IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUSTIN O’NEAL, ) ) Plaintiff, ) C.A. No. N22C-03-226 MAA ) v. ) ) ALLSTATE INSURANCE ) COMPANY, A CORPORATION, ) ) Defendant. )
Submitted: June 5, 2023 Decided: July 21, 2023
Upon Defendant’s Motion for Summary Judgment: GRANTED.
MEMORANDUM OPINION
Daulton V. Gregory, Esquire, (Argued) of MARIN & GREGORY LLC, Wilmington, Delaware, Attorney for Plaintiff.
Arthur D. Kuhl, Esquire, (Argued) of REGER RIZZO & DARNALL LLP, Newark, Delaware, Attorney for Defendant.
Adams, J.
1 INTRODUCTION
This case arises from an accident that occurred on May 17, 2021. A vehicle
driven by Jeremiah Pyfrom (“Pyfrom”) struck Plaintiff Justin O’Neal, a pedestrian,
at the intersection of U.S. Route 40 and Wilton Boulevard in New Castle, Delaware.
At the time of the accident, Plaintiff was crossing the eastbound lanes of U.S. Rt. 40
and Pyfrom was traveling in the right eastbound lane of Rt. 40.1 Pyfrom’s insurance
carrier tendered their full liability policy limits of $25,000.2 Plaintiff alleges that
Pyfrom, an underinsured motorist, operated his vehicle in a manner that was both
negligent and negligent per se.3 At the time of the accident, Plaintiff was covered
by an Allstate insurance policy.4
Allstate Insurance Company (“Defendant”) denied underinsured motorist
coverage resulting in this suit for same.5 Defendant moved for summary judgment,
asserting that there is no genuine issue of material fact that Pyfrom was not negligent
and that, even if Pyfrom was negligent, his negligence was exceeded by Plaintiff’s
1 See Compl. ¶¶ 3-4; see also infra nn. 46-56 for a detailed review of camera footage from the accident. Joshua Aiken, one of the witnesses to the accident, had a Vava dashboard camera device installed in his car that made a partial recording of Plaintiff crossing the eastbound side of Rt. 40. This recording is identified as the “Dashboard Camera footage.” 2 Id. ¶ 8. 3 Id. ¶¶ 13-19. 4 Id. ¶ 11. 5 Id. ¶ 21. 2 negligence when crossing the roadway. For the reasons that follow, Defendant’s
motion for summary judgment is GRANTED.
FACTS
I. Scene of the Accident
The accident occurred on May 17, 2021, around 8:30 PM at the intersection
of Wilton Boulevard and U.S. Rt. 40 in New Castle, Delaware.6 On the westbound
side of Rt. 40 at this location, there is a triangle-shaped traffic island at the northwest
corner of the intersection. A marked crosswalk traverses across Rt. 40 from the
westbound to eastbound lanes. The westbound side of Rt. 40 has two lanes for
through traffic. The east and westbound sides of Rt. 40 are separated by a grass
partition. The eastbound side of Rt. 40 has two left-turn only lanes and two lanes
for through traffic. The left-turn only lanes on the eastbound side are controlled by
separate traffic signals from the through lanes. The speed limit for this section of
Rt. 40 is fifty miles per hour.7 When the collision occurred between Pyfrom’s vehicle
and Plaintiff, Pyfrom was driving in the right through lane of eastbound Rt. 408 and
6 See Compl. ¶¶ 3-4 7 Deposition of Corporal Thomas Leonardi at 13:7-11 (June 1, 2023) (hereinafter “Leonardi Dep.”). 8 Collision Report at 4, Complaint No. 02-21-040280 (May 17, 2021) (Ex. E to Deposition of Thomas Leonardi) (hereinafter “Collison Report”). 3 Plaintiff was running across the portion of the crosswalk that traverses the eastbound
side of Rt. 40.9
II. Plaintiff’s Deposition Testimony10
Plaintiff testified that he was walking along Rt. 40, toward the intersection of
Wilton Blvd. and Rt. 40.11 Plaintiff was accompanied by three of his friends.12
Plaintiff testified that he and his friends were walking along Rt. 40 and stopped at
the triangle-shaped traffic island where cars could make a right-turn off of Wilton
Blvd. onto Rt. 40.13 At Plaintiff’s deposition, defense counsel asked, “how long did
you stay on that triangle area before you started to cross?” 14 Plaintiff testified in
response, “till they said it was safe.”15 Defense counsel asked Plaintiff to identify
who “they” referred to and Plaintiff testified, “my friends. They normally help me
with crossing.”16 Plaintiff testified that when he was on the traffic island, he saw the
light for Rt. 40 eastbound through traffic turn red,17 that he saw cars coming to a stop
in the eastbound through lanes,18 and that this is when he proceeded into the
9 Dashboard Camera footage. 10 Unless otherwise noted, this section is derived from Plaintiff’s deposition testimony. 11 Deposition of Justin O’Neal at 26: 7-9 (Nov. 14, 2022) (hereinafter “Pl. Dep.”). 12 Id. at 21: 23-24. 13 Id. at 26:1-9. 14 Id. at 28: 11-13. 15 Id. at 28: 14. 16 Id. at 28: 15-17. 17 Id. at 29: 7-15; 30: 1-3; 32: 21-24; 33: 1. 18 Id. at 30: 5-15. 4 intersection.19 Plaintiff testified that when he reached the grass divide separating the
westbound and eastbound lanes on Rt. 40 that he did not look to his right to see if
there were any oncoming vehicles.20
Plaintiff testified that he did not remember any cars being stopped in the left-
turn only lanes on the eastbound side of Rt. 4021 and that he did not notice that the
eastbound through lanes had green lights when he entered that side of Rt. 40.22 Two
of Plaintiff’s friends told him he was going to get hit, but his testimony regarding
his location when this warning occurred varies.23 At one point Plaintiff testified that
he had reached the right side of the left turn lanes and started running;24 later in his
deposition he testifies that he was between the left and right through lanes.25
