O'Neal v. Allstate Ins. Co.
| Docket Number | N22C-03-226 MAA |
| Decision Date | 21 July 2023 |
| Parties | JUSTIN O'NEAL, Plaintiff, v. ALLSTATE INSURANCE COMPANY, A CORPORATION, Defendant. |
| Court | Delaware Superior Court |
Submitted: June 5 2023
Upon Defendant's Motion for Summary Judgment: GRANTED.
Daulton V. Gregory, Esquire, (Argued) of MARIN & GREGORY LLC, Wilmington, Delaware, Attorney for Plaintiff.
Arthur D. Kuhl, Esquire, (Argued) of REGER RIZZO & DARNALL LLP Newark, Delaware, Attorney for Defendant.
This case arises from an accident that occurred on May 17, 2021. A vehicle driven by Jeremiah Pyfrom ("Pyfrom") struck Plaintiff Justin O'Neal, a pedestrian, at the intersection of U.S. Route 40 and Wilton Boulevard in New Castle, Delaware. At the time of the accident, Plaintiff was crossing the eastbound lanes of U.S. Rt. 40 and Pyfrom was traveling in the right eastbound lane of Rt 40.[1] Pyfrom's insurance carrier tendered their full liability policy limits of $25,000.[2] Plaintiff alleges that Pyfrom, an underinsured motorist, operated his vehicle in a manner that was both negligent and negligent per se.[3] At the time of the accident, Plaintiff was covered by an Allstate insurance policy.[4]
Allstate Insurance Company ("Defendant") denied underinsured motorist coverage resulting in this suit for same.[5] Defendant moved for summary judgment, asserting that there is no genuine issue of material fact that Pyfrom was not negligent and that, even if Pyfrom was negligent, his negligence was exceeded by Plaintiff's negligence when crossing the roadway. For the reasons that follow, Defendant's motion for summary judgment is GRANTED.
The accident occurred on May 17, 2021, around 8:30 PM at the intersection of Wilton Boulevard and U.S. Rt. 40 in New Castle, Delaware.[6] On the westbound side of Rt. 40 at this location, there is a triangle-shaped traffic island at the northwest corner of the intersection. A marked crosswalk traverses across Rt. 40 from the westbound to eastbound lanes. The westbound side of Rt. 40 has two lanes for through traffic. The east and westbound sides of Rt. 40 are separated by a grass partition. The eastbound side of Rt. 40 has two left-turn only lanes and two lanes for through traffic. The left-turn only lanes on the eastbound side are controlled by separate traffic signals from the through lanes. The speed limit for this section of Rt. 40 is fifty miles per hour.[7] When the collision occurred between Pyfrom's vehicle and Plaintiff, Pyfrom was driving in the right through lane of eastbound Rt. 40[8] and Plaintiff was running across the portion of the crosswalk that traverses the eastbound side of Rt. 40.[9]
Plaintiff testified that he was walking along Rt. 40, toward the intersection of Wilton Blvd. and Rt. 40.[11] Plaintiff was accompanied by three of his friends.[12]Plaintiff testified that he and his friends were walking along Rt. 40 and stopped at the triangle-shaped traffic island where cars could make a right-turn off of Wilton Blvd. onto Rt. 40.[13] At Plaintiff's deposition, defense counsel asked, "how long did you stay on that triangle area before you started to cross?"[14] Plaintiff testified in response, "till they said it was safe."[15] Defense counsel asked Plaintiff to identify who "they" referred to and Plaintiff testified, [16] Plaintiff testified that when he was on the traffic island, he saw the light for Rt. 40 eastbound through traffic turn red,[17] that he saw cars coming to a stop in the eastbound through lanes,[18] and that this is when he proceeded into the intersection.[19] Plaintiff testified that when he reached the grass divide separating the westbound and eastbound lanes on Rt. 40 that he did not look to his right to see if there were any oncoming vehicles.[20]
Plaintiff testified that he did not remember any cars being stopped in the leftturn only lanes on the eastbound side of Rt. 40[21] and that he did not notice that the eastbound through lanes had green lights when he entered that side of Rt. 40.[22] Two of Plaintiff's friends told him he was going to get hit, but his testimony regarding his location when this warning occurred varies.[23] At one point Plaintiff testified that he had reached the right side of the left turn lanes and started running;[24] later in his deposition he testifies that he was between the left and right through lanes.[25]
