THE ESTATE OF ERIC GIVENS, SHERRIE GIVENS as Administratrix of The Estate of Eric Givens, MARK GIVENS and SHERRIE GIVENS, as Parents of Eric Givens, and SHERRIE GIVENS and SAMANTHA STRANICK as Next Friends and Co-Guardians Ad Litem for Khloe Givens, a Minor, Plaintiffs,
DELAWARE ELECTRIC COOPERATIVE INC., Defendant.
Submitted: May 14, 2014
On Defendant's Motion for Partial Summary Judgment as to Plaintiffs' Claim for Mental Anguish.
Bruce C. Herron, Esq. Losco & Marconi, P.A., Wilmington, Delaware 19802. Attorney for Defendant Delaware Electric Cooperative Inc.
James S. Green, Sr. Esq. and Jared T. Green, Esq. Seitz, Van Ogtrop & Green, P.A. Wilmington, Delaware 19899. Attorneys for Plaintiffs.
Calvin L. Scott, Jr., Judge.
This is a wrongful death action brought by the mother of the decedent, Eric Givens ("Mr. Givens"), as administratrix of the Estate of Eric Givens, Mr. Givens' father, and Samantha Stranick ("Ms. Stranick"), the mother of Mr. Givens' only child, Khloe Givens ("Khloe") (collectively, "Plaintiffs"). Khloe is a minor and has brought this action through her grandmother and mother as Next Friends and Co-Guardians Ad Litem. Defendant Delaware Electric Cooperative, Inc. ("Defendant") has moved for partial summary judgment on Plaintiffs' claim that Khloe is entitled to damages for mental anguish as a result of her father's death. The Court has reviewed the parties' submissions. For the following reasons, Defendant's Motion for Partial Summary Judgment as to Plaintiffs' Claim for Mental Anguish is DENIED.
While Mr. Givens was cutting grass in the course and scope of his employment on October 5, 2011, the tractor and mower that he was operating became caught by a guy wire supporting a utility pole owned and operated by Defendant. When Mr. Givens attempted to remove the wire, it detached from its anchor, made contact with a live electrical wire, electrocuted him and caused his death. On October 3, 2012, Plaintiffs filed this against Defendant asserting claims of simple negligence and negligence per se. In their Complaint, Plaintiffs alleged that Khloe suffered mental anguish as result of her father's death.
Defendant filed this motion for partial summary judgment as to Khloe's mental anguish based upon two grounds. First, Defendant argues that Delaware decisional law requires that Plaintiffs show that Khloe suffered a physical injury in order to recover on a claim for mental anguish. Second, Defendant argues that any award for Khloe's mental anguish would be speculative since Khloe was only about six months old at the time of her father's death and was not old enough to have experienced a grieving process. Defendant supports its second argument with deposition testimony from both Khloe's grandmother and mother in which they stated that they were not aware of any developmental or emotional issues that Khloe may have had.
Plaintiffs do not assert that Khloe has suffered physical injury. Instead, they point to contrary Delaware case law to argue that physical injury is not a prerequisite for a claim for mental anguish. In addition, Plaintiffs argue that Khloe's age at the time of her father's death has no bearing on her recovery for mental anguish since she is well aware who her father is and will experience the pain of the loss of her father for the rest of her life.
Standard of Review
"Generally speaking, issues of negligence are not susceptible of summary adjudication." Nevertheless, the Court may grant summary judgment if "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." The moving party bears the initial burden of showing that no material issues of fact are present. Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in ...