RACQUEL M. JOHNSON, Individually and as Administratrix of the Estate of NIGEL SIMON, JR. and NIGEL SIMON, SR., Plaintiffs,
NATALIE M. NELSON, Defendant.
Submitted: April 17, 2015
Gary W. Aber, Esquire, Attorney for Plaintiffs.
Douglass Lee Mowrey, Esquire, Attorney for Defendant.
HONORABLE MARY M. JOHNSTON, J.
Plaintiffs Racquel M. Johnson, individually and as Administratrix of the Estate of Nigel Simon, Jr., and Nigel Simon, Sr. filed this lawsuit against Defendant Natalie M. Nelson ("N. Nelson") on January 31, 2014. The Trial Scheduling Order set the Discovery deadline as December 23, 2014. A Modified Scheduling Order extended the Discovery deadline to January 23, 2015. A second Modified Scheduling Order again extended the Discovery deadline to February 16, 2015.
On February 27, 2015, Defendant filed a Motion for Summary Judgment. Plaintiffs filed a Response accompanied by an Affidavit of Philip Kosak. Kosak failed to appear for deposition.
On November 8, 2013, N. Nelson picked up her daughter, Margaret Nelson ("M. Nelson") from music school. N. Nelson and M. Nelson then went to KFC to buy dinner. Upon leaving KFC, a text was sent to N. Nelson's husband from N. Nelson's cell phone. According to N. Nelson's telephone records, the text was sent at 5:56 p.m.
While traveling east on Kirkwood Highway, N. Nelson's vehicle struck Simon. Simon died as a result of his injuries. Surveillance video from the Jiffy Lube, located near the accident, showed that the accident occurred at 5:57:33 p.m. According to phone records, 911was called at 5:58 p.m. from N. Nelson's phone.
Corporal John Forester of the Delaware State Police responded to the call and conducted an investigation of the accident. In his FAIR Team Report, Forester opined that the primary cause of the accident was Simon's failure to yield to oncoming traffic as he crossed the highway. Forester noted in the report that as N. Nelson entered into the left turning lane of the roadway, Simon ran into the path of N. Nelson's vehicle and collided with the front left side of the vehicle. Forester stated that it would have been safer for Simon to have crossed the roadway at the intersection of Delaware Route 2 and Duncan Road, where there was a traffic light and crosswalk for pedestrian traffic. Forester also noted that the accident occurred during nighttime hours, that the road was poorly lit, and that Simon was wearing dark clothes. Forester stated that there was no indication that N. Nelson was distracted while she was driving.
On November 25, 2013, Forester interviewed Kosak, a witness who arrived on the scene after the accident occurred. Kosak worked with Simon at Jiffy Lube. Kosak stated that when he arrived at the scene, he heard N. Nelson saying: "I don't want to go to jail." Kosak informed Forester that he observed a white cell phone in the center console area attached to a cord and plugged into the dashboard. While Kosak did not observe N. Nelson using her cell phone while driving, he believed she had been using it at the time of the accident because of the location of the phone in the car. Kosak also stated that Simon was on the median when he was hit by N. Nelson's car, so N. Nelson had to have driven up onto the median for the collision to have occurred.
On March 13, 2014, Kosak executed an Affidavit. He stated that when he arrived at the scene of the accident, he observed a white cell phone, plugged into the dashboard by a cord and laying on the floor of the driver's side of the car. He also stated that he observed a young girl using a cell phone, and that the phone being ...