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Elsey-Jones v. Gullion

Superior Court of Delaware

June 5, 2018

RHONDA ELSEY-JONES, Plaintiff,
v.
JACKIE GULLION as personal representative of the ESTATE OF CONNIE GULLION, and STEPHANIE DELOACH, Defendants. JACKIE GULLION as personal representative of the ESTATE OF CONNIE GULLION, Plaintiff,
v.
STEPHANIE DELOACH, Defendant.

          Submitted: May 9, 2018

         Upon Defendant Jackie Gullion's Motion for Summary Judgment GRANTED in part and DENIED in part Upon Stephanie DeLoach's Motion for Summary Judgment as to Claims of Rhonda Elsey-Jones GRANTED

          TRIAL BY JURY OF TWELVE DEMANDED

          ERIC M. DAVIS, JUDGE

         I. INTRODUCTION

         This case arises from two separate but related accidents on Interstate 95 ("I-95"). Connie Gullion purportedly moved into Plaintiff Rhonda Elsey-Jones' lane of traffic causing Ms. Elsey-Jones to swerve off the roadway. Connie Gullion stopped her vehicle in the median and attempted to cross the highway to reach Ms. Elsey-Jones' car. At that point, Defendant Stephanie DeLoach struck and killed Ms. Gullion as she attempted to walk across the highway.

         Ms. Elsey-Jones filed suit against Defendant Jackie Gullion, as personal representative of the estate of Ms. Gullion (the "Estate"), and Ms. DeLoach. The Estate filed a cross claim against Ms. DeLoach. On the same day, the Estate and Ms. DeLoach filed motions for summary judgment against Ms. Elsey-Jones-Defendant Jackie Gullion's Motion for Summary Judgment (the "Gullion Motion") and Stephanie DeLoach's Motion for Summary Judgment as to Claims of Rhonda Elsey-Jones (the "DeLoach Motion" and, collectively with the Gullion Motion, the "Motions"). Ms. Elsey-Jones opposes the Motions.

         For the reasons set forth below, the Court GRANTS in part and DENIES in part the Gullion Motion and GRANTS the DeLoach Motion.

         II. RELEVANT FACTS

         This case arises from two accidents on I-95 on October 5, 2014. Ms. Elsey-Jones was driving on I-95 when Ms. Gullion purportedly moved into Ms. Elsey-Jones' lane of traffic.[1] Ms. Elsey-Jones swerved to avoid an accident with Ms. Gullion's vehicle.[2] Ms. Elsey-Jones spun clockwise and struck a cement culvert on the side of the road.[3] Ms. Gullion parked her car in the center median of the roadway.[4] Two men quickly approached Ms. Elsey-Jones' car.[5] The men helped Ms. Elsey-Jones over a metal barrier.[6]

         Ms. Gullion then attempted to cross the street from the median to Ms. Elsey-Jones' vehicle.[7] One of the men with Ms. Elsey-Jones said something about someone crossing the road.[8] Ms. DeLoach was also driving on I-95 at this time. Ms. DeLoach struck Ms. Gullion as Ms. Gullion attempted to cross the highway.[9] Ms. Elsey-Jones "heard a thud, " turned to the left, and saw Ms. Gullion's body on the ground.[10]

         Corporal Joseph Aube of the Delaware State Police responded to the scene of the accident. Corporal Aube created an accident report regarding the near miss between Ms. Elsey-Jones and Ms. Gullion (the "Police Report").[11] Corporal Aube then created a report regarding the fatal collision between Ms. DeLoach and Ms. Gullion (the "Collision Report").[12] The Collision Report states that Ms. DeLoach noted she was traveling nearly 60 mph in a 55 mph zone.[13] The Collison Report further notes that pedestrians are prohibited on the highway due to the high speed on I-95.[14]

         Ms. Elsey-Jones went for an initial consultation with a chiropractor, Dr. Scott Evan Rosenthal, on October 13, 2014.[15] Ms. Elsey-Jones complained of leg pain, lower back pain, and headache. Dr. Rosenthal created a treatment plan for Ms. Elsey-Jones.

