Opinion
C.A. No. 99C-10-264-JEB
Submitted: April 11, 2001
Decided: October 1, 2001
Donald L. Gouge, Jr. Esquire
Arthur D. Kuhl, Esquire
Dear Counsel:
On November 8, 1997, Plaintiff and Defendant were in an auto accident. Plaintiff was traveling north on Carpenter Station Road. Defendant was traveling south on Carpenter Station Road. Both cars approached the intersection of Carpenter Station Road and Valley Run Drive to the west and Jacqueline Drive to the east. Plaintiff intended to turn left onto Valley Run Drive. Defendant intended to proceed south on Carpenter Station Road. A vehicle in front of and traveling the same direction as Defendant was stopped in the intersection to turn left on Jacqueline Drive.
Defendant passed the turning vehicle on the right. Plaintiff continued turning left and the Plaintiff and Defendant collided in the intersection.
The Court may grant summary judgment if it concludes that "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 summary judgment as a matter of law." Defendant has moved for summary judgment asserting that plaintiff was negligent, defendant was not and if both were negligent, plaintiff's negligence was greater than defendant's.
Super. Ct. Civ.R. 56(c); Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991).
Given the totality of the circumstances in this case and the state of the record, summary judgment is inappropriate and will be denied.
The evidence strongly suggests that plaintiff was negligent. She executed a left turn and collided with a vehicle headed in the opposite direction. A violation of 21 Del. C. § 4132, which requires a left-turning vehicle to yield to any vehicle approaching from the opposite direction which is so close as to constitute an immediate hazard, seems manifest.
On the other hand it is not manifest that defendant was not negligent. The parties have argued whether defendant was moving on the shoulder of the roadway or off the roadway when she passed a left-turning vehicle on the right. The record, which consist of a schematic diagram drawn by an investigating police officer and several low angle photographs taken by one of the parties, simply does not give the Court a firm basis for ruling on this issue. However, if defendant was lawfully passing on the right, she was still subject to the duty imposed by 21 Del. C. § 4117(a) to do so only under conditions permitting such movement in safety. This is unquestionably a factual issue to be resolved by the jury.
Finally on the assumption that both parties were negligent, this record does not permit the Court to conclude as a matter of law that plaintiff was more negligent than defendant.
Defendant's Motion for Summary Judgment is DENIED.