for the criminal trial).
56
DSU‘s App. Ex. 44, Crim. Trial Tr. at C-46.
57
The filing dates of the complaints are as follows: Spriggs, 10/18/2017; McNeal, 10/12/2017;
Moore, 10/20/2017; Melody Dale, 10/12/2017; Joseph Hatton, 09/28/2017; Darralyn Buford,
8/28/2017.
58
Ligon and DSU also filed third-party claims and/or cross-claims against Mercedes-Benz USA,
LLC, which have since been dismissed with prejudice.
10
injuries. Both Moore and Ligon argue that foreseeability is a question that should
be left for a jury, including whether Ligon’s actions were a superseding cause.
DSU also contends that any contract claims against it regarding this case
should be dropped.59 In addition, DSU argues that Ligon should be precluded from
litigating his negligence, as this Court found it as one of the elements of his criminal
charges.60 Lastly, DSU argues that if this Court denies summary judgment as to
Plaintiffs’ negligence claims against it, then the Court should find that punitive
damages are not warranted in this case as a matter of law.61
IV. STANDARD OF REVIEW
Generally, when reviewing a motion for summary judgment pursuant to
Delaware Superior Court Civil Rule 56, the Court must determine whether any
genuine issues of material fact exist.62 The moving party bears the initial burden of
showing that there are no genuine issues of material fact; when such a showing is
supported in the motion, the burden then shifts to the nonmoving party to show that
there are material issues of fact in dispute.63 Further, the Court must draw all factual
inferences in a light most favorable to the non-moving party.64 Therefore, summary
judgment will not be granted if it appears that there are material facts in dispute or
59
Only Moore and Spriggs had contract claims against DSU. Moore has dropped her contract
claim, as noted in her Answering Brief, which was adopted in full by Spriggs. Moore’s Answering
Br. at 31.
60
Moore and McNeal (by adoption of Moore’s Answering Brief) also argue that Ligon should be
collaterally estopped from raising the issue of negligence during this civil litigation. Ligon in
essence concedes to the preclusion, but argues that he should have the opportunity to present to a
jury his reliance on his vehicle’s alleged safety feature to allow the jury to weigh the extent of his
negligence as to any finding of potential punitive damages against him, as discussed infra.
61
Moore, and both McNeal and Spriggs (by adoption), argue that punitive damages should not be
precluded as a matter of law because “DSU did not just make an error in judgment in ignoring
[t]he Plots security but displayed a conscious indifference to the safety of homecoming the
attendees [sic] in [t]he Plots.” Moore’s Answering Br. at 34.
62
Super. Ct. Civ. R. 56(c); Wilmington Trust Co. v. Aetna, 690 A.2d 914, 916 (Del. 1996).
63
Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).
64
Alabi v. DHL Airways, Inc., 583 A.2d 1358, 1361 (Del. 1990); Merrill v. Crothall-Am., Inc., 606
A.2d 96, 100 (Del. 1992).
11
that further inquiry into the facts would be appropriate “in order to clarify the
application of the law to the circumstances.”65
V. DISCUSSION
A. DSU Is Not Entitled to Summary Judgment on Plaintiffs’ Negligence
Claims.
1. DSU owed a duty to Plaintiffs under both Section 323(a) and Section
344 of the Restatement (Second) of Torts.
In determining whether DSU is entitled to summary judgment on Plaintiff’s
negligence claims, the first step is to ascertain what duty, if any, DSU owed
Plaintiffs. Questions of duty are for the Court to decide.66 Here, there are two
theories of duty that may be actionable by Plaintiffs, which were similarly found in
Furek v. Univ. of Delaware.67 They fall under Section 323 and Section 344 of the
Restatement (Second) of Torts (1965).68 This Court will examine each one in turn.
a. Section 323 of the Restatement (Second) of Torts (1965)
Restatement § 323 provides as follows:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other’s person or things, is subject to liability to the
other for physical harm resulting from his failure to exercise reasonable
care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other’s reliance upon
the undertaking.69
65
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
66
See Naidu v. Laird, 539 A.2d 1064, 1070 (Del. 1988) (“[D]etermining the existence and
parameters of a duty is a question of law . . . .”).
67
594 A.2d 506, 520, 521 (Del. 1991); see also Marshall v. Univ. of Del., 633 A.2d 370, 1993 WL
385114, at *1 (Del. 1993) (”In Furek the circumstances supported a claim under Restatement of
Torts 2d § 323 and under a landlord-invitee relationship.”).
68
Restatement (Second) of Torts § 323 (1965); Restatement (Second) of Torts § 344 (1965).
69
Restatement (Second) of Torts § 323 (1965).
