IN THE SUPREME COURT OF THE STATE OF DELAWARE 

JAMES DEAN WALTON, SR., 

LINDA JANE MCGEE, and 

NICHOLAS CAVNAR 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, 

Plaintiffs Below, 

Appellants, 

v. 

ROGER LOUIE COLE, 

Defendant Below, 

Appellee. 

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§ No. 273, 2020 

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§ Court Below—Superior Court 

§ of the State of Delaware 

§ 

§ C.A. No. N18C-04-314 

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§ 

§ 

§ 

§ 

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Submitted: September 21, 2020 

Decided: September 25, 2020 

Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES,

Justices. 

 

ORDER

After consideration of the notice of appeal and the supplemental notice of 

appeal from an interlocutory order and the documents attached thereto, it appears to 

the Court that: 

(1) The appellants (“Plaintiffs”) in this wrongful-death action are the 

personal representatives of the estates of James D. Walton Jr. and Richard Gregory 
2

Chittick. Walton and Chittick died when a vehicle driven by the appellee, Roger 

Louie Cole, struck them at a high rate of speed while they were standing outside a 

restaurant in Dewey Beach, Delaware. The Plaintiffs have petitioned this Court, 

pursuant to Supreme Court Rule 42, to accept an appeal from the Superior Court’s 

opinion dated August 17, 2020, which granted in part Cole’s motion for summary 

judgment. 

(2) The parties do not dispute that the accident occurred because Cole 

experienced a seizure that rendered him physically and mentally incapable of 

controlling the vehicle. Cole sought summary judgment under the sudden medical 

emergency doctrine. Specifically, he argued that the seizure was unforeseeable and 

the accident was unavoidable as a result of the medical event. The Plaintiffs 

contended that there were genuine issues of material fact concerning whether Cole 

should have foreseen the seizure because of his lack of compliance with certain 

aspects of his medical treatment. They also argued that the accident was avoidable 

because Cole experienced pre-seizure symptoms for approximately one minute 

before the accident, during which he could have safely pulled the vehicle to the side 

of the road and therefore avoided the accident. 

(3) The Superior Court granted Cole’s motion for summary judgment in 

part and denied it in part. The court determined that there was no genuine issue of 

material fact on the issue of the foreseeability of the seizure, and granted Cole’s 
3

motion for summary judgment on that issue.1 The court determined that there was 

a genuine issue of material fact regarding whether Cole could have avoided the 

accident by pulling to the side of the road before the seizure rendered him incapable 

of controlling the vehicle, and therefore denied Cole’s motion for summary 

judgment on that issue.2

(4) The Superior Court denied the Plaintiffs’ application for certification 

of an interlocutory appeal.3 The court rejected the Plaintiffs’ argument that its 

decision on the foreseeability issue conflicted with the decision4 in Lutzkovitz v. 

Murray, in which this Court held that the “jury should have been apprised of that 

law, applicable to the facts elicited by plaintiffs, to the effect that where a driver of 

a vehicle suddenly becomes physically or mentally incapacitated without warning, 

he is not liable for injury resulting from the operation of a motor vehicle while so 

incapacitated; but where a prima facie case of negligence has been established by 

the plaintiff, the burden of proof is on defendant to show sudden illness or attack and 

that such illness or attack was unanticipatable and unforeseen.”5 The court also 

 

1 Walton v. Cole, 2020 WL 4784599, at *5 (Del. Super. Ct. Aug. 17, 2020). 

2

Id.

3 Walton v. Cole, 2020 WL 5498685 (Del. Super. Ct. Sept. 10, 2020). 

4

 DEL. SUPR. CT. R. 42(b)(iii)(B). 

5

 339 A.2d 64, 67 (Del. 1975). 
4

rejected the Plaintiffs’ contention that interlocutory review would serve 

considerations of justice6 by reducing further litigation.

(5) We agree that interlocutory review is not warranted in this case. 

Applications for interlocutory review are addressed to the sound discretion of this 

Court.7 In the exercise of its discretion and giving great weight to the trial court’s 

view, this Court has concluded that the application for interlocutory review does not 

meet the strict standards for certification under Supreme Court Rule 42(b). 

Exceptional circumstances that would merit interlocutory review of the Superior 

Court’s decision do not exist in this case,8 and the potential benefits of interlocutory 

review do not outweigh the inefficiency, disruption, and probable costs caused by 

an interlocutory appeal.9 

(6) Similarly, the considerations set forth in Rule 42(b)(iii) do not weigh in 

favor of interlocutory review in this case. Interlocutory review might either increase 

or decrease the costs of litigation in this case. The Plaintiffs have not identified 

conflicting decisions of the trial courts on the legal issues presented; if the Superior 

Court erred in its application of the law to the facts of this case, then that error can 

be remedied on appeal from a final judgment. 

 

6

 DEL. SUPR. CT. R. 42(b)(iii)(H). 

7

Id. 42(d)(v). 

8

Id. R. 42(b)(ii). 

9

Id. R. 42(b)(iii). 
5

NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is 

REFUSED. 

BY THE COURT: 

/s/ Collins J. Seiz, Jr. 

 Chief Justice