IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RHONDA ELSEY

- JONES , Plaintiff,

v. JACKIE GULLION as personal representative of the ESTATE OF CONNIE GULLION, and STEPHANIE DELOACH , Defendant s .
JACKIE GULLION as personal representative of the ESTATE OF CONNIE GULLION, Plaintiff,

v. STEPHANIE DELOACH, Defendant. ) ) ) ) ) C.A. No.: N 16 C

- 09

- 0 78 EMD ) ) TRIAL BY JURY OF TWELVE ) DEMANDED ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Submitted: May 9 , 2018 Decided: June 5 , 2018 Upon Defendant Jackie Gullion’s Motion for Summary Judgment

GRANTED in part and DENIED in part Upon Stephanie DeLoach’s Moti o n for Summary Judgment as to Claims of Rhonda Elsey

- Jones GRANTED
I. INTRODUCTION This case arises from two separate but related accidents on Interstate 95 (“I

- 95”). Connie Gullion purportedly moved into Plaintiff Rhonda Elsey

- Jones’ lane of traffic causing Ms. Elsey

Jones to swerve off the roadway. Connie Gullion stopped her vehicle in the median and2

attempted to cross the highway to reach Ms. Elsey

- Jones’ car. At that point, Defendant Stephanie DeLoach struck an d killed Ms. Gullion as she attempted to walk across the highway. Ms. Elsey

- Jones filed suit against Defendant Jackie Gullion, as personal representative of the estate of Ms. Gullion (the “Estate”) , and Ms. DeLoach. The Estate filed a cross claim agains t Ms. DeLoach. On the same day, the Estate and Ms. DeLoach filed motions for summary judgment against Ms. Elsey

- Jones

— Defendant Jackie Gullion’s Motion for Summary Judgment (the “Gullion Motion”) and Stephanie DeLoach’s Moti o n for Summary Judgment as to Claims of Rhonda Elsey

- Jones (the “DeLoach Motion ” and, collectively with the Gullion Motion, the “Motions”). Ms. Elsey

- Jones opposes the M otions. For the reasons set forth below, the Court GRANTS in part and DENIES in part t he Gullion Motion and GRANT S the DeLoach Motion.
II. RELEVANT FACTS This case arises from two accidents on I

- 95 on October 5, 2014

. Ms. Elsey

- Jones was driving on I

- 95 when Ms. Gullion purportedly moved into Ms. Elsey

- Jones’ lane of traffic. 1 Ms. Elsey

- Jones swerved to avoid an accident with Ms. Gullion’s vehicle. 2 Ms. Elsey

- Jones spun clockwise and struck a cement culvert on the side of the road. 3 Ms. Gullion parked her car in the center median of the roadway. 4 Two men quickly approached Ms. Elsey

- Jones’ car. 5 The m en helped Ms. Elsey

- Jones over a metal barrier. 6
Ms. Gullion then attempted to cross the street from the median to Ms. Elsey

- Jones’ vehicle. 7 One of the men with Ms. Elsey

- Jones said something about someone crossing the

1 Gullion Mot. ¶ 2. 2 Gullion Mot. ¶ 2. 3 Compl. ¶ 6. 4 Gullion Mot. ¶ 3. 5 Deposition of Rhonda Elsey

- Jones on April 11, 2017 (the “Elsey

- Jones Depo”) at 62

- 63. 6 Elsey

- Jones Depo at 62

- 63. 7 Gullion Mot. ¶ 3.3

road. 8 Ms. DeLoach was also drivi ng on I

- 95 at this time. Ms. DeL oach struck Ms. Gullion as Ms. Gullion attempted to cross the highway. 9 Ms. Elsey

- Jones “heard a thud,” turned to the left, and saw Ms. Gullion’s body on the ground. 10 Corporal Joseph Aube of the Delaware State Police res ponded to the scene of the accident. Corporal Aube created an accident report regarding the near miss between Ms. Elsey