12
Section 323 “addresses the duty owed by one who assumes direct responsibility for
the safety of another through the rendering of services in the area of protection.”70
If one “takes charge and control of [a] situation, he is regarded as entering into a
relation which is attenuated with responsibility.”71 Section 323 addresses only the
duty of care to a person physically on the property of the entity owing the duty.72
The Delaware Supreme Court found in Jardel Co., Inc. v. Hughes73 that the mall
owner, “having undertaken to provide a security program, albeit voluntarily, was
obligated to perform the task in a reasonable manner with a view toward the dangers
to which the program was directed.”74
Here, there is no dispute that the Plots was the property of DSU and under its
control. DSU offered security services for Homecoming. The safety of DSU’s
visitors and students participating in the festivities of Homecoming was
acknowledged by DSU.75 As the Vice President for Student Affairs and supervisor
of DSUP stated, “I know we worked with different agencies to make sure we had
enough patrol police officers in that area to maintain a level of safety. Again, that
area [the Plots] is known to be a gathering place . . . .”76
DSU owed a duty to its visitors under Section 323 “[t]o perform the task [of
security] in a reasonable manner with a view toward the dangers to which the
program was directed.” Moreover, DSU has acknowledged that the Plots deserved
some attention during Homecoming.
70
Furek, 594 A.2d at 520.
71
Id.72
Rogers v. Christina Sch. Dist., 73 A.3d 1, 9 (Del. 2013).
73
523 A.2d 518 (Del. 1987).
74
Id. at 524.
75
Dep. Tr. of Sgt. Elliott at 68 (answering in the affirmative as to whether DSUP was responsible
for the safety of visitors and students during homecoming).
76
Pl.’s App. Ex. 5, Dep. Tr. of Downing at 57.
13
More recently, in Rogers v. Christina School District,77 the Delaware
Supreme Court found that in order to establish liability under Section 323, the
plaintiff must show an affirmative action that increases the chance of injury.78
However, Furek recognized, when discussing Jardel, that when a “property owner
has attempted to provide security or regulate a hazardous activity,” that action is an
“affirmative action” and “recognition that the potential for harm exists on the
premises.”79 DSU’s affirmative action to provide security in an unreasonably
limited way in the Plots could be found to have increased the risk of harm to DSU’s
Homecoming invitees on the Plots. Hence, the Court finds a duty under Section
323(a).
The Court finds the record devoid of any evidence of harm suffered by
Plaintiffs due to their reliance upon the undertaking of DSU to provide security for
the event. Therefore, the Court does not find a duty under Section 323(b).
b. Section 344 of the Restatement (Second) of Torts (1965)
Restatement § 344 states:
A possessor of land who holds it open to the public for entry for his
business purposes is subject to liability to members of the public while
they are upon the land for such a purpose, for physical harm caused by
the accidental, negligent, or intentionally harmful acts of third persons
or animals, and by the failure of the possessor to exercise reasonable
care to
(a) discover that such acts are being done or are likely to be done,
or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.80
77
73 A.3d 1 (Del. 2013).
78
Id. at 10 (“Here, the School adopted a Protocol for how to handle students who express some
suicidal intent. Finney took no ‘affirmative action . . . [which] increased the risk of self-harm.’”
(quoting Jain v. State, 617 N.W.2d 293, 299 (Iowa 2000))).
79
Furek, 594 A.2d at 521-22.
80
Restatement (Second) of Torts § 344 (1965).
14
Here, DSU concedes that it has a duty under landowner-invitee premise
liability.81 Therefore the Court need not discuss this duty any further, other than to
find, under landowner-invitee premise liability, that a duty existed to both students
and on-campus visitors during Homecoming in accordance with Restatement §
344.82
2. Foreseeability is a question that should be left for the jury in this
matter.
In determining whether to grant summary judgment to DSU on Plaintiff’s
negligence claims, the Court must next consider the issue of foreseeability. The
Court is asked by DSU to weigh the evidence and determine that this incident was
not foreseeable to DSU as a matter of law. DSU argues that, to so find, this Court
should either look at this case through the lens of so-called “curb-jumping” cases, or
determine that DSU could not have foreseen the possibility of harm because there
were no prior similar incidents.
a. “Curb-Jumping” Cases
DSU would like the Court to consider this case under the more narrowly
defined perspective of “curb-jumping” cases. It relies upon two Delaware Superior
Court opinions that found on summary judgment that business owners did not owe
a duty to their invitees.
In Achtermann v. Bussard,83 the plaintiff was dining in a restaurant when the
defendant drove her vehicle through the parking lot, over a curb, across the sidewalk,
81
See DSU’s Opening Br. in Support of Mot. Sum. J. at 1 (“DSU acknowledges that a university
(as does any landowner) generally owes a duty to its invitees.”).
82
See Furek, 594 A.2d at 520 (“A landowner who knows or should know of an unreasonably
dangerous condition or use of his property has a duty to invitees to safeguard the invitee against
such hazards including the conduct of third parties.”).
