Opinion
C. A. N20C-10-145 JRJ
03-28-2022
LAURA ANACAY, KRISTA SKALSKI, BAILEY ANACAY, and CARLOS ANACAY, Plaintiffs, v. TYLER ALEXANDER, PIZZA PROPERTIES OF NEW CASTLE COUNTY, LLC., KEVIN BETIT, and STATE FARM MUTUAL AUTOMOBILE INSURANCE, Defendants.
Heather A. Long, Esq., Kimmel, Carter, Roman, Peltz & O'Neill, P.A., 56 W. Main Street, Suite 400, Plaza 273, Christiana, DE 19702, Attorney for Plaintiffs. Cynthia G. Beam, Esq., Reger Rizzo & Darnall LLP, 1521 Concord Pike, Suite 305, Wilmington, DE 19803, Attorney for Defendant.
Submitted: January 6, 2022
Upon Defendant Pizza Properties of New Castle County, LLC's Motion to Dismiss, or in the alternative, Motion for Summary Judgment:
Heather A. Long, Esq., Kimmel, Carter, Roman, Peltz & O'Neill, P.A., 56 W. Main Street, Suite 400, Plaza 273, Christiana, DE 19702, Attorney for Plaintiffs.
Cynthia G. Beam, Esq., Reger Rizzo & Darnall LLP, 1521 Concord Pike, Suite 305, Wilmington, DE 19803, Attorney for Defendant.
MEMORANDUM OPINION
Jan R. Jurden, President Judge
I. INTRODUCTION
Before the Court is Defendant Pizza Properties of New Castle County, LLC's ("Pizza Properties") Motion to Dismiss, or in the alternative, Motion for Summary Judgment. For the reasons explained below, the motion is GRANTED.
Pizza Properties' motion is titled as a Motion to Dismiss pursuant to Superior Court Rule 12(b)(6), but the introductory paragraph of the motion states, "or in the alternative for Summary Judgment pursuant to Rule 56(b)." See Pizza Properties' Motion to Dismiss ("Def.'s Mot."), at 1 (Trans. ID. 66904440). Pizza Properties concedes in its Reply that the Motion to Dismiss was inappropriate given its submission of affidavits, and the Court considers the instant motion as one for summary judgment. See Reply to Plaintiff's Opposition to Defendant Pizza Properties of New Castle County's Motion to Dismiss, at 1 (Trans. ID. 67214872).
II. STATEMENT OF FACTS
On December 10, 2018, Plaintiff Laura Anacay was operating a vehicle stopped in traffic. Her two daughters, Krista Skalski and Bailey Anacay, were passengers in her vehicle. A vehicle owned by Defendant Kevin Betit and operated by Defendant Tyler Alexander caused a three-car rear-end collision, resulting in injuries to Laura Anacay and her daughters. Plaintiffs allege Defendant Alexander was en route to his employment with Pizza Properties when the collision occurred.
Amended Complaint ("Am. Compl.") at ¶ 1 (Trans. ID. 66234365).
Id.
Id.
Id.
Plaintiffs filed an Amended Complaint on January 7, 2021, alleging one count of negligence against Defendants Alexander, Kevin Betit, and Pizza Properties. Plaintiffs added Pizza Properties as a defendant in the lawsuit based on a theory of respondeat superior, alleging that Defendant Alexander "was operating the motor vehicle as the agent, servant and/or employee of [Pizza Properties] and was pursuing [Pizza Properties'] business at the time of the aforesaid accident."Pizza Properties filed the instant motion, along with affidavits pursuant to 10 Del. C. § 3916, on September 3, 2021. According to the affidavits of the Director of Pizza Properties, Robert Rousseau, Defendant Alexander was not working as an agent of Pizza Properties at the time of the accident. Mr. Rousseau attests the following:
Plaintiffs' original Complaint named Domino's Pizza Inc. as a Defendant, alleging in paragraph three that Defendant Alexander was operating the vehicle as an agent of Domino's and was pursuing Domino's business at the time of the collision. In their Amended Complaint, Plaintiffs removed Domino's Pizza Inc. as a defendant and added Pizza Properties. Def.'s Mot. at ¶¶ 2-3.
Am. Compl. at ¶¶ 1-4.
Id. at ¶ 3.
Def.'s Mot., at Exh.'s C-D; 10 Del. C. § 3916. Section 3916 provides the following:
In any action arising out of the operation of any vehicle, in which it is alleged that the operator of the vehicle was a servant, agent or employee of the defendant or defendants, the plaintiff may specifically require the defendant or defendants to deny the allegation that the operator of the vehicle was a servant, agent or employee of the defendant or defendants by affidavit filed with the answer, by the specific notation of the need for denial by affidavit within the paragraph alleging that the operator of the vehicle was a servant, agent or employee of defendant or defendants. Any defendant so answering shall deny that the operator of the vehicle was operating the vehicle at the time of the occurrence as a servant, agent or employee of the answering defendant, and/or deny that the operator of the vehicle was operating the vehicle in and about the course of duties as a servant, agent or employee of the answering defendant and set forth the factual basis for the denial. Where plaintiff has complied with this section, failure of a defendant to file an affidavit with the answer shall be deemed an admission that the operator of the vehicle was a servant, agent or employee of the defendant. Id.
Id., at Exh. C.
Co-Defendant Tyler Alexander worked at the pizza shop located at 2425 Pulaski Highway, Glassgow, DE, at the time of the subject
accident. Co-Defendant Tyler Alexander has never used a vehicle during his works [sic] hours to further the business interests of Pizza Properties of New Castle Country [sic]. Co-Defendant Tyler Alexander worked as counter help for Pizza Properties of New Castle County. He never worked as a delivery person.Additionally, Pizza Properties submitted a time sheet showing that Defendant Alexander did not clock in to work on the day of the accident.
Id., at Exh. D.
Id., at Exh. E.
III. PARTIES' CONTENTIONS
Pizza Properties argues that it is entitled to summary judgment because the undisputed facts show that Defendant Alexander was not acting within the scope of his employment at Pizza Properties, and that he never served as a delivery driver for Pizza Properties. According to Pizza Properties, "[t]here are no facts pled which could result in any exception to [the] premise rule that a master is not liable for torts of his agent while driving to and from his place of employment."
Def.'s Mot. at ¶¶ 5-8.
Id. at ¶ 11 (citing Barnes v. Towlson, 405 A.2d 137, 139 (Del. Super. 1979)).
Plaintiffs argue that Pizza Properties' motion is premature. They note that Pizza Properties has not yet filed an answer to the Amended Complaint and that the only evidence supporting its arguments are the two affidavits from the Director of Pizza Properties and the timesheet. Plaintiffs further contend that they have not had the opportunity to depose Director Rousseau or Defendant Alexander, or to engage in any discovery to determine the accuracy of the facts provided in the affidavit.
Plaintiffs' Response to Defendant Pizza Properties of New Castle County's Motion to Dismiss at ¶ 5 (Trans. ID. 67174928).
Id. at ¶ 6.
Id. at ¶¶ 7-8.
IV. STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of establishing the non-existence of material issues of fact, and the Court must view the record in a light most favorable to the non-moving party. The non-movant cannot create a genuine issue of fact with bare assertions or conclusory allegations, but must produce specific evidence that would sustain a verdict in their favor.
Super. Ct. Civ. R. 56(c).
Patterson-Woods & Associates, LLC v. Independence Mall, Inc., 2019 WL 6170849, at *3 (Del. Super. Oct. 10, 2019) (citations omitted).
Williams v. United Parcel Service of America, Inc., 2017 WL 10620619, at *2 (Del. Super. Nov. 9, 2017) (citing Citimortgage, Inc. v. Stevenson, 2013 WL 6225019, at *1 (Del. Super. 2013)).
V. DISCUSSION
The affidavits and documentation provided by Defendant Pizza Properties refute Plaintiffs' conclusory allegations that Defendant Alexander was operating the vehicle as an agent, servant and/or employee of Pizza Properties and was pursuing Pizza Properties' business at the time of the collision. Plaintiffs offered no affidavits to rebut those provided by Pizza Properties. Under Barnes v. Towlson, an employer is not liable for torts of his agent while the agent is driving to and from his place of employment.
Barnes v. Towlson, 405 A.2d 137, 139 (Del. Super. 1979).
VI. CONCLUSION
Viewing the well-pled facts in the light most favorable to the non-movant, the Court finds there is no genuine issue of material fact and, therefore, summary judgement is GRANTED.
IT IS SO ORDERED.