Plaintiff testified that a car in the left through lane swerved in front of him and
avoided striking him. The driver of this vehicle was later identified as Joshua
19 Id. at 33: 4-6. 20 Id. at 40: 20-24; 41: 1-3. 21 Id. at 31: 4-6. Compare Pl. Dep. at 31: 4-6 with nn. 64-65 and accompanying text. Vivek Rehil (“Rehil”), a witness interviewed by Corporal Leonardi, stated that he was sitting stationary on eastbound Rt. 40 in the left-turn only lane at a red left-turn signal and that the traffic light for the eastbound through lanes had a green light. Collision Report at 4. Rehil stated that Plaintiff crossed diagonally through the intersection across Rt. 40. Id. 22 Id. at 68: 24; 69: 1-3. 23 Id. at 33: 19-21. 24 Id. at 33: 15-24; 34: 1-7. 25 Id. at 39: 1-8. 5 Aiken.26 The vehicle driving in the right through lane struck him.27 The driver of
the vehicle that struck Plaintiff was later identified as Pyfrom’s.28 Plaintiff described
the moment before the collision as follows: “the light was red and I started walking.
From what I see, out of nowhere it just turned green on me. And then I tried to take
off on the road to get through it. Like it was red, and then it was green when I was
halfway through. Like I was in the middle, and I just ran.”29 Plaintiff testified that
he did not look for oncoming traffic before entering into the through lanes because
when his friends told him to run he just ran.30 Plaintiff did not see that there were
vehicles in both eastbound lanes approaching the intersection. 31 Plaintiff testified
that the two vehicles that approached him in the two through lanes had the right of
way.32
26 See infra nn. 34-44 and accompanying text for a discussion of Joshua Aiken’s testimony. 27 Id. at 36: 5-10. 28 Id. ¶ 4. 29 Pl. Dep. at 21:23-24; 22:1-7. 30 Id. at 36: 22-24. 31 Id. at 36: 15-18. 32 Pl. Dep. at 71: 2-5. 6 III. Witness Joshua Aiken’s Deposition Testimony33
Joshua Aiken (“Aiken”) was driving in the left eastbound through lane on Rt.
40 when the accident occurred.34 Aiken’s vehicle contained a Vava brand dashboard
camera device that made a partial recording of Plaintiff crossing the eastbound side
of Rt. 40.35 This footage is discussed in detail in the proceeding subsection. Aiken
testified that as he was approaching the intersection, the lights for eastbound through
traffic had been green for “easily 15 seconds.”36 When asked whether he
remembered it turning from red to green he testified that “it was green the whole
time” and that he never saw it any other color than green.37 Aiken testified that he
had no warning that Plaintiff was going to run out in front of him.38 Aiken recalled
“seeing him [Plaintiff] cross the highway from the other side . . . he [Plaintiff]
disappeared in front of the two black cars, and then he flashed in front of me as he
tried to run across.”39 The “two black cars” Aiken referenced were stopped in the
two left-turn only lanes.40 Aiken also testified that, from his view, his vehicle would
33 Unless otherwise noted, this section is derived from Joshua Aiken’s deposition testimony. 34 Deposition of Joshua Aiken at 5: 14-23 (Nov. 14, 2022) (hereinafter “Aiken Dep.”). 35 Id. at 7: 2-5. 36 Id. at 19: 7. 37 Id. at 19: 10-18. 38 Id. at 20: 2-5. 39 Id. at 16: 7-19. 40 Dashboard Camera footage. 7 have blocked Pyfrom’s view, who was proceeding in the adjacent right lane and
slightly behind Aiken’s vehicle.41 Aiken estimated he was about two car lengths
away from Plaintiff when Plaintiff began to enter Aiken’s lane and that it felt like
half a second elapsed between the time he saw Plaintiff and when Aiken swerved to
avoid hitting Plaintiff.42 Aiken testified that his vehicle would have likely struck
Plaintiff if he had not swerved.43 Both Aiken and Pyfrom returned to the scene
shortly after the accident.44
IV. Dashboard Camera Footage45
At the time of the accident, Aiken had installed in his vehicle a Vava brand
dashboard camera, which had forward-facing and rear-facing cameras.46 Aiken’s
dashboard camera made a clear, real-time audiovisual recording of his vehicle
driving through the intersection during the accident between Plaintiff and Pyfrom.47
The device simultaneously captures the road in front of and behind the vehicle and
41 Id. at 20: 11-15. 42 Id. at 21: 6-20. 43 Id. at 22: 4-9. 44 Id. at 23: 13. 45 Unless otherwise noted, this subsection is derived from a viewing of the Dashboard Camera footage. Exhibit C to Defendant’s motion for summary judgment also contains still frames of the video. The Dashboard Camera footage was not filed contemporaneously with the motion. Upon the Court’s request, Defendant supplied an electronic version of the video after the Court heard argument on the motion. 46 Aiken Dep. at 7. 47 Dashboard Camera footage; see Aiken Dep. at 7: 2-5. 8 records at thirty frames per second.48 The forward-facing video faces through the
front windshield of the vehicle.49 The rear-facing camera faces through the rear
windshield of the vehicle.50 This technology records videos in discrete segments
that the owner can download and save from the corresponding application.51 The
camera records the driver’s speed in miles per hour.52 The bottom left of the
recording shows the driver’s current speed, the date, and time of day.53 The
recording under review begins approximately one second before the accident and is
thirty-six seconds in length. The date at the beginning of the recording is
“2021/5/17” and the time is “8:30:34 PM.” The rate of speed at the beginning of the
video is “43 mph.”
