SUPERIOR COURT

OF THE
STATE OF DELAWARE

F RANCIS J. J ONES

, J R

. J UDGE N EW C ASTLE C OUNTY C OURTHOUSE

500 N. K ING S TREET

, S UITE 1 0 400

W ILMINGTON

, D ELAWARE 19801 (302) 255

- 066 4

June 1

, 202 1

Miranda D. Clifton, Esquire Young & McNelis, PA

300 South State Street
Dover, DE 19901 Attorney for Defendants Jonathon B. O’Neill ., Esquire

Kimmel Carter Roman Peltz & O'Neill PA

Plaza 273 & I

- 95

P.O. Box 8149 Newark, DE 19 714 Attorney for Plaintiffs

RE: Robert Hooven , et al. v. Ross Gimelstob

, Civil Action No. N18C

- 01

- 195 FJJ

Dear Counsel:

This is the Court’s decision following a May 26, 2021 bench trial in the above

matter.

This is a personal injury action that arises out of a bicycle accident which

occurred on July 15, 2016

, in Bethany Beach

, Delaware . At some point between 10:30PM and 11:00PM, Plaintiff Robert Hooven was standing in a bike lane near Atlantic Avenue . The D efendant , Ross Gimelstob, was riding his bicycle in tha t same
lane. There was a collision between the Plaintiff and Defendant which resulted in injuries to the Plaintiff

. The primary dispute in this case was the negligence, if any, of each party.

Plaintiff’s version of the events is as follows: prior to the accident, he and his

wife wen t to move their Chevy Silverado to avoid receiving a parking ticket. Plaintiff opened the Silverado’s door in order to let his wife into the driver’s s eat to move t he

vehicle. Plaintiff then closed the door. Because of the configuration of the road

, there was no way for him to avoid standing in the bike lane while he opened and closed the

door to the Silverado . Once he closed the door

, his wife drove north bound on Atlantic

Avenue. In the middle of the next block of Atlantic Avenue

, Mrs. Hooven started to turn into a garage to turn around. It was her intention t o park the truck on the oppositeRobert Hooven, et al. v. Ross Gimelsto b

Civil Action No. N18C

- 01

- 195 FJJ June 1, 2021 Page 2 of 5

side of the street from where Mr. Hooven was standing. The Plaintiff was standing in

the bike lane during this time while he watched his wife maneuver their Silverado

, with his back to oncoming bicycle traffic

. After approximately 8 to 9 seconds

, P laintiff was hit by the D efendant as he was facing away from the D efendant . The

P laintiff never saw the D efendant prior to impact. Plaintiff was wearing a dark shirt, light colored shorts and white or gray tennis shoes at the time of the collision

. According to the P laintiff and his wife

, there was sufficient light in the area for him

to be visible

.

Defendant’s version of the accident is as follows: at the time of the collision,

Defendant was goin g to his father’s home in the Sea Colony complex after finishing

dinner at Grotto Pizza

. ( The Court notes that the direct path between these two locations would have had the Defendant traveling in the opposite direction. )

Defendant was riding his bicycle entirely with in the bike path. Defendant had a light on the front of his bike that was operable and switched on

. A ccording to the

D efendant

, it was dark outside at the time of the collision, and Defendant never saw the plaintiff prior to impact. During his testimony Defendant has no explanation for why he did not see the Plaintiff prior to impact

. According t o D efend ant

, the P laintiff

was d ressed in all dark clothes at the time of the accident

.

There were no independent witnesses to the accident. Dr. George Lieb was

called as a witness by the defense. Dr. Lieb came onto the scene shortly after the

accident occurre d and admitted that he did not actually see the accident. Dr. Lieb

testified that while the area was dark

, he could see in front of him.

In this fact finder’s view, the question of negligence on the part of the D efendant

comes down to whether the D efenda nt was keeping a proper lookout

, and if so whether the light and visibility conditions permitted the D efendant to observe the

P laintiff and avoid striking him. I conclude that while the lighting conditions at the time of the accident were dark, they did n ot prevent the D efendant from seeing the

P laintiff who was admittedly in the bike lane for 8 to 9 seconds. Moreover

, t he

D efendant had a light on his bike which increased his ability to see the P laintiff in the

bike lane in front of him. I find that while the P laintiff was wearing a dark shirt

, he

was also wearing light colored shorts and light

- colored shoes. These items of clothing

sh ould have been observable to the D efendant as he approached t he P laintiff. It is this

fact finder’s conclusion that the D efendant was not paying proper attention and thatRobert Hooven, et al. v. Ross Gimelsto b

