IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILLIAM TIMMONS

, )

)

Plaintiff, )

) C.A. No. N20C

- 12

- 013 FWW

)

v. )

)

JUSTIN COLLETT

, )

)

Defendant, )

)

Submitted: September 14 , 2021

Decided: September 2 9 , 2021

Upon Defendant’s Motion to Dismiss and Motion for Summary Judgment

DENIED

.

ORDER

Frederick S. Freibott, Esquire, Dennis A. Mason, II, Esquire, The Freibott Law F irm

, 1711 East Newport Pike, P.O. Box 6168, Wilmington, DE, 19804, Attorneys for

Plaintiff.

Joseph Andrews, Esquire, Taylor E. Trapp, Esquire, The Law Office of Joseph

Andrews 737 South Queen Street, Suite 3, Dover, DE 19904, Attorneys for

Defendant.

WHARTON, J.2

This 2 9 th day of September, 20 21 , upon consideration of Defendant Justin

Collett’s (“Collett”) Motion to Dismiss and Motion for Summary Judgment

(“Motion”) and Plaintiff William Timmon s ’ (“ Timmons ” ) Response; it appears to

the Court that:

(1) On December 2 , 20 20

, Timmons brought this personal injury action

against Collet , alleging he was bit ten by Collet’s dog while employed cut ting

Collet’s grass. 1 On August 23, 2021

, Collett moved to dismiss for failure to state a

claim and for s ummary j udgment

. 2 Collett asserts Tim mons previously brought the

same case before the Industrial Accident Board ( “ IAB ” ) and therefore is barred by

the doctrines of res judicata and collateral estoppel from bringing this action

. 3

(2) On September 14 , 20 21

, Timmons responded to the motion

. 4 Timmons

asserts he properly stated a claim for n egligence against Collett

. 5 Further, he argues

neither the doctrine of res judicata

, nor collateral estoppel is applicable

. 6

(3) A motion to dismiss for failure to state a claim pursuant to Sup erior

Court Rule 12(b)(6) will not be granted if the “plaintiff may recover under any

reasonably conceivable set of circumstances susceptible of proof under the

1 Pl.’s Compl., at 1.

2 Def’s. Mot. Dismiss, at 1

.

3 Id.

4 Pl.’s Resp. Mot. Dismiss, at 1.

5 Id

.

6 Id. at 2.3

complaint.” 7 The Court's review is limited to the well

- pled allegations in the

complaint. 8 I n ruling on a 12(b) motion, the Court “must draw all reasonable factual

inferences in favor of the party opposing the motion.” 9 Dismissal is warranted “only

if it appears with reasonable certainty that the pl aintiff could not prove any set of

facts that would entitle him to relief.” 10

(4) Res judicata bars a claim “where there has been a final judgment on the

merits in a first suit involving the same parties, followed by a second suit based on

the same cause of action

. ” 11 In contrast, collateral es toppel “ precludes a party from

relitigating a fact issue that has previously been litigated and decided in a prior action

involving that party. ” 12 In both lawsuits , the same factual issue must have been

presented, litigated, and essential to the prior jud gment. 13

( 5 ) Res judicata does not bar this action because this case involve s different

parties and different cause s of action than the IAB case

. Here, Timmons brings a

negligence claim against Collett in his individual capacity, whereas in the IAB case

he sued Collett & Sons, Inc.

, the corporation that employed him to cut Collett’s

7 Browne v. Robb , 583 A.2d 949, 950 (Del. 1990).

8 Doe v. Cahill , 884 A.2d 451, 458 (Del. 2005).

9 Id.

10 Id.

11 Smith v. Guest , 16 A.3d 920, 934 (Del. 2011) (citing Bradley v. Div. of Child

Support Enforcement ex rel. Patterson, 582 A.2d 478, 480 ( Del . 1990)).

12 Id . (citing Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 1214, 1216 n. 4

( Del . 1991))

.

13 Id. (citing Sanders v. Malik, 711 A.2d 32, 33

– 34 ( Del . 1998) ).4

grass

. D ifferent parties were involved in each litigation

. 14 Furthermore, t he cause

of action in the first law suit involved The Workers’ Compensation Act, where

Timmons alleged an injury that arose out of

, or occurred in the course of his

employment. 15 Here

, Timmons ’ brings a ne gligence claim against Collett in his

individual capacity as a dog owner

. T herefore

, each law suit is based on a different

cause of action. 16

(6) Timmons is not collaterally estopped from bringing this action because

his negligence suit is not based on the same factual issues as his prior worker’s

compensation case

. A worker’s compensation suit requires a showing that a

personal injury occurred

, arising from

, or in the course of employment. 17 This

complaint asserts that Collett was negligent in his ownership and control of his dog. 18

Collett’s negligence as a dog owner was not presented, litigated, or essential to the

prior worker’s compensation judgment. 19 Therefore, Timmons claim is not barred

by collateral estoppel.

14 Timmons v. Collett & Sons, Inc. , IAB Hearing No. 1502495 (Feb. 2021), at 2.

15 19 Del. C. § 2304.

16 Timmons v. Collett & Sons, Inc. , IAB Hearing No. 1502495 (Feb. 2021), at 6.

17 19 Del. C. § 2304.

18 Pl.’s Compl., at 1

- 2.

19 See Timmons v. Collett & Sons, Inc. , IAB Hearing No. 1502495 (Feb. 2021).5

(7) Collett’s Motion also included a Motion for Summary Judgment in the

caption. No argument regarding s ummary j udgment has been presented.

Accordingly, s ummary j udgment will not be grante d.

THEREFORE , Defendant Justin Collett ’s Motion to Dismiss and Motion for

Summary Judgment is DENIED

.

IT IS SO ORDERED.

/s/ 

## Ferris W. Wharton

Ferris W. Wharton, J.