At the beginning of the video, Aiken’s vehicle is driving in the left eastbound
lane on Rt. 40, approaching the intersection with Wilton Blvd. The first frame of
the video clearly shows that one car is stopped in each of the left-turn only lanes on
eastbound Rt. 40. The time at the beginning of the video is recorded as “8:30:34
PM” and the time when Aiken’s vehicle reaches the intersection is recorded as
“8:30:34 PM,” indicating that less than one second elapsed. At the start of the video,
48 Expert report at 6. 49 Id. 50 Id. 51 Aiken Dep. at 12: 24; 13: 1-6. 52 Id. 53 Id. 9 Aiken’s vehicle is driving at forty-three miles per hour and by the time he reaches
the intersection, the recorded speed is forty-four miles per hour. Defendant’s expert,
Abraham Warfel, calculated that Aiken’s vehicle traveled a distance of
approximately fifty feet from the start of the video to the moment the vehicle reached
the crosswalk.54
From the beginning of the recording, the traffic signals for the left-turn-only
lanes are red and the two traffic signals immediately to the right which regulate the
east bound lanes are green. At the beginning of the video, a pedestrian wearing a
white shirt, later identified as Plaintiff, is depicted directly beneath the right left-turn
only signal crossing over the right left-turn only lane. As Aiken’s vehicle reaches
the intersection, his vehicle quickly swerves to the left. By the time Aiken’s vehicle
reaches the intersection, it appears that Plaintiff is approximately midway between
the eastbound lanes. After Aiken’s vehicle has swerved to the left and Plaintiff is
no longer visible in the frame, there is an audible thud. The remainder of the video
shows Aiken and Pyfrom’s vehicles pulling over to the right shoulder of the road,
and Pyfrom exiting his vehicle.55 The rear-facing video footage shows a car with its
54 Expert report at 8. Defendant’s expert calculated the distance between the location of Aiken’s vehicle at the start of the video to the crosswalk applying the following mathematical formula: distance = velocity x time. Id. Defendant’s expert estimated that Aiken’s vehicle was approximately fifty feet from the intersection at the beginning of the recording. Id. The Court does not rely on the expert report for its decision; it is merely cited for context. See infra n. 69. 55 Aiken Dep. at 23: 6-12. 10 headlights on in the right eastbound lane behind Aiken’s vehicle. This vehicle is
later identified as Pyfrom’s vehicle.56
V. Collision Report and Corporal Thomas Leonardi’s Deposition
Corporal Thomas Leonardi (“Leonardi”) of the Delaware State Police arrived
at the scene shortly after the accident and made a Collision Report.57 The report lists
three witnesses: Joshua Aiken, Vivek Rehil (“Rehil”), a witness whose vehicle was
idling in the left-turn only lane of westbound Rt. 40, and Skylar Ellingsworth
(“Ellingsworth”), one of Plaintiff’s friends who was walking with him.58 Leonardi
testified that Pyfrom said he was traveling at approximately forty-five miles per hour
in the right eastbound lane of Rt. 40 and that he had a green light. 59 Aiken told
Leonardi that he was traveling in the left eastbound lane on Rt. 40, that he was
traveling about forty-five miles per hour, and that he observed Pyfrom’s vehicle to
the right traveling at approximately the same rate of speed.60 Aiken indicated to
Leonardi that he successfully swerved to avoid striking Plaintiff, but that Pyfrom’s
56 Plaintiff does not dispute that the vehicle identified in the rear camera footage is Pyfrom’s vehicle. In the approximate one second that elapses from the beginning of the rear camera footage, the distance between the two vehicles decreases. Expert report at 11. Based on the lapse of time and decrease in distance between the vehicle, Defendant’s expert infers that Pyfrom’s vehicle was travelling at approximately forty-eight miles per hour as it approached the crosswalk. Id. 57 Collision Report. 58 Id. 59 Id.; Leonardi Dep. at 12: 23-24; 13. 60 Collision Report; Leonardi Dep. at 15: 14-19. 11 vehicle struck Plaintiff.61 Ellingsworth indicated to Leonardi that Plaintiff crossed
eastbound Rt. 40 diagonally outside of the crosswalk and was struck by a vehicle.62
Ellingsworth also indicated that she “attempted to tell [Plaintiff] to stop but he did
not listen to her.”63 Rehil stated his car was stopped in one of the left-turn only lanes
on eastbound Rt. 40, and that the left turn lanes of traffic had the red arrow signal.64
Rehil stated that the traffic lights for through traffic on eastbound Rt. 40 had the
green signal and that Plaintiff crossed diagonally through the intersection across Rt.
