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finding that the definition of "reasonable notice" under the U.C.C. is decided on a case-by-case basis
Summary of this case from Nowak v. United Serv. Auto. Assoc.Opinion
CA No. 94C-12-002-JEB
Submitted: September 30, 2002
Decided: November 20, 2002
OPINION
AT Appearances: Melanie Sharp, Esquire Attorney for Plaintiff.
William Cattie, Esquire Attorney for Defendants.
This is the Court's decision on Defendants DaimlerChrysler and Advantage Dodge's motions for summary judgment on Plaintiffs Ruth and Norris Smith's products liability action. As explained below, Defendants' motions are Granted in Part and Denied in Part.
FACTS
Plaintiff Ruth Smith ("Mrs. Smith" or "Plaintiff") alleges that she sustained injuries when the driver's side air bag in her 1991 Dodge Shadow deployed during a single-car collision with a deer on Route 9 near Port Penn, Delaware. Mrs. Smith suffered first and second degree burns to her face, as well as corneal abrasions. She now suffers from facial scarring and visual difficulties. The automobile was manufactured by Defendant DaimlerChrysler, a Delaware corporation, and sold to Plaintiff by Defendant Advantage Dodge, Chrysler Plymouth, Inc., a Maryland corporation.
Plaintiff alleges strict liability, breach of the implied warranty of merchantability, negligence, fraudulent concealment, consumer fraud, and loss of consortium on behalf of Mrs. Smith's husband, Plaintiff Norris L. Smith. Both Defendants have moved for summary judgment.
STANDARD OF REVIEW
On a motion for summary judgment, the Court's function is to examine the record to determine whether genuine issues of fact exist. If, after viewing the record in light most favorable to the non-moving party, the Court finds there are no genuine issues of material fact, summary judgment is appropriate. Summary judgment will not be granted if the record indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances.
Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973).
Id.
Ebersole v. Lowengrub, 180 A.2d 467 (Del. 1962).
DISCUSSION
Choice of law. Defendant Advantage argues that Maryland law should govern this case, while Plaintiff argues that Delaware law presumptively applies. The parties agree that the law of the state with the most significant relationship to the occurrence and to the parties should govern.In personal injury actions, there is a rebuttable presumption in favor of the law of the state where the injury occurred, unless another state has a more significant relationship to the action. Defendant Advantage argues that the presumption is rebutted because Plaintiff purchased the car in Maryland and because Defendant Advantage is a Maryland corporation doing business solely in Maryland. Plaintiff relies on the presumption and further argues that Defendant Advantage sought business in Delaware and therefore had no reasonable expectation of being subject only to Maryland laws.
Travelers, 594 A.2d at 47; Restatement of Conflict of Laws § 146.
The record shows that Defendant Advantage is located in Elkton, Maryland, a few miles from the Delaware line and that Advantage was aware that Plaintiff lived in Delaware. For these reasons, the Court finds that Advantage cannot reasonably expect to be subject only to the laws of Maryland. Furthermore, the so-called "relationship" between the parties consisted solely of a Maryland car dealership selling a car to a Delaware resident. Such a relationship is not sufficient to overcome the presumption that the law of the state where the injury occurred will govern the case. The Court concludes that Delaware law is the appropriate choice in this case.
Strict liability. DaimlerChrysler moves for summary judgment on Plaintiff's claim of strict liability against both Defendants based on the allegedly defective condition of the air bag at the time of purchase. In Delaware, the doctrine of strict liability has been preempted by the UCC in sales cases, which Plaintiff concedes. The motion for summary judgment is granted as to both Defendants.
Defendant Advantage does not address this issue because its arguments are based on Maryland law, which recognizes strict liability in products liability cases. See, e.g., Baltimore v. Utica Mutual, 802 A.2d 1070, 1089 (Md.App. 2002).
Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968, 980 (Del. 1980); Beattie v. Beattie, 786 A.2d 549, 554 (Del.Super.Ct. 2001).