83
2007 WL 901642, at *1 (Del. Super. Mar. 22, 2007), aff'd sub nom. Achtermann v. Warrington,
957 A.2d 1 (Del. 2008) (TABLE).
15
and through the front of the building, injuring the plaintiff.84 The evidence presented
indicated that there had been no prior accidents and that the curb was two and three-
quarter inches high. The Superior Court found that although “Delaware cases . . .
hold generally that foreseeability is usually a question for the jury, under the
circumstances of this case, this Court holds that the accident that occurred was not
foreseeable as a matter of law.”85
Similarly, in Britt v. V.H.S. Realty, Inc,86 the defendant’s vehicle crashed
through the store front while plaintiff was shopping inside.87 There was no evidence
of prior incidents involving vehicles crashing into the store.88 The court held that,
even considering the facts in a light most favorable to the plaintiff, the defendants
were entitled to summary judgment because “[I]n this case, not only is there no
evidence of any prior incidents involving vehicles crashing into the store, but the
parking lot in question had ‘parking stops’ in place and a curb to protect invitees
from potential ‘errant vehicles.’”89
Additionally, DSU relies heavily on Kusmirek v. MGM Grand Hotel, Inc.,90 a
Ninth Circuit case that involved a plaintiff who was a visitor to the defendant’s resort
and who sued the defendant following an accident in the resort’s valet parking area
during which the plaintiff was hit by a car driven by a third party. 91 In determining
that the defendant owed no duty to the plaintiff, the court relied on the fact that “[no]
reasons [were given] why MGM should have reasonably anticipated that the
84
Id. at *1.
85
Id. at *3.
86
2010 WL 4397050, at *1 (Del. Super. Oct. 29, 2010).
87
Id. at *1.
88
Id. at *2.
89
Id. (emphasis in original).
90
7 F. App'x 734, 735 (9th Cir. 2001).
91
Id.16
negligent conduct of third parties would likely to [sic] endanger the safety of visitors
. . . .”92
Here, however, both the function of the curb along University Drive and the
character of the Plots distinguish this case from those referenced supra. First, the
function of the curb alongside University Drive differs from that of a curb next to a
store front. It was a known fact on campus that individuals would jump the curb and
park directly on the grass during many different types of events.93 This also occurred
during Homecoming.94 Thus, the curb as a barrier to entry into the grassy area did
not, in practice, serve to “protect invitees from potential ‘errant vehicles.’”95
Second, the character of the Plots during Homecoming was more akin to that
of a parade during which roads should be blocked off, rather than a store front where
invitees would be inside shopping or eating. For illustration, participants at
Homecoming stood on the street, University Drive, that bisected the Plots, not just
for the purposes of crossing from one plot to another, but to talk and socialize with
other students and alumni.96 Consequently, the street was an extension of the Plots,
and the participants of Homecoming saw it as such. This point is amplified by
DSUP’s own officer, Captain Kober, who described the part of University Drive that
bisected the Plots as “narrow and small.”97 When asked whether vehicular traffic
in the Plots created a pedestrian risk, he answered, “[i]f you have no real defined
space for parking and no real defined space for pedestrians, it’s just a mixture, yeah,
you’re much more likely to have an accident . . . . But there was . . . no rhyme or
reason to where the cars were parking . . . . [C]ars . . . just seemed to be parked
92
Id. at 736.
93
Pl’s App. Ex. 3, Dep. Tr. of Ligon at 244-45.
94
Id.
95
Britt, 2010 WL 4397050, at *2.
96
Pl’s. App. Ex. 7, Dep. Tr. of Robinson at 69.
97
Pl.’s App. Ex. 10, Dep. Tr. of Cpt. Kober at 35.
17
where they saw a spot and pulled in.”98 Hence, the classification of the road as
separate from the Plots is a misnomer.
Therefore, this case is not as clear as MGM, Britt, and Achtermann with
respect to foreseeability of injury. Specifically, DSU’s knowledge of the Plots in
general, and Homecoming in particular, lends weight to the concept that allowing
vehicles unfettered access to a place on campus where people commonly stood on
the road and near the curb in large numbers foreseeably ran the risk of injury to one
or more of these people.
Notably, “curb-jumping” cases have gone to the jury on the issue of
foreseeability when the landowner had knowledge of prior instances of curb jumping
in that area.99 In this case, viewing the facts in a light most favorable to the non-
moving parties, vehicles would jump the curb for prior events at DSU and drive onto
the grassy area. DSU was aware of this fact for years prior to Homecoming.100
Another category of curb-jumping cases where foreseeability has been
deemed a jury question is when the design of the building requires invitees to stand
near the curb, i.e., “to await service by standing adjacent to a parking lot or
driveway” so that “if a car jumped the curb, there was a high likelihood that a
pedestrian would be at the location.”101 This Court finds that both the design and
the use of the Plots increased the likelihood of injury to those on the street and on
the grassy area. During events such as Homecoming, people would stand near the
curb and on the street in such density that if a car were to jump a curb, injury was
nearly guaranteed. DSU argues that because it took a number of seconds for the car
to reach Plaintiffs, the duty analysis is more tenuous. The Court disagrees. There
98
Pl.’s App. Ex 10, Dep. Tr. of Cpt. Kevin Kober at 64-65.
99
E.g., Jefferson v. Qwik Korner Mkt., Inc., 34 Cal. Rptr. 2d 171, 174 (Cal. Ct. App. 1994).
100
Pl.’s App. Ex 10, Dep. Tr. of Cpt. Kober at 34-36.
101
Jefferson, 34 Cal. Rptr. 2d at 174.