40.65
Leonardi testified that he did not think the light for eastbound through traffic
had switched from red to green when Plaintiff was already in the crosswalk because
“traffic was already moving at 45 miles an hour” according to witness statements
and that he presumed they would be traveling at a lower speed if the light had been
red.66 Leonardi cited Plaintiff for not carrying a light on a roadway and crossing
outside of a crosswalk.67
61 Collision Report; Leonardi Dep. at 15: 22-24. Leonardi testified that Pyfrom did not violate any rules of the road (Leonardi Dep. at 18: 8-9) and that Plaintiff had the duty to yield to oncoming traffic (Leonardi Dep. at 20: 4-5). 62 Collision Report; Leonardi Dep. at 15: 1-6. 63 Collision Report; see also Leonardi Dep. at 15: 9-11. 64 Collision Report; Leonardi Dep. at 13: 1-4. 65 Leonardi Dep. at 14: 5-8, 16-17. 66 Leonardi Dep. at 23: 19-24; 24: 3-9. 67 ;Collision Report Leonardi Dep. at 18: 22-24. 12 VI. Defendant’s Accident Reconstruction Expert Report
Defendant hired an accident reconstruction expert, Abraham Warfel, to
investigate the collision and draw conclusions to a reasonable degree of probability
as to what occurred. Warfel’s report is attached as Exhibit E to the motion for
summary judgment.68 Plaintiff filed a Daubert motion to exclude Defendant’s
Expert’s testimony at trial.69
CONTENTIONS OF THE PARTIES
Plaintiff alleges that Pyfrom’s operation of his vehicle constitutes common
law negligence and negligence per se.70 With respect to Plaintiff’s claim of common
law negligence, Plaintiff alleges Pyfrom drove in a manner that was unreasonable,
inattentive, and careless; that Pyfrom failed to exercise and maintain proper control
of his vehicle,71 and that his conduct created a sudden emergency.72 With respect to
Plaintiff’s claim of negligence per se, Plaintiff alleges Pyfrom violated the following
68 O’Neal v. Allstate Ins. Co., C.A. No. N22C-03-226 (MAA), Adams, J., Transaction ID 69147676 (Feb. 14, 2023). 69 O’Neal v. Allstate Ins. Co., C.A. No. N22C-03-226 (MAA), Adams, J., Transaction ID 70146599 (June 6, 2023). As discussed herein, the Court is granting Defendant’s motion for summary judgment. This decision does not rely on the expert’s report. Even in the absence of the expert report, Defendant has shown that there is no genuine issue of material fact that Plaintiff’s negligence exceeded Pyfrom’s. This decision is a final resolution of Plaintiff’s claim and moots the pending Daubert motion. 70 Compl. ¶¶ 13, 15-18. 71 Id. ¶ 18. 72 Id. 13 sections of Title 21: § 4144 (Drivers to exercise due care), § 4175(a) (reckless
driving), and § 4176(a) and (b) (careless and inattentive driving).73 Defendant
asserts in its motion that there is no genuine issue of material fact that Plaintiff’s
negligence exceeded any negligence on the part of Pyfrom.74
STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate that there are no genuine issues of material fact and that they are entitled
to judgment as a matter of law.75 When considering a motion for summary judgment,
the Court must view the facts in the light most favorable to the non-moving party.76
“If a defendant, as the moving party, can establish that there is no genuine issue of
material fact, and the defendant is entitled to judgment as a matter of law, the burden
will shift to the plaintiff to show the existence of specific facts to support the
plaintiff's claim.”77 “Where the moving party produces an affidavit or other evidence
sufficient under Superior Court Civil Rule 56 in support of its motion and the burden
73 In the complaint, Plaintiff alleges Pyfrom was negligent per se for violating 21 Del. C. §§ 4175 and 4176. Plaintiff also alleges that Pyfrom violated 21 Del. C. § 4144 in his response to Defendant’s motion for summary judgment. 74 Def. Mot. Summ. J. at 3-6. 75 Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 76 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 77 Singletary v. American Indep. Ins. Co., 2011 WL 607017, at *1 (Del. Super. Jan. 31, 2011). 14 shifts, then the non-moving party may not rest on its own pleadings, but must provide
evidence showing a genuine issue of material fact for trial.”78
“Not all disputes of fact will defeat a motion for summary judgment.”79 If the
moving party manages to shift the burden, the nonmoving party must establish a
genuine issue of material fact.80 “The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on
which the jury reasonably could find for the plaintiff.’”81 A genuine issue of material
fact arises when “any rational trier of fact could infer that [the plaintiff has] proven
the elements of prima facie case by clear and convincing evidence.”82
As a general matter, “negligence cases are not susceptible to summary
judgment”83 because the movant must “show not only that there are no conflicts in
the factual contentions of the parties[,] but[,] that, also, the only reasonable
