Opinion
C.A. No. 04C-06-198 SCD.
Submitted: September 29, 2005.
Decided: October 11, 2005.
ORDER
Upon consideration of the defendant Joseph C. Nelson's Motion for Summary Judgment, the responses of co-defendant Tailgates, Inc. and plaintiff Baranowski, and portions of the record in this case, it appears that:
(1) This personal injury accident arises from a bodily injury allegedly sustained by plaintiff on June 20, 2002, as the result of a physical altercation at Tailgates, Inc. The plaintiff claims that defendant Nelson and an unidentified person ("Mr. X") were engaged in a verbal altercation. As Nelson was trying to get away from Mr. X, Nelson came into contact with plaintiff who stumbled. That left plaintiff in the midst of the pursuit of Nelson by Mr. X. Perhaps to move plaintiff aside, Mr. X then grabbed the plaintiff's hair, pulled him around and ultimately threw him into an object which caused his injury.
See Baranowski Dep., Exhibit A, attached to defendant Nelson's motion for summary judgment. Testimony was given by plaintiff at a deposition on November 12, 2004. References to "Joe" are to the defendant, Joseph C. Nelson.
Q: The person who started chasing Joe, was that one of the people involved in the verbal altercation you heard?
A: Yes.
Q: And who was the other person involved in the verbal altercation?
A: It was just Joe and that other person.
Q: When you said that you were pushed around, do you know who pushed you? A: Yes, I do. It was actually Joe when he was being chased.
Q: So he was being chased by this Mr. X?
A: Yes.
Q: And in trying to get out of the way he pushed you?
A: I guess. I don't know.
Q: As a result of coming into contact with Joe, did you fall?
A: It pushed me over, yes. I didn't hit the ground, no.
Q: You just sort of stumbled? A: Yes.
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Q: Then Mr. X is in pursuit of Joe. You somehow get caught between and he starts swinging at Joe. You saw that. Is that correct?
A: Correct.
Q: And those blows are not really hitting you. You don't know whether they're hitting Joe or not. Is that correct?
A: Correct.
Q: Do you know if Joe threw any blows back at Mr. X? Did you see that happen?
A: No, I didn't see it.
Q: Now, if I understand it, somebody grabs you by the ponytail?
A: Yes.
Q: And yanks you down. Is that Mr. X?
A: Yes.
Q: And that's after he had thrown a few blows at Joe. Is that correct?
A: (The witness nodded.)
Q: And you were kind of in the middle, correct?
A: Yes.
Q: Is it fair to say that he yanks you down so he can get at Joe?
A: Yes.
Q: So you can get out of the way and he can get to Joe. Is that fair to say?
A: Yes.
Q: Now you're down on the ground at that point. Is that right?
A: Yes.
Q: Does somebody continue to pull on your ponytail?
A: Yes.
Q: At what point is it that you hurt your left shoulder? I think you said you felt that your arm had been broken?
A: Yes.
Q: At what point did that happen, if you know?
A: That was when the guy was yanking my head down. After bumping into me and punches were thrown, that guy must have been trying to get me out of the way. He grabbed me by my hair, wherever it was, and started yanking me and kind of pushed me over. And he was yanking on me and then I wound up hitting the wall and then the tailgate before I hit the ground all the way.
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Q: So as far as you're concerned, your arm injury was when you were yanked by Mr. X into the tailgate?
A: Yes.
(2) The defendant has filed a motion for summary judgment. A motion for summary judgment may only be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the non-moving party. The decision on a summary judgment motion must be based only on record presented, including all pleadings, affidavits, depositions, admissions, and answers to interrogatories, not on what evidence is "potentially possible."
Merrill v. Crothall-American, Inc., 606 A.2d 96 (Del. 1992).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Camac v. Hall, 698 A.2d 394, 396 (Del.Super.Ct. 1996) (citing Rochester v. Katalan, 320 A. 2d 704 (Del.Super.Ct. 1974)).
(3) Plaintiff and co-defendant claim that Nelson had a duty to retreat from the argument and that his failure to do so caused plaintiff's injury. The defendant counters that there is no duty to retreat in these circumstances and assuming a duty, there is no proximate cause between Nelson's argument with Mr. X and Mr. X's assault of plaintiff. Neither plaintiff nor co-defendant has provided authority to support the asserted duty to retreat as a civil obligation. The only duty to retreat is found in the criminal statutes at 11 Del. C. § 464. That statute provides that retreat is required to avoid deadly force. Deadly force is not at issue here. A defendant may employ reasonable protective force when faced with force upon his person and has no duty to retreat.
See Baranowski Dep., Exhibit A, attached to defendant Nelson's motion for summary judgment.
Q: Other than Joe bumping into you while he's trying to get away from Mr. X, did he come in contact with you again?
A: No, not to my knowledge. . . .
See 11 Del. C. § 464.
(a) The use of force upon or to ward an other person is justifiabe when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.
(b) Except as otherwise provided in subsections [related to resisting arrest and deadly force] a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action. (emphasis supplied)
(4) As to proximate cause, defendant relies on Gaige v. Kepler. Gaige involves a motorist who brought a personal injury action against the driver of a second vehicle after Gaige was assaulted by its passenger. The Court determined that defendant owed no duty to prevent her passenger from assaulting plaintiff. Further, assuming a duty, her acts or omissions were not the proximate cause of the injuries but "merely furnished the condition for the event's occurrence." Likewise, defendant Nelson's verbal altercation with Mr. X was not the proximate cause of plaintiff's injuries, it merely furnished the condition for its occurence. Plaintiff admits that he was assaulted and injured by Mr. X.
Gaige v. Kepler, 756 N.Y.S.2d 644 (N.Y.App.Div. 2003).
Id. (citing Radlin v. Brenner, 286 A.D.2d 881, 730 N.Y.S.2d 896; Fariello v. City of New York Bd. of Educ., 199 A.D.2d 461, 606 N.Y.S.2d 20; Moss v. New York Tel. Co., 196 A.D.2d 492, 493, 600 N.Y.S.2d 759).
(5) There are no issues of material fact. Defendant Nelson has not violated a duty to plaintiff which was a proximate cause of injury.
WHEREFORE, defendant Joseph C. Nelson's motion for summary judgment is GRANTED.
IT IS SO ORDERED.
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Q: Did anybody else, other than Mr. X, to your knowledge kick or punch or hit you?A: Not to my knowledge.
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Q: Is it fair to say that when you had the conversation with him (Joe) you never accused him of injuring you?A: No, I didn't.
Q: And is it fair to say that you don't think he did injure you?
A: I believe he had a part in it, yes.
Q: And how did he have a part in it other than trying to run away from this guy?
A: Well, I think in my opinion if you want to avoid an altercation you can walk away.
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Q: I asked whether physically he (Joe) did anything to injure you.A: No.