Hinchez v. Delmarva Power & Light Company

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEYANARA MOJICA HICHEZ, ) Individually and as Personal ) Representative of the Estate of RAFAEL ) MENA PEREZ, her Husband, and as ) parent and next friend of their minor ) children, L. M. M., D. M. M. and D. M. ) C.A. No. N19C-10-273 M., ) KMM ) Plaintiffs, ) ) v. ) ) DELMARVA POWER & LIGHT ) COMPANY, PEPCO HOLDINGS, LLC, ) ASPLUNDH TREE EXPERT CO., ) ASPLUNDH TREE EXPERT, LLC, ) VERIZON DELAWARE, LLC, and ) COMCAST OF DELMARVA, LLC, ) ) Defendants. )

Date submitted: June 12, 2026 Date decided: July 24, 2026

Order on Motion for Reargument—punitive damages

Defendants Delmarva Power & Light Company (“Delmarva”), Verizon

Delaware, LLC (“Verizon”), and Comcast of Delmarva, LLC (“Comcast” and

collectively “Defendants”) moved for summary judgment on Plaintiffs’ claim for

punitive damages. After oral argument, the Court granted the motion. Plaintiffs filed a Motion for Reargument1 (the “Motion”). For the reasons discussed below,

the Motion is DENIED.

Background

1. Rafael Mena Perez was employed by a tree trimming company, which

was hired by Delmarva to trim a tree around its electrical lines. Mr. Mena Perez was

one of the crew members assigned to trim the subject tree on August 2, 2018. While

Mr. Mena Perez was in the tree, he was electrocuted and died. Plaintiffs’ theory is

that due to Defendants’ failures for years to maintain the vegetation around the lines

and maintain the poles to which the lines were attached, in a wind gust, the electrical

line swung and hit the tree, electrifying it and electrocuting Mr. Mena Perez.

2. Plaintiffs—Mr. Mena Perez’s estate and family—filed this action

against Delmarva, Verizon, and Comcast. Plaintiffs’ claims center on Defendants’

alleged failure to properly maintain their equipment and failure to warn of hazards.

3. After the close of discovery, Defendants moved for summary judgment

on multiple grounds, including on Plaintiffs’ claim for punitive damages. Plaintiffs

opposed the motion arguing that they developed a factual record sufficient to submit

the question of punitive damages to a jury based on the Defendants’ failure to

properly maintain and inspect their respective electrical and communication lines

and years of failing to maintain the vegetation around those lines.

1 D.I. 558. 2 4. Defendants countered that the record supported a finding of only

passive negligence, at best, which required Plaintiffs to overcome a substantial

burden for the punitive damages claim to survive. Defendants contended that the

record, viewed in the light most favorable to Plaintiffs, did not overcome that

substantial burden, and accordingly they were entitled to summary judgment.

5. The Court issued its oral ruling on punitive damages on May 22, 2026

(the “Ruling”).2 Noting that for purposes of this motion, Defendants accepted

Plaintiffs’ factual premise regarding how the injury occurred and Defendants’

actions or inactions. The Court addressed the allegations against each Defendant

and found that the record did not support a finding of conscious disregard or an “I

don’t care” attitude and granted summary judgment in Defendants’ favor. Plaintiffs

filed the Motion.

Legal Standards

6. The standard for a motion for reargument under Rule 59(e) is well-

settled in Delaware. The moving party bears a “heavy burden” to demonstrate that

“the Court has overlooked a controlling precedent or legal principles, or the Court

has misapprehended the law or facts such as would have changed the outcome of the

2 D.I. 548. At the request of Plaintiffs, the Court issued a letter opinion reflecting the oral ruling. D.I. 555. 3 underlying decision.”3 A motion for reargument is not for raising new arguments

(or “stringing out the length of time for making an argument”) or rehashing

arguments previously made. 4 “Such tactics frustrate the efficient use of judicial

resources, place the opposing party in an unfair position, and stymie ‘the orderly

process of reaching closure on the issues.’”5

7. “The availability of punitive damages turns on whether

Plaintiff[s]…established a prima facie case that [Defendants] exhibited a willful and

wanton disregard for the safety of others.” 6 “For a defendant’s conduct to be found

willful or wanton, the conduct must reflect a ‘conscious indifference’ or ‘I don’t

care’ attitude.”7 “Without ‘evidence of egregious conduct of an intentional or

reckless nature’” a claim for punitive damages cannot survive. 8 “Where the

claim…is based on an error of judgment, a form of passive negligence, the plaintiff’s

burden is substantial. It must be shown that the precise harm which eventuated must