Defective design or manufacture. A product defect may take the form of a design defect, where an entire product line is designed improperly, or a manufacturing defect, where a product line is properly designed but a particular item was manufactured improperly. Defendant DaimlerChrysler argues that Plaintiff cannot show the existence of either type of defect and therefore summary judgment should be granted on the claims of both negligence and breach of the warranty of merchantability. Plaintiff argues that her expert, Byron Bloch, testified at his deposition that the air bag in the 1991 Dodge Shadow was defective in both design and manufacture, including the lack of a tether, lack of a seat belt pretensioner, lack of an adjustable foot pedal and adjustable steering wheel, and defective design of the deployment system.
DiIenno v. Libbey Glass Div., Owens-Illinois, Inc., 668 F. Supp.2d 373, 377 (D.Del. 1987).
The record shows that Mr. Bloch testified that there may have been a malfunction of the safing sensor, that is, a manufacturing defect. He also stated that the system was designed to deploy at too low a threshold and with excessive force, that is, a design defect. Defendant emphasizes the manufacturing aspect of the alleged defect, but Plaintiff has pled and offered evidence as to either a manufacturing or design defect, or both.
In order for an issue of fact to be genuine and thus make summary judgment inappropriate, there must be sufficient evidence for a jury to return a verdict for the non-moving party on that issue. Based on Mr. Bloch's testimony, the Court concludes that a jury could find for the Plaintiff on either a design or a manufacturing defect. The Court also finds that the question of a defect, which is the heart of Plaintiff's case, warrants further exploration at trial and should be reserved for the jury. Summary judgment is denied.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986).
Sealed container defense. Defendant Advantage argues that Plaintiff's claims against it are barred by a Maryland statute providing a defense to any product liability action against a seller if the product was sold in its original packaging or in a sealed container. Because Delaware law controls the case, this issue must be decided pursuant to the comparable Delaware law, commonly referred to as the sealed container defense. Plaintiff argues that this defense is not available to Advantage because an automobile dealership is not a "seller" and an air bag is not sold in a "sealed container." Neither party cites to case law applying the sealed container defense to air bag injuries, but his fact alone does not mean that the Delaware statute does not apply to this case.
Del. C. Ann. tit. 18, § 7001 (1999) provides in part as follows:
(b)It shall be a defense to an action against a seller of a product for property damage or personal injury allegedly caused by the defective design or manufacture of a product if the seller establishes that:
(1) The product was acquired and then sold or leased by the seller in a sealed container and in unaltered form;
(2) The seller had no knowledge of the defect;
(3) in the performance of the duties the seller performed or while the product was in the seller's possession could not have discovered the defect while exercising reasonable care;
(4) The seller did not manufacture, produce, design or designate the specifications for the product, which conduct was the proximate and substantial cause of the claimant's injury;
(5) The seller did not alter, modify, assemble or mishandle the product while in the seller's possession in a manner which was the proximate and substantial cause of the claimant's injury; and
(6) The seller had not received notice of the defect from purchaser of similar products.
Numerous states provide for a sealed container defense in products liability cases. Such a defense has been found to be available to the seller of meatballs which contained metal, Jones v. GMRI, Inc., 551 S.E.2d 867 (N.C.Ct.App. 2001); a packager of bagels which also contained metal, Thomsson v. Rich Products, 502 S.E.2d 289 (Ga.Ct.App. 1998); and a shipper of pre-packaged above-ground pools with defective ladders, Wilson v. State Farm Fire and Cas. Ins. Co., 654 So.2d 385 (La.Ct.App. 1995). The defense was not available to a Coca-Cola manufacturer when plaintiff drank from bottle containing two AA batteries, Vmos v. Coca-Cola Bottling Co. of NY, Inc., 627 N.Y.S.2d 265 (N.Y. Civ. Ct. 1995).
Pursuant to § 7001(a)(4), a "seller" is "a wholesaler, distributor, retailer or other individual or entity other than a manufacturer that is regularly engaged in the selling of a product whether the sale is for resale by the purchaser or is for consumption by the ultimate consumer." The Court finds that Advantage meets this definition and is a seller for purposes of this statute.
The next question is whether, pursuant to § 7001(a)(3), an air bag is a "sealed container." The statutory definition of a sealed container is "a box, container, package, wrapping, encasement or housing of any nature that covers a product so that it would be unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition in the product."
