Summary
refusing to grant summary judgment for the defendant and distinguishing Trievel because there were no third-party eyewitnesses
Summary of this case from THOMPSON v. COPEOpinion
C.A. No. 99C-12-016 WLW
Submitted: September 1, 2000
Decided: October 12, 2000
Upon Defendant's Motion for Summary Judgment. Denied.
William F. Jaworski, Jr. of The Law Office of William F. Jaworski, LLC, Dover, Delaware, for the Plaintiffs.
Robert B. Young of Young Young, Dover, Delaware, for the Defendant.
ORDER
1. On February 26, 1999, at approximately 5:00 a. in., Plaintiff Randy Jackson ("Jackson") was riding his bicycle southbound on Route 13. At the same time and location, Defendant Louis Thompson ("Thompson") was on his way home from work at Wal-Mart. Just south of the Dover Budget Inn, a collision occurred and Jackson's bicycle was struck from behind by Thompson's pick-up truck. Jackson suffered multiple injuries in the accident. On December 13, 1999, Jackson filed this suit alleging that Thompson was negligent in the operation of his vehicle and was the cause of his injuries. On August 22, 2000, Thompson filed this motion for summary judgment.
2. Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment cannot be granted unless after viewing the record in light most favorable to the non-moving party, there are no material issues of fact. The moving party bears the burden of showing that there are no material issues of fact; however, if the moving party "supports" the motion under the Rule, the burden shifts to the non-moving party to show that material issues of fact do exist. In Merrill v. Crothall-American, Inc., the court stated that the "role of a trial court when faced with a motion for summary judgment is to identify disputed factual issues whose resolution is necessary to decide the case, but not to decide such issues."
Sup.Ct. Civ. Rule 56(c).
Moore v. Sizemoore, Del. Supr., 405 A.2d 679, 680 (1979).
Id.
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99(1992).
3. Negligence cases do not readily lend themselves to summary judgment. In Ebersole v. Lowengrub, the court reiterated this stating that, "[g]enerally speaking, issues of negligence are not susceptible of summary adjudication. It is only when the moving party establishes the absence of a genuine issue of any material fact respecting negligence that summary judgment may be entered." The court also noted similar difficulties with proximate cause saying, "questions of proximate cause except in rare cases are questions of fact ordinarily to be submitted to the jury for decision." In addition, when comparative negligence is part of the case "the determination of the respective degrees of negligence attributable to the parties usually presents a question of fact for the jury." The time for setting factual disputes in negligence, proximate cause or comparative negligence issues is at trial by the trier of fact, not in a summary judgment motion.
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 468(1962).
Id.
Trievel v. Sabo, Del. Supr., 714 A.2d 742, 745 (1998).
4. The dispute in the case at hand is a negligence claim where Plaintiff admits that some degree of negligence could be apportioned to him. Defendant claims that Trievel v. Sabo is applicable to this case. In Trievel, a bicyclist attempted to cross two lanes of traffic in such a reckless, negligent maimer that the court granted a motion for judgment as a matter of law, finding that the "overwhelming evidence, viewed in the light most favorable to the Trievel Plaintiffs, can only lead to the conclusion that Trievel's negligence was greater than any negligence attributable to Sabo." Two factors distinguish the Trievel case from the facts of the immediate case. First, in Trievel, the motion was for judgment as a matter of law meaning that the judge had heard Plaintiffs case for liability in full. Second, in the immediate case there are no eyewitnesses and the trier of fact must weigh the evidence and determine the credibility of the individual parties, whereas in Trievel there were eyewitnesses heard in support of the defendant's claim. Thompson asserts that similar to the reckless conduct in Trievel, Jackson's reckless or negligent conduct included: riding his bicycle southbound on Route 13 dressed in dark clothing at 5:00 a.m. on a rainy morning, riding his bicycle without all of the required illumination devices, and riding his bicycle that morning while under the influence of alcohol. Thompson claims that these factors rendered Jackson invisible on the highway and make Jackson's conduct more negligent than Thompson's.
Trievel at 746.
5. However, in a motion for summary judgment, the facts must be interpreted in favor of the non-moving party when determining if a material issue of fact exists. Jackson claims that he was riding as close to the curb as possible (close enough to put his foot on the curb if he came to a stop), with a red reflector on the rear fender of his bicycle. Further, Jackson claims that the stretch of Route 13 where the accident occurred is well lit by street lamps, especially those of the Dover Budget Inn. Jackson also alleges that Thompson failed to keep a proper lookout in the operation of his truck. At trial, the statutory violation concerning the bicycle's illumination or lack thereof and Jackson's blood alcohol level must be weighed by the trier of fact against Thompson's actions. Determining the visibility of Jackson and the reasonableness of Thompson's actions with respect to Jackson that morning are material issues of fact that must be determined by the jury.
Moore at 680.
21 Del. C. § 4198F requires (a) a front light visible for 500' from the front, (b) a red reflector visible for 600' from the rear when directly in front of lawful lower beams of head lamps on a motor vehicle, and (c) illumination to make the bicycle vehicle visible from the side for at least 600'. Jackson claims to have had a red reflector on his rear fender and the picture shows reflectors in the spokes of the wheels. Presumably, the only part of the statute not satisfied by Jackson was that he did not have his front light turned on that evening. Further, Jackson was struck from the rear where he claims to have had a reflector. The jury must determine how visible Jackson was from the evidence and testimony presented at trial.
Thompson stated that it was raining hard, his windshield wipers were on their fastest setting, he was in the process of checking his mirrors to change lanes and was also looking at his odometer just prior to the collision. Thompson further claims that due to poor visibility his speed was somewhere between 32-40 mph. Jackson alleges that Thompson may not have been acting as a reasonably prudent driver would in light of the conditions. While most of the above actions are largely indicative of good defensive driving, it is up to the trier of fact to determine if the actions were negligent under the circumstances.
6. Bicycles have the right to be on the road with motor vehicles and at the same time have the responsibility to follow the applicable statutes and act reasonably. Motor vehicle operators also have a duty to operate their vehicle in a reasonable manner. In the case at hand, the trier of fact must weigh these duties in light of the testimony and evidence presented at trial and determine what degree of negligence exists. Even though it may appear unlikely that plaintiff will prevail at trial, where a material issue of fact exists, the testimony must be weighed by the trier of fact and not by the court in a motion for summary judgment.
Locey v. Hood, Del. Supr., No. 002, 2000, Steele, J. (Sept. 15, 2000) (Order).
THEREFORE, Defendant's motion for summary judgment is DENIED.