inference[s] to be drawn from the uncontested facts are adverse to the plaintiff.”84
Determining how much, if any, negligence should be attributed to each party
78 Taylor v. Green Acre Farm, Inc., 2018 WL 2128663, at *1 (Del. Super. May 7, 2018); Salah & Pecci Leasing Co., Inc. v. GBC Christina Landing, LLC, 2008 WL 2690283, at *2 (Del. Super. June 5, 2008). 79 In re Asbestos Litigation, 2012 WL 1413673, at *2 (Del. Super. Feb. 2, 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). 80 Super. Ct. Civ. R. 56. 81 Anderson, 477 U.S. at 252. 82 Cerebus Intl. LTD. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1149 (Del. 2002). 83 Durnan v. Butler, 2004 WL 1790117, at *5 (Del. Super. July 21, 2004). 84 Lugaro v. Guercio, 2022 WL 1112288, at *3 (Del. Super. Apr. 12, 2022) (quoting Buchanan v. TD Bank, N.A., 2016 WL 3621102, at *2 (Del. Super. June 28, 2016)). 15 pursuant to Delaware’s comparative negligence statute “almost always presents a
question of fact for the jury.”85 Delaware courts have, however, on rare occasion
decided issues of comparative negligence as a matter of law after the plaintiff’s
presentation of their case at trial.86 This case, because of the undisputed and clear
video footage of the accident, is one of those rare cases where summary judgment is
appropriate.
ANALYSIS
For Plaintiff to succeed on his claim of common law negligence, he must make
a prima facie showing of duty, breach, proximate causation, and damages.87 To
establish negligence per se, Plaintiff must establish that “a standard of conduct exists
to protect the class of which plaintiff is a member; defendant is required to conform
to that standard of conduct; and the defendant did not so conform.” 88 Pursuant to
85 Pagano v. Stradley, 2017 WL 2691189, at *2 (Del. Super. June 21, 2017) (quoting Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1081 (Del. 2014)) (citing Trievel v. Sabo, 714 A.2d 742, 745 (Del. 1998)). 86 See e.g. Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010); Trievel, 714 A.2d at 745. 87 Hudson, 3 A.3d at 250. 88 McCain v. Council on Real Estate Appraisers, 2009 WL 1515594, at *3 (Del. Super. May 29, 2009); see also Tydings v. Loewenstein, 505 A.2d 443, 446 (Del. 1986). Some decisions list four elements for negligence per se: “(1) that the statute was ‘enacted for the safety of others;’ (2) that a causal connection exists between the statutory violations and the injury, and that Plaintiff was ‘a member of the class of persons the statute set out to protect;’ (3) that the statute set forth ‘a standard of conduct which was designed to avoid the harm’ suffered; and (4) that the defendant violated the statute ‘by failing to comply with that standard of conduct.’” Cunningham v. Kentmere Rehabilitation and Healthcare Center, Inc., 2021 WL 16 established Delaware law, “a violation of a statute or ordinance enacted for the safety
of others is negligence per se.”89
Defendant makes two primary assertions in its motion for summary judgment:
(1) that Pyfrom did not breach his duty to operate his vehicle in a reasonable and
prudent manner; and (2) that Plaintiff was negligent when he entered into the
eastbound lanes of Rt. 40 in front of oncoming traffic. Defendant argues that
Plaintiff’s claim is therefore barred by Delaware’s modified comparative negligence
statute.90 This motion, therefore, presents two complimentary questions: (1) Was
Plaintiff acting negligently when he entered into the eastbound portion of the
crosswalk and, if so, did his negligence exceed that of Pyfrom’s? (2) Was Pyfrom
negligent in operating his vehicle when he entered into the Wilton Blvd-Rt. 40
intersection, striking Plaintiff and, if so, did Pyfrom’s negligence exceed that of
Plaintiff’s?
The parties argue that the following factual question is dispositive of
Defendant’s motion: was the traffic signal for through traffic on eastbound Rt. 40
red or green at the moment when Plaintiff entered the eastbound side of Rt. 40?
Plaintiff alleges that the light was red, giving him the right of way at the moment he
1157991, at *4 (Del. Super. Mar. 25, 2021) (quoting NVF Co. v. Garrett Snuff Mills, Inc., 2002 WL 130536, at *2 (Del. Super. Jan. 30, 2002)). 89 Chan Young Lee v. Choice Hotels Intern., Inc., 992 A.2d 1236 (TABLE), 2010 WL 1730674, at *3 (Del. 2010) (internal citations omitted). 90 10 Del. C. § 8132. 17 entered and that when it turned green midway through, any vehicles in the eastbound
lanes had a duty to yield the right of way to him.91 Defendant alleges that, before
Plaintiff entered the eastbound side of Rt. 40, the light was green and that, therefore,
Plaintiff was never lawfully on that portion of the crosswalk and crossed the
eastbound lanes against the traffic signal in front of oncoming traffic. Thankfully,
Aiken’s dashcam video footage erases any dispute of fact and guides the Court’s
decision here.