Advantage argues that the air bag is a sealed container because it is not included in the manufacturer's list of systems to be checked by the dealer, and because the dealer would open the air bag module only if the icon on the instrument panel were lit. Advantage further argues that the air bag module, which contains the inflator and the air bag itself, is not designed to be opened or disassembled by the dealer. Plaintiff argues that an air bag is sold in a car, which is not sealed and has doors to admit drivers and passengers.
While Advantage's assertions are more specific, the Court finds that the answer to this question requires a more complete record, and will therefore be reserved for trial. In light of this conclusion, the Court need not address the requirements of the sealed container defense pertaining to Advantage's knowledge or notice of any alleged defect, pursuant to § 7001(b). Advantage's motion for summary judgment on the sealed container defense is denied.
Failure to warn. Both Defendants argue that summary judgment should be granted on the allegation that Defendants failed to warn Plaintiff about the potential danger of air bags. The failure to warn is an element of Plaintiff's claims of strict liability, negligence, fraudulent concealment and statutory consumer fraud. Defendants assert that Byron Bloch, whom Plaintiff has identified as her expert witness, conceded that Plaintiff could not have moved her seat back farther even if she had been warned that failure to do so could result in injury.
This Court previously held that Plaintiff does not need an expert to show that her facial injuries were proximately caused by contact with the air bag or whether the warnings were adequate. The Court also held that expert testimony is required to show whether it is more likely than not that Plaintiff would not have been injured if she had been sitting in a different position or had had the steering column positioned differently. Plaintiff argues that Advantage misstates Bloch's testimony and that in fact Bloch testified that Defendants should have warned short people such as herself of the dangers posed by the air bag. Plaintiff also contends that she could have moved the seat back further and in fact did so at certain times. The contentions raised by all three parties are fact questions and therefore summary judgment is not appropriate on the question of whether Plaintiff would not have been injured if she had positioned her seat or the steering wheel differently.
Smith v. Chrysler Corp., Del.Super., C.A. No. 94C-12-002, Quillen, J. (October 25, 1996), Letter Op. at 4.
Id.
The other facet of the warning issue is whether Plaintiff would have purchased the Dodge Shadow if she had been adequately warned of the danger allegedly posed by the air bag. Defendant Advantage argues that Plaintiff cannot show that warnings would deterred her because she bought a Jeep Cherokee with similar air bags after the accident. Plaintiff maintains that warnings would have prevented her from buying the Dodge and that air bags were not something that she was looking for in a car. She wanted a convertible. She also contends that she was not asked at her deposition whether she would have bought the Jeep if she had known about the air bag system. Again, these contentions are fact questions for the jury. The motion for summary judgment on the allegation of failure to warn is denied.
Notice. Both Defendants argue that Plaintiff failed to provide notice of the breach of the implied warranty of merchantability claim within a "reasonable time" as required by Del. C. Ann. tit. 6 § 2-607, and is therefore barred from any remedy. Plaintiff argues that the filing of the lawsuit, two years after the purchase, was sufficient notice.
The Court notes that the notice requirements are the same for the plaintiff claiming personal injury damages as for the plaintiff claiming direct economic loss because there is no reason for making a distinction in the notice requirement in terms of the nature of the harm sustained. Shooshanian v. Wagner, 672 P.2d 455 (Alaska 1983).
The UCC implied warranty of merchantability arises under Del. Code Ann. tit. 6 § 2-314. To succeed on such a claim, a plaintiff must show that (1) a merchant sold the goods, (2) which were defective at the time of sale, (3) causing injury to the consumer, (4) the proximate cause of which was the defective nature of the goods, and (5) that the seller received notice of the injury. Notice of a breach of a warranty is addressed in § 2-607, which provides in part as follows:
Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1269 (Del. 1998).
(3) Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy. . . .
The UCC does not define the phrase "reasonable time," although it is used in numerous sections of the Sales chapter. In addressing this phrase under the provisions for revocation, the Delaware Supreme Court has stated that reasonableness is generally a question of fact for the jury. The Court observed that in some cases notice given to the seller two or even four years after discovery of the nonconformity has been found to be reasonable, but that there are also cases in which "a buyer has delayed so excessively that his actions become untimely as a matter of law." In other words, the question of whether a plaintiff has given a defendant reasonable notice under the UCC sales provisions must be decided on a case-by-case basis.