18
is at least a jury question as to whether several seconds—four or five—would not
allow evasive action by participants of Homecoming on the Plots, especially given
the density of people in the area.102
In short, without determining whether this case falls into the line of “curb-
jumping” cases, the Court finds that even if it were to do so, the foreseeability
question should be left for the jury.103
b. Lack of Prior Incidents
DSU next argues that there were no prior incidents of this kind—specifically
a vehicle’s hitting a pedestrian in the Plots—to put DSU on notice, and hence the
Court should find that this incident was not foreseeable as a matter of law.
This court is mindful that, while foreseeability may be found as a matter of
law, the Delaware Supreme Court has at least twice reversed this Court when it
“weighed facts regarding foreseeability.”104
In Peterson, an invitee of The Touchdown Lounge was assaulted by two other
patrons. The plaintiff argued to the trial court that judgment as a matter of law was
“inappropriate in this case because the issue of forseeability [sic] is a jury
102
See Robison v. Six Flags Theme Parks, Inc., 75 Cal. Rptr. 2d 838, 843 (Cal. Ct. App. 1998)
(holding that two seconds is “too short a time to allow for reliable evasive action by an
unsuspecting person seated at a picnic table, possibly with his or her back to the oncoming car.”).
103
See id. at 846 (“Conduct is negligent where some unreasonable risk of danger to others would
have been foreseen by a reasonable person. The general danger of a car hitting unsuspecting
picnickers in the picnic area Magic Mountain placed in its parking lot was foreseeable, and Magic
Mountain's focus on the specific circumstances under which the developmentally disabled woman
lost control of this car in this particular instance is misplaced. When an unreasonable risk of danger
exists, the landowner bears a duty to protect against the first occurrence, and cannot withhold
precautionary measures until after the danger has come to fruition in an injury-causing accident.”).
104
See Peterson v. Del. Food Corp., 788 A.2d 132, 2001 WL 1586831, at *2 (Del. Dec. 6, 2001)
(TABLE) (“[I]t is improper for the trial judge to weigh the facts. . . The trial judge should have
submitted the factual issues relating to foreseeability to the jury.” (internal quotations and citations
omitted)); Rogers v. Del. State Univ., 905 A.2d 747, 2006 WL 2085460, at *2 (Del. July 25, 2006)
(TABLE) (“Here, the Superior Court weighed facts regarding foreseeability that it should have
submitted to a jury. Because material issues of fact exist in this case, the summary judgment in
favor of DSU on the issue of foreseeability must be reversed.”).
19
question.”105 However, the trial court found that the assault was “unprovoked” and
“occurred suddenly” and therefore that the “instantaneous nature of the attack [was]
such that . . . [it] could not have [been] foreseen.”106 On appeal, the Supreme Court
held that “the trial judge erred when he removed from the jury the factual issues
relating to foreseeability.”107 The Supreme Court further stated that in focusing on
the “unprovoked” nature of the attack, the trial judge erred in “weigh[ing] the facts”
against other altercations that had occurred at the lounge.108
In Rogers, DSU provided students housing at Dover Inn due to an overflow
of students in its on-campus housing facilities. The plaintiff, Rogers, was one of the
students being housed in Dover Inn. One night, Rogers was sitting in his car in the
parking lot of Dover Inn and was shot, sustaining serious injuries. The record
showed that DSU had provided no security measures for students housed at Dover
Inn.109 The trial court found that “DSU cannot be held liable for the unforeseeable
targeted attack” by the shooter, because “an attack of this sort, vindicating a personal
vendetta, is not one generally deterred by security patrols.”110 In further explanation,
the trial court found the strange circumstances of the attack to suffice as a
superseding, intervening cause.111 On appeal, the Supreme Court reversed in part,
holding that there were material facts in dispute in the case, most notably whether
105
Peterson v. Del. Food Corp., 2000 WL 33157796, at *2 (Del. Super. Dec. 28, 2000), rev'd, 788
A.2d 132 (Del. 2001).
106
Id. at *3.
107
Peterson, 2001 WL 1586831, at *1.
108
Id. at *2.
109
Rogers, 2006 WL 2085460, at *2 (“DSU did not conduct any security risk assessment of Dover
Inn before placing students there and did not provide any security measures, orientation or training
for the students who lived there.”)
110
Rogers v. Del. State Univ., 2005 WL 2462271, at *7 (Del. Super. Oct. 5, 2005), aff'd in part,
rev'd in part, 905 A.2d 747 (Del. 2006).
111
See id. (“The attack in this case was planned and targeted, the result of a jealous ex-boyfriend,
and, as such, constitutes an intervening, superceding [sic] cause.”).