Jones and Ms. Gullion (the “Police Report”). 11 Corporal Aube then created a report regarding the fatal collision between Ms. DeLoach an d Ms. Gullion (the “Collision Report”). 12 The Collision Report states that Ms. DeLoach noted she was traveling nearly 60 mph in a 55 mph

zone. 13 The Collison Report further notes that pedestrians are prohibited on the highway due to the high speed on I

- 95. 14 Ms. Elsey

- Jones went for an initial consultation with a chiropractor, Dr. Scott Evan Rosenthal, on October 13, 2014. 15 Ms. Elsey

- Jones complained of leg pain, lower back pain, and headache. Dr. Rosenthal created a treatment plan for Ms. Elsey

- Jones. On April 21, 2015, counselors for Ms. Elsey

- Jones at Turnaround, Inc. created a report which found that Ms. Elsey

- Jones’ conditions improved since the incident. However, the counselors also found that Ms. Elsey

- Jones still experienced some problems from “ a number of stressful events in the last year, including witnessing a driver get killed on the highway and distressed family relations. . . .” 16

8 Elsey

- Jones Depo at 63. 9 Gullion Mot. ¶ 3. 10 Elsey

- Jones Depo at 63, 66

- 67. 11 Gullion Mot., Ex. C. 12 Gullion Mot., Ex. D. 13 Id

. 14 Id

. 15 Gullion Mot., Ex. F. 16 Gullion Mot., Ex. G.4

On September 12, 2016, Ms. Elsey

- Jones filed suit for: (1) negligence against the Estate ; and (2) negligence a gainst Ms. DeLoach. 17 The Estate filed cross claims against Ms. DeLoach on November 11, 2017. 18 On March 9, 2018, the Estate filed the Gullion Motion and Ms. DeLoach filed the DeLoach Motion. On March 26, 2018 , Ms. Elsey

- Jones filed the Response to Defend ant St ephanie DeL oach’s Motion for Summary Judgment (the “DeLoach Response”) and the Response to Defendant Jackie Gullion’s Motion for Summary Judgment (the “Gullion Response”). On May 9, 2018, the Court held a hearing (the “Hearing”) on the Gullion Moti on, DeLoach Motion, DeLoach Response, and the Gullion Response. III. PARTIES’ CONTEN TIONS A. T HE G ULLION ’ S M OTION The Estate argues that the case should be dismissed because Ms. Elsey

- Jones was not in the zone of danger and Ms. Elsey

- Jones failed to provide evidence of physical injury. Regarding the physical injury, the Estate contends that Ms. Elsey

- Jones’ licensed clinical s ocial workers lack the specialized training to testify regarding psychology or psychiatry. Further, there is no indication of any physical manifestation of an injury resulting from emotional distress.
B. T HE D E L OACH ’ S M OTION Ms. DeLoach claims that the case should be dismissed because: (1) Ms. Elsey

- Jones did not witness the impact between Ms. Gullion and Ms. DeLoach; (2) Ms. DeLoach was not acting improper or unreasonable on the roadway; and (3) Ms. Elsey

- Jones failed to present medical opinion to supp ort physical injury relating the traumatic experience.

17 Compl. 18 D.I. 5.5

C. T HE D E L OACH R ESPONSE AND G ULLION R ESPONSE In the Gullion Response, Ms. Elsey

- Jones argues that she was in the zone of danger and produced admissible evidence of physical injury resulting from t he negligent infliction of emotional distress (“ NIED ”) . Ms. Elsey

- Jones stated that she has an emotional scar that is not able to heal. Further, two social workers reported that Ms. Elsey

- Jones’ physical injuries are in part physical manifestations of th e grief from witnessing Ms. Gullion’s death. In the DeLoach Response, Ms. Elsey

- Jones argues that although she did not see the car impact Ms. Gullion, she witnessed the accident when viewed as a whole. Next, speeding

