Submitted: May 9, 2018
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
M. DAVIS, JUDGE
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.
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.
reasons set forth below, the Court GRANTS in
part and DENIES in part the Gullion Motion
and GRANTS the DeLoach Motion.
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. Ms. Elsey-Jones swerved to avoid an
accident with Ms. Gullion's vehicle. Ms. Elsey-Jones
spun clockwise and struck a cement culvert on the side of the
road. Ms. Gullion parked her car in the center
median of the roadway. Two men quickly approached Ms.
Elsey-Jones' car. The men helped Ms. Elsey-Jones over a
Gullion then attempted to cross the street from the median to
Ms. Elsey-Jones' vehicle. One of the men with Ms.
Elsey-Jones said something about someone crossing the
road. Ms. DeLoach was also driving on I-95 at
this time. Ms. DeLoach struck Ms. Gullion as Ms. Gullion
attempted to cross the highway. Ms. Elsey-Jones "heard a
thud, " turned to the left, and saw Ms. Gullion's
body on the ground.
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"). Corporal Aube
then created a report regarding the fatal collision between
Ms. DeLoach and Ms. Gullion (the "Collision
Report"). The Collision Report states that Ms.
DeLoach noted she was traveling nearly 60 mph in a 55 mph
zone. The Collison Report further notes that
pedestrians are prohibited on the highway due to the high
speed on I-95.
Elsey-Jones went for an initial consultation with a
chiropractor, Dr. Scott Evan Rosenthal, on October 13,
2014. Ms. Elsey-Jones complained of leg pain,
lower back pain, and headache. Dr. Rosenthal created a
treatment plan for Ms. Elsey-Jones.
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. . .
September 12, 2016, Ms. Elsey-Jones filed suit for: (1)
negligence against the Estate; and (2) negligence against Ms.
DeLoach. The Estate filed cross claims against
Ms. DeLoach on November 11, 2017. 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").
21, 2018, the Court held a hearing (the "Hearing")
on the Gullion Motion, DeLoach Motion, DeLoach Response, and
the Gullion Response.
The Gullion's Motion
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.
The DeLoach's Motion
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
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.
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
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.
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.
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.
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.
STANDARD OF REVIEW
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."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. 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. The moving party bears the initial
burden of demonstrating that the undisputed facts support his