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 29, 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 Firm, 

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 29th day of September, 2021, upon consideration of Defendant Justin 

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

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

the Court that:

(1) On December 2, 2020, Timmons brought this personal injury action 

against Collet, alleging he was bitten by Collet’s dog while employed cutting

Collet’s grass.1 On August 23, 2021, Collett moved to dismiss for failure to state a 

claim and for summary judgment.

2 Collett asserts Timmons 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, 2021, Timmons responded to the motion.

4 Timmons 

asserts he properly stated a claim for negligence 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 Superior 

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 In 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 plaintiff 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 estoppel “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 judgment.13

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

parties and different causes 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. Different parties were involved in each litigation.

14 Furthermore, the cause 

of action in the first lawsuit 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 negligence claim against Collett in his 

individual capacity as a dog owner. Therefore, each lawsuit 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 summary judgment has been presented. 

Accordingly, summary judgment will not be granted.

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.