I. Delaware’s Modified Comparative Negligence Statute
Pursuant to Delaware’s modified comparative negligence statute, for
negligence actions which result in death or injury, a plaintiff’s contributory
negligence shall not bar recovery “where such negligence was not greater than the
negligence of the defendant” . . . “but any damages awarded shall be diminished in
proportion to the amount of negligence attributed to the plaintiff.”92 If, however, the
plaintiff’s contributory negligence is 51% or greater, a plaintiff is barred completely
91 Plaintiff also argues in his response to the motion that he had the right of way pursuant to 21 Del. C. § 4142(a) because “[t]here were no crosswalk signs or pedestrian traffic-control signals” and Plaintiff was “halfway across the crosswalk.” Pl. Resp. to Mot. Summ. J. at 4. Plaintiff’s assertion is incorrect. This statute only applies “[w]hen traffic-control signals are not in place or not in operation or when the operator of a vehicle is making a turn at an intersection.” 21 Del. C. § 4142(a). Neither of these conditions were present in this case. Traffic control signals were in place and in operation at the time of the accident and Pyfrom was proceeding straight ahead in the eastbound lane. 92 10 Del. C. § 8132. 18 from recovering.93 Excepting those rare circumstances where injury occurs in the
absence of either party’s negligence, it logically follows that where one party has
committed no negligence, the party’s negligence is exceeded by the other party’s
negligence.
II. Duties of Pedestrians and Operators of Motor Vehicles
Pedestrians are required to obey traffic control devices94 and shall not
“suddenly leave a curb or other place of safety and walk or run into the path of a
vehicle which is so close as to constitute an immediate hazard.” 95 Pedestrians are
prohibited from walking on any motorway beyond “the corporate limits of any city
or town” without a “light or reflector type device during the period of time from
sunset to sunrise and at any other time when there is not sufficient light to render
clearly visible any person or vehicle on the highway.”96
Drivers are required to drive at a reasonable speed,”97 “exercise due care to
avoid colliding with any pedestrian upon any roadway and shall give warning by
93 Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1079 (Del. 2014) (citing Culver v. Bennett, 588 A.2d 1094, 1098 (Del.1991)). 94 21 Del. C. § 4141(b). Section 4141(b) specifies that pedestrians are subject to traffic control devices listed in § 4108: “Whenever traffic is controlled by official traffic-control signals showing different colored circular lights” . . . “such lights . . . shall . . . apply to drivers of vehicles, operators of bicycles and pedestrians.” Id. (emphasis added). 95 Id. § 4142(b). 96 Id. § 4148. 97 Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010) (internal citations omitted). 19 sounding the horn when necessary.”98 In those cases aptly identified as “dart out”
cases, where a pedestrian or cyclist suddenly enters the roadway with minimal or no
warning,99 “Delaware applies the common law rule that no one has a duty to
anticipate another’s negligence. Rather, we hold individuals responsible for
reasonably foreseeable events . . .”100 “Motorists . . . need not slow down in
anticipation of danger that has not yet become apparent.”101
“Dart out” cases, where an individuals commits an act that is not reasonably
foreseeable, often results in an unavoidable accident. “An unavoidable accident is
one which was not caused in any degree by the want of care or skill which the law
requires of one under the circumstances of the particular case. This does not
necessarily mean that such an accident must have been physically impossible under
the circumstances for defendant to have prevented, but only that defendant exercise
care and prudence which the law holds every person bound to exercise.”102
III. Plaintiff’s negligence exceeded Pyfrom’s negligence.
For the reasons that follow, the Court finds that there is no genuine issue of
material fact that Plaintiff’s negligence exceeded that of Pyfrom’s, and that
98 21 Del. C. § 4144. 99 See, e.g., Hudson, 3 A.3d at 248-250; Dietz v. Mead, 160 A.2d 372, 373 (Del. 1960). 100 Hudson, 3 A.3d at 250 (internal citations omitted). 101 Id. at 251. 102 Dietz, 160 A.2d at 375 (internal citations omitted); see Prosser on Torts, § 29. 20 Plaintiff’s claim is therefore barred by Delaware’s modified comparative negligence
statute. The Court relies primarily on the dashboard camera footage as it is sufficient
to establish the parties’ comparative negligence. This decision does not rely on the
expert report.
A. The dashboard camera footage establishes the light was green.
The fact that the parties take opposing views on the color of the light does not
present a genuine issue of material fact to defeat Defendant’s motion. The dashboard
camera footage and testimony establishes there is no genuine issue of material fact,
in fact there can be no dispute at all, that the light was green for eastbound through
traffic when Plaintiff entered the intersection and that he was therefore negligent in
doing so.
Plaintiff’s testimony that the light was red is contradicted by the weight of
the evidence Defendant submitted; most importantly, the dashboard camera footage.