have been reasonably apparent but consciously ignored in the formulation of the

3 Bd. Of Managers of the Del. Crim. Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003); Milton v. Alfred I. duPont Hospital for Children, 2024 WL 4524850, at *1 (Del. Super. Oct. 17, 2024). 4 Bd. Of Managers, 2003 WL 1579170, at *1; Feenix Payment Sys., LLC v. Blum, 2024 WL 3424038, at *1 (Del. Super. July 16, 2024); Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006). 5 Feenix, 2024 WL 3424038, at *1 (quoting Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Jan. 14, 2004)). 6 Estate of Rae v. Murphy, 956 A.2d 1266, 1270 (Del. 2008) (cleaned up). 7 Porter v. Turner, 954 A.2d 308, 312 (Del. 2008) (cleaned up). 8 Marydale Pres. Assocs., LLC v. Leon N. Weiner & Assocs., Inc., 2022 WL 4446275, at *16 (Del. Super. Sept. 23, 2022). 4 judgment.”9 Therefore, “it is not enough that a decision be wrong. It must result

from a conscious indifference to the decision’s foreseeable effect.” 10

Analysis

Delmarva

8. Plaintiffs contend that the Court misapprehended the facts and the law.

Plaintiffs argued that Delmarva was required by the National Electrical Safety Code

(“NESC”), and applicable standards, to inspect the area around its lines at least every

four years and maintain the vegetation, but it failed to do so for many years.11 It also

failed to inspect the utility poles to which the lines were attached, which were over

60 years old and were rotting, with the top of one pole becoming detached.

Delmarva knew electrical lines are dangerous and that this particular line had

previously “repeated[ly come] in contact” with the tree, creating a hazard.

Delmarva’s only response was to do a “little bit” of trimming around the wire.

Delmarva also knew that on prior occasions the condition of the electrical line caused

an arcing, resulting in sparks coming from the line. Plaintiffs’ experts opined that

the tree had not been properly inspected or trimmed for at least 15 years.12

9 Jardel Co., Inc. v. Hughes, 523 A.2d 518, 531 (Del. 1987). 10 Id. at 529. 11 Plaintiffs incorporate their arguments from their summary judgment brief into the Motion. Motion at 1, 7-8. Those argument have already been considered and rejected. The Court will not address those arguments again. 12 Motion at 4-5. 5 9. Plaintiffs contend that Delmarva could have deenergized the line or

warn the tree trimmers of the dangers in working around this tree. They argue that

this is not an error of judgment, but a conscience indifference and a deliberate choice

to ignore its legal obligations, creating a known hazard to the tree trimmers and the

residents in the neighborhood. Plaintiffs assert that the Court found this negligence

was “passive” which prevented punitive damages as a matter of law.13 Plaintiffs

argue that the Court misconstrued the ruling in Jardel v. Hughes. 14

10. Defendants respond that the Motion is simply a rehashing of Plaintiffs’

arguments in the summary judgment phase. They contend that the Motion offers no

new evidence or any viable argument that the Court misapprehended the facts or

misapplied the law.

11. In the Ruling, the Court examined Porter v. Turner 15 and Roberts v.

Delmarva Power & Light Co.16 In Porter, the Supreme Court upheld a jury’s award

of punitive damages where the evidence established that a driver of a tractor-trailer,

when faced with a red light for eight seconds, decided to accelerate through the

intersection, subsequently hitting and killing plaintiff.17 The Porter court concluded

that because the driver had been faced with the red-light for so long yet still

13 Motion at 6. 14 523 A.2d 518 (Del. 1987). 15 954 A.2d 308 (Del. 2008). 16 2 A.3d 131 (Del. Super. 2009). 17 Porter v. Turner, 954 A.2d 308, 312 (Del. 2008). 6 accelerated through the intersection, a jury could reasonably find that the driver

displayed a conscious indifference to the safety of others.18

12. In Roberts, a manager of a Delaware regional airport noticed the lights

of utility poles, that were within the airport’s runway, were out.19 After repeated

attempts to have defendants address the outage, defendants finally made repairs.20

The defendants did not test the lights to ensure they were properly working. Days

later a pilot approaching the runway crashed into an unlit utility pole and died as a

result. 21 Plaintiffs argued that defendants’ failure to inspect amounted to

wantonness. 22 The court disagreed, finding that the record only supported a finding

of mere oversight, insufficient for the question of punitive damages to proceed to the

jury.

