Summary
In Johnson, the plaintiff filed a personal injury action arising out of a collision at an intersection with the defendant's vehicle.
Summary of this case from Withrow v. SpearsOpinion
C.A. No. 05C-05-006 RFS.
November 30, 2007.
Clayton E. Bunting, Esquire, Georgetown, DE.
Jeffrey A. Young, Esquire, Dover, DE.
Dawn L. Becker, Esquire Citizens Bank Center, Wilmington, DE.
Dear Counsel:
This is a personal injury action which plaintiff Tanisha A. Johnson ("plaintiff") has brought to recover damages for injuries she allegedly sustained when a vehicle defendant Christopher William Magee ("Magee") was driving collided with hers. Plaintiff alleges that an unknown bus driver's wave to Magee also was a cause of the accident. The alleged negligence of the unknown bus driver resulted in GEICO General Insurance Company ("GEICO"), the uninsured motorist coverage provider, being named as a defendant. GEICO has filed a motion seeking summary judgment on two grounds. Because I grant the motion on the ground that the bus driver was not negligent, I need not address the second ground. This is my decision on the pending motion.
In the second ground, GEICO argues it cannot be liable because it identified the school bus driver.
The circumstances of the accident can be determined from plaintiff's complaint and the testimony Magee gave at the arbitration hearing in this matter.
On May 23, 2003, plaintiff was northbound on Main Street in Dagsboro, Delaware approaching Main Street's intersection with Vines Creek Road. Traffic on Main Street has the right of way; traffic on Vines Creek Road is controlled by a stop sign. The intersection is at the bottom of the valley between two hills. The crest of the hill over which plaintiff was traveling was probably about 300, 350 feet from the intersection. Magee, who was operating a vehicle in a westerly direction on Vines Creek Road, was stopped at a stop sign at the intersection and was waiting to turn left in order to travel southbound on Main Street. A school bus driver traveling southbound on Main Street stopped at the intersection and evidenced an intent to turn left onto Vines Creek Road. The school bus driver signaled an intention to yield the right-of-way to Magee and waved him into the intersection. The bus was to Magee's right; plaintiff was traveling to Magee's left. Magee was turning left. The bus was in the lane opposite to plaintiff's vehicle and did not in any way block Magee's view of the roadway on which plaintiff was traveling. Magee drove into the path of plaintiff's vehicle and the vehicles collided.
Plaintiff alleges the school bus driver was a negligent cause of the collision "in that he [sic] caused Defendant Christopher William Magee to enter the intersection before such movement could be made in safety by signaling his [sic] intention to yield the right-of-way to the Magee vehicle."
More details of the accident appear in the police report, which was prepared as a result of the accident and which GEICO submitted in connection with its summary judgment motion, and in the transcript of Magee's testimony at the arbitration hearing. The investigating police officer reported as follows:
Invest reveals that V-2 [Magee] was at the stop sign at Main + Vines Creek Road waiting to turn left onto Main and head south. A School Bus was SB on Main and when it came to the intersection it stopped and motioned for the traffic waiting to turn left to proceed indicating the driver o f the bus was yielding his right of way. He did not activate any lights. A van that was in front of V-2 [Magee] pulled out and went SB and that op [operator] said he saw V-2 [Magee] behind him also start to pull out. NCV [Non-contact vehicle] oper [operator] also said he saw V-1 [plaintiff] NB near the top of small hill and didn't think Op#2 [Magee] was going to be able to make it in time. Op#2 [Magee] stated he saw the bus driver wave him through so when he got up to the intersection he looked left and told writer he thought V-1 [plaintiff] was near the top of the hill. He also said V-2 [sic] appeared to be going pretty fast. He stated he pulled out and was hit just as he entered the intersection.
At the arbitration hearing in this matter, Magee testified as follows.
A. I pulled up to the intersection, looked left, then looked right. There was a school bus there. She waved me on so she could make the turn, because it's a very sharp turn there. I looked left again, pulled out and then I was struck.
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Q. Did you notice if the bus driver had a turn signal on?
