Coulter v. Steen v. Nagel Farm Service, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

EMILY COULTER, Individually, as )
Administratrix of the Estate of Bryan
)
Dukes, Deceased, and as Next Friend)
and Guardian of J.F., a minor, O.D.,
)
a minor, J.F., O.D. and R.D., )
)
Plaintiffs, )
)
v. ) C.A. No.: N20C-12-207 SPL
)
EDWARD STEEN, SUSAN STEEN, )
JESSE STEEN, STEEN FARMS, LLC )
and DELAWARE ELECTRIC )
COOPERATIVE, INC., )
)
Defendants, )
)
EDWARD STEEN, SUSAN STEEN )
and JESSE STEEN, )
)
Third-Party Plaintiffs, )
)
v. )
)
NAGEL FARM SERVICE, INC., )
)
Third-Party Defendant. )

Submitted: May 24, 2025
Decided: August 29, 2025
Upon Defendant Steens’
Motion for Summary Judgment,
DENIED.

Upon Defendant Steens’
Motion for Partial Summary Judgment
(Survivorship & Punitive Damages),
GRANTED.

Upon Defendant Delaware Electric Cooperative, Inc.’s
Motion for Summary Judgment or, in the Alternative,
Partial Summary Judgment,
DENIED in part, GRANTED in part.

Upon Third-Party Defendant Nagel Farm Services, Inc.’s
Motion for Summary Judgment,
GRANTED.
ORDER
Joseph J. Rhoades, Esquire, Stephen T. Morrow, Esquire, RHOADES & MORROW,
LLC, Wilmington, Delaware; James R. Ronca, Esquire (argued), and Meghan Mills,
Esquire, ANAPOL WEISS, Philadelphia, Pennsylvania, Attorneys for Plaintiffs, Emily
Coulter, Individually, as Administratrix of the Estate of Bryan Dukes, Deceased, and
as Next Friend and Guardian of J.F., a minor, O.D, a minor, and R.D., a minor,
O.D. and R.D.

Kenneth M. Doss, Esquire (argued), and Daniella C. Spitelli-Sarnecky, Esquire,
CASARINO CHRISTMAN SHALK RANSOM & DOSS, P.A., Wilmington, Delaware,
Attorneys for Defendants and Third-Party Plaintiffs, Edward Steen, Susan Steen,
and Jesse Steen.

David J. Soldo, Esquire (argued), MORRIS JAMES LLP, Wilmington, Delaware,
Attorney for Defendant, Delaware Electric Cooperative, Inc.

William D. Sullivan, Esquire, Sullivan Hazeltine Allinson, LLC, Wilmington,
Delaware; Michael Brown, Esquire (argued), Michael Blumenfeld, Esquire,
NELSON MULLINS RILEY & SCARBOROUGH LLP, Baltimore, Maryland, Attorneys for
Third-Party Defendant Nagle Farm Service, Inc.

Lugg, J.
INTRODUCTION

Bryan Dukes died by electrocution while delivering crushed limestone to the

Steens’ farm.1 Emily Coulter, individually, as administratrix, and as next friend to

minor children, filed a complaint against Edward Steen, Susan Steen, and Jesse

Steen (the “Steens”)2 and Delaware Electric Cooperative, Inc. (“DEC”), the electric

company responsible for installing and maintaining overhead electric lines servicing

the Steen’s farm.3 The Steens, in turn, filed a third party complaint against Nagel

Farm Service, Inc. (“Nagel Farm”) seeking indemnification for damages awarded

against the Steens.4

The Steens filed a Motion for Summary Judgment5 and a Motion for Partial

Summary Judgement,6 and Coulter Responded;7 DEC filed a Motion for Summary

Judgment,8 and Coulter responded;9 and Third-Party Defendant Nagel Farm filed a

1
D.I. 1 (“Compl.”) ¶¶ 12, 33.
2
By stipulation of the parties, “all claims as to Defendant Steen Farms, LLC, [were]
dismissed without prejudice” on June 22, 2022. D.I. 40.
3
Compl.
4
D.I. 43.
5
D.I. 185 (“Steen Mot.”).
6
D.I. 183 (“Steen Mot. Partial”)
7
D.I. 213 (“Coulter Resp. Steen Mot. Partial”); D.I. 218 (“Coulter Resp. Steen
Mot.”).
8
D.I. 188 (“DEC Mot.”).
9
D.I. 212 (“Coulter Resp. to DEC Mot.”).