20
“the failure of DSU to follow usual and customary student safety and security
measures was a proximate cause of Rogers' [sic] injuries.”112
Through both Peterson and Rogers, the Supreme Court relayed one
underlying principle on the issue of foreseeability: “questions of foreseeability are
jury questions and the unique characteristics of the particular [incident] should not
be considered over other facts.”113
Comment (f) of Section 344 is particularly relevant in weighing foreseeability
in this case:114
f. Duty to police premises. Since the possessor is not an insurer of the
visitor's safety, he is ordinarily under no duty to exercise any care until
he knows or has reason to know that the acts of the third person are
occurring, or are about to occur. He may, however, know or have reason
to know, from past experience, that there is a likelihood of conduct on
the part of third persons in general which is likely to endanger the safety
of the visitor, even though he has no reason to expect it on the part
of any particular individual. If the place or character of his
business, or his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of third persons,
either generally or at some particular time, he may be under a duty to
take precautions against it, and to provide a reasonably sufficient
number of servants to afford a reasonable protection.115
Jardel recognized that “application of the principle of foreseeability to claims based
on nonfeasance—here not anticipating acts of third parties—may prove difficult.”116
However, “where the property owner has attempted to provide security or regulate
a hazardous activity . . . [there is] at least tacit recognition that the potential for harm
exists on the premises.”117 In addition, “[c]rimes of whatever type and whenever
112
Rogers, 2006 WL 2085460, at *2.
113
Id. (citing Peterson, 2001 WL 1586831, at *2) (emphasis supplied).
114
Furek., 594 A.2d at 521.
115
Id. (quoting Restatement (Second) of Torts § 344 cm. f (1965)) (emphasis supplied).
116
Jardel, 523 A.2d at 525 (citations omitted).
117
Furek, 594 A.2d at 522.
21
occurring on the premises are part of the circumstantial setting in which security
needs are measured.”118
With regard to MGM, upon which DSU relies heavily, the Court of Appeals
for the Ninth Circuit stated that plaintiff “does not cite to any evidence that a hotel's
valet service is a type of business that would reasonably anticipate careless behavior
of third persons.”119 Here, by contrast, there are a number of facts cited by the non-
moving parties showing why DSU should have reasonably anticipated careless
behavior of third parties during Homecoming at the Plots. These include, but are
not limited to: 1) DSU was aware that a large number of people would gather on the
Plots during Homecoming;120 2) DSU provided, or allowed, alcohol to be consumed
by adults of legal age who would end up on the Plots after visiting the Alumni Tent,
and allowed as well drinking by both underage and of-age students on the Plots
during Homecoming, despite DSU’s “dry campus” policy;121 3) DSU was aware that
vehicles would often park in the Plots, including on the grassy area; 122 4) DSU was
aware that the Plots was a confined, “narrow” space in which vehicles maneuvered
118
Jardel at 526 (citations omitted).
119
MGM, 7 F. App'x at 736.
120
See Pl.’s App. Ex. 5, Dep. Tr. of Downing at 94-95.
121
Ligon was served alcohol as a business invitee on DSU’s campus. Whether DSU itself provided
alcohol to Ligon in the Alumni Tent is not determinative of the issue of DSU’s negligence and
liability. DSU had a duty to its invitees to protect them from dangerous conditions. The Supreme
Court of Delaware noted in DiOssi v. Maroney that there is “ample decisional support elsewhere”
affirming the concept that the danger posed by the conduct of third parties includes the acts of
intoxicated individuals. 548 A.2d 1361, 1366 (Del. 1988); see also Furek, 594 A.2d at 520 (“A
landowner who knows or should know of an unreasonably dangerous condition or use of his
property has a duty to invitees to safeguard the invitee against such hazards including the conduct
of third parties.”). With respect to DSU’s security planning for Homecoming, alcohol
consumption was a known condition present on campus during Homecoming that DSU
consciously decided to address lightly, if at all, notwithstanding the fact that DSU’s own “dry
campus” policy prohibited consumption by anyone. In short, the presence of alcohol on campus
was a condition that DSU had a duty to evaluate when assessing its security measures for
Homecoming.
122
See Pl.’s App. Ex 10, Dep. Tr. of Cpt. Kober at 34-36.
22
during Homecoming;123 5) DSU was aware that altercations had occurred on the
Plots during past events due to the large crowds that would gather; 124 and 6) DSU
was aware that a shooting had occurred on the Plots only months before.125 For
purposes of the analysis, the “type of business”126 can equate more fairly in this
scenario to a large catered party where the activities at the Plots were the “main
event” and security was limited or even non-existent.
DSU was responsible for controlling traffic and vehicular access to campus as
part of its security program during Homecoming. DSUP employed several methods,
such as a metal fence and its own police vehicles, to inhibit traffic from reaching
different parts of the campus for a variety of reasons, including protecting
pedestrians.127 Moreover, by providing security DSU was acknowledging that “the
potential for harm exist[ed].”128 As stated supra, DSUP officers, such as Captain
Kober, understood the risk to pedestrians in the Plots.129 In addition, the prior
shooting incident, which occurred on the Plots only a few months prior to
123
See Pl.’s App. Ex. 10, Dep. Tr. of Cpt. Kevin Kober at 35, 64.
124
Pl.’s App. Ex. 6, Dep. Tr. of Sgt. Elliott at 53.
125
See Pl.’s App. Ex. 5, Dep. Tr. of Downing at 57-58.
126
MGM, 7 F. App'x at 736.
127
Pl.’s App. Ex. 4, Dep. Tr. of Downes at 86-87 (recalling using metal barricades as traffic control
devices at DSU football games to direct motor vehicles to park in certain lots); see Pl.’s App. Ex.