A. Yes, sir, it did. She was going to turn left. I met her every day when I was going to school.
Q. She was just letting you out to give her more room to turn, I presume.
A. Yes, sir. Because there's not enough big, vehicle-friendly road there.
Q. Now, I want to make sure I'm correct on this.
Until the collision itself took place, you did not see the Johnson vehicle at any time Is that fair?
Yes, sir.
Q. Is it also fair to say that you relied on the wave that you got from the school bus driver?
A. No, sir.
Q. Why do you say that?
A. I used my own judgment and I used my own eyes and looked also.
Q. All right. I didn't mean to ask you, Mr. Magee, if you relied totally on the wave from the school bus driver. I want you to testify from your memory if whether or not you relied on it at all, because you did see it. Did you not?
* * *
A. To the best of my knowledge, I mean, the school bus stopped. She waved that she was stopping. So I used my judgment, looked left, looked right and then proceeded to pull out.
Q. But you did see the wave that was waving you into the intersection and roadway. Correct?
A. Yes, sir.
Q. You did witness that prior to pulling out?
A. Yes, sir.
Q. What did you understand was being communicated to you by the school bus driver by waving you into the intersection?
A. That she was stopping and that she needed me to clear the intersection so she could make the turn.
Q. Did you understand that she was waving you forward?
A. No. I was understanding that she was stopping there waiting for me to move so she could make the turn.
Q. Is that what you understood then or what you understand now?
A. It's what I understood then — that she was stopping.
Q. Would you agree that it took at least some of your time to observe the waving process and that you could not have been watching the road to the left and the wave at the same time? Would you agree with that?
A. I would agree you can't look both ways at one time, yes. But after the wave I did look left again.
GEICO has moved for summary judgment, arguing the bus driver was not negligent. GEICO argues that the facts clearly establish the bus driver was not the proximate or actual cause of the accident. Magee did not rely on any movement, wave or other indication which the bus driver made. Instead, plaintiff's negligence and/or Magee's negligence proximately caused the collision and any resulting injury.
In response thereto, plaintiff argues that the jury could find the wave should not have taken place until after plaintiff passed through the intersection and that it was a distraction which broke Magee's lookout and which contributed to the collision. Plaintiff has not produced any facts to support the argument that the wave was a distraction which broke Magee's lookout. In fact, the undisputed facts show that Magee understood the wave was not an "all clear" wave and looked left after the wave before he pulled into the intersection.
Summary judgment may be granted only when no material issues of fact exist. Super. Ct. Civ. R. 56(c). The moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existed of material issues of fact. Id. at 681. 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 instead must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 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. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991),cert. den., 112 S.Ct. 1946 (1992); Celotex Corp. v. Catrett,supra. 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.Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
In order to prevail, "plaintiff must show, by a preponderance of the evidence, that a defendant's negligent act or omission breached a duty of care owed to plaintiff in a way that proximately caused the plaintiff injury." Duphily v. Delaware Electric Cooperative, Inc., 662 A.2d 821, 828 (Del. 1995). Although the factfinder ordinarily resolves the issues of negligence and its causal relationship to an alleged injury, an exception to that rule exists where undisputed facts compel only one conclusion. Windom v. Capital Trail Jr. Football League, Inc., Del. Super., C.A. No. 01C-10-196, Johnston, J. (July 22, 2004) at 4,aff'd in part, rev. in part, 903 A.2d 276 (Del. 2006). In that situation, the Court must enter judgment consistent with the conclusion.Id.
In the case at hand, plaintiff has failed to show that the bus driver committed any negligent act which caused plaintiff's injury. Plaintiff's sole argument is that the wave was distracting, and that distraction contributed to the injury. However, plaintiff has failed to advance any facts to support this contention. In fact, the undisputed facts refute this contention. The evidence clearly establishes the bus driver did not wave to Magee to come into the intersection. There was no confusion on Magee's part as to the meaning of the wave. Magee never thought the bus driver was signaling him to enter the intersection. Magee did not rely on that wave before entering the intersection; instead, he turned to the left to look before entering the intersection. These facts compel the conclusion that the bus driver was not negligent.
Because plaintiff cannot establish negligence against the bus driver, the Court grants GEICO's motion for summary judgment. Since the Court grants the motion to summary judgment on this ground, no need exists to consider GEICO's alternative ground for relief.
IT IS SO ORDERED.