IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMES DEAN WALTON, SR.,
LINDA JANE MCGEE, KENDRA
ADAIR as personal representative for
the estate of JAMES D. WALTON, JR.,
and KENNETH A. BRYANT, III
as personal representative for the
estate of RICHARD GREGORY
CHITTICK,
C.A. No. N18C-04-314 FWW
Plaintiffs,
Vv.
ROGER LOUIE COLE,
Defendant.
Nee nee ee ee” ee ee” ee’ ee” ee” Ne” ee” ee” ee ee” ee’ ee” ee” Se”
Submitted: May 6, 2022
Decided: May 10, 2022
Upon Defendant’s Motion for Partial Summary Judgment
GRANTED.
ORDER
Lawrance Spiller Kimmel, Esquire, Brian S. Legum, Esquire, KIMMEL,
CARTER, ROMAN, PELTZ & O’NEILL, P.A., 56 W. Main St. Fourth Floor,
Newark, DE, 19702, Attorneys for Plaintiffs.
Daniel P. Bennett, Esquire, MINTZER, SAROWITZ, ZERIS, LEDVA &
MEYERS, LLP, 919 North Market Street, Suite 200, Wilmington, DE, 19801,
Attorney for Defendant.
WHARTON, J.
This 10" day of May 2022, upon consideration of Defendant Roger Louie
Cole’s (“Cole”) Motion for Partial Summary Judgment’ (“Motion”); the Response
of Plaintiffs James Dean Walton, Sr. (“Walton, Sr.””), Linda Jane McGee (“McGee”),
Kendra Adair (“Adair”), and Kenneth Bryant, III (“Bryant”),” the latter two as
personal representatives for the estates of James D. Walton, Jr. (“Walton, Jr.”), and
Richard Gregory Chittick (“Chittick”), respectively (collectively “Plaintiffs”); and
the parties’ supplemental memoranda and expert reports as ordered by the Court,’ it
appears to the Court that:
1. On April 30, 2018, Plaintiffs brought this wrongful death action against
Cole.’ Plaintiffs claim that Cole operated a motor vehicle in a negligent, reckless,
and/or careless manner resulting in the deaths of Walton, Jr. and Chittick
(“Decedents”).° For purposes of this motion, it is sufficient to say that Walton, Jr.
and Chittick died simultaneously when they were struck by a vehicle operated by
Cole. A fuller exposition of the facts is found in this Court’s Opinion on Cole’s
Motion for Summary Judgment.®
! Def.’s Mot. for Part. Summ. J., D.I. 64.
* Pls’. Resp to Def.’s Mot. for Part. Summ. J., D.I. 70.
3D.I. 76 (Pls.); D.I. 77 (Def.).
4 Compl., at 1, D.I. 1.
> Id.
62020 WL 4784599 (Del. Super. 2020).
2
3. On January 20, 2022, Cole moved for partial summary judgment on the
issue of pre-impact fright and terror.’ Specifically, Cole argues that any pre-impact
apprehension each decedent may have suffered as a result of anticipating the impact
was unaccompanied by any physical injury resulting from that apprehension. Thus,
Plaintiffs may not recover for the decedents’ emotional distress due to fear of the
impact.®
4. Plaintiffs responded on February 18, 2022.2 They argue that the
evidence will show that both decedents attempted to take evasive action which is
clearly depicted on video footage. They maintain that both decedents sustained pre-
impact injuries as evidenced by the video and confirmed by their medical expert
witness, Dr. Ian Hood.!°
5. Cole requested oral argument because he felt that Plaintiffs had
misconstrued the Motion.!! The Court held oral argument on April 8, 2022. At
argument, it became clear that the parties were not in substantial disagreement about
the law. That is, in order to be compensable, any emotional distress brought on by
the apprehension of danger must be accompanied by physical consequences caused
7 Def’s. Mot. for Part. Summ. J., D.I. 64.
8 Td.
° Pls.’ Resp. Mot. for Part. Summ. J., D.I. 70.
10 Td.
" Def.’s Letter, D.I. 72.
2D. 74.
by that apprehension. The Court granted leave to thew Plaintiffs to supplement their
expert’s report to address that issue as well as to provide any additional argument.
Cole was given the opportunity to respond in kind. The Court has received the
parties’ supplemental submissions.
6. Plaintiffs cite Mergenthaler v. Asbestos Corp. of America for the
proposition that “in any claim for mental anguish...an essential element of the claim
is that the claimant have a present physical injury.”'? Mergenthaler, in turn quotes
Robb v. Pennsylvania R. Co., which held, “where negligence proximately causes
fright... which in turn produced physical consequences...the injured party is entitled
to recover.”!4 Evidence of such physical consequences will be offered by Plaintiff's
medical expert Dr. Hood who will testify that, upon seeing Cole’s Suburban speed
in their direction, Walton, Jr. and Chittick “experienced the physical response to a
‘sudden adrenaline surge’ which was accompanied by a ‘drop in heart rate, then
significant tachycardia,’ along with other notable physiological
responses. ..manifested through symptoms of chest pain, weakness and shortness of
breath.”'5 According to Plaintiffs these physical manifestations are in line with the
13 480 A.2d 647, 651 (Del. 1984).
