Opinion
C.A. No. 01C-10-154 PLA.
Submitted: March 16, 2005.
Decided: April 15, 2005.
UPON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
DENIEDLawrence A. Ramunno, Esquire, Ramunno Ramunno Scerba, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Eric S. Thompson, Esquire, Perry Sensor, Wilmington, Delaware, Attorney for Defendant.
ORDER
Defendant's Motion For Summary Judgment is hereby DENIED. It appears to the Court that:
1. On January 17, 2000, Defendant David Cesner was driving an ambulance owned by his employer, Defendant Keystone Quality Transport Corporation. The ambulance pulled into the intersection of Tenth and King Streets in Wilmington, and struck a car driven by Plaintiff Warren Alexander. Alexander's daughter, Plaintiff Ayana Ballard, was in the passenger seat of the car and was also injured. The parties agree that Alexander had the green light, and the ambulance had the red. The only dispute is whether the ambulance gave sufficient warning, via its lights and siren, that it was going to run the red light.
2. The Motion To Dismiss states, in relevant part, that,
[T]here is no dispute that Mr. Cesner was operating an authorized emergency vehicle . . . It is also not disputed that at the time of the accident, the emergency lights on the ambulance were activated. Finally, it is not disputed that Mr. Cesner slowed down or stopped at the red traffic signal before the collision occurred.
Defs. Mot. for Summ. J. at 2.
Upon reading this factual recitation, the Court was compared to consider this an open and shut case. That was until I read the exhibits that defense counsel attached to his filing, and discovered that the above quoted factual assertion is plainly not true.
3. There were apparently five witnesses to this accident: Mr. Cesner, his co-worker, Ms. McVeigh, who was in the passenger seat of the ambulance, the two plaintiffs, and one Mr. Brighton, a non-party who was crossing the street on foot.
According to Mr. Cesner, as much as the Court can glean from Defendants' inaccurate filing, he was already driving south on King Street when he received an emergency call. He then turned on his lights and sirens, slowed to five miles per hour, and carefully proceeded through the red light on Tenth Street. All other witnesses directly contradict this version of events.
Defs. Mot. for Summ. J. at 1.
According to Ballard, the ambulance was sitting at the red light on King, and then darted across the intersection without turning on its lights or sirens, leaving Alexander no warning or time to escape the collision. The Motion cites the following exchange from her deposition:
Q: When you saw the ambulance sitting at a stop on King Street . . .
A: At the red light.
Q: Did you see the lights on?
A: No.
Q: How about did you hear a siren?
Defs. Mot. for Summ. J. Ex. E, Dep. of Ayana Ballard at 6. For some reason, defense counsel began his Exhibit list at E, i.e. there are no exhibits A through D attached to the Motion.
Alexander's version is functionally identical. He states that the ambulance roared off the corner of King Street from a dead stop, did not activate its lights, and only hit its siren as it was colliding with his car, if at all. His deposition states the following:
A: He hit the gas and took off, and then he clicked on the light, I mean the siren, but it was too late . . . I know when he stepped on it he took off from the light and then I did hear the siren, but I'm in motion . . .
Q: Were the lights and siren on at the time that you were hit?
Defs. Mot. for Summ. J. Ex. F, Dep. of Warren Alexander at 15. Defense counsel elected to end the attachment at page 15 of Alexander's deposition, exactly in the middle of his explanation of the collision.
The deposition continues, with Alexander seeming to explain that Cesner activated the siren just as the vehicles collided. Defense counsel, however, conveniently cut off the attachment in the middle of this explanation.
Ms. McVeigh also may have contradicted Cesner's story. According to Plaintiffs' Response to this Motion,
The passenger in the ambulance, Kelly McVeigh, does not even know what color the light was but indicated that the driver had turned on the siren only as he was approaching the intersection but does not know how far from the impact the siren was turned on. She indicated that he was going about 25 to 35 mph and he slowed down only by letting his foot off the gas . . .
Pl. Resp. to Defs. Mot. for Summ. J. at 1-2.
Vexingly, Plaintiffs' counsel did not bother to attach or cite any documentation of where McVeigh gave this version of events. The police report he attached to the Response indicates that McVeigh stated that Cesner had activated both the lights and the siren before crossing the intersection. The Court therefore gives counsel's summary of an un-cited statement no weight in this decision.
Pl. Resp. to Defs. Mot. for Summ. J., Ex. A, State of Delaware Uniform Traffic Collision Report, at 3.
Finally, the independent witness, Mr. Brighton, gave the following statement, attached to Plaintiffs' Response as an affidavit:
I was crossing the street on January 17, 2000 from the Wilmington Library [located on Tenth and King] at the time when the accident occurred in the above captioned matter. The ambulance did not have its emergency lights on or siren when it ran the red light.
Pl. Resp. to Defs. Mot. for Summ. J., Ex. B, Aff. of Michael Brighton.
4. Even assuming that Ms. McVeigh will support Cesner's story at least in part, and that is not at all clear from the incident report and Defendants' Motion, two out of three other witnesses flatly stated that Cesner did not activate the sirens while running the red light. Moreover, no witnesses, except perhaps McVeigh, since no one bothered to attach her statement, stated that the lights were activated, as the Motion represents. Amazingly, defense counsel attached statements from two of the witnesses to his Motion, including the exchanges quoted above, and then represented to the Court that everyone agrees that Cesner properly activated his lights and siren before the accident.
5. The Court views this Motion as an intentional misrepresentation of fact by defense counsel, sanctionable under Superior Court Civil Rule 11(c). In my discretion, and as a matter of grace, I will not enter a sanction at this time. I will, however, warn defense counsel that further defense motions in this case will be minutely scrutinized, and denied unless it is absolutely clear that the facts underlying them are undisputed.
6. For these reasons, Defendants' Motion For Summary Judgment is hereby DENIED.