Matthew Fortune v. Lloyd Archer - Motion for Summary Judgment

IN THE SUPER IOR COU RT OF THE STATE OF DELAWAR E MA TTHEW FOR TUNE and DA WN FOR TUNE, h/w Plaintif f, v. LLOYD ARCHER, JR., ROHANS BUS SER VICE, INC., HARLEY SVILLE INSURANCE COMP ANY, and T H G TRANSPOR T, INC., Defendants.)))))) C.A. No. N24C- 02 -133 CLS)))))) Date Submitte d: November 5, 2025 Date Decided: F eb ruary 13, 2026 Upon Conside ration of the Defendant TH G Transport, Inc.’s M o tion for Summary Judgme nt. DENIED in part, decision re s erved as to remaining i ssue. ORDER Samuel D. Pratcher, III, Esqui re for P RATCHER K RAYER LLC, and Mi chael van der Veen, Esquire for V AN D ER V EEN, H ARTSHORN, L EVIN & L INDHEIM, Attorneys for Plaintiffs. Paul D. Sunshine, Esquire for R EGER R IZZO D ARNALL, LLP, Attorney for Defendants Lloyd Archer, J r. & Rohans Bu s Service, In c. Eric Scott Thompso n, Esquire for M ARSHALL D ENNEH EY, P.C., Attorney for Defendant THG Transport, I nc. SCOTT, J.

Before the Court i s THG Trans port Inc.’s Motion for Summary Judgment as to all Plaintiffs’ claims against it. For the fo llowing reasons, THG Transport Inc.’s Motion for Summary Judgment is DENIED in part, decisi o n reserved as to remaining is sue. FACTUA L AND PROCEDURAL BACKGR OUND 1 On May 3, 2 021, THG Transport, In c. (“THG”) en tered into a contract with Delaware State University (“DSU”) to provide DSU with g round t ranspor tation services for the university. 2 Under the contract, THG was permitted to subcontract with other companies if i t could not fulfill its contractual obligations if it obtained DSU’s written ap p roval. 3 On February 9, 2023, DSU requested that THG transport the DSU bo wling team to a competition in North Carolina on February 23, 2023. 4 THG di d not have the resources to service the trip, so it reached out to other companies to see if there was a provider that could fill in. 5 Rohans Bus Service, Inc. (“Rohans”) agree d to fi ll in for t he trip and THG sent Rohans a work order for the job that detailed the time and date of departure, the times and locations for t ranspor t while the team was in 1 The facts are drawn from the Amended Complaint and all documents the parties incorporated by reference. The Court accepts these facts solely for the purpose of ruling on the Motion. 2 See generally Def. TH G Transport, Inc.’s Mot. for Summ. J., Ex. B, D.I. 56 (“THG Mot. for Summ. J.”). 3 THG Mot. for Summ. J., Ex. 2 ¶ 49. 4 Id. Ex. 4 at 35. 5 Def. Rohans Bus Serv., Inc.’s and Archer Lloyd Jr.’s Resp. to Mot. for S umm. J., Ex. C, D.I. 60 (“Rohans’ Resp.”); THG Mot. for Summ. J., Ex. 4.

North Carolina, the date and time f or arrival back to DSU, and the charges an d fees for the trip. 6 Rohans’ employee, Lloyd Archer, Jr. (“Archer”), drove the bus for the February 23 trip. 7 While traveling south on I -85, Archer fell asleep while driving, causing the bus to crash. 8 As a result, passenger and p laintiff, Matthew Fortune, sustained sever e injuries. 9 On February 13, 2 0 24, Matthew For tune and his wife, Dawn Fortune (collectively, “Pla intiffs”), filed a complai nt against Archer, Roha n s, and Harleysville Insurance Company, alleging claims for n eglige n ce and loss of consortium stemming from the b us crash. 10 Plaintiffs t h en amended their complain t to add THG as a defendant. 11 In addit i on to Coun t V for loss of consortium, the Amended Complaint allege s that THG: (1) ne gligently subco ntracted/h i red Rohans, and (2) is “vicar i ously liable f o r the act i ons of its a g ent, Rohan s[. ]” 12 6 THG Mot. for Summ. J., Ex. 4 at 35–36; Rohans’ Resp., Ex. A at 5. 7 Amended Complaint, ¶ 7, D.I. 26 (“Amended Compl.”). 8 Id. 9 Id. 10 See generally Complaint, D.I. 1 (“Compl.”). 11 See generally Amended Compl. 12 Id. ¶¶ 34, 37, 39–43.