1
Motion for Summary Judgment,10 and the Steens’ (as Third-Party Plaintiffs)

responded.11 This is the Court’s order addressing the Steens’, DEC’s, and Nagel

Farm’s motions for summary judgment.

BACKGROUND

On November 22, 2019, Dukes and James Dorman, in separate trucks,

delivered loads of limestone to the Steens’ farm.12 They arrived and found a concrete

pad adjacent to a pole barn; no farm employee was present to direct the delivery.

Dorman waited as Dukes called the Steens to determine where to drop the loads.13

Jesse Steen instructed Dukes to drop the loads on the concrete pad.14 Unaware that

Jesse Steen did not intend to meet them at the pad,15 Dorman and Dukes assessed

the site and waited for more direction.16 It was raining, the ground was wet, and

power lines ran overhead.17

After waiting over 20 minutes, Dorman and Dukes initiated an ad hoc process

to navigate the overhead power lines and sodden ground to drop the lime onto the

10
D.I. 191 (“Nagel Farm Brf.”); D.I. 193 (“Nagel Farm Mot.”).
11
D.I. 219 (“Steen Resp.”)
12
Deposition of James Dorman (“Dorman Dep.”) at 67.
13
Dorman Dep. at 61, 68-69.
14
Deposition of Jesse Steen (“Jesse Steen Dep.”) at 17.
15
Jesse Steen Dep at 16.
16
Dorman Dep. at 150.
17
Dorman Dep. at 71-73.

2
concrete pad.18 Dorman dropped his load without incident. After witnessing

Dorman’s maneuver, Dukes then backed his truck in and raised his dump trailer to

dump the lime onto the pad.19 As Dukes pulled his truck forward to release the

remainder of the lime, the raised trailer contacted the power line running above the

Steens’ property.20 Dorman alerted Dukes of the truck’s contact with the power line,

and Dukes exited his vehicle.21 Dorman saw Dukes return to the truck, then observed

smoke streaming from the tires. After the smoke cleared he saw Dukes on the

ground.22 Dorman called out to Dukes, but he did not respond.23 Dorman called

911.24 Emergency personnel arrived and transported Dukes to a nearby hospital

where his death was pronounced at 4:41 p.m.25

On December 22, 2020, Coulter filed suit against the Steens and DEC,

asserting claims for negligence, survival, and wrongful death; Coulter also brought

a punitive damages claim against the Steens.26 Coulter contends the Steens failed to

18
Dorman Dep. at 74-77.
19
Dorman Dep. at 92.
20
Dorman Dep. at 92.
21
Dorman Dep. at 93-95.
22
Dorman Dep. at 96.
23
Dorman Dep. at 100.
24
Dorman Dep. at 101.
25
Deposition of Det. Paul Taylor (“Det. Taylor Dep.”) at 32.
26
See generally, Compl.

3
warn Dukes of the hazardous condition present on their property, including the

potential that the power lines would intersect with Dukes’ truck.27 Coulter alleges

that DEC was negligent by failing to install the power lines in a safe manner, failing

to provide adequate clearance, and failing to employ adequate safety measures to

prevent electrocution.28

The Steens filed a Third-Party Complaint seeking indemnification from Nagel

Farm.29 The Steens maintain that Nagel Farm improperly trained Dukes, and that

his improper training resulted in Dukes’ creation of a dangerous condition on the

Steens’ property.30

STANDARD OF REVIEW

Under Superior Court Civil Rule 56, summary judgment will be granted

where “the pleadings, depositions, answers to interrogatories, and admissions on file,

together with any affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.”31

On a motion for summary judgment, this Court “(i) construes the record in the light

most favorable to the non-moving party; (ii) detects, but does not decide, genuine

27
Compl. ¶¶ 46(a-w).
28
Compl. ¶¶ 52(a-q).
29
D.I. 43 (“Third-Party Compl.”).
30
Third-Party Compl. ¶ 12(a-e).
31
Super. Ct. Civ. R. 56(c).