See, e.g., § 2-508, § 2-510, § 2-515 ("reasonable notification") § 2-602, § 2-604, § 2-607, § 2-608 and § 2-610.
Section 2-608(2) provides as follows:
Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects.
Mercedes-Benz v. Norman Gershman's Things to Wear, Inc., 596 A.2d 1358, 1363 (Del. 1991) (citations omitted).
Id. (quoting Chernick v. Casares, 759 S.W.2d 832, 834 (Ky.Ct.App. 1988)).
It must be determined first when the Defendants received notice and then whether the time frame was reasonable. Plaintiff asserts that Defendant Advantage was on notice as of the time that she brought the vehicle in for repairs after the accident. Plaintiff also asserts that Defendant DaimlerChrylser had a data bank of its dealers' repairs and therefore was aware of the allegedly defective air bag. Defendants assert that they had no notice until the filing of the lawsuit two years after the accident and that this time period is not reasonable. The Court concludes that fact questions exist as to both when Defendants received notice and also whether such notice was timely. Defendants' motion for summary judgment on the notice issue is denied.
Delaware courts have not ruled on the question of whether the filing of a lawsuit meets the notice requirements of § 2-607. Other jurisdictions have split on this issue, but it appears that a less stringent standard is imposed on consumers than on merchants. See, e.g., Hobbs v. General Motors Corp., 134 F. Supp.2d 1277 (M.D.Ala. 2001) (holding that under UCC 2-607 filing of lawsuit was not proper notice at least where no personal injury was involved); Shooshanian v. Wagner, 672 P.2d 455, 462-63 (Alaska 1983) (holding that filing a complaint and serving a complaint was sufficient notice under AA 45.02.607(c)(1) (Alaska's equivalent of § 2-607).
Negligence. The complaint makes numerous allegations under the claim of negligence. DaimlerChrysler moves for summary judgment on the allegations of failure to inspect and test the air bags, failure to recall vehicles with air bags allegedly known to be dangerous, and failure to notify owners of such vehicles.
Negligence is never presumed. It must be proven. Ordinarily, questions of negligence are not decided on motions for summary judgment but are left for the trier of fact. If the defendant can demonstrate the complete failure of proof concerning an essential element of the plaintiff's case, such as the existence of a defect in a products liability case, summary judgment is warranted.
Wilson v. Derrickson, 175 A.2d 400, 401-02 (Del. 1961).
Roper v. Stafford, 444 A.2d 289, 291 (Del.Super.Ct. 1982).
Burkhart v. Davies, 602 A.2d 56, 60 (Del. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 322-23 (1986)).
In Delaware, there is no separate cause of action failure to test or inspect in a products action. The duty to inspect is part of the larger duty to design a product with reasonable care, and "thus is subsumed in the plaintiff's defective design and failure to warn." Plaintiff concedes in her answer that the failure to test is an element of the defective design claim. To the extent that Plaintiff pled failure to test and inspect as a separate cause of action, DaimlerChrysler's motion for summary judgment is granted.
Joseph v. Jamesway Corp., 1997 WL 524126 *6 (Del.Super.).
DaimlerChrysler also moves for summary judgment on the failure to provide post-sale warnings, arguing that a duty to warn arises at the point of sale but that there is no continuing duty to warn. As support, DaimlerChrysler relies on Elmer v. Tenneco Resins, Inc., where the district court observed that Delaware has not adopted a rule of law imposing successor liability based on a continuing duty to warn. However, Elmer does not address whether Delaware acknowledges a post-sales duty to warn in any context other than that of successor liability. In fact, Delaware courts to date have not recognized such a duty, although other states have adopted a reasonable person standard for the imposition of a duty to provide post-sale warnings. Plaintiff does not argue that Delaware should adopt a new standard but merely asserts that a post-sale duty exists. Without a compelling reason for doing so, the Court refrains from adopting a post-sale duty to warn at this juncture. The Court concludes as a matter of law that DaimlerChrysler is entitled to summary judgment on the aspect of Plaintiff's negligence claim regarding the post-sales duty to warn.
Elmer v. Tenneco Resins, Inc., 698 F. Supp. 535, 542 (D.Del. 1988).