Civil Action No. N18C

- 01

- 195 FJJ June 1, 2021 Page 3 of 5

he was not properly focused on the roadway in front of him. The Court is troubled by

the D efendant’s inability to explain why he did not see the P laintiff prior to impact.
Moreover, D efendant’s testimony about where he was going to and coming from is

not consistent with the geography of the two locations he identified . This cast s doubt

on his credibility. This Court’s observation of the D efendan t during his trial testimony

is consistent with a conclusion that the Defendant has great difficulty paying attention and staying focused. I therefore find that the D efendant was negligent for failing to keep a proper lookout.

I now turn to the P laintiff ’s negligence. There was much discussion about who had the right of way in the bike path based on Delaware l aw and the local laws of Bethany Beach. There is no question that the P laintiff was permitted to be in the bike path to assist his wife in getting in and out of the Silverado given the configuration of the roadway. However, it was incumbent on the Plaintiff to observe his surroundings and get out of the bike path once his wi fe had left the area where she was parked. To remain in the bike path for 8 to 9 seconds at night, after his wife had exited the parking spot and looking in the opposite direction of oncoming bike traffic constitutes a failure to keep a proper lookout. T hese action s amount to negligence on the part of the

Plaintiff.

Having determined that both parties were negligent

, I must now apportion their comparative fault. I find that while the D efendant did have the right of way in the bike path

, this does not mean that the D efendant was free to ride his bicycle on that lane without paying attention . It is this fact finder’s conclusion that the D efendant had the last clear chance to avoid this accident by paying proper attention to his surroundings and keeping a proper lookout . Defendant failed to do either . I conclude that if the

defendant had paid proper attention

, it is more likely than not that the accident would

not have occurred. Based on the entire record, I assess negligence on the part of the

D efendant at 75% and negligence on the part of the P laintiff at 25%.

I now turn to damages. The record on damages is essentially undisputed. As a

result of the accident

, P laintiff fractured his right hip. He was taken to Beebe Hospital where he underwent right hi p open reduction surgery with an internal fixation with

the insertion of three screws. Plaintiff returned home where he was forced to use a

walker and later a cane in order to walk. He also underwent physical therapy and

received at least two steroid shots. Plaintiff underwent a second outpatient surgeryRobert Hooven, et al. v. Ross Gimelsto b

Civil Action No. N18C

- 01

- 195 FJJ June 1, 2021 Page 4 of 5

about a year after the accident to remove one of the screws. He returned to his cane

for a period after this surgery. Plaintiff c ontinues to experience pain and some limited

range of motion as a result of the accident . He is unable to complete all of the household chores that he performed before the accident and his active outdoor lifestyle

– particularly his ability to engage in h unting, fishing, and golfing

– ha s been

curtailed. His activities with Mrs. Hooven have also been affected . This Court agrees with the undisputed testimony of Dr. Leitman that as a direct and proximate cause of

the accident

, P laintiff has sustained a perm anent injury to his right hip. Mr. Hooven is 72 years old and will be forced to live with pain and limitation of his range of motion

as well as the limitations of his activities for the remainder of his life. I value the pain and suffering aspect of this case at $90

, 000.

There is no dispute that the plaintiff incurred special damages in the amount of $13,256.33. I award these special damages.

Mrs. Hooven has made a claim for loss of consortium. She testified that her life

has been affected because her husband’s limitations prevent them from doing the things they liked to do before the accident. I also note and factor into Mrs. Hooven’s

award that she has been fearful and cautious for her husband due to his limitations from

the accident. This is th e classic case of an accident causing a negative impact on the golden years of a Plaintiff and his spouse due to injuries sustained from an accident. I award Mrs. Hooven $9,000 for her loss of consortium award.

Plaintiffs’ damages award must be reduced by the degree of Mr. Hooven’s comparative negligence in causing the accident. Accordingly, the damages awards described above will be reduced by 25%.

Given my findings I award Robert Hooven $77,442.25 against the defendant

Ross Gimelstob. I award Bets y Hooven $6

, 750.00 against the defendant Ross

Gimelstob for her loss of consortium claim.

IT IS SO ORDERED.

s/ Francis J. Jones, Jr. Francis J. Jones, JudgeRobert Hooven, et al. v. Ross Gimelsto b

Civil Action No. N18C

- 01

- 195 FJJ June 1, 2021 Page 5 of 5

cc: File&ServeXpress