Petit v. Tri-State Wholesale Flooring

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CARMELLE PETIT, Individually )
and as Administrator of the Estate )
of JEAN PIERRE PETIT; ) C.A. No. N23C-04-095 FJJ
MARQUIS PETIT; JULIEN PETIT; )
and JANIQUE BAIRD )
Plaintiffs, ) JURY TRIAL of 12 DEMANDED
)
v. )
)
TRI-STATE WHOLESALE )
FLOORING, LLC; and ALL )
SURFACES, INC. )
Defendants. )
Submitted: September 30, 2024
Decided: October 21, 2024
OPINION AND ORDER
On Plaintiff’s Motion for Partial Summary Judgment
DENIED
Andrew C. Dalton, Esquire, and Bartholomew J. Dalton, Esquire, Dalton &
Associates, P.A., Cool Spring Meeting House, 1106 West Tenth Street,
Wilmington, Delaware, Attorneys for Plaintiffs.
W. Mark Lanier, Esquire, and Judson Waltman, Esquire, 10940 W. Sam Houston
Parkway N., Suite 100, Houston, Texas, Of Counsels for Plaintiffs.
Sarah B. Cole, Esquire, Marshall Dennehy P.C., 1007 N. Orange Street, Suite 600,
Wilmington, Delaware, Attorney for Defendants.
Jones, J.
INTRODUCTION
Carmelle Petit and her three children, Marquis Petit, Julien Petit, and Janique
Baird (“Plaintiffs”) filed the instant Motion for Partial Summary Judgment based on
the wrongful death and survival actions accruing from their husband and father, Jean
Pierre Petit’s, death. Plaintiffs allege Tri-State Wholesale Flooring, LLC and All
Surfaces, Inc., (“Tri-State” or “Defendants”) are vicariously liable for their driver,
Mark Akkerman’s, negligence in allegedly striking and ultimately killing Mr. Petit
while on the job. Tri-State filed a Response in Opposition, and Plaintiffs filed a
Reply. This is the Court’s decision on the instant Motion.
FACTS
On the morning of June 9, 2022, at 11:54 am, Mr. Petit was allegedly hit and
killed by Defendant’s employee, Mark Akkerman, while operating Defendant’s
delivery truck on Interstate-29 (“I-29”) outside of Watertown, South Dakota. 1 Mr.
Petit was cycling southbound on I-29 as a portion of his planned 1,350 kilometer
bike ride to raise money for his sick granddaughter.2 On the day of the accident, Mr.
Petit was wearing a helmet as well as black and gray colored gear. 3 His bike had a
flashing light attached under the seat, and he was wearing a red backpack with a
reflective arch and white writing. 4 Mr. Akkerman was operating a Tri-State truck in
1
Docket Item (“D.I.”) 104 at p.2; D.I. 107 at p.1.
2
Id. at p. 3.
3
D.I. 107 at p. 2-3.
4
D.I. 107, Ex.1 at 65:4-10, 86:8-9.
2
his employment capacity at the time of the accident.5 He was driving southbound,
the same direction as Mr. Petit, and he states that he could not see Mr. Petit leading
up to and at the time of the accident.6
Several witnesses saw Mr. Petit cycling on or near the fog line of I-29’s
shoulder the morning of the accident and gave deposition testimonies expressing the
concern they had when they saw Mr. Petit cycling on I-29.7 South Dakota Highway
Patrol Sergeant Chris Linder witnessed the accident from the northbound side of I-
29 and was the first to respond to the scene. South Dakota Highway Patrol Trooper
Evan Schoenefeld arrived later and prepared the accident report.8
CHOICE OF LAW
The accident initiating this case occurred in South Dakota. The parties agree
that South Dakota substantive law applies to this case, and this Court will so apply
it. The general rule is to apply procedural law of the forum.9 In the instant case, the
forum is Delaware; therefore, Delaware procedural law is applicable.
STANDARD OF REVIEW
Superior Court Civil Rule 56(c) states a party seeking summary judgment
must show “there is no genuine issue as to any material fact and that the moving
5
Id. at 7.
6
D.I. 107 at 107:1-6.
7
D.I. 107, at p. 3-7.
8
D.I. 104, at p. 3-7; D.I. 107 at p. 5-6.
9
Chaplake Holings, Ltd. v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001).