— even five miles over the speed limit

— is negligence that is a proximate cause to the death of Ms. Gullion. Third, Ms. Elsey

- Jones restates her arguments made in the Gullion Response about the expert te stimony

. D. T HE H EARING At the Hearing, the Estate and Ms. DeLoach argued that there are two main issues: (1) Ms. Elsey

- Jones was not in the zone of danger; and (2) Ms. Elsey

- Jones failed to identify a qualified expert to prove proximate cause between the trauma and physical manifestations of the emotional pain. Ms. Els ey - Jones argues that she was in the zone of danger. This was a continuing negligence. Ms. Elsey

- Jones had just been run off the road and exited her vehicle before hearing a vehicle strike Ms. Gullion as she attempted to cross the highway. Based on all of the surrounding circumstances, Ms. Elsey

- Jones was in the zone of danger and reasonable feared for her safety. Ms. Elsey

- Jones argues that they have the two social workers or alternatively, that they do not need an expert in this case. Ms. Elsey

- Jones argues that the two social workers work in a6

trauma center and are qualified to render their opinion regarding Ms. Elsey

- Jones’ physical manifestations of emotional distress. Alternatively, Ms. Elsey

- Jones argues that they do not need an expert witness in this case to show proximate cause. Ms. Elsey

- Jones sued for negligence and emotional distress in this case is a part of damages and not an independent claim

— such as negligent infliction of emotional distress. Counsel for Ms. DeLoach and the Estate were scheduled to depose the social workers on May 9, 2018. Upon questioning from the Court, Ms. Elsey

- Jones also clarified that the claims for emotional distress relate only to a negligence claim and not a NIED claim. Ms. Elsey

- Jones contends that Ms. Elsey

- Jones’ emotional injuries are part of her pain and suffering damages asserted in her two negligence claims. Accordingly, Ms. Elsey

- Jones claims that no expert is required to testify about the mental anguish as it will be part of her testimony

. I V. STA NDARD OF REVIEW The standard of review on a motion for summary judgment is well

- settled. The Court’s principal function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of material fact exist, “but not to decide such issues.” 19 Summary judgment will be granted if, after viewing the record in a light most favorable to a nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. 20 If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment will not be granted. 21 The moving party bear s

19 Merrill v. Crothall

- American Inc. , 606 A.2d 96, 99

- 100 (Del. 1992) (internal citations omitted); Oliver B. Cannon & Sons, Inc. v. Dorr

- Oliver, Inc. , 312 A.2d 322, 325 (Del. Super. 1973). 20 Id. 21 See Ebersole v. Lowengrub , 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington , 1990 WL 35244 at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole , 180 A.2d at 467) (“Summary judgment will not be granted under any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order to c larify the application of law to the circumstances.”).7

the initial burden of demonstrating that the undisputed facts support his claims or defenses. 22 If the motion is properly supported, then the burden shifts to the non

- moving party to demonstrate that there are material issues of fact for the resolution b y the ultimate fact

- finder. 23
V. DISCUSSION A. N EGLIGENCE To prove negligence, a plaintiff must show: (1) duty; (2) breach; (3) causation; and (4) harm. 24 Motorists have a duty to maintain a proper lookout while traveling on a roadway. 25 In fact, Delawar e courts “ have laid down the rule in a number of cases that at crossings the drivers of all motor vehicles must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestri ans having the right to cross the streets at crossings and to rely on the drivers of automobiles not to run them down, and we have categorically said that ‘care at street crossings is the highest duty of motorists.’” 26 Motorists and pedestrians generally ow e a duty to one another while crossing a roadway. However, there are some exceptions. A pedestrian is not negligent in assuming that he or she is safe from danger when on a sidewalk. 27 Additionally, a motorist is not negligent in failing to anticipate th at pedestrian will jump out between parked cars. 28 All the duties between a motorist and pedestrians appear to be connected to one another. There is no indication that a motorist owes a duty to not strike another pedestrian within