See Michaud v. Fairchild Aircraft, Inc., 2001 WL 1758132 *1 (Del.Super.).
See, e.g., Lewis v. Arien Co., 751 N.E.2d 862, 867 (Mass. 1998); Lovick v. Wil-Rich, 588 N.W.2d 688, 695-96 (Iowa 1999). The Restatement (Third) of Torts: Products Liability § 10 (1998) provides that a seller has a post-sale duty to warn if a reasonable person in the seller's position would provide such a warning.
DaimlerChrysler also moves for summary judgment on the allegation of negligent failure to recall all vehicles with air bags, arguing that the National Highway Traffic Safety Administration ("NHTSA") is "best positioned" to oversee automotive recalls, and that such recalls are authorized by the National Traffic and Motor Vehicle Safety Act of 1966 ("the Safety Act). Plaintiff asserts that the NHTSA can initiate automotive recalls under the Safety Act, but that it has not preempted the field.
15 U.S.C. § 1381, et seq. In 1994, the Safety Act was recodified at 49 U.S.C. § 30101 et seq. The changes were not intended to be substantive. Geier v. American Honda Motor Co., 529 U.S. 861, 888 n. 1 (2000) (Stevens, J., dissenting). Because the accident at issue in this case occurred in 1991, the Court addresses the pre-1994 statute.
The purpose of the Safety Act is to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." The Safety Act calls for the establishment of federal motor vehicle safety standards (FMVSS), which are carried out by the NHTSA. The pre-1994 Safety Act contains an express preemption clause, which provided as follows:
15 U.S.C. § 1381 (now codified in similar wording at 49 U.S.C. § 30101).
15 U.S.C. § 1392(a) (now codified in similar wording at 49 U.S.C. § 30111(a)).
Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or a political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.
15 U.S.C. § 1392(d) (now codified in similar at 49 U.S.C. § 30103(b)(1)).
The Act also contained a saving clause, which provided that "[c]ompliance with" a federal safety standard "does not exempt any person from any liability at common law." The intention of Congress in enacting the saving clause was not to preserve common law claims in conflict with NHTSA standards, but to prevent a manufacturer from having a complete defense to a common law action not addressed by a NHTSA standard by merely stating that it is full compliance with all federal safety standards. In other words, if the Safety Act has not adopted a standard for a particular aspect of performance, a defendant who has complied with all federal standards may still incur liability at common law.
15 U.S.C. § 1397(a) (now codified in similar wording at 49 U.S.C. § 30101(e)).
Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 298 (7th Cir. 1997), cert. denied 522 U.S. 1050 (1997).
The regulation dealing with passive restraint systems is FMVSS 208, "Occupant crash protection," first adopted in 1967 and amended numerous times since then. Defendant has not shown that any of FMVSS 208's numerous standards entail a recall of vehicles containing air bag systems such as those in Plaintiff's 1991 Dodge Shadow. There is no preemption where there is no standard. There is also no duty under Delaware law to recall defective vehicles, so that even if Plaintiff could prove at trial that the air bag was defective, she could not prevail on the recall aspect of her negligence claim. For these reasons, the Court concludes that Defendant is entitled to summary judgment on the issue of negligent failure to recall.
See generally Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 34-38 (1983); Geier v. American Honda Motor Co., 529 U.S. 861, 876-79 (2000).
Fraudulent concealment. Defendant DaimlerChrysler moves for summary judgment on Plaintiff's claim of fraudulent concealment, arguing that there is no evidence of deliberate concealment, false representation or intent to deceive, as required pursuant to Stephenson v. Capano Dev't, Inc. Plaintiff argues that there is abundant evidence of deliberate concealment, starting with misleading advertisements and culminating with the failure to warn Plaintiff of an allegedly known danger.
462 A.2d 1069, 1074 (Del. 1983).
To establish a prima facie case intentional misrepresentation or fraudulent concealment, Plaintiff must show the following:
(1) a false representation, or deliberate concealment, of a material fact, by the defendant;
(2) the defendant acted with scienter;
(3) an intent to induce plaintiff's reliance on the misrepresentation or concealment;
(4) causation; and
(5) damage resulting from the misrepresentation or concealment.
Id. See also Nicolet, Inc. v. Nutt, 525 A.2d 146, 149 (Del. 1987).
