Claimant was involved in a 1/27/24 work accident involving an accepted head injury. Claimant later filed a Petition alleging multiple permanencies as follows: 4% to the head, 6% to the visual system, 5% to the vestibular system, 2% to the right upper extremity, and 3% to the lumbar spine. The majority of the allegations were resolved prior to Hearing, inclusive of acceptance of the head and vestibular ratings.

The Board rejected the visual system permanency allegations entirely. The Board found Employer’s medical expert more credible than Claimant’s doctor, as it was not apparent from the deposