United States District Court, D. Delaware
MIGUEL RIVERA and VIRGINIA VERTIZ, husband and wife, Plaintiffs,
CARL V. ROMA, Defendant.
L. Hudson, Hudson & Castle Law, LLC, Wilmington, DE -
attorney for Plaintiffs
M. Young, Ward Greenberg Heller & Reidy LLP, Wilmington,
DE - attorneys for Defendant
NOREIKA, U.S. DISTRICT JUDGE
August 4, 2017, Plaintiffs Miguel Rivera
(“Rivera”) and Virginia Vertiz
“Plaintiffs”) filed a complaint
(“Complaint”) against Defendant Carl Roma
(“Roma” or “Defendant”) in Delaware
Superior Court asserting claims against Defendant for the
negligent operation of his motor vehicle. (D.I. 1, Ex. A). On
September 1, 2018, Defendant removed the case to this Court.
(D.I. 1). Presently before the Court is Defendant's
motion for summary judgment. (D.I. 29). For the reasons set
forth below, the Court will DENY the motion.
dawn on November 1, 2015, Plaintiff Rivera was walking
northbound on U.S. 1 near South Bethany, Delaware. (D.I. 1,
Ex. A ¶ 4). Earlier that morning, Rivera and his wife
had a disagreement and he had decided to leave their hotel
and hitchhike back to their home in Alexandria, Virginia.
(D.I. 32, Ex. F (“Rivera Depo.”) at 50:3-51:3).
approximately 5:00 a.m., Defendant Roma left his hotel in
Ocean City, Maryland and proceeded northbound towards his
home in Endicott, New York with passenger Steven Bernstein
(“Bernstein”) riding with him. (Id., Ex.
I (“Roma Depo.”) at 5:18-24; 10:11-20; Ex. D at
2). At approximately 5:29 a.m., while travelling northbound
on U.S. 1, Roma struck Rivera with the front center of his
car. (D.I. 1, Ex. A ¶ 6). Rivera was transported to
Beebe Medical Center and “was later flown to Christiana
Hospital for serious internal injuries, broken legs, and
broken ribs.” (D.I. 32, Ex. D at 4). Rivera required
hospitalization, surgery, and physical therapy. (D.I. 1, Ex.
A ¶¶ 10-11). As a result of the collision, Rivera
claims that he “was and is completely disabled.”
(Id. Â¶ 11).
Plaintiff Rivera and Defendant Roma had been drinking alcohol
the evening before the accident. Rivera testified that he had
had four beers the evening before between 6:00 p.m. and 12:00
a.m. (Rivera Depo. at 66:10-17). Approximately seven hours
later, however, after the accident, Rivera's blood was
drawn and tested. (D.I. 32, Ex. G). It registered an Ethanol
Level of 176, which constitutes a blood alcohol content
(“BAC”) of .14%. (Id., Ex. E
(“Burns Depo.”) at 32:4-33:7). Moreover, Corporal
Jay Burns of the Delaware State Police testified that when he
saw Rivera at the hospital, “there was an alcoholic
beverage - an odor of an alcoholic beverage emanating from
his person.” (Burns Depo. at 30:12-15).
also admitted to law enforcement that he had consumed alcohol
the night prior. He estimated that the evening prior to the
collision, he consumed between 1 and 1.5 beers per hour from
about 5:00 p.m. until about 12:00 a.m. (Roma Depo. at
12:4-14-11). Defendant testified that he went to sleep around
12:20 a.m. and awoke before 5:00 a.m. before leaving his
hotel to return home to New York. (Id. 10:11-15,
11:19-21). Defendant was initially arrested and cited with
driving under the influence of drugs and alcohol. (Burns
Depo. at 22:11-17; D.I. 32, Ex. D at 4). The charges,
however, were later dismissed - the case was nolle
prosequi. (Id., Ex. J).
accident occurred on a remote section of highway that was
dark, dry, and unlit at the time and location of the
collision. (Burns Depo. at 23:17-24:16). The parties agree
that Defendant was travelling 50 mph one-half second prior to
the accident. (D.I. 31 at 5; D.I. 36 ¶ 10; see
also D.I. 37, Ex. A). The speed limit at the location of
the accident was 55 mph. (Burns Depo. at 39:13-19). Passenger
Bernstein described the accident as happening quickly, and a
“split second” after Roma applied the break to
his car, in light of a “reduced speed area” sign.
(D.I. 32, Ex. K (“Bernstein Depo.”) at 10:9-13;
11:2-7). The upcoming speed reduction area had a speed limit
of 35 mph. (Burns Depo. at 39:7-12). Defendant testified that
after seeing the “restricted speed limit” sign,
he tapped his brakes to disengage cruise control, held his
foot above the break as he slowed, and looked down at the
speedometer. (Roma Depo. at 40:10-15). While Roma was looking
down, Bernstein yelled “look out, ” at which
point Roma depressed the brakes and collided with Rivera.
(Id. at 40:16-20; Bernstein Depo. at 11:1-11).
through a translator, testified: “I heard the motor of
a car. I got very agitated, I started to move my hand. I
turned around and I waved, yes. I think I took a step into
the street, I don't know, but not much. . . . Suddenly,
everything disappeared.” (Rivera Depo. at 53:20-54:1).
He further testified that he was walking “off the road
with [his] back when [he] heard the motor of a car” and
then “stepped a little bit past the line” before
being hit. (Id. at 62:21-63:2). Following the
collision, Bernstein called 911 and he and Roma waited for
law enforcement to arrive. (Bernstein Depo. at 8:5-11; Roma
Depo. at 16:2-13).
narrative of the collision report indicates that “the
front center of [the vehicle] struct [Rivera] in the right
lane of the roadway . . . .” (D.I. 32, Ex. D at 4).
That same report indicates that “the initial
investigation shows that [Roma] was not in violation of any
traffic code.” (Id.). Corporal Burns, who
investigated and reconstructed the collision, concluded
“it is my opinion based on the evidence at the scene,
and the injuries which he sustained, that [Mr. Rivera] was
walking in the center of the northbound right
lane, with his back to traffic, giving him
little if any warning of the approaching vehicle.”
(D.I. 37, Ex. A). According to Corporal Burn's
investigation, Rivera was walking in the highway
“without a light, and while wearing dark
clothing.” (Id.). The collision occurred
before the speed reduction area began. (Burns Depo. at
noted above, on August 4, 2017, Plaintiffs filed suit against
Roma. (D.I. 1, Ex. A). In the Complaint, Plaintiffs allege
that Defendant was negligent in violation of Title 21 of the
Delaware Code for: (1) “operating a vehicle in a
careless or imprudent manner without due regard for the road
conditions then existing in violation of 21 Del. C. §
4176(a); (2) “failing to give full time and attention
to the operation of the vehicle and to maintain a proper
lookout while operating the vehicle in violation of 21 Del.
C. § 4176(b); (3) “operat[ing] his motor vehicle
on the public highways while under the influence of alcohol
in violation of 21 Del. C. § 4177.” (Id.