THG mov ed for summary judgment on all clai ms aga inst it on September 19, 2025. 13 Plaintiffs, and defendants Rohans and Archer (collectively, “Rohans”), oppose the mot i on. 14 THG replied, 15 and the mat t er is now ripe f or decision. STANDAR D OF REVIEW The burden of p roof on a m otion for summa ry judgment under Superior Court Civil Rule 56 falls on the movi ng party to demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to j udgment as a matter of law.” 16 If t he moving party satisfies its initial burden, the non -moving party mu st sufficiently establish the “ex i stence of one or more genuine issues of material fact.” 17 Summary j udgment will not be granted if there is 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 circu mstances. ” 18 “All facts and reasonab le inference s must be consider ed in a li ght most favorab le to the n on- moving party.” 19 13 See generally THG Mot. for Summ. J. 14 See generally Rohans’ Resp.; Pls.’ Resp. to Mot. for Summ. J., D.I. 59 (“Pls.’ Resp.”). 15 See generally THG Reply in Support of Mot. for Summ. J., D.I. 66 (“THG Reply”). 16 Super. Ct. Civ. R. 56(c). 17 Qualit y Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488, 1995 WL 379125, at *3– 4 (Del. June 19, 1995) (TABLE); see also Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979). 18 Ebersole v. Lowengrub, 180 A.2d 467, 469–70 (Del. 1962); see also C NH Indus. Am. LL C v. Am. Cas. Co. of Reading, 2015 WL 3863225, at *1 (Del. Super. June 8, 2015). 19 Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (De l. Super. 1986) (citing Mechell v. Plam er, 343 A.2d 620, 621 (Del. 1975); Allstat e Auto Leasing Co. v. Caldwell, 394 A.2 d 748, 752 (Del. S uper. 1978)).

DISCUSSION The record on summary judgment includes the Amended Complaint, the contract between DSU and THG, p ortions of deposition transcripts, and the work order sent from T HG to Rohans for the Fe bruary 23 trip. In its m otion, THG argues that ther e is no master/servan t relationship between Archer a nd THG. 20 THG furth er argues that there is no evidence s u pporti ng Plaintiffs’ negligent su bcontrac ting/hiring claim because it did not employ or subcontract with Rohans, nor was THG aware that Rohans, and therefore Archer, was an improper employee/contract o r. 21 Alternatively, THG claims that Plaintiff s’ negligent subcontract ing claim fails because expert testimon y is required on the standard of care. 22 Plaintiffs, and Rohans contend that because TH G used work orders in a similar manner to the o ne in this case to s ubcontract jobs under the contract with DSU in the past, and the work order controlle d the manner and method of the job, the questi o n of vicarious liability is one for the jury. 23 Non e of the parties in opposition to THG’s motion addressed T HG’s argument regarding the negligent subcontracting c laim. 20 THG Mot. for Summ. J. ¶¶ 19–22. 21 Id. ¶¶ 26–28. 22 Id. ¶¶ 29–31. 23 Pls.’ Resp. ¶ ¶ 11–12; Rohans’ Resp. at 5–6.