3
party is entitled to a judgment as a matter of law.”10 The court views the evidence
provided “in a light most favorable to the non-moving party.”11 The initial burden
is on the moving party to show there are no genuine issues of material fact. 12 The
burden then shifts to the non-moving party to show there is at least one material issue
of fact in dispute.13 The court must consider “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any,” in
determining whether there is a genuine issue as to any material fact, and the court
must “accept all undisputed factual assertions and accept the nonmoving party’s
version of any disputed facts.”14 However, any factual inferences made in favor of
the non-moving party must be reasonable.15
ANALYSIS
Under South Dakota law, there are four elements a plaintiff must prove to
establish negligence: (1) duty, (2) breach of that duty, (3) proximate and factual
causation, and (4) actual injury. 16 Under negligence per se, a statute forms a duty.17
A person is negligent under a negligence per se theory when their violation of a
statute proximately causes the injury of someone in the statute’s protected class.18
10
Del. Super. Ct. Civ. R. 56(c).
11
Gibson v. Metro. Grp. Prop. And Casualty Ins. Co., 2017 WL 5606714, at *2 (Del. Super. Nov. 15, 2017).
12
Id.13
Id.14
Coker v. Tenney-Andrews, 2016 WL 6659500, at *2 (Del. Super. Nov. 10, 2016).
15
Smith v. Haldeman, 2012 WL 3611895, at *1 (Del. Super. Aug. 21, 2012).
16
Hanson v. Big Stone Therapies, Inc., 916 N.W.2d 151, 158 (S.D. 2018) (citing Hamilton v. Sommers, 855 N.W.2d
851, 866 (S.D. 2014)).
17
Hendrix v. Schulte, 736 N.W.2d 845, 847 (S.D. 2007).
18
Alley v. Siepman, 214 N.W.2d 7, 9 (S.D. 1974).
4
The statute becomes “the standard of care or the rule of the ordinarily careful and
prudent person.19 While the existence of a duty is generally a question of law for
the court, whether a party breached that duty is a question of fact for the jury.20 In
addition to breach, other matters of negligence and contributory negligence are
questions of fact that should not be taken from the jury unless it is a “clear case [in
which] a trial judge is justified” in doing so. 21
Breach of Duty is a Factual Question for the Jury.
A person found in violation of a statute meant to protect or benefit the injured
party has breached their duty of care established by that statute. 22 Liability under a
duty established by statute is avoidable when the violating party shows their
violation was “excusable or justified.”23 A violation is excused when the violating
party is in an emergency outside of their control and not caused by their own
misconduct or failure to act as a reasonably prudent person would in the same
emergency.24 The court must determine, in the light most favorable to the defendant,
whether sufficient evidence exists “justify[ing] a reasonable mind in concluding [the
19
Hendrix, 736 N.W.2d at 847.
20
Janis v. Nash Finch Co., 780 N.W.2d 497, 500, 504-05 (S.D. 2010) (reversing the lower court’s grant of summary
judgment because the court found the defendant-store owed the business invitee a duty of care, and whether the store
breached that duty was a question of fact for the jury.)
21
Baddou v. Hall, 756 N.W.3d 554, 562 (quoting Steffen v. Schwan’s Sales Enters., Inc., 713 N.W.2d 614, 622 (S.D.
2006)).
22
Id.23
Albers v. Ottenbacher, 116 N.W.2d 529, 531 (S.D. 1962).
24
See, e.g., Id. (denying to extend the question of legal excuse as a question of fact for the jury because the
defendant failed to provide sufficient evidence that their failure to maintain working brakes was an excusable
violation.)
5
defendant’s] statutory violation was excused,” and whether sufficient evidence
warrants the question of legal excuse be submitted to the jury. 25 There are four
scenarios that excuse the violation of a safety statute:
(1) Anything that would make compliance with the statute
impossible;
(2) Anything over which the driver has no control which
place his car in a position violative of the statute;
(3) An emergency not of the driver’s own making by
reason of which he fails to observe the statute; and
(4) An excuse specifically provided by statute.” 26
Plaintiffs contend summary judgment is proper for the instant case because
Mr. Akkerman breached the duty of care he owed to Mr. Petit under South Dakota
Codified Laws § 32-36-26.1. This statue provides:
The driver of any motor vehicle overtaking a bicycle
proceeding in the same direction shall allow a minimum .
. . of six feet separation if the posted limit is greater than
thirty-five miles per hour . . . The driver of the motor
vehicle shall maintain that separation until safety past the
overtaken bicycle.27
The Court agrees that this statute establishes a duty for Mr. Akkerman to maintain
six feet of separation when he is overtaking a biker on any roadway 28 in South
Dakota, and further, it is not disputed that Mr. Petit is a member of the class meant
25
Id. at 533; Dartt v. Berghorst, 484 N.W.2d 891, 895-96 (S.D.1992) (holding there was insufficient evidence
supporting defendant’s statutory violation was due to a “sudden emergency,” and, therefore, the question of legal
excuse should not have been submitted to the jury.)