22 See Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1970) (citing Ebersole , 180 A.2d at 470). 23 See Brzoska v. Olsen , 668 A.2d 1355, 1364 (Del. 1995). 24 Hudson v. Old Guard Ins. Co. , 3 A.3d 246, 250 (Del. 2010). 25 See Fernandez v. Davis , 1991 WL 113607, at *2 (Del. Super. June 4, 1991), aff'd , 608 A.2d 726 (Del. 1991). 26 Armor v. Mink , 100 A.2d 226, 228

– 29 (Del. Super. 1953). 27 Biddle v. Haldas Bros. , 190 A. 588, 595 (Del. Super. 1937) (“This also is to be said: a pedestrian has a right upon the sidewalk, or that space set aside for pedestrians, which is superior to the right of motor vehicles; and a pedestrian is not negligent in assuming that he is safe from the danger of automobiles passing on the adjace nt roadway, nor is a pedestrian negligent in failing to anticipate that the driver of an automobile will so operate his car as to endanger his safety.”) 28 See Hudson v. Old Guard Ins. Co. , 3 A.3d 246, 250 (Del. 2010).8

someone’s view. A potent ial exception to this situation is if the plaintiff was within the zone of danger seeking negligent infliction of emotional distress or intentional infliction of emotional distress. Under a straight claim of negligence, Ms. Gullion owed a duty of care to Ms. Elsey

- Jones as a fellow motorist. The Court holds that, absent more, Ms. DeLoach did not owe any duty to Ms. Elsey

- Jones to not strike a pedestrian in Ms. Elsey

- Jones’ presence

. The Court does not see a logical extension of the generally accepted principles to provide Ms. DeLoach owe d a duty to someone observing the accident between Ms. DeLoach and Ms. Gullion. Unless the “zone of danger” situation exists (discussed below) , the Court cannot discern where would the duty end

— e.g. , people at ground l evel at any observable distance, people in surrounding buildings that witness the accident, etc. The Court will not adopt this potentially “slippery slope” extension of negligence claim s by an observer of an accident.
B. Z ONE OF D ANGER Ms. Elsey

- Jones cl arified that she is not asserting a NIED claim against the Estate or Ms. DeLoach. As such, the Court grants the relief sought in the Gullion Motion and the DeLoach Motion with respect to any NIED claims that may have been raised. The Court still needs to address “zone of danger” as it relates to Ms. Elsey

- Jones’ negligence claim against Mr.
DeLoach. 29

29 At the Hearing, Ms. Elsey

- Jones clar ified that she is not making a NIED claim against Ms. DeLoach or the Estate. Despite this clairification, Ms. Elsey

- Jones does make a “zone of danger” allegation in paragraph 9 of her Complaint. See Compl. ¶ 9.9

The leg al issue of “ z one of danger” is best addressed in NIED cases

. 30 “The zone of danger is that area where the negligent conduct causes the victim to fear for his own safety.” 31 “Thus, in order to be in the zone of danger a plaintiff must show that the neglige nt conduct caused the plaintiff to fear for her own safety.” 32 Additionally, the plaintiff must suffer some outrage “within the immediate zone of danger of the negligent act.” 33 In Delaware, t he plaintiff must be within the path of the oncoming car. Delaw are relies upon The Restatement (Second) of Torts § 313 for the zone of danger. In fact, It illustrates a mother who witnesses her child negligently struck by a vehicle and suffers emotional distress resulting in bodily injury as a result. Under the zon e of danger rule, the mother’s emotional distress is compensable only if she were in path of the oncoming car. 34 In this case, Ms. Elsey

- Jones had the near collision with Ms. Gullion and swerved off the road. Ms. Elsey

- Jones stated that she suffered “an emotional scar that [she] has not been able to