Plaintiff testified that a car in the left through lane swerved in front of him and avoided striking him. The driver of this vehicle was later identified as Joshua Aiken.[26] The vehicle driving in the right through lane struck him.[27] The driver of the vehicle that struck Plaintiff was later identified as Pyfrom's.[28] Plaintiff described the moment before the collision as follows: [29] Plaintiff testified that he did not look for oncoming traffic before entering into the through lanes because when his friends told him to run he just ran.[30] Plaintiff did not see that there were vehicles in both eastbound lanes approaching the intersection.[31] Plaintiff testified that the two vehicles that approached him in the two through lanes had the right of way.[32]
Joshua Aiken ("Aiken") was driving in the left eastbound through lane on Rt. 40 when the accident occurred.[34] Aiken's vehicle contained a Vava brand dashboard camera device that made a partial recording of Plaintiff crossing the eastbound side of Rt. 40.[35] This footage is discussed in detail in the proceeding subsection. Aiken testified that as he was approaching the intersection, the lights for eastbound through traffic had been green for "easily 15 seconds."[36] When asked whether he remembered it turning from red to green he testified that "it was green the whole time" and that he never saw it any other color than green.[37] Aiken testified that he had no warning that Plaintiff was going to run out in front of him.[38] Aiken recalled "seeing him [Plaintiff] cross the highway from the other side . . . he [Plaintiff] disappeared in front of the two black cars, and then he flashed in front of me as he tried to run across."[39] The "two black cars" Aiken referenced were stopped in the two left-turn only lanes.[40] Aiken also testified that, from his view, his vehicle would have blocked Pyfrom's view, who was proceeding in the adjacent right lane and slightly behind Aiken's vehicle.[41] Aiken estimated he was about two car lengths away from Plaintiff when Plaintiff began to enter Aiken's lane and that it felt like half a second elapsed between the time he saw Plaintiff and when Aiken swerved to avoid hitting Plaintiff.[42] Aiken testified that his vehicle would have likely struck Plaintiff if he had not swerved.[43] Both Aiken and Pyfrom returned to the scene shortly after the accident.[44]
At the time of the accident, Aiken had installed in his vehicle a Vava brand dashboard camera, which had forward-facing and rear-facing cameras.[46] Aiken's dashboard camera made a clear, real-time audiovisual recording of his vehicle driving through the intersection during the accident between Plaintiff and Pyfrom.[47]The device simultaneously captures the road in front of and behind the vehicle and records at thirty frames per second.[48] The forward-facing video faces through the front windshield of the vehicle.[49] The rear-facing camera faces through the rear windshield of the vehicle.[50] This technology records videos in discrete segments that the owner can download and save from the corresponding application.[51] The camera records the driver's speed in miles per hour.[52] The bottom left of the recording shows the driver's current speed, the date, and time of day.[53] The recording under review begins approximately one second before the accident and is thirty-six seconds in length. The date at the beginning of the recording is "2021/5/17" and the time is "8:30:34 PM." The rate of speed at the beginning of the video is "43 mph."
At the beginning of the video, Aiken's vehicle is driving in the left eastbound lane on Rt. 40, approaching the intersection with Wilton Blvd. The first frame of the video clearly shows that one car is stopped in each of the left-turn only lanes on eastbound Rt. 40. The time at the beginning of the video is recorded as "8:30:34 PM" and the time when Aiken's vehicle reaches the intersection is recorded as "8:30:34 PM," indicating that less than one second elapsed. At the start of the video, Aiken's vehicle is driving at forty-three miles per hour and by the time he reaches the intersection, the recorded speed is forty-four miles per hour. Defendant's expert, Abraham Warfel, calculated that Aiken's vehicle traveled a distance of approximately fifty feet from the start of the video to the moment the vehicle reached the crosswalk.[54]
From the beginning of the recording, the traffic signals for the left-turn-only lanes are red and the two traffic signals immediately to the right which regulate the east bound lanes are green. At the beginning of the video, a pedestrian wearing a white shirt, later identified as Plaintiff, is depicted directly beneath the right left-turn only signal crossing over the right left-turn only lane. As Aiken's vehicle reaches the intersection, his vehicle quickly swerves to the left. By the time Aiken's vehicle reaches...
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