26
Dartt, 484 N.W.2d at 896.
27
S.D. Codified Laws § 32-36-26.1.
28
Roadway is “portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the
berm or shoulder.” S.D. Codified Laws § 32-14-1(27).
6
to be protected by this statute. Compliance with this statute includes a duty to
maintain continuous awareness of who and what is on the road ahead. The Court in
Wilson discusses the impact of visibility on duty. Applying a spectrum of extremes
to visibility, the Court states on one end “an object is so well camouflaged as not to
be discernible within the range of a driver’s vision,” thus excusing the driver from
the duty of seeing it.29 On the other end of the spectrum, a driver’s duty is likely not
excused when “lights or other devices [are] readily apparent to” the driver. 30 In the
middle of the spectrum lie the scenarios in which the Court cannot determine the
driver’s visibility, and it is up to the jury to make the determination.31
The evidence does not establish a clear statutory violation by Mr. Akkerman.
There is dispute over whether Mr. Akkerman was able to see Mr. Petit’s bicycle
leading up to and during the accident, or whether the circumstances made it
impossible, thus creating a justifiable statutory violation. Mr. Akkerman gave
deposition testimony that he did not see Mr. Petit’s bicycle before the collision.32
Other deposition testimonies given by witness drivers Mark Jonas, Gene Schuler,
and Bradey Swenson varies on how far away they could see Mr. Petit’s bicycle.33
29
Wilson v. Great N. Ry. Co., 157 N.W.2d 19, 22-23 (citing Dwyer v. Christensen, 75 N.W.2d 650, 654 (S.D. 1956).
30
Id.31
Id.32
D.I. 104, Ex. 5, at 107:3-6.
33
See D.I. 107, Ex. 3 at 7:6-9, 24:22-25, 25:1 (testifying that he could see J.P.’s bicycle “roughly a half a mile
away,” however, if the roadway had been flat where he saw J.P. he could have been him “a mile and a half ahead”);
Ex. 4 at 16:2-15 (testifying that he could not see J.P. “until it [was] almost too late”); Ex. 5 at 8:2-5, 9:1-5 (testifying
that he first saw J.P. when his car was “maybe 100 feet, a couple hundred feet” away).
7
The disputed testimonies should be considered and weighed by a jury to come to
conclusions on the questions of fact presented by this case. In determining whether
Mr. Akkerman breached his duty of care to Mr. Petit, a jury must decide whether
they believe Mr. Akkerman was able to see Mr. Petit on his bicycle so that Mr.
Akkerman could properly follow the six feet of separation statutory requirement, or
whether they believe there were conditions in place that made it impossible for Mr.
Akkerman to see Mr. Petit and, thus, justify a statutory violation.
Whether Mr. Petit Was Contributorily Negligent is a Question of Fact for the Jury.
South Dakota follows a comparative negligence theory under which a
plaintiff’s contributory negligence that is “slight in comparison” with the
defendant’s negligence does not bar the plaintiff’s recovery.34 “Slight” means
“small in quantum in comparison with the negligence of the defendant.” 35 Whether
a plaintiff’s negligence is “slight in comparison” to the defendant’s negligence is a
question of fact “var[ying] with the facts and circumstances of each case” to be put
in front of a jury. 36
It is well established in South Dakota case law that questions pertaining to
contributory negligence are questions for the trier of fact – the jury.37 Plaintiffs cite
34
S.D. Codified Laws § 20-9-2. If applicable, the plaintiff’s damages will be “reduced in proportion to the amount
of the plaintiff’s contributory negligence.” Id.35
Estate of He Crow by He Crow v. Jensen, 494 N.W.2d 186, 188 (S.D. 1992) (citing Crab v. Wade, 167 N.W.2d
546, 549 (S.D. 1969); Estate of Largent v. United States, 910 F.2d 497, 499 (8th Cir. 1990)).
36
Estate of He Crow, 494 N.W.2d at 188.