         On April 21, 2015, counselors for Ms. Elsey-Jones at Turnaround, Inc. created a report which found that Ms. Elsey-Jones' conditions improved since the incident. However, the counselors also found that Ms. Elsey-Jones still experienced some problems from "a number of stressful events in the last year, including witnessing a driver get killed on the highway and distressed family relations. . . ."[16]

         On September 12, 2016, Ms. Elsey-Jones filed suit for: (1) negligence against the Estate; and (2) negligence against Ms. DeLoach.[17] The Estate filed cross claims against Ms. DeLoach on November 11, 2017.[18] On March 9, 2018, the Estate filed the Gullion Motion and Ms. DeLoach filed the DeLoach Motion. On March 26, 2018, Ms. Elsey-Jones filed the Response to Defendant Stephanie DeLoach's Motion for Summary Judgment (the "DeLoach Response") and the Response to Defendant Jackie Gullion's Motion for Summary Judgment (the "Gullion Response").

         On May 21, 2018, the Court held a hearing (the "Hearing") on the Gullion Motion, DeLoach Motion, DeLoach Response, and the Gullion Response.

         III. PARTIES' CONTENTIONS

         A. The Gullion's Motion

         The Estate argues that the case should be dismissed because Ms. Elsey-Jones was not in the zone of danger and Ms. Elsey-Jones failed to provide evidence of physical injury. Regarding the physical injury, the Estate contends that Ms. Elsey-Jones' licensed clinical social workers lack the specialized training to testify regarding psychology or psychiatry. Further, there is no indication of any physical manifestation of an injury resulting from emotional distress.

         B. The DeLoach's Motion

         Ms. DeLoach claims that the case should be dismissed because: (1) Ms. Elsey-Jones did not witness the impact between Ms. Gullion and Ms. DeLoach; (2) Ms. DeLoach was not acting improper or unreasonable on the roadway; and (3) Ms. Elsey-Jones failed to present medical opinion to support physical injury relating the traumatic experience.

          C. The DeLoach Response and Gullion Response

         In the Gullion Response, Ms. Elsey-Jones argues that she was in the zone of danger and produced admissible evidence of physical injury resulting from the negligent infliction of emotional distress ("NIED"). Ms. Elsey-Jones stated that she has an emotional scar that is not able to heal. Further, two social workers reported that Ms. Elsey-Jones' physical injuries are in part physical manifestations of the grief from witnessing Ms. Gullion's death.

         In the DeLoach Response, Ms. Elsey-Jones argues that although she did not see the car impact Ms. Gullion, she witnessed the accident when viewed as a whole. Next, speeding-even five miles over the speed limit-is negligence that is a proximate cause to the death of Ms. Gullion. Third, Ms. Elsey-Jones restates her arguments made in the Gullion Response about the expert testimony.

         D. The Hearing

         At the Hearing, the Estate and Ms. DeLoach argued that there are two main issues: (1) Ms. Elsey-Jones was not in the zone of danger; and (2) Ms. Elsey-Jones failed to identify a qualified expert to prove proximate cause between the trauma and physical manifestations of the emotional pain.

         Ms. Elsey-Jones argues that she was in the zone of danger. This was a continuing negligence. Ms. Elsey-Jones had just been run off the road and exited her vehicle before hearing a vehicle strike Ms. Gullion as she attempted to cross the highway. Based on all of the surrounding circumstances, Ms. Elsey-Jones was in the zone of danger and reasonable feared for her safety.

         Ms. Elsey-Jones argues that they have the two social workers or alternatively, that they do not need an expert in this case. Ms. Elsey-Jones argues that the two social workers work in a trauma center and are qualified to render their opinion regarding Ms. Elsey-Jones' physical manifestations of emotional distress. Alternatively, Ms. Elsey-Jones argues that they do not need an expert witness in this case to show proximate cause. Ms. Elsey-Jones sued for negligence and emotional distress in this case is a part of damages and not an independent claim-such as negligent infliction of emotional distress. Counsel for Ms. DeLoach and the Estate were scheduled to depose the social workers on May 9, 2018.

         Upon questioning from the Court, Ms. Elsey-Jones also clarified that the claims for emotional distress relate only to a negligence claim and not a NIED claim. Ms. Elsey-Jones contends that Ms. Elsey-Jones' emotional injuries are part of her pain and suffering damages asserted in her two negligence claims. Accordingly, Ms. Elsey-Jones claims that no expert is required to testify about the mental anguish as it will be part of her testimony.

         IV. STANDARD OF REVIEW

         The standard of review on a motion for summary judgment is well-settled. The Court's principal function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of material fact exist, "but not to decide such issues."[19]Summary judgment will be granted if, after viewing the record in a light most favorable to a nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.[20] If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, then summary judgment will not be granted.[21] The moving party bears the initial burden of demonstrating that the undisputed facts support his ...


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