1, Dep. Tr. of Moore at 88-89 (recalling seeing traffic control devices blocking off certain parts of
campus from vehicles during Homecoming). See also Pl.’s Ex. 11, Expert Rep. of Russell Kolins
at 24 (“On the evening in question, there were multiple locations and opportunities where vehicular
traffic could have been stopped or redirected by use of gates or use of other physical barriers which
were being utilized by the University in other parts of the campus. Yet, the University failed to
employ any plan to prohibit vehicular traffic in the area of the Plots.”).
128
Furek, 594 A.2d at 522.
129
Captain Kober explained that in any big event, whether “Nascar or Firefly . . . you always
have—you try to eliminate having [vehicles and pedestrians] together the best you can, because,
you know, accidents happen unfortunately.” Pl.’s App. Ex 10, Dep. Tr. of Cpt. Kober at 64. He
continued by pointing out there was “no rhyme or reason” as to where vehicles were parking on
the Plots. Id. He distinguished the Plots from other tailgates he has worked by stating, “There’s
very limited access to where cars can come in and out of” at other events he has worked, unlike
the Plots during Homecoming. Id. at 76.
23
Homecoming, could be deemed a prior incident under Section 344, as part of the
“circumstantial setting”130 that DSU should have assessed in measuring its security
needs for the Plots. However, instead of taking the shooting incident into account,
DSU appears to have abandoned any new safety protocols stemming from the prior
incident because of DSU’s delineation between a “sanctioned student event[]” and
an “informal event”131— a fact that should be weighed by a jury. Finally, as appears
from the evidence viewed in the light most favorable to the non-moving parties, DSU
did not provide any “servants to afford . . . reasonable protection” in the Plots during
Homecoming.132
Taking all of this into consideration, this Court concludes that it would be
inappropriate to find this incident not foreseeable as a matter of law.133
130
See Jardel, 523 A.2d at 526.
131
Pl.’s App. Ex. 5, Dep. Tr. of Downing at 99.
132
Furek, 594 A.2d at 521; see also Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196, 1198
(Ind. Ct. App. 1983) (“The University is aware that alcoholic beverages are consumed on the
premises before and during football games. The University is also aware that “tailgate” parties are
held in the parking areas around the stadium. Thus, even though there was no showing that the
University had reason to know of the particular danger posed by the drunk who injured Mrs.
Bearman, it had reason to know that some people will become intoxicated and pose a general threat
to the safety of other patrons. Therefore, Notre Dame is under a duty to take reasonable precautions
to protect those who attend its football games from injury caused by the acts of third persons. The
questions whether the protective measures employed by Notre Dame were inadequate and, if so,
whether such inadequacy contributed to Mrs. Bearman's injury are questions for the jury.”).
133
DSU directs this Court to a recent decision, Cantatore v. Univ. of Delaware. 2021 WL
2745107, at *1 (Del. Super. June 30, 2021). In Cantatore, this Court found, on a motion to dismiss,
that the University of Delaware did not owe a duty to the plaintiff as a matter of law because the
University neither could have foreseen the incident nor had control over the incident. Id. at *3.
With respect to foreseeability, this Court found that a non-university officer’s arrest of the plaintiff
outside of a classroom “in the manner in which it transpired was not foreseeable . . . [because]
nothing in [plaintiff’s] Amended Complaint suggest[ed] that the University has any type of
assumed duty to protect students from conduct akin to Officer Fountain's arrest . . . .” Id. at *3.
With respect to control, this Court found that the University did not have control over a non-
university affiliated police officer who was executing an arrest because any action by the
University to help the officer find the student on campus was more in line with the statutory charge
of 11 Del. C. § 1911(d), i.e., “to inform the primary jurisdictional agency about the location of an
arrest.” Id. at *3. In this case, by contrast, the incident resulting in Plaintiffs’ injuries was
foreseeable for all the reasons stated supra. Moreover, while DSU did not directly control Ligon’s
24
3. The issue of Ligon’s actions as a superseding, intervening cause
should go to the jury.
Finally, in assessing potential summary judgment on Plaintiff’s negligence
claims against DSU, the Court must consider the issue of superseding cause. The
Delaware Supreme Court has made clear that the question of superseding causation
is almost always left for the jury.134 “[O]nly where there can be no reasonable
difference of opinion as to the conclusion to be reached on the question of whether
an intervening cause is abnormal, unforeseeable, or extraordinary negligent, should
the question be determined by the Court as a matter of law.”135
Here, although the Court will find infra that Ligon’s negligence can be used
for issue preclusion purposes, it is clear from Ligon’s criminal trial transcript that
his negligence was not determined by the fact finder to be extraordinary or abnormal.
This Court, presiding over Ligon’s criminal bench trial, stated that Ligon’s action of
hitting the gas instead of the brake “while . . . not unimaginable . . . is a negligent
act. . . . Thus, the actions of Mr. Ligon, while entirely accidental, are at least to some
degree singly and cumulatively negligent.”136
Hence, it would be inappropriate to characterize an “[]imaginable” and
“accidental” act by Ligon as either extraordinarily negligent or abnormal as a matter
of law, given that this Court heard testimony on the issue and determined otherwise.