4
issues of material fact; and (iii) denies the motion if a material fact is in dispute.” 32

Summary judgment will not be granted where there exists a material fact in dispute

or if it “seems desirable to inquire thoroughly into [the facts] in order to clarify the

application of the law to the circumstances.”33

ANALYSIS

I. The Steens’ Motion for Summary Judgment

The Steens assert, “[a]t the outset, there must be a legal duty/obligation that

exists as a matter of law for one to be liable in negligence. Absent a legal duty, the

Steens are entitled to summary judgment.”34 The Steens argue that they owed no

duty to Dukes because they had no knowledge of, nor would their exercise of

reasonable care have revealed, the dangerous condition that led to Dukes’ death.35

Further, the Steens assert, even if a duty did exist, the “open and obvious” nature of

the wires relieved them of responsibility.36 Coulter counters that “it is disputed

whether the Steens had knowledge” of the danger their electrical wires posed, and

32
US Dominion, Inc. v. Fox News Network, LLC, 2023 WL 2730567, at *17 (Del.
Super. Ct. Mar. 31, 2023) (citing CVR Refin., LP v. XL Specialty Ins. Co., 2021 WL
5492671, at *8 (Del. Super. Ct. Nov. 23, 2021) (cleaned up)).
33
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
34
D.I. 185 at ¶ 6 (citing Alcantara v. Cavalier Grp., Inc., 2019 WL 4187542, at *2
(Del. Super. Ct. Aug. 23, 2019)).
35
See Steen Mot.
36
Steen Mot. ¶¶ 7, 9.

5
based on Delaware law, whether the electrical wires constituted an “open and

obvious” dangerous condition should be submitted to the jury.37

A. The Steens Owed a Duty to Dukes

Under Delaware law, a landowner “has a duty to employ reasonable measures

to warn to protect a business invitee of a condition that poses unreasonable risk of

harm if the landowner knows or should know of such condition.”38 A “business

invitee” is “a person who is invited to enter or remain on land for a purpose directly

or indirectly connected with business dealings with the possessor of that land.”39

The record establishes Dukes was a business invitee of the Steens and, as such, was

“entitled to expect that the premises would be free of any dangerous condition known

or discoverable by the possessor of the land.”40

Delaware follows the Restatement (Second) of Torts.41 Section 343 of the

Restatement imposes liability upon a landowner who:

(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of
harm to such invitees; and

37
Coulter Resp. to Steen Mot. ¶¶ 1-5.
38
Duran v. Eastern Athletic Clubs LLC, 2018 WL 3096612, at *2 (Del. Super. Ct.
June 7, 2018).
39
DiOssi v. Maroney, 548 A.2d 1361, 1366 (Del. 1988) (citing Restatement (Second)
of Torts § 332 (1965)).
40
DiOssi, 548 A.2d at 1366.
41
See generally, id.

6
(b) should expect that they will not discover or realize the danger, or
will fail to protect themselves against it; and
(c) fails to exercise reasonable care to protect them against the danger.42

The Steens claim they “had no reason to believe this unfortunate accident would

occur” and to require them to post warnings would be “duplicative of what was

already visible and evident to [Dukes].”43 Coulter counters that “it is disputed

whether the Steens had knowledge of the danger the subject electrical wires

posed.”44 In their depositions, Edward and Jesse Steen acknowledged that they had

witnessed previous dump truck deliveries to the concrete pad and knew that fully

lifted dump trailers generally extended higher than the overhead wires.45 But the

fact that no truck had contacted the wire did not render their property safe. To the

contrary, as owners of the property, and witnesses to prior deliveries, they knew how

best to safely approach the pad.

