It is the "I-don't-care" attitude discussed by this Court in McHugh v. Brown, 11 Terry 154, 125 A.2d [583] 585.Wilson v. Tweed, 209 A.2d 899, 901 (Del. 1965) (quoting Wagner v. Shanks, 194 A.2d 701, 706 ([Del.] 1963)). This standard is greater than momentary inadvertence or mere negligence, Tyndall v. Rippon, [5 Del.Super. 458] 61 A.2d 422, 425 (Del.Super.Ct. 1948), and greater than gross negligence.
Defendant has moved the Court for summary judgment. As in all summary judgment cases, the facts shall be stated in the light most favorable to the party against whom summary judgment is requested. Wilson v. Tweed, 209 A.2d 899 (Del. Supreme Ct. 1965). The facts are that three girls, plaintiff, defendant, and Janice M. Machulski, were riding on Kirkwood Highway. Defendant was driving at the time.
Whether it was wanton requires a consideration of the true legal significance of the word. The latest definition of "wanton" is to be found in Wilson v. Tweed, 209 A.2d 899 (Del. 1965) where the Delaware Supreme Court approved the following language from Wagner v. Shanks, 194 A.2d 701, 706-707 (Del. 1963): "* * * Wantonness does not necessarily imply any form of intent to cause the harm which results from some activity.
Thus, wantonness was a question of fact for the jury to decide, and the Trial Court properly denied both plaintiff's motion for a directed verdict and his motion for a judgment notwithstanding the verdict. Hochberg v. Keiser, Del.Supr., 447 A.2d 425, 426 (1982); Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965). In Hochberg v. Keiser, Del.Supr., 447 A.2d 425, 426 (1982), this Court, in rejecting plaintiff's motion for judgment NOV, stated:
We accept this version of the facts for purposes of the motion for summary judgment. Wilson v. Tweed, Del.Supr., 8 Storey 391, 209 A.2d 899 (1965). Plaintiffs contend that there are genuine issues of fact as to when the fire was reported, when it was confirmed and why the City delayed in responding to the call.
For purposes of the present motion, we assume that the sidewalk was defective. Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965). Plaintiff alleges that the School District had a duty to maintain the sidewalk and that it is liable for its failure to do so.
I. Viewing the events in the light most favorable to the plaintiffs, as we must in our review of a decision granting summary judgment to the defendant, Wilson v. Tweed, Del.Supr., 209 A.2d 899, 900 (1965), these are the relevant facts: The defendant invited about 50 friends, including the plaintiffs, to attend a corn roast at her home.
Absent, however, is any factual basis to support a conclusion that the defendant was intoxicated. Nevertheless, plaintiff contends that the evidence was sufficient, under our decision in Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965), to submit the issue of "wantonness" to the jury. We disagree.
Our analysis of the record persuades us that the record contains sufficient dispute of material fact on the discovery or realization of the risk issue to require submission of the case to a jury. In the light most favorable to plaintiff, Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965); Jones v. Julian, Del.Supr., 195 A.2d 388 (1963), the record shows that: While playing a game of tag with a friend, the eight-year-old boy climbed (for the first time) a fence on a third party's property and, as part of the game, stood atop the fence for a few moments. Below him on defendants' property was a rose bush in which was a partially concealed metal pole formerly used as a fence post (and, apparently, one of a line of such posts).
Until then, the non-moving party is not obliged to show that issues remain to be tried. Phillips v. Delaware Power and Light Company, Del.Supr., 216 A.2d 281 (1966); compare Davis v. University of Delaware, Del.Supr., 240 A.2d 583 (1968); see Holl v. Talcott, Fla., 191 So.2d 40 (1966). Construing the facts in the present record in the light most favorable to plaintiff, as we must, Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965), it appears that there are two critical and separate occurrences in the pertinent time period which raise issues of negligence: (a) the original examination and diagnosis and, (b) the call next day informing defendant that the child had not improved and was "getting worse". We assume without deciding that the record made by defendant adequately states the community medical standards as to examination, diagnosis and treatment on the first day; but the record is bare of any statement of the standard of care applicable when defendant was apparently informed that the child had not responded to the prescribed treatment.