The Court gives great weight to the dashboard camera evidence because it does not
present those perennial issues of reliability, accuracy, and potential bias of evidence
that depends upon a person’s memory, like testimony and sworn statements. The
dashboard camera recording provides an objective contemporaneous recording of
the scene the moment before Pyfrom’s vehicle struck Plaintiff.103
103 The Court notes Plaintiff has not contested that Aiken, the operator of the vehicle which contained the dashboard camera, was in any way motivated or biased in favor of Pyfrom and/or against Plaintiff. Plaintiff has also not contested that the video was 21 At the beginning of the recording, Plaintiff has already crossed over the
median and is crossing through the right left-turn only lane. As stated above, the
dashboard camera device records the rate of speed in miles per hour, and also
indicates the time of day to the nearest second. As reviewed above, the beginning
of the recording shows that the light is green and that Aiken’s vehicle is travelling
at forty-three miles per hour. Less than one second elapses between the beginning
of the recording and the moment when Aiken’s vehicle reaches the crosswalk. There
is no need to rely on the Expert’s calculation of the distance between Aiken’s vehicle
at the beginning of the recording and the intersection to determine that his vehicle
was no more than a few car lengths from the intersection. The rear-facing camera
in Aiken’s vehicle shows that Pyfrom’s vehicle is approximately one to two car
lengths behind and to the right of Aiken’s vehicle. To summarize, Aiken’s and
Pyfrom’s vehicles were traveling at around forty-three miles per hour at a short
distance from the intersection.
The Court finds that Plaintiff’s version of events does not create a genuine
issue of material fact as to when the light turned green. Plaintiff’s position speculates
in any way altered to prejudice Plaintiff’s interests in this action. During a chance encounter between Aiken and Plaintiff that occurred at Aiken’s workplace at which time they learned of each other’s involvement in the accident, Aiken voluntarily provided the Dashboard Camera footage to Plaintiff. Aiken Dep. at 10: 11-24; 11: 23-24; 12: 6-7. In addition, after a thorough review of the evidence in this case, the Court finds no evidence to undermine the authenticity or reliability of this video. 22 a high degree of negligence on the part both Aiken and Pyfrom devoid of support.
Aside from Plaintiff’s own testimony, his position finds no support from the balance
of the record and is contradicted by it. To defeat Defendant’s motion for summary
judgment, Plaintiff would have had to present credible evidence supporting his
assertion that the light was red when he entered the intersection. Plaintiff has not
done so. On the other hand, Defendant has provided substantial evidence to establish
that the light was green when Plaintiff entered the intersection. For example, aside
from the dashboard camera footage, Aiken testified that the light for eastbound
through traffic was green for approximately fifteen seconds prior to his vehicle
reaching the intersection.104
Because there is no genuine issue of material fact that the light was green
when Plaintiff entered the intersection, it follows that when Plaintiff entered into the
crosswalk on the eastbound side of Rt. 40 directly in front of oncoming traffic that
this was negligent and in violation of 21 Del. C. §§ 4141(b) and 4142(b). Plaintiff
was also negligent for crossing Rt. 40 after night fall without carrying a light or
reflector type device, in violation of 21 Del. C. § 4148.105 The accident occurred at
8:30 at night in the month of May and the camera footage clearly shows that Plaintiff
104 Aiken Dep. at 19: 7. 105 See supra n. 96 and accompanying text. 23 was on the roadway after nightfall.106 Corporal Leonardi cited Plaintiff for violating
this statute.107 Plaintiff has not contested that he violated this statute.
B. Plaintiff’s action created an unavoidable accident not caused by any negligence of Pyfrom’s.
This case falls within the category of “dart out” cases which result in
unavoidable accidents. Plaintiff attempted to run across the eastbound through lanes
of Rt. 40, which has a posted speed limit of fifty miles per hour, directly in front of
oncoming traffic, after night fall, without a light or reflector device. Based on
Pyfrom’s rate of speed and approximate distance from the intersection at the moment
when Plaintiff attempted to run across, approximately one second elapsed, leaving
Pyfrom inadequate time to react and avoid a collision.108 This was not a reasonably
foreseeable event and resulted in an unavoidable accident not caused by any “want
of care or skill” on the part of Pyfrom.109 Pyfrom had no reason to expect that a
reasonable adult would enter the roadway directly in front of his vehicle110 and had
no time to slow down in anticipation of the danger.111
106 See generally Dashboard Camera footage. 107 Collision Report; Leonardi Dep. at 18: 22-24. 108 See Collision Report at 4 (“he [Pyfrom] attempted to avoid collision but he was unable to avoid collision.”). 109 See Dietz v. Mead, 160 A.2d 372, 375 (Del. 1960) (internal citations omitted). 110 See Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250-251 (Del. 2010). 111 See id. at 251. 24 Plaintiff asserts that Pyfrom must have been negligent because Aiken, unlike
Pyfrom, successfully swerved to avoid Plaintiff. The fact that it may have been
theoretically possible for Pyfrom to avoid the accident, however, does not mean that
he was negligent.112 For an accident to qualify as unavoidable, it need not have been
“physically impossible” to avoid.113 If Pyfrom was unable to avoid the collision
while exercising the care and prudence of a reasonable person, the accident was
unavoidable.114 The fact that Aiken nearly missed striking Plaintiff does not bear on
the question of Pyfrom’s negligence. Plaintiff has raised no other fact indicating
Pyfrom was negligent.