On the issue of whether the accident was unforeseeable, it is important to note, and
DSU concedes, that foreseeability does not require the exact type of harm that could
be foreseen to occur but looks to the general type of harm. “An event is foreseeable
conduct, it certainly had control over the Plots and the security procedures that could have affected
both third parties’ access to the area and careless behavior taking place within that area.
134
Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821, 830-831 (Del. 1995).
135
Id. at 831.
136
DSU‘s App. Ex. 44, Crim. Trial Tr. at C-46 (emphasis supplied).
25
if a defendant should have recognized the risk of injury under the circumstances. It
is irrelevant whether the particular circumstances were foreseeable.”137
As noted supra, this Court’s function is not to “weigh[] facts regarding
foreseeability.”138 Whether the incident was unforeseeable, as noted supra, is not
ripe for the Court’s determination. Thus, the superseding causation issue will be left
for the jury.
B. Issue Preclusion Applies to the Question of Ligon’s Negligence.
Issue preclusion, also known as collateral estoppel, requires the
following elements to be established:
(1) The issue previously decided is identical with the one presented
in the action in question, (2) the prior action has been finally
adjudicated on the merits, (3) the party against whom the doctrine
is invoked was a party or in privity with a party to the prior
adjudication, and (4) the party against whom the doctrine is raised
had a full and fair opportunity to litigate the issue in the prior
action.139
As noted supra, in Ligon’s criminal trial, this Court found that “the actions of Mr.
Ligon . . . are at least to some degree singly and cumulatively negligent.”140 This is
not a case where Ligon merely pled guilty, which typically has been deemed
sufficient for issue preclusion.141 The issue of Ligon’s negligence was considered
137
Del. Elec. Co-op., Inc. v. Pitts, 633 A.2d 369, 1993 WL 445474, at *2 (Del. Oct. 22, 1993)
(TABLE).
138
Rogers, 2006 WL 2085460, at *2.
139
Betts v. Townsends, Inc., 765 A.2d 531, 535 (Del. 2000) (quoting State v. Machin, 642 A.2d
1235, 1239 (Del. Super. 1993)).
140
DSU’s App. Ex. 44, Crim. Trial Tr. at C-46.
141
See Petrella v. Alexander, 1991 WL 236921 (Del. Super. Nov. 8, 1991) (finding collateral
estoppel by means of a guilty plea); but see Benjamin F. Shaw Co. v. Short, 1989 WL 89521, at
*4 (Del. Super. June 28, 1989) (“Therefore, to bind this defendant to the plea agreement in a
subsequent civil action when the necessary facts to conclusively establish the elements of the civil
suit were objected to at that time, would be, in my view, to impose an unreasonably harsh penalty
on the defendant. This court is not willing to allow offensive collateral estoppel which, in effect,
26
by a fact-finder under a much higher burden of proof—i.e., beyond a reasonable
doubt—than it would be in this action.142
Furthermore, all elements of issue preclusion are met: 1) the issue of
negligence was presented at Ligon’s criminal trial, and this Court determined that
Ligon was negligent as an element of Vehicular Assault; 2) the criminal trial was
adjudicated on the merits and Ligon was sentenced for his crimes; 3) Ligon is the
same defendant as in the criminal trial; and 4) Ligon had a full and fair opportunity
to present his case to this Court. Therefore, Ligon’s negligence will be issue-
precluded for the remainder of this litigation.143
C. DSU Is Entitled to Summary Judgment on Plaintiffs’ Claims for Punitive
Damages.
The Court next considers whether DSU is entitled to summary judgment on
the issue of punitive damages. Where there is no contention by any of the parties
would dispose of this action under the guise of undisputed facts, when it is clear that those facts
are now and were then in dispute.”).
142
Higgins v. Walls, 901 A.2d 122, 138 (Del. Super. 2005) (concluding that issue preclusion
existed in a civil trial as the result of a criminal adjudication because the fact finder’s determination
“[is] more conclusive (beyond a reasonable doubt) than the probability standard at work in [a civil
trial].”); see also Brooks Armored Car Serv., Inc. v. Payne, 1992 WL 54260, at *2 (Del. Super.
Mar. 9, 1992) (finding collateral estoppel from a conviction by a jury in a criminal case).
143
Ligon did not contend at oral argument that issue preclusion was not proper regarding his
negligence. However, Ligon’s counsel argued that even if his negligence is issue-precluded in this
case, Ligon would like to be able to testify on the issues of punitive damages, and therefore his
counsel felt compelled to argue against issue preclusion. This Court does not foresee any issues
with Ligon’s testifying as to the extent of his negligence during the trial for punitive damages
purposes. As always, DSU or any party may ask for a limiting instruction when the time comes.
See Beebe Med. Ctr., Inc. v. Bailey, 913 A.2d 543, 546 (Del. 2006), as amended (Nov. 15, 2006)
(finding that the trial judge was not required to trifurcate a trial, which would have included
separating out the plaintiff’s claims for punitive damages, when the trial judge offered “to consider
a limiting instruction designed to assure that the jury considered only evidence relevant to each
separate category of damage claim in order to avoid or minimize any potential prejudice to [ the
other party]”).