Candidly acknowledging their research revealed no cases addressing a similar

scenario in Delaware, the Steens direct the Court’s attention to Genaust v. Illinois

Power Co.46 In Genaust, the Illinois Supreme Court commented that “[a] business

42
Foreman v. Two Farms, Inc., 2018 WL 3949294, at *1 (Del. Super. Ct. Aug. 16,
2018) (citing Restatement (Second) of Torts § 343 (1965)).
43
Steen Mot. ¶ 9.
44
Coulter Resp. to Steen Mot. at ¶ 1.
45
Jesse Steen Dep. at 7, 27, 29-30; Edward. Steen Dep. at 36-37, 44-45.
46
62 Ill.2d 456 (Ill. 1976).

7
invitee has a responsibility for his own safety and must be held to be equally aware

of all the obvious and normal hazards incident to the premises as the possessor of

the land.”47 Further, “[t]he potential risk of installing equipment in close proximity

to power wires [was] apparent.”48 Here, both Dukes and the Steens were aware of,

or should have been aware of, the risk associated with delivering a load with a dump

truck to a pad near overhead electrical wires. And, while Dukes’ concomitant

knowledge of the risk—as evidenced by Dorman’s description of their studious

approach to the task—may impact the Steen’s liability, as explained more fully

below, it does not eliminate it.

B. Whether the dangerous condition was “open and obvious” is an issue of
fact for the jury.

There exists no duty to warn business invitees of an “open and obvious”

danger.49 An “open and obvious danger” is one that “create[s] a risk of harm that is

visible, . . . is a well-known danger, or what is discernible by casual inspection . . .

to those of ordinary intelligence.”50 It is a danger “so apparent that the invitee can

reasonably be expected to notice it and protect against it because the condition itself

47
Id. at 469.
48
Id.
49
Duran, 2018 WL 3096612, at *2.
50
Foreman, 2018 WL 3949294, at *1.

8
constitutes adequate warning.”51 “[T]the general rule [is] that these issues are almost

entirely issues of fact” to be submitted to the jury.52 But, in “very clear cases,” the

Court may decide the issue as a matter of law.53 The Steens, of course, argue that

this is one of those cases.

Delaware Courts have granted summary judgement based on open and

obvious dangers in exceedingly rare circumstances.54 But, because whether a danger

is “open and obvious” is intensely fact-driven, this Court generally tasks the jury

with this assessment.55 No doubt, this is a close case. But the Court finds that the

unique circumstances surrounding this tragedy are not so open and obvious to

warrant granting summary judgment.

Electrical lines may be inherently dangerous, but “because of the limited

visual [cues] presented by a power line, operators have great difficulty accurately

judging power lines clearances and avoiding them.”56 Dukes had just witnessed

51
Duran, 2018 WL 3096612, at *2.
52
Foreman, 2018 WL 3949294, at *4.
53
Duran, 2018 WL 3096612, at *2.
54
See, e.g., Polaski v. Dover Downs, Inc., 2012 WL 3291783, at *2 (Del. Aug. 14,
2012) (a curb, “brightly marked with yellow paint, . . . in a well lighted area, and . .
. free from damage or debris” provided sufficient notice of a danger).
55
Foreman, 2018 WL 394294, at *1 (ice and snow on sidewalk);. Duran, 2018 WL
3096612, at *1 (floor mats with weights in an exercise room); Jones v. Clyde Spinelli,
LLC, 2016 WL 3752409, at *1 (Del. Super. Ct. July 8, 2016) (space heater in the
middle of an office room).
56
Ex. D to Coulter Resp. to Steen Mot. p. 24, ¶6.

9
Dorman successfully dump his lime without incident. And the Steens had witnessed

other trucks drop lime on the pad on previous occasions. It is for the factfinder to

determine whether the lines presented an open and obvious condition for which the

Steens had no duty to warn. The Steens’ motion for summary judgment is DENIED.

II. Steen’s Motion for Partial Summary Judgment

A. Coulter’s Claim Under the Survival Act

Coulter seeks to recover under the Survival Act for Dukes’ “conscious pain

and suffering . . . from the time of his injuries to the time of his death.”57 The Steens

contend that, because “the only evidence [is that Dukes] was observed unresponsive

and lifeless,” Coulter cannot make the requisite showing that Dukes “lived and

suffered,” and summary judgment must be granted.58 Coulter counters that she

“intends to call the medical examiner who performed [Dukes’] autopsy as a witness

at trial” and that it would be “premature” at this juncture to conclude whether there

exists “a sufficient factual basis” for her claim.59

Under 10 Del. C. § 3701, Coulter may maintain a personal injury action for

Dukes injury.60 But to do so, Coulter must prove by a preponderance of the evidence

57
Compl. at ¶ 59.
58
Steen Partial Mot. ¶ 8.
59
Coulter Resp. to Steen Partial Mot. ¶¶ 3-4.
60
Mahaffey v. Baily, 2001 WL 985089, at *1 (Del. Super. Ct. July 26, 2001).