To the contrary, all of the evidence points to the conclusion that Pyfrom was
driving in compliance with 21 Del. C. § 4144. Pyfrom was driving below the posted
speed limit115 in the middle of his lane of travel as a reasonable and prudent person
would under the circumstances. The witnesses to the accident—Ellingsworth, Rehil,
and Aiken— all of whom made contemporaneous statements to Corporal Leonardi,
did not implicate Pyfrom in any manner.116 Neither Plaintiff nor any witness asserts
112 Id. 113 Dietz v. Mead, 160 A.2d 372, 375 (Del. 1960). 114 Id. 115 Dashboard Camera footage; Collision Report (Pyfrom stated he was driving approximately forty-five miles per hour and was not cited for any traffic citations.); Aiken Dep. at 17: 17-18 (Q: “Could tell whether that other vehicle [Pyfrom’s vehicle] was staying with you, going faster, or slower?” A: “He was matching my speed.”). 116 See generally Collision Report at 4. 25 that Pyfrom was driving in excess of the speed limit and there is no evidence of
same. Aiken also testified that he estimated Pyfrom’s vehicle to be driving at the
same approximate rate of speed as his own, which was about forty-three miles per
hour.117 Leonardi testified that Pyfrom did not violate any rules of the road.118
Moreover, Plaintiff has not raised any facts to rebut Defendant’s contention
that Pyfrom’s view of Plaintiff was occluded before Plaintiff entered Pyfrom’s lane
of travel. The front-facing camera footage shows that Plaintiff entered into the
eastbound through lanes in front of the two cars idling in the left-turn only lanes, at
least partially occluding him from view of vehicles approaching the intersection in
the eastbound lanes.119 The rear-facing camera footage along with Aiken’s
testimony, establishes that Aiken’s vehicle would have at least partially occluded
Pyfrom’s view of Plaintiff as he crossed from the left to right eastbound through
lanes, leaving Pyfrom with even less time than Aiken, if any, to avoid a collision
with Plaintiff.120
The facts of this case are similar to those in Trievel v. Sabo.121 In Trievel, the
plaintiff, a bicyclist, attempted to cross Rt. 1 North, a busy four-lane highway, where
117 Supra n. 115 and accompanying text. 118 Leonardi Dep. at 18: 8-9. 119 Dashboard Camera footage; Aiken Dep. at 18: 19-21. Aiken testified that Plaintiff “disappeared behind” the two cars stopped in the left-turn only lanes before suddenly entering into his lane. Id. 120 Dashboard Camera footage; Aiken Dep. at 20: 11-15. 121 714 A.2d 742 (Del. 1998). 26 it intersected with Rt. 273.122 There was a blinking yellow traffic signal at this 123 intersection for vehicles traveling on Rt. 1 North. The Plaintiff entered into the
intersection directly in front of an oncoming truck, which struck her, resulting in her
death.124 The defendant moved for a judgment of law after the plaintiff presented
her case in chief.125 The trial court granted the motion, which was affirmed on
appeal.126 The Supreme Court of Delaware found that Trievel was one of those rare
cases where the trial court could find that the plaintiff’s negligence exceeded that of
the defendant’s as a matter of law.127
As in Trievel, where the plaintiff failed to maintain a proper lookout or take
adequate care for her own safety when crossing into a busy four-lane highway, here,
Plaintiff similarly failed to maintain a proper lookout or take timely notice of the
traffic signals when he entered into the eastbound through lanes, directly in front of
Aiken’s and Pyfrom’s vehicles.128 “Faced with plainly visible oncoming traffic that
presented a visible hazard to pedestrians[,]” Plaintiff, like the cyclist in Trievel, “was
under an affirmative obligation to see and appreciate the hazard and to proceed in a
122 Id. at 743. 123 Id. 124 Id. 125 Id. at 744. 126 Id. at 743. 127 Id. at 745. 128 Id. 27 careful and intelligent manner.”129 Although the trial court in Trievel had the benefit
of considering plaintiff’s case in chief, there was no video evidence of the moment
before the accident or testimony from the plaintiff-victim as there is here. As
detailed above, the dashboard camera evidence is critical to establishing that there is
no genuine issue of material fact Plaintiff was negligent and that Pyfrom was not.
CONCLUSION
The Court finds that there is no genuine issue of material fact that Plaintiff
was negligent when he crossed into the eastbound side of Rt. 40 and that Pyfrom
was not acting in a negligent manner when operating his vehicle. Because Plaintiff’s
negligence exceeds that of Pyfrom’s, his action is barred by 10 Del. C. § 8132 and
Defendant is entitled to judgment as a matter of law. Defendant’s motion for
summary judgment is GRANTED and Plaintiff’s claim for uninsured motorist
benefits is DENIED.
IT IS SO ORDERED.
129 Id. 28