30 To prove NIED, a plaintiff must show: “( 1) negligence causing fright to someone; (2) in the zone of danger; (3) producing physical consequences to that person as a result of the contemporaneous shock.” See Rhinehardt v. Bright , 2006 WL 2220972, at *5 (Del. Super. July 20, 2006) (citing Snavely ex rel. Snavely v. Wilmington Med. Ctr., Inc. , CIV.A. 82C

- SE

- 53, 1985 WL 552277, at *1 (Del. Super. Mar. 18, 1985)). 31 Snavely , 1985 WL 552277, at *4. 32 Id. 33 Allison v. J.C. Bennington Co. , 1996 WL 944908, at *2 (Del. Super. Aug. 6, 1996) (citing Robb v. Pennsylvania Railroad Co., 210 A.2d 709 (Del. 1965)). 34 Fanean v. Rite Aid Corp. of Delaware, Inc. , 984 A.2d 812 (Del. Super. 2009) (citing Restatement (Second) of Torts § 313, cmt. d); see also DeAguiar v. County of Suffolk , 734 N.Y.S.2d 212, 213 (N.Y. Ap p. Div. 2d Dept. 2001) (finding that a sister was not in the zone of danger “merely by following the decedent on the same road and around the same curve” after seeing a cloud of dust and her brother bleeding on the ground). But see Armstrong v. A.I. Dupon t Hosp. for Children , 60 A.3d 414, 423 (Del. Super. 2012) (finding that NIED “is a viable cause of action where the negligence is continuing and occurs in the third person’s presence” in a medical malpractice case. The Court distinguished its decision fro m Snavely because the medical negligence was a continuing negligence and not a “moment

- in

- time act of negligence”). To make a claim for NIED where the plaintiff feared for a third person outside the zone of danger, the court will factor: ( 1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as co ntrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship of the presence of only a distant relationship. Armstrong , 60 A.3d 414 at 425 (citing Dillon v. Legg , 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968)).10

heal.” 35 Further, Ms. Elsey

- Jones states that she suffered the emotional scar from “[t]he death of someone and the near death of myself. . . . [b]ecause I almost ran into a concrete wall trying to stop my vehicle.” 36 After the near collision, two men came to help Ms. Elsey

- Jones out of her vehicle. At that point, the two men helped Ms. Elsey

- Jones over a metal barrier “up a little ways” fr om Ms. Elsey

- Jones’ car. 37 Then, one of the men said something about a person crossing the road. Ms. Elsey

- Jones heard a thud and when she looked over, Ms. Gullion was laying on the ground. Ms. DeLoach struck Ms. Gullion nearly sixty feet from Ms. Elsey

- Jones’ car while Ms. Elsey

- Jones was behind a metal barrier. 38 Ms. Gullion’s body landed nearly fifty feet from Ms. Elsey

- Jones’

car. 39 Ms. Elsey

- Jones is not related to Ms. Gullion and nothing in the record indicates any other close relationship between t he two. On the factual record, Ms. Elsey

- Jones was not in the zone of danger in such a manner that Ms. DeLoach owed Ms. Elsey

- Jones a duty of care. Ms. Elsey

- Jones was at least sixty feet from the accident and fifty feet from where Ms. Gullion landed. Ms. Elsey

- Jones did not witness the actually accident between Ms. DeLoach and Ms. Gullion but learned of it from another observer. Moreover, Ms. Elsey

- Jones has an absence of any relationship to Ms. Gullion. The Court, therefore, finds that Ms. Elsey

- Jon es cannot assert a NIED or a negligence claim against Ms. DeLoach.

