Opinion
C.A. No. 03C-05-013 ESB.
Submitted July 16, 2004.
Decided August 12, 2004.
Stephen P. Casarino, Esquire, Casarino, Christman Shalk, Wilmington, DE.
Larry W. Fifer, Esquire, Lewes, DE.
Dear Counsel:
This is my decision on the motion for summary judgment filed by defendant Kent-Sussex Industries, Inc. ("KSI") in this negligence action. The plaintiffs are Beverly Ann Graham, Robert Graham and Ethel Graham (the "Grahams"). KSI's motion is granted for the reasons stated herein.
STATEMENT OF THE CASE
Plaintiff Beverly Ann Graham was a passenger on a commercial vehicle operated by defendant Alton J. Webb ("Webb") and owned by KSI on May 15, 2001. KSI is a corporation which provides support and services to help individuals requiring specialized assistance in order to maintain an optimum level of employment. KSI is under contract with the Division of Mental Retardation of the Delaware Health and Services Department of the State of Delaware. As part of its program, KSI provides transportation on a daily basis to individuals in the program capable of working at KSI or outside facilities.
Beverly Ann Graham participated in KSI's program for about eight years. She was a volunteer at Milford Memorial Hospital under the training, support and services of KSI. A KSI van picked her up in the morning and took her home in the evening. For the first four years of Beverly Ann Graham's participation in KSI's program, the driver would place a stool near the door of the van so that passengers could step onto it before stepping on the ground. However, Robert Graham, Beverly Ann Graham's father, who was a member of the Board of Directors of KSI, felt that the use of the stool was dangerous. Upon the Board's recommendation, KSI's records indicate that running boards were installed on the vans two years before the accident. During the two years before the accident, Beverly Ann Graham opened the door of the van, climbed into the van and then closed the door without assistance. When Beverly Ann Graham was brought home by the van, she would get out of the van by herself without any assistance.
Webb permitted Beverly Ann Graham to disembark from the vehicle without assistance at Milford Memorial Hospital in Milford, Delaware. While exiting the vehicle on May 15, 2002, Beverly Ann Graham fell and sustained serious and permanent personal injuries. Beverly Ann Graham was 46 years old at the time of the accident. Although Beverly Ann Graham is mentally retarded, she had no physical limitations.
STANDARD OF REVIEW
Summary judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of her case, then summary judgment must be granted. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(3); Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp., 477 U.S. 317 (1986).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
It is well established that summary judgment is generally inappropriate for negligence actions. It is rare in a negligence action "because the moving party must demonstrate `not only that there are no conflicts in the factual contentions of the parties but that, also, the only reasonable inferences to be drawn from the uncontested facts are adverse to the plaintiff.'" However, if the Grahams are unable to prove the essential elements of their case against KSI, then summary judgment is appropriate.
Ebersole, 180 A.2d at 467, 468.
Upshur v. Bodie's Dairy Market, 2003 WL 21999598, at *3 (Del.Super.Ct.), at *3, quoting Watson v. Shellhorn Hill, Inc., 221 A.2d 506, 508 (Del. 1966).
See Rayfield v. Power, 2003 Del. LEXIS 586, at *2 (Del.Supr.).
DISCUSSION
A. The Grahams Have Failed To Establish All Elements of Their Negligence Claim.In order to survive KSI's motion for summary judgment, the Grahams must adequately establish all elements essential to their case that they would have the burden of proving at trial. It is well established that in order to prevail in a negligence action, the Grahams must prove by a preponderance of the evidence that KSI's action breached a duty of care in a way that proximately caused injury to Beverly Ann Graham.
Rayfield, 2003 Del. LEXIS 586, at *1, citing Russell v. K-Mart, 761 A.2d 1, 5 (Del. 2000).
1. The Grahams have failed to establish that KSI breached any duty of care owed to Beverly Ann Graham.
KSI first argues that it is a carrier. As a carrier, KSI claims that it is not a guarantor of the safety of its passengers and that there is no presumption of negligence merely because Beverly Ann Graham was injured while on KSI's vehicle. In support of its claim, KSI refers to Sullivan v. Yellow Cab Co., 212 A.2d 616 (D.C.App. 1965), which states the following:
[O]rdinarily and in the absence of special circumstances, there is no duty resting upon a common carrier to render aid to a passenger in boarding its conveyance. Only in the event that a passenger is handicapped by physical disability, such as blindness, illness, age, lameness, or other obvious infirmity, any of which would be reasonably apparent or made known to the carrier, does the duty on the part of the carrier's agent arise to give such assistance to the passenger as is reasonably necessary in boarding or alighting. Therefore, KSI argues that as a carrier, it is not liable for its failure to assist Beverly Ann Graham, unless it knew or should have known in the exercise of reasonable care of her need for assistance.