10
“that conscious pain and suffering existed after the incident and before the death.”61

There must be some “appreciable interval of conscious pain and suffering after the

injury.”62 As this Court has explained,

The plaintiff has the burden of proving the existence of conscious pain
and suffering and a mere allegation that the decedent lived and suffered
is insufficient where the only record supports a finding of almost
instantaneous death. Proof of such pain and suffering as are
substantially contemporaneous with death, or mere incidents to it, or as
to a short period of insensibility intervening between fatal injuries and
death, is not sufficient.63

Here, “the record supports a finding of almost instantaneous death.”64

Dorman, the only eyewitness to the incident, testified that when the power line

“snapped . . . [he] went back towards the truck and saw [Dukes] lying on the

ground.”65 And, when Dorman “was yelling [Dukes’] name,” Dukes did not

respond.66 Dorman confirmed that Dukes was not moving at all.67

61
Id.
62
Midcap v. Sears, Roebuck and Co., 2003 WL 22451128, at *1 (Del. Super. Ct. Oct.
10, 2003).
63
Magee v. Rose, 405 A.2d 143, 146 (Del. Super. Ct. July 9, 1979).
64
Id.
65
Dorman Dep. at 96.
66
Id. at 99-100.
67
Id.

11
Beyond the “mere allegation” that Dukes “lived and suffered,”68 Coulter

offers no evidence establishing Dukes death was anything but instantaneous.

Coulter’s anticipation that the medical examiner “will testify as to the manner and

cause of [Dukes’] death”69 sheds no light on the timing of Dukes’ death.

In Mahaffey, this Court granted summary judgment where an eyewitness

originally “claimed that she heard [Decedent] moaning and that [Decedent]

responded when [eyewitness] called out her name.”70 At her deposition, the

eyewitness recanted her earlier statements, claiming “she could not be sure” that the

Decedent responded.71 The Court held that the eyewitness’ “equivocal testimony

[did] not create a genuine dispute concerning a material issue of fact.”72 Here

Dorman’s testimony is unequivocal and established that Dukes’ death was

instantaneous. The Steens’ motion for summary judgment on Coulter’s claims under

the Survivor Act is GRANTED.

68
Magee, 405 A.2d at 146.
69
Coulter Resp. to Steen Partial Mot. ¶ 3.
70
Mahaffey, 2001 WL 985089, at *2.
71
Id.
72
Id.

12
B. Coulter’s Claim for Punitive Damages

Coulter, in response to the Steens’ Partial Motion for Summary Judgment,

stated that she “no longer intends to assert a claim for punitive damages.”73

Unopposed, the Steens’ motion for Summary Judgment on punitive damages is

GRANTED.

III. DEC’s Motion for Summary Judgment

In its motion for summary judgment, DEC contends that it did not owe Dukes

a duty under Delaware law and, if it did, Dukes’ own negligence caused his death,

thus relieving DEC of liability.74 And, like the Steens, DEC argues that it is not

subject to damages under the Survival Act because Coulter cannot prove that Dukes

did not die instantaneously.75

A. DEC Owed a Duty to Dukes

DEC contends that because it “could not ‘reasonably foresee’ the incident,” it

did not owe Dukes a legal duty.76 And, DEC avers, Dukes’ violation of provisions

of 16 Del. C. Ch. 74—the Delaware Overhead High-Voltage Safety Act—constitutes

negligence per se and serves to relieve DEC of liability.77 Coulter counters that

73
Coulter Resp. to Steen Partial Mot. ¶ 2.
74
See generally, DEC Mot.
75
Id. at ¶ 14
76
Id. at ¶¶ 6-9.
77
Id. at ¶¶ 7, 10.