35 Elsey

- Jones Depo at 12. 36 Elsey

- Jones Depo at 13. 37 Elsey

- Jones Depo at 63. 38 Deposition of Corporal Joseph Aube on January 8, 2018 (the “Corporal Depo”) at 35. 39 Id.11

C. M EDICAL E XPERTS

– P HYSICAL M ANIFESTATIONS “The law of Delaware is well settled that a claim of negligent infliction of emotional distress or mental anguish may not be maintained in t he absence of evidence of a present physical injury.” 40 Claims of physical injury “cannot be transitory, non

- recurring phenomena to be . . . legally recognized [as] caused by emotional distress.” 41 Allegations of “sleeplessness and nausea” have been found sufficient to support emotional distress for negligent infliction for emotional distress on a motion to dismiss standard. 42 At this point in the civil action, Ms. Elsey

- Jones presented sufficient evidence of physical injury. Ms. Elsey

- Jones testified that she experienced inability to sleep, inability to drive I

- 95, heaviness in her legs, hyper vigilant, and problems eating, walking, sleeping, loss of concentration, and nervousness. These problems began the day after the incident and continued at least for several weeks. Ms. Elsey

- Jones’ counselors at Turnaround, Inc. stated that Ms. Elsey

- Jones’ physical injuries are physical manifestations of the grief she endured as a result of
the incident. Ms. Gullion and Ms. DeLoach argue that expert testimony is re quired to establish proximate cause between the claims injury and the mental effect of the negligen ce . 43 F or physical injuries as a part of damages of a negligence claim, an expert is not required if a layperson would be able to form an intelligent judgment without the aid of a medical expert. 44 Mental anguish damages relating to physical injuries from negligence also may not require an expert. When the mental anguish directly flow as a natural consequence of the wrongful act and

40 McKnight for McKnight v. Voshell , 513 A.2d 1319 (Del. 1986) (citing Mergenthaler v. Asbestos Corp. of America , 480 A.2d 647, 651 (Del. 1984)). 41 See Rhinehardt , 2006 WL 2220972, at *5. 42 Drainer v. O'Donnell , 1995 WL 338700, at *3 (Del. Super. May 30, 1995). 43 See Collins v. African Methodist Episocopal Zion Church , 2006 WL 1579718, at *4

- 5 (Del. Super. Mar. 31, 2006). 44 See id.12

physical injuries, then expert testimony of the physical injuries, if necessary, may be sufficient for the mental anguish damages. 45 Ms. Elsey

- Jones’ relies upon two licensed clinical social workers, Danielle Branch and Karen Taylor, to establish that her physical injuries resulted from the emotional distress of the incident. However, a social worker cannot provide expert testimony absent any specialized training in the field. 46 It does not appear that Ms. Branch and Ms. Taylor are qualified as experts in medicine, physiolo gy or psychiatry. However, Ms. Gullion and Ms. DeLoach have had an opportunity to depose Ms. Branch and Ms. Taylor. The parties should provide additional guidance on Ms. Branch and Ms. Taylor and consider a motion in limine as to whether they can provide any opinion testimony

. Regardless, as long as Dr. Rosenthal is qualified to testify about Ms. Elsey

- Jones’s physical injuries from the car accident, then no further expert testimony may be required to link the mental anguish to the accident or physical injuries. As clarified at the Hearing, Ms. Elsey

Jones is not arguing that her mental distress damages are part of a NIED claim but, instead, are a component of her “pain and suffering” damages and will be testified to at the trial. The Court may need to draft a limiting instruction for the jury on this point and will address this at the pre

trial conference.

45 Re Bangs v. Follin , 2016 WL 6875959, at *2 (Del. Super. Nov. 21, 2016), as amended (Nov. 28, 2016) (not requiring expert te stimony for mental anguish stemming from injuries from falling through a floor). 46 See Vohrer v. Kinnikin , 2014 WL 1203270, at *6 (Del. Super. Feb. 26, 2014).13 V I . CONCLUSION For the reasons set forth herein, the Gullion Motion is GRANTED as to any NIED claim and DENIED as to the negligence claim, and the DeLoach Motion is GRANTED as to any claim asserted by Ms. Elsey

- Jones

. Dated: June 5 , 2018 Wilmington, Delaware 

## /s/ Eric M. Da vis Eric M. Davis, Judge