14 Am. Jur. 2d Carriers, § 1003, Roberts v. Yellow Cab Co., 240 A.2d 733 (Me. 1968).
Yet, the Grahams argue that KSI is not a public carrier as defined by 2 Del. C. § 1801(5) and 2 Del. C. § 1801(11). A "public carrier" operates for public use. "Public use" is defined as a "service in exchange for a fee or charge. . . ." Since KSI does not charge its clients a fee for its transportation services, it is not a public carrier. Therefore, the duty imposed upon KSI is less than that of a public carrier. However, even if I were to assume that KSI is in fact a public carrier, the Grahams have failed to establish that KSI breached any duty owed to Beverly Ann Graham.
Although Beverly Ann Graham is mentally disabled, there is no evidence to suggest that she has any physical impairment requiring Webb's assistance to board and to exit the van. To the contrary, the record shows that Beverly Ann Graham had been getting on and off the van without assistance for four years without any difficulty. In fact, during a deposition, both Mr. and Mrs. Graham, Beverly Ann's parents, testified that Beverly Ann Graham had no physical limitations. Mr. Graham stated that Beverly Ann Graham did not use a cane or walk with a limp. She was able to "perform . . . daily." Mrs. Graham even stated that she was not aware of any physical problems that would have prevented Beverly Ann Graham from getting up and down in the van. It is clear that Beverly Ann Graham wears glasses, and once had cataracts. However, the cataracts were removed prior to the accident and had no effect on her vision at the time of the accident.
Def.'s Reply at ¶ 1, citing Dep. Tr. at 8-9.
Id.
Id.
Def.'s Reply at ¶ 1, citing Dep. Tr. at 10.
The Grahams claim that Webb knew that Beverly Ann Graham slipped on a previous occasion and that, given her disabilities, he should have assisted her. However, the record reveals that although Webb was aware that Beverly Ann Graham slipped on a prior occasion, he was not the driver of the van at the time, and it occurred prior to the installation of the running boards on the vans. Before the running boards were installed, the van driver used a wooden stool to assist Beverly Ann Graham in and out of the van. However, once the running boards were installed, approximately two years prior to the accident, the stool was no longer used. In fact, while Webb remained seated in the driver's seat, the Grahams watched Beverly Ann Graham lift herself in and out of the van on a daily basis once the running boards were installed. Mrs. Graham stated that Beverly Ann Graham would "[o]pen the door. She would get in, fasten her seat belt, and close the door." When Beverly Ann Graham returned home, she opened the door by herself and stepped down out of the van without any assistance.
Pl.'s Answer to Mot. Ex. C.
Dep. Tr. of Robert Graham at 19-20. Robert Graham testified that the running boards were installed four years before the accident, but KSI's records indicate that they were installed two years before the accident.
Dep. Tr. of Ethel Graham at 11-12.
2. The Grahams have presented no evidence to suggest that KSI negligently modified the vans.
First, the Grahams argue that KSI negligently modified the van on two separate occasions without any reference to or any consultation with a biomechanical engineer. While a member of the Board of KSI, Mr. Graham suggested that running boards be installed to replace the dangerous wooden stool that was used to assist the passengers in entering and exiting the van. B. Craig Crouch of KSI decided to purchase running boards and contacted Dodge, the manufacturer of the van, to find out if they manufactured running boards for the vans. Dodge informed KSI that it did not make the equipment and suggested the best places to look for running boards. The Grahams have failed to present any evidence that KSI should have consulted a biomechanical engineer before installing the running the boards, or that it acted unreasonably under the circumstances. I granted an extension for further discovery to enable the Grahams to discover whether or not there is any merit to this argument. I have reviewed the Grahams' supplemental information and find that they have offered no new evidence on this subject. Therefore, there is no merit to this argument.
Second, the Grahams argue that KSI negligently installed a new door handle at Webb's request because clients were having difficulty in closing the door from the inside. However, at the time of the accident, Beverly Ann Graham was exiting the van, and the Grahams have presented no evidence to suggest that the door handle had anything to do with her accident. Therefore, this claim is also without merit.
Based on this information, it is clear that the Grahams believed both that Beverly Ann Graham was physically able to enter and to exit the van on her own, and that the modifications made to the van were reasonably safe. Yet, the Grahams now claim that Webb should have known of Beverly Ann Graham's physical impairment and should have assisted her just because of her mental disability. I find this argument unpersuasive. The Grahams have failed to prove that either KSI or Webb breached any duty of care owed to Beverly Ann Graham. Even if KSI were found to be a public carrier, the Grahams have not shown that Webb knew or should have known of any obvious infirmity that would render Beverly Ann Graham incapable of boarding or exiting the van on her own. Since there are no genuine issues of material fact, and the Grahams have failed to prove that KSI or Webb breached any duty of care in a way that proximately caused injury to Beverly Ann Graham, summary judgment is appropriate.
CONCLUSION
KSI's motion for summary judgment is granted for the reasons stated herein.