27
that the conduct was “intentional or malicious,”144 the conduct must be “tested under
the standard of recklessness, i.e., a conscious indifference for the rights of others.”145
Recklessness requires two elements.146 First is the act itself.147 The second
element is “crucial” and “involves the “actor’s state of mind and the issue of
foreseeability, or the perception the actor had or should have had of the risk of harm
which the conduct would create.”148 Further, “[w]here the claim of recklessness is
based on an error of judgment, a form of passive negligence, the plaintiff's burden is
substantial” and “[i]t must be shown that the precise harm which eventuated must
have been reasonably apparent but consciously ignored in the formulation of the
judgment.”149 “The penal aspect and public policy considerations which justify the
imposition of punitive damages require that they be imposed only after a close
examination of whether the defendant's conduct is ‘outrageous,’ because of ‘evil
motive’ or ‘reckless indifference to the rights of others.’”150
Here, both parties participated in an exhaustive discovery process. There were
a multitude of depositions and exhibits provided to this Court. The parties were
given an opportunity to cross-examine the witnesses during depositions and test their
knowledge regarding DSU’s “formulation of . . . judgment”151 in planning
Homecoming. The Court has carefully reviewed all submissions from the parties.
144
Jardel, 523 A.2d at 530.
145
Id.146
Id.147
Id. In Jardel, the “act itself” was “the decision to provide limited security in areas to which the
public has been invited,” which mirrors DSU’s conduct in this case. Id.148
Id.149
Id. at 531; see also id. (“In this case, Jardel might reasonably have been on notice concerning
the incidents of general criminal conduct occurring in its parking lot. But no incident approaching
the magnitude of the kidnapping and rape of the plaintiff had been reported in the thirteen months
of the Globe contract. Even those incidents which might be deemed assaultive pale in comparison
with the attack on the plaintiff.”).
150
Id. at 529 (citing Restatement (Second) of Torts § 908, cmt. b (1979)).
151
Id. at 531.
28
Upon review, it is clear to the Court that neither party contends that DSU’s conduct
was “intentional or malicious.”152 Instead, this is a case of an “error of judgment”153
on DSU’s part regarding security procedures and planning that arguably allowed
Ligon’s entry by vehicle into the Plots and the resulting injuries to Plaintiffs.
Therefore, the test for punitive damages is a recklessness standard, and the Court
will look to whether the two elements, as identified in Jardel, are met.
First, the Court finds that the decision not to assign DSUP officers to the Plots,
along with the decision not to erect barriers to entry on University Drive, are
sufficient acts to satisfy the first element.154 However, the second element is not
met.155 In this case, DSU might reasonably have been on notice concerning the
density of people that congregate in the Plots during Homecoming. In addition, DSU
might reasonably have been on notice that there existed a potential for harm to occur.
However, no incident approaching the magnitude of what occurred on October 24,
2015, had occurred on the Plots prior to Homecoming. Indeed, there is no evidence
that there had been any vehicular accident involving pedestrians in the grassy area
of the Plots prior to October 2015. The “precise harm”156 of a runaway vehicle’s
causing injury to multiple pedestrians was neither reasonably apparent nor
consciously ignored by DSU in the formulation of the judgment in question, 157 i.e.,
the decisions not to assign officers to the Plots and not to erect vehicular barriers.
152
Moore’s Answering Br. at 33 (“Here, plaintiff does not contend that DSU’s conduct was
intentional or malicious.”) (adopted by McNeal and Spriggs).
153
Jardel, 523 A.2d at 531; but see Moore’s Answering Br. at 34 (contending that DSU not only
made an “error in judgment” but “displayed conscious indifference to the safety of [visitors].”
154
Compare Jardel, 523 A.2d at 530 (finding the act, “the decision to provide limited security in
areas to which the public has been invited,” to satisfy the first element.)
155
Compare id. at 531 (“It may have been an error in judgment, and thus negligence, for Jardel
not to opt for a larger security force, but it can hardly be said that Jardel turned its back on a known
risk.”).
156
Id.157
Id.29
Again, there is simply no evidence in the record that DSU, in making its decisions,
consciously ignored a “known risk” of the precise harm that ultimately occurred.158
VI. CONCLUSION
For the reasons discussed above, DSU’s Motion for Summary Judgment is
DENIED IN PART and GRANTED IN PART:
I. DSU’s motion for summary judgment on Plaintiffs’ negligence claims and,
by extension, on Ligon’s cross-claims and third-party claims deriving from
the claims of all plaintiffs, is DENIED.
II. DSU’s motion for summary judgment on the issue of Ligon’s negligence,
for the purpose of collateral estoppel, is GRANTED.159
III. DSU’s motion for summary judgment to find, as a matter of law, that DSU
is not liable for punitive damages is GRANTED.
IV. DSU’s motion for summary judgment to dispose of any contract claims
against it regarding this case is GRANTED.160
IT IS SO ORDERED.
/s/Noel Eason Primos
Judge
NEP/wjs
Via File & ServeXpress
Oc: Prothonotary
Counsel of Record
158
Id.159
This ruling, as the law of the case, applies to (and therefore benefits) both DSU and all of the
plaintiffs.
160
See supra note 59.
30