37
See Johnson v. Armfield, 672 N.W.2d 478, 481 (S.D. 2003) (“As long as there is competent evidence to support
the theory of contributory negligence, it is proper for the issue to go to the jury.”); Wood v. City of Crooks, 559
8
to Johnson v. Armfield in which the South Dakota Supreme Court held there was not
enough evidence to put contributory negligence before the jury. 38 The basis for
contributory negligence was the defendant’s “bare assertion” that the plaintiff must
have been speeding for the accident to occur. 39 The Court noted this assertion was
not supported by any evidence, expert testimony, nor a speeding citation.40 Johnson
differs from the case at hand because there is sufficient testimony from Defendants
amounting to more than just “bare assertions” that warrants putting the contributory
negligence factual questions in front of the jury. Plaintiffs’ argument indicates that
Mr. Petit cannot be contributorily negligent because, like the plaintiff in Johnson, he
did not receive a citation from the accident.41 However, receiving or paying a
citation does not itself establish negligence per se.42
Two South Dakota statutes establish Mr. Petit’s duty as a bicyclist cycling on
I-29. First, § 32-20B-5 requires “any person operating a bicycle upon a roadway at
less than the normal speed of traffic at the time and place and under the conditions
then existing shall ride as close as practicable to the right-hand curb or edge of the
N.W.2d 558, 560-61 (S.D. 1997) (holding whether defendant was contributorily negligent was a question of fact for
the jury, and whether defendant’s contributory negligence was “more than slight” is only a question of law when the
facts supporting such an assertion are “beyond dispute”); Estate of He Crow, 494 N.W.2d at 189-90 (holding
questions surrounding contributory negligence, specifically those considering driver visibility, should be submitted
to and decided by the jury).
38
Johnson, 672 N.W.2d at 481-82.
39
Id. at 482.
40
Id.
41
D.I. 107, at p. 12-13.
42
Nicolay v. Stukel, 900 N.W.2d 71, 79 (S.D. 2017) (holding defendant paying a traffic citation does not establish
negligence per se when there are still questions of defendant’s reasonableness to be left to the jury).
9
roadway.”43 Plaintiffs argue the material fact that “Mr. Petit was riding his bicycle
near the edge of the roadway in accordance with South Dakota law” is not in
dispute.44 However, based on Defendant’s arguments and cited testimony, where
Mr. Petit was riding his bicycle at the time of the accident is a fact in dispute and
should be left to the jury to decide. The deposition testimonies of witness drivers,
Gene Schuler, Bradey Swenson, and Shannon Binsfeld provide that Mr. Petit was
cycling on or near the fog line at the various times they witnessed him on I-29.45
Trooper Schoenefeld’s report states that, based on Sergeant Lindner’s camera
footage of the accident “it cannot be determined where Mr. Petit is riding his bicycle
when he is struck.”46 Trooper Schoenefeld relies on witness statements and
inferences that it would be difficult for Mr. Petit to cycle over the “rumble strips” to
conclude in his report that Mr. Petit was not in violation of § 32-20B-5.47 However,
he ultimately defers the determination to the Deuel County State Attorney’s office.48
The second relevant statute, § 32-17-25, states:
Every bicycle shall be equipped with a lighted lamp on the
front thereof visible under normal atmospheric conditions
from a distance of at least three hundred feet in front of
such bicycle and shall also be equipped with a reflex
mirror or lamp on the rear exhibiting a yellow or red light
43
S.D. Codified Laws § 32-20B-5.
44
D.I. 104.
45
D.I. 104, Ex. 4 at 9:1 (testifying that J.P. was “right on the fog line”); D.I 107, Ex. 5 at 10:1-3 (testifying that J.P.
was “really close to the driving lane . . . if not on the line); Ex. 7 at 13:12 (testifying that J.P. was “riding on the fog
line).
46
D.I. 104, Ex. 2 at p. 3.
47
Id. at p. 4-5.
48
Id. at 5.
10
visible under like conditions from a distance of at least two
hundred feet to the rear of such bicycle.”49
According to Trooper Schoenefeld’s report and Carmelle Petit’s deposition
testimony, Mr. Petit’s bike was equipped with a battery-operated, rear light, and his
backpack had a reflector around the arch. 50 However, witness drivers Mark Jonas
and Gene Schuler testified that they could not see a light or mirrors on Mr. Petit’s
bicycle.51
Whether Mr. Petit was contributorily negligent based on a violation of one or
both statutes, and if so, whether his negligence was slight in comparison to Mr.
Akkerman’s, are questions that should be left to the jury to decide after careful
consideration of the evidence.
CONCLUSION
Viewing the facts in a light most favorable to Defendants, there is a genuine
dispute of material facts. There are fact questions pertaining to whether Mr.
Akkerman and/or Mr. Petit breached their duties established by the relevant South
Dakota statutes. These questions should be put before a jury to consider. For the
stated reasons, Plaintiff’s Motion for Partial Summary Judgment is DENIED.
IT IS SO ORDERED this day 21st of October, 2024.
49
S.D. Codified Laws § 32-17-25.
50
D.I. 104, Ex. 2 at p.3; D.I.107, Ex. 1 at 61:12-24, 62:1-23.
51
D.I. 107, Ex. 3 at 16:9-21; Ex. 4 at 14:14-20.
11
/s/ Francis J. Jones, Jr.
Francis J. Jones Jr., Judge
cc: Original to the Prothonotary
12