13
DEC’s installation of power lines on the Steens’ property made it “reasonably

foreseeable [to DEC] that workers would need to lift their dump trailers near the

overhead wires.”78

“To be held liable in negligence, a defendant must have been under a legal

obligation—a duty—to protect the plaintiff from the risk of harm which caused his

injuries.”79 This duty is to act as a reasonably prudent person would under the

circumstances and protect against “reasonably foreseeable events.”80 The

determination of whether a duty exists is “entirely a question of law, to be determined

by reference to the body of statutes, rules, principles and precedents which make up

the law; and it must be determined by the court.”81 If no duty exists, “a trial court is

authorized to grant judgment as a matter of law.”82

Coulter asserts that “[w]hen DEC converted the single-phase line to a triple-

phase in 2009,” it should have been “reasonably foreseeable” to them that dump

trailers would be lifted near the overhead wires.83 Thus, Coulter contends, DEC

maintained a duty to those delivering to the property and should have installed the

78
Coulter Resp. to DEC Mot. ¶ 5.
79
Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007) (quoting Fritz v. Yeager, 790
A.2d 469, 471 (Del. 2002)).
80
Delmarva Power & Light Co. v. Burrows, 435 A.2d 716, 718 (Del. 1981).
81
Pipher, 930 A.2d at 892 (quoting Fritz, 790 A.2d at 471).
82
Id.
83
Coulter Resp. to DEC Mot. ¶ 5.

14
safety fuse on the cap that DEC’s original plans included.84 Of course, it is difficult

assess DEC’s knowledge of the Steens intended use of the land beneath the electrical

lines, but the plans preceding the line installation do reveal that DEC intended to

install a safety fuse on the line. Coulter’s expert opined that had DEC installed a

fuse in 2009, as was planned, Dukes would not have suffered a fatal electrocution.85

Coulter’s negligence claim rests, in part, on this failure.

While the Delaware Supreme Court has not squarely addressed the duty an

electric company owes to those who might come in contact with its lines, in

Delmarva Power & Light Co. v. Burrows it approved the following legal instruction:

An electric company is under a duty to safeguard the public
against injury arising from use of its dangerous agency, whether
damage arises from its negligence, negligence of others, or from causes
over which it has no control, to the extent of exercising reasonable care
to correct or remove causes of danger if reasonably foreseeable and
known to the power company; however, an electric company is not an
insurer and is not liable for injuries unless it is guilty of some wrongful
act or omission.

A power company must anticipate and guard against events
which may be reasonably expected to occur, and its failure to do so is
negligence, even though power companies may not anticipate the
identical injury or incident that occurs.

The degree of diligence which a distributor must observe in the
distribution of electricity is a very high degree of care and due care
which must be observed in distribution of electricity [and] requires that

84
Coulter Resp. to DEC Mot. ¶ 5.
85
Coulter Ex. D, Expert Report.

15
everything that gives reasonable promise of preserving life must be
done regardless of difficulty or expense.

*****
The defendant . . . owes a legal duty toward every person who is
liable to come in contact with dangerously high voltage power lines to
see that such lines are properly insulated so as to avoid any physical
injury upon contact with them at a place where the person has a legal
right to be, whether it is for business, pleasure, or convenience.86

The Supreme Court found that this instruction “[did] not depart from the negligence

standard nor amount to error.”87 Under the facts presented here, it is reasonable to

expect that farm equipment may be operated near the electrical lines. The plan to

include a fuse on the line further evidences DEC’s understanding of its

responsibilities to those working in the vicinity of the line.

B. Dukes’ Negligence

DEC contends that, even if it possessed a duty to Dukes, his failure to comply

with 16 Del. C. § 7504B constitutes negligence per se. This statute requires any

person working “within dangerous proximity of any high voltage overhead line” to

“promptly notify the public utility operating the high voltage line.”88 DEC asserts—

and Coulter does not dispute—that no notice was offered to DEC of the work

performed on the Steen farm the day of Dukes’ death.