13. In the Ruling, the Court considered Delmarva’s alleged failure to

inspect or trim the vegetation around the lines “even for a period of years.”23 The

Court also understood Plaintiffs’ position that Delmarva had a duty to inspect the

lines every four years and to maintain the vegetation, as required by the NESC and

applicable standards, and the Court accepted these arguments for purposes of the

18 Id. 19 Roberts v. Delmarva Power & Light Co., 2 A.3d 131, 135 (Del. Super. 2009). 20 Id. 21 Id. 22 Id. at 142. 23 D.I. 555 at 6. 7 summary judgment motion. The Court also considered Plaintiffs’ argument that the

condition of the lines, the poles, and the vegetation was a dangerous and serious

situation, but ruled that alone was not sufficient to rise to the level of conscious

disregard. The Motion points to no facts that the Court failed to consider in making

its Ruling. Thus, the Motion is merely rehashing arguments made during the

summary judgment phase.

14. Further, the Court did not rule that, because it found Delmarva’s

negligence to be passive and an error of judgment, punitive damages are barred as a

matter of law. Instead, the Court found that Plaintiffs did not satisfy their substantial

burden to show a factual record to support a finding of conscience indifference or an

“I don’t care” attitude.

15. Plaintiffs argue that in Porter the court found that the defendant’s

knowledge of the danger for only a few seconds was sufficient to allow punitive

damages to be submitted to the jury and here, Defendants’ failure spanned 15 to 60

years, amounting to conscience indifference. 24 “Plaintiffs do not understand how

Porter supports granting summary judgment” here.25 In contrast, Plaintiffs point to

Roberts and Estate of Rae v. Murphy,26 which found an insufficient factual basis for

24 Motion at 9. 25 Id. 26 956 A.2d 1266 (Del. 2008). 8 punitive damages, and argue that this case is not “by any measure, comparable” to

the defendant’s actions in those cases.

16. In Estate of Rae, the defendant driver, “driving slightly over the posted

speed limit, simply failed to notice the red light as he approached it.” 27 The court

found that these “facts alone [did] not elevate the culpability of his conduct from

negligence to the level of ‘conscious indifference’ or exhibit an ‘I don’t care’

attitude.”28

17. The timing of eight seconds in Porter was important to the ruling

because after facing a red light for that period of time, the defendant took the

affirmative action of driving through the red light, causing the accident. Defendants

in Roberts and Estate of Rae were accused of passive negligence. On the facts in

those cases, the court found that they did not rise to the level of conscious

indifference. While the facts in Roberts and Estate of Rae differ from the facts in

this case, that does not mean that the facts here are sufficient to sustain a claim for

punitive damages. Plaintiffs simply rehash arguments they made at summary

judgment. Plaintiffs’ disagreement with the Court on the outcome does not amount

to a misapprehension of the law.

27 956 A.2d at 1270. 28 Id. 9 18. Defendants are accused of passive negligence and after considering the

facts presented at summary judgment (including the years of failure to maintain and

inspect), the Court found that Plaintiffs did not satisfy their substantial burden. The

Court did not misapprehend or misapply the law. Accordingly, the Motion with

respect to Delmarva is DENIED.

Verizon

19. Verizon owned the poles to which the electrical and communication

lines were attached. Plaintiffs argue that the NESC applies to Verizon, which

requires inspection of the poles every 8 to 10 years.29 Plaintiffs presented evidence

that one pole was inspected once in 1999 and a second time in 2018.30 The other

pole was never properly inspected.31 This alone, Plaintiffs argue, is sufficient to

show an “I don’t care” attitude.

20. The Verizon line was in contact with the subject tree. Plaintiffs rely on

a tree trimmer’s testimony that “pressure” on a communication line can cause a

power outage. The tree trimmer also testified that if a tree branch pulls down a

communication line, it can also pull down an electrical line. Plaintiffs argue that this

establishes that Verizon knew of the hazard due to its equipment not being properly

maintained.

29 Motion at 7. 30 Id. 31 Id. 10 21. Again, the Motion merely rehashes the factual arguments Plaintiffs

made during summary judgment. The Court found that these facts did not satisfy

Plaintiffs’ substantial burden. The Motion with respect to Verizon is DENIED.

Comcast

22. Comcast’s communication lines were attached to the same utility poles.

Plaintiffs argue that Comcast admits that the NESC applies to it, but Comcast never

performed vegetation management around this tree.32 Plaintiffs again rely on the

tree trimmer’s testimony and argues that Comcast’s inaction is not a mere error of

judgment but a conscious decision.

23. The Court already considered these arguments and rejected them in the

summary judgment proceeding. The Motion with respect to Comcast is DENIED.

IT IS SO ORDERED.

/s/Kathleen M. Miller Kathleen M. Miller, Judge

32 Motion at 8. 11