14910 A.2d 709 (Del. 1965).
ISD I. 76.
physical consequences required by Robb and present a genuine issue of material fact
to be decided by the jury."
7. Inresponse, Cole relies on the original opinion of his medical expert, Dr.
Wayne Ross, which Dr. Ross confirmed in Cole’s rebuttal submission, that there is
no evidence that either Walton, Jr., or Chittick suffered any physical injury prior to
the time of impact by the Suburban.!’ Cole argues that Dr. Hood does not challenge
Dr. Ross’ conclusion that neither decedent suffered a physical injury.'® Rather Dr.
Hood describes only physiological responses to the impending impact rather than
physical injuries.'!? Cole contends that such physiological responses are insufficient
to maintain a claim for pre-impact fear and terror.”°
8. Super. Ct. Civ. R. 56(c) provides that summary judgment is appropriate
where there is “no genuine issue as to any material fact...and the moving party is
entitled to a judgment as a matter of law.””!_ The moving party initially bears the
burden of establishing both of these elements; if there is such a showing, the burden
shifts to the non-moving party to show that there are material issues of fact for
resolution by the ultimate fact-finder.2? The Court considers the “pleadings,
16 Td.
"DI. 77.
18 Td.
19 Td.
20 Td.
21 Del. Super. Ct. Civ. R. 56(c).
22 See, More v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citations omitted).
5
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any” in determining whether to grant summary judgment.”> Summary
judgment will be appropriate only when, upon viewing all of the evidence in the
light most favorable to the non-moving party, the Court finds that there is no genuine
issue of material fact24 When material facts are in dispute, or “it seems desirable to
inquire more thoroughly into facts to clarify the application of the law to the
circumstances, summary judgment will not be appropriate.” However, when the
facts permit a reasonable person to draw but one inference, the question becomes
one for decision as a matter of law.”°
9. The Court accepts that it is likely that both Walton, Jr. and Chittick may
have experienced adrenaline rushes that likely caused symptoms of tachycardia and
other notable physiological responses. That much is not in dispute. The question
for the Court is what degree of physical consequence resulting from apprehending
the impact of the Suburban is sufficient the sustain a claim for pre-impact mental
distress. In other words: are physiological responses enough? Or is physical injury
required? The Court holds that physical injury is required and mere physiological
23 Del. Super. Ct. Civ. R. 56(c).
24 Singletarry v. Amer. Dept, Ins. Co., 2011 WL 607017 at *2 (Del. Super. 2011)
(citing Gill v. Nationwide Mut. Inc. Co., 1994 WL 150902 at *2 (Del. Super 1994)).
25 Ebersole v. Lowengrub, 180 A.2d 467, 468-69, (Del. 1962) (citing Knapp v.
Kinsey, 249 F.2d 797 (6 Cir. 1957).
26 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
6
responses are not enough. In Robb, the Court noted that “it is accepted as settled
that there can be no recovery for fright alone, not leading to bodily injury or sickness,
arising from the negligence of another.””” Plaintiffs rely on language from Robb to
the effect that a party is entitled to recover where fright produces “physical
consequences.””8 But Robb held that the physical consequences need to be “such as
would be elements of damage if a bodily injury had been suffered...Otherwise
stated, where results, which are regarded as proper elements of recovery as a
consequence of physical injury, are proximately caused by fright due to negligence,
recovery by one in the immediate zone of physical risk should be permitted.””?
Mergenthaler reinforces this conclusion. Mergenthaler held that “an essential
element of the claim [for mental anguish] is that the claimant have a present physical
injury.”°° The physical consequences cited by Plaintiffs — a sudden adrenaline surge
accompanied by a drop in heart rate, then significant tachycardia and other notable
psychological responses — are fleeting responses too “transitory” to constitute
physical injury.*! A physical injury claim based on those physical manifestations of
the fright experienced by the decedents would be insufficient to justify a recovery.
27 Robb, at 711.
28 DI. 74 (quoting Robb, at 715).
2° Robb, at 715.
30 Mergenthaler, at 651.
31 See, Cooke v. Pizza Hut, Inc., 1994 WL 680051, at *3 (Del. Super. Ct. 1994).
7
THEREFORE, Defendant Roger Cole’s Motion to for Partial Summary
Judgment is GRANTED.
IT IS SO ORDERED.
Ferris W. Wharton, J.