I. Vicarious Li ability Claim The issue here is whether Rohan s was a serva n t or independent contractor for THG. The distinguishing factor between a master/ s ervant relationship and an independent contractor relationship is dependent o n the right of control a principal may exercise over the performance of contractua l services. 24 “A mast er/servan t relationship exists if the principal as sumes the right t o co ntrol the time, manner, and method of executing the work, as distinguis h ed from the right to require only certain results in co nformity with the contrac t.” 25 Generally, whether a person is a serva n t or inde pendent c o ntractor i s a question of fact reserved for t he factfinder. 26 Accordingly, there i s no brightline rule for determining whether a relationship should be characterized as a master/serva nt or i ndependen t contractor relationship. 27 The Fisher Court, however, instructs trial courts and the trier of fact to use the Section 220 of the Restatement (Second) of Agency factor s as guidance: (a) the extent of control, which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is enga ged in a distinct occupation or business; (c) t he kind of occupatio n, with reference to whe ther, i n t he l ocality, the work is usually done under the direction of the emplo yer or by a specialist without supervision; (d) the skill required in the particular occupation; 24 Fisher v. Townsends, Inc., 695 A.2d 53, 59 (Del. 1997). 25 Acree v. Bayhealth Medical Center, Inc., 2023 WL 2700208, at *5 (Del. Super. Mar. 29, 2023) (citing Fisher, 695 A.2d at 59). 26 Fisher, 695 A.2d at 59. 27 Acree, 2023 WL 2700208, at *5 (citing Fisher, 695 A.2d at 61).

(e) whether the employer or the workman supplies the instrumenta lities, tools, and the p lace o f work for the perso n doing the work; (f) the length of time for which the p erson is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is part of the regular business o f the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the pr incipal is or is n ot in business. 28 Drawing all re asonable inferen ces in fa v or of the nonmoving pa rty, the Court agrees with Plaintif f that there is a t riable issue of fact under the circumstances of this case. THG avers t hat there was no master/servant relationship because it only relayed t he t rip requireme nts provided by DSU, it did not contr o l or supervise Archer, and the equipment and service was wholly pro vided by Rohans for the tri p. 29 Rohans arg ue s that the work order establishes a “direct relation ship” between TH G and Archer given that THG previously reduced subcontracting jobs consistent with Paragraph 49 of the DSU contract to work o rders like the one here. 30 Plaintiffs and Rohans further claim that the “amount of detail” in the work order shows that THG exercised the r ight to control time, manner, and metho d of Roha ns ’ execution of t he trip. 31 While the facts relied upon by each party are supported by the record, the Court cannot make a legal determination on this record as a more thorough inquiry 28 Fisher, 695 A.2d at 59 (citing White v. Gulf O il Corp., 406 A.2d 48, 51 (Del. 1979)); see Restatement (Second) of Agency § 220 (1958); Acree, 2023 WL 2700208, at *5. 29 THG Mot. for Summ. J., Ex. C. 30 Rohans’ Resp. at 4, 6, Ex. A at 10; THG Mot. for Summ. J., Ex. 2 ¶ 49. 31 Rohans’ Resp., Ex. C; Pls.’ Resp. ¶ 12, Ex. C at 1, 3.

into the facts is necessary to appropriately balance the Section 220 factors. Nonetheless, the fact s as asserted favor both a master/ser v ant relationship and an independent contractor re l ationship suffici en t t o ge n erate a material issue of fact for the jury to consider. As su ch, the jury will determine whether Ro hans was in a servant or independent contractor relationshi p with THG by balancing the Section 220 factors. Thus, summary j u dgment is i n appropriate. II. Negligent Subcontr acting Plaintif fs allege that independent of vicarious liability, THG is liable for negligently subcontracting/hiring R ohans. A negligent hi ring claim holds an employer liable for employing “impro per persons involving risk of harm to others.” 32 Delaware law also recognizes negligence in selection of a contractor under the Resta t ement (Sec ond) of T orts § 41 1. 33 Section 41 1 provides t h at, An employer is subject to liability for physical harm to third persons caused by his failure to exercise reaso nable care to employ a competent and careful con t ractor (a) to do w o rk which will involve a risk o f physical harm unless it is skillful ly and carefully d one, or (b) to perform any duty which the employer owes to third persons. 32 Cook v. J and V Trucking Co., 2021 WL 1292796, at *5 (Del. Super. April 7, 2021). 33 Fisher v. Reid, 1996 WL 453444, at *5 (Del. Super. June 19, 2996).