86
Burrows, 435 A.2d at 718-19.
87
Id. at 719
88
16 Del. C. § 7405B.

16
Coulter responds that 16 Del. C. § 7405B requires the Steens (the landowner),

and not Dukes (a business invitee), to contact the utility company. But the Court

need not resolve this disagreement. DEC’s argument calls for an assessment of

contributory negligence which, in turn, presents a material factual dispute which

must be presented to the factfinder.

Where a statute defines an obligation, and a violation of the statute is proven,

duty and breach are presumed.89 But, a finding of negligence per se does not

preclude a comparative or contributory negligence assessment.90 If DEC is able to

prove Dukes violated 16 Del. C. § 7405B and thus was negligent per se, it “must

nonetheless be demonstrated that [Dukes’] negligence was the proximate cause of

[his] injury.”91 And, of course, “disputed issues of foreseeability and proximate

cause involve factual determinations that must be submitted to the jury.”92

DEC contends Dukes’ failure to comply with 16 Del. C. § 7405B was a

proximate cause of his death.93 Delaware’s comparative negligence statute makes

clear “the fact that the plaintiff may have been contributorily negligent shall not bar

a recovery by the plaintiff or the plaintiff’s legal representative where such

89
Toll Bros., Inc. v. Considine, 706 A.2d 493, 498 (Del. 1998).
90
Prince v. Faretto, LLC, 2019 WL 5787988, at *2 (Del. Super. Ct. Nov. 6, 2019).
91
Duphily v. Del. Elec. Co-op., Inc., 662 A.2d 821, 828 (Del. 1995).
92
Pipher, 930 A.2d at 892.
93
DEC Mot. ¶ 10.

17
negligence was not greater than the negligence of the defendant.”94 Determining

how much, if any, negligence should be attributed to each party “almost always

presents a question of fact for the jury.”95 It does so here.

While the trial court may decide issues of comparative negligence and bar

recovery on “rare occasions,” this is not one of those cases.96 DEC, in 2009, failed

to install a safety fuse despite its inclusion in the project plans.97 Coulter’s expert

contends that, had DEC adhered to its plans, the fuse would have prevented Dukes’

fatal electrocution.98 And neither Dukes nor the Steens alerted DEC of the work in

the vicinity of overhead lines—a possible violation of 16 Del. C. § 7405B.

Deciphering the relative negligence of each presents a question of material fact to be

resolved by the factfinder. DEC’s motion for summary judgment is DENIED.

C. Survival Act

DEC’s motion for summary judgment on Coulter’s claim under the survivor

act mirrors the Steens’ and, of course, must suffer the same fate.99 As noted above,

the only eyewitness, Dorman, unequivocally explained that Dukes’ death was

94
10 Del. C. § 8132.
95
Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1081 (Del. 2014).
96
Id.
97
Coulter Ex. D, Expert Report.
98
Id.
99
See § II. A. supra at p.8.

18
instantaneous. Coulter offers no evidence that Dukes “lived and suffered” after his

injury but before his death. DEC’s motion for summary judgment on Coulter’s

Survival Act claim is GRANTED.

IV. Nagel Farm’s Motion for Summary Judgment

The Steens’ third party complaint seeks indemnification from Nagel Farm.

While workers compensation “exclusivity bars any third-party claims for

contribution, a third party tortfeasor may nevertheless recover against an employer

in indemnification”100 in limited circumstances. The Steens assert that, through an

implied covenant, Nagel Farm owed them a duty to perform “work in a workman

like and safe manner” and that Dukes’ death was the result of a breach of that duty.101

Nagel Farm argues that it “did not breach a duty to the Steens through an express

contractual obligation and the circumstances did not create an implied promise to

indemnify.”102

Nagel Farm compensated Dukes’ Estate through Maryland Workers’

Compensation. Under 19 Del. C. § 2304, an employer who provides workers’

compensation to an employee cannot be sued for negligence.103 To the extent the

100
Karcher v. Restoration Guys, LLC, 2022 WL 2720887, at *2 (Del. Super. Ct. July
22, 2022).
101
D.I. 43 at ¶¶ 5, 11.
102
Nagel Farm Brf. at 10.
19 Del. C. § 2304; Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654
103

A.2d 403, 406-7 (Del. 1995) (“Section 2304 precludes the imposition of joint tort
19
Steens seek to recover from Nagel Farm as a joint tortfeasor, that claim may not

stand.104 But, “Delaware law recognizes that an implied contractual obligation to

indemnify a third party may operate as an exception to Delaware’s workers’

compensation exclusivity scheme.”105

In Diamond State Tel. Co. v. Univ. of Del.,106 the Delaware Supreme Court

described the “limited circumstances where the relationship between a contractor

and an employer implies . . . an obligation” to indemnify.107 The exceptions “are

conditioned on the existence of a contract whereby the employer performs services

for the third party on the third party’s premises.”108 In the absence of a contractual

relationship—express or implied—between Nagel Farm and the Steens, there can be

no implied promise to indemnify.109

There is no dispute that there was no formal contract between the Steens and

Nagel Farm. In fact, the record reveals that the Steens did not have any relationship

liability upon an employer in a suit brought by an injured employee against a third
party where the employer has paid compensation benefits to the employee.”).
104
Precision Air, 654 A.2d at 407.
105
Hindinger v. J & M Temp, LLC, 2023 WL 2292489, at *6 (Del. Super. Ct. Feb.
28, 2023).
106
269 A.2d 52, 57-58 (Del. 1970).
107
Karcher at *3.
108
Hindinger, 2023 WL 2292489, at *6 (citing Diamond State Tel. Co., 269 A.2d at
7).
109
Diamond State Tel. Co., 269 A.2d at 56.

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with Nagel Farm. The Steens contend that “it is a distinction without a difference

that the parties did not arrange the delivery directly.”110 The Steens argue that they

“were in a contractual relationship with Nagel Farm Service, Inc. for delivery of lime

to the subject site,”111 and that they “had worked together in the past so often that

they were satisfied no contractual formalities were necessary.”112 But Edward Steen

testified that he had never done business or contracted with Nagel Farm, had never

spoken with anyone from Nagel Farm, does not know any Nagel Farm employees,

and had only ever seen Nagel Farm trucks on his property on “the day of the

accident.”113 The Steens arranged to have lime delivered by Warwick.114 “[W]hether

or not there exists liability to indemnify a third party depends upon the factual

circumstances surrounding the incident.”115 And, the Court must consider the facts

and circumstances surrounding the alleged contractual relationship. Here, the record

is clear that no express contract existed between the Steens and Nagel Farm.

Nor was there an implied contract. “[A]n implied contract is one inferred

from the conduct of the party, though not expressed in words. The parties’ intent

110
Steen Resp. 18.
111
Third-Party Compl. ¶ 4.
112
Third-Party Compl. ¶ 8.
113
Edward Steen Dep. at 68-71.
114
Id. at 19-21.
115
Diamond State Tel. Co., 269 A.2d at 58.

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and mutual assent to an implied-in-fact contract is proved through conduct rather

than words.”116 And, just as an express contract:

An implied contract requires offer, acceptance, and consideration.
There must be a meeting of the minds, and the parties’ mutual assent to
the contract terms must be objectively manifest or shown. However,
naked assertions devoid of further factual enhancement do not support
an actionable claim of breach of implied contract.117

The record does not support a finding of an express or implied contract

between the Steens and Nagel Farms. The Steens contacted Warwick to arrange for

the delivery of lime. Warwick, in turn, arranged for the lime to be delivered by Nagel

Farms drivers as a “back haul” for a delivery in Pennsylvania. The exceptions

creating an implied promise to indemnify “are conditioned on the existence of a

contract.”118 In the absence of a contract, the exceptions do not apply. Nagel Farm’s

Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

__________________________
Sean P. Lugg, Judge

116
Capital Mgmt. Co. v. Brown, 813 A.2d 1094, 1098 (Del. 2002).
117
Doe v. Bayhealth Med. Ctr., 2025 WL 1010403, at *10 (Del. Super. Ct. Apr. 4,
2025) (internal citations omitted).
118
Hindinger, 2023 WL 2292489, at *6 (citing Diamond State Tel. Co., 269 A.2d at
57).

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