Plaintiff argues that Defendants were intentionally silent in the face of a duty to inform Plaintiff of the danger allegedly posed by the air bag system and that Plaintiff relied on Defendants' silence in purchasing the car. However, the 1991 Dodge Shadow owner's manual explicitly warns that deployment of the air bag can cause "abrasions and/or skin reddening" similar to friction burns, as well as irritation to the skin, eyes or throat from the smoke-like particles emitted from the air bag after deflation. This fact alone rules out a fraudulent concealment of the generic dangers of the Dodge Shadow air bag. Questions remain as to whether Plaintiff can prove a defect posing a danger specifically to short people, and which Defendant was aware of and failed to disclose. Summary judgment is granted to DaimlerChrysler as to fraudulent concealment of the general danger posed by air bag systems and denied as to fraudulent concealment of specific defects or dangers relative to short-statured people.
See Defendant DaimlerChrysler's Appendix at 30.
Consumer fraud. Defendant DaimlerChrysler moves for summary judgment on Plaintiff's claim for damages under state consumer protection law, arguing first that Maryland law controls this issue because Plaintiff purchased the vehicle in Maryland. The Court has already found that Delaware law governs this case and that Defendant Advantage had no reasonable expectation that it would be subject only to Maryland law. If Advantage, which is located in Maryland, had no such expectation, certainly DaimlerChrysler had none either. The Court concludes that Delaware law controls this issue.
Defendant DaimlerChrysler argues that under either Maryland or Delaware law, Plaintiff has not produced any evidence of causation. Although Plaintiff's deposition testimony makes it clear that she wanted to buy a convertible and was not interested in the air bag system when she purchased the Dodge Shadow, she argues that if she had been adequately warned about the potential dangers of the air bag, she would not have bought the car.
Under Delaware's Consumer Fraud Act, unlawful practices include not only overt misrepresentations but also "concealment, suppression, or omission of any material fact with intent that others rely on such concealment, suppression or omission. . . ." To prevail on this claim, Plaintiff must show a defect in the air bag other than the danger of burning and skin irritation described in the owner's manual, and that Defendant DaimlerChrysler intended her to rely on its omission of a warning about such a defect. The Court has already found that the defect question is to be reserved for the jury. The question of DaimlerChrysler's knowledge and intent need be addressed only if it is found that a defect existed. Summary judgment is denied on the issue of statutory consumer fraud.
Del. C. Ann. tit. 6, § 2513(a) (1999).
The statute does not require that Plaintiff show a fraudulent intent but only an intent that others rely on the misrepresentation or omission. In re Brandywine Volkswagen, Ltd., 306 A.2d 24 (Del.Super.), aff'd sub nom Brandywine Volkswagen, Ltd. v. State, 312 A.2d 632 (Del. 1973).
Loss of consortium. Defendants have moved for summary judgment on Plaintiff Norris Smith's loss of consortium claim, arguing that Mr. Smith stated at his deposition that his marriage had not been adversely affected by the accident and that he therefore cannot show loss of society, affection companionship or sexual relations. Plaintiff argues that Mr. Norris stated that he had had no qualms about taking care of his wife after the accident because she had taken care of him after his heart surgery and that she had "the injuries and the discomfort . . . that's why the aggravation came in."
See DaimlerChrysler's Appendix at 34.
See Lacy v. G.D. Searle Co., 484 A.2d 527, 532 (Del. 1984).
Plaintiff's Answer at 34.
To prevail on a claim of loss of consortium, a plaintiff must show, among other things, that one spouse suffered an injury which deprived the other spouse of some benefit which formerly existed in the marriage. The only evidence presented by the Plaintiff is that there was "aggravation" following the accident and that Mr. Norris helped to care for his wife. Neither of these facts shows a loss of any pre-accident benefit. Furthermore, Mr. Norris clearly said "no" when asked if his marriage had been adversely affected by the accident. Defendants' motion for summary judgment on Mr. Norris' claim of loss of consortium is granted.
Lacy v. G.D. Searle Co., 484 A.2d at 532.
For all these reasons, Defendants' motions for summary judgment are Granted in Part and Denied in Part.
It Is So ORDERED.