The standard of care for both a n egligent hiring and a negligent subcontracting claim is that of a reasonabl y prudent person under the circumstances. 34 The dispositive factor i s whether the employer/contractee was aware of negligent conduct by the employee or third-party contr actor 35 In THG’ s view, it is entitled to summary judgment on this claim because Rohans was not an agent o r servant of THG. Therefore, THG “d id not know, and could n o t have known abou t any characterist ic that made [Ro h ans’ employee, Archer,] unfit to drive the bus on the day of the accident.” 36 THG does not rely on any evidence i n support of it s ar gument because it po s its that there is none. Whether Plaintif fs’ claim is for negligent hiring or subcontracting, THG is not entitled to summary judgment on this record. As d iscussed above, t he relationship between Rohans and THG rai ses a genuine issue of material fact. A review of the record als o indicate s that before asking a bus c o mpany to fill in for their c ontractual obligations with DSU, THG reviews a company ’ s insurance policies and SAFER 34 Reid, 1996 WL 453444, at *6 (citing Restatement (Second) o f Torts § 411 c mt. c (1965)); Cook, 2021 WL 1292796, at *5. 35 Fane an v. Rite Aid Corp. of Del., Inc., 984 A.2d 8 12, 826 (Del. Super. 2009) (quoting Matthew s v. Booth, 2008 WL 2154391, at *3 (De l. Super. M ay 22, 2008)) (internal quotation marks omitt ed); Reid, 1996 WL 453444, at *6 (finding that the de fendant was not entitled to summ ary judgment on the plaintiff’s negligent subcontracting claim under Section 411 because the record suggested that the defendant “turn[ed] a blind eye to the known negligent operat ions of [a] third-party contractor”). 36 THG Mot. for Summ. J. ¶ 27–28.

records. 37 This raises questions of whether THG revi ewed Rohans’ insurance and SAFER records, what the contents of these records were, and whether the contents would lead a reasonable person to conclude that THG unrea sonably r isked injury by failing t o emp l oy a competent c ont racto r. There a l so m ay be ad ditional informatio n THG was made aware of based on its history with Rohans. 38 None of these questions, howe v er, can b e answered on t he record provided. Finally, THG claim s that Plaintiff s ’ negligent subcontracting/hiri ng claim fa i ls because e xpert testimony is necessar y t o es t ablish th e standard of care required by a commercial bus company “before giving a j ob for one of its clients to another bus company[.]” 39 A claim for n eglige nt hi ring/subco ntracting measures the standard of care by that of a reasonably prudent p erson under the circ u mstances. G enerally, a “jury will... decid e t he standar d of care when the fa cts ar e within their common kno wle d ge.” 40 “Only when the standard of care requ ires resort to technical or other comple x principles, or is applicable to a professiona l, mu s t the pla intif f establish the standard of care through e xpert testimony.” 41 37 Rohans’ Resp., Ex. A at 7–8. A SAFER record is a “catalog [showing whether] a company is satisfactorily safe[.]” Id. 38 Id. at 3–7. 39 THG Mot. for Summ. J. ¶ 30. 40 Raid v. Brandywine Vall ey SPCA, Inc., 319 A.3d 878, 889 (citing Ridgeway v. Acme Mark ets, Inc., 194 A.3d 372, 2018 WL 4212140, at *2 (Del. Sept. 5, 2018)). 41 Id. (citing Ridgeway, 2018 WL 4212140, at *3 & n.18).

Despite THG’ s ar g ument, it does not explain why the standard of care require d to give a job fo r one of its clients to another bus company implicates technical or other complex p rinciples o r otherwise req uires the court to treat THG as a professional. More over, Plai ntiff s and Ro h ans did no t respond t o this ar gument. Thus, the Court requests that the par t ies provide supp lemental b riefing on the issue of whether expert testim ony is required to establis h the standard of care necessary for a commercial bus company to hire or subcontract another bus company. THG must file its response by Friday, March 6, 2026. Plaintif fs’ and Rohans’ responses are due no later than Friday, Mar ch 27, 2026. CONCLUSION For the foregoin g re asons, D efendant T HG Transport, Inc.’s Motion f o r Summary J udgment is DENIED in part, decision reserved as to rema i ning issue. IT IS SO ORDER ED. /s/ Calvin Sc ott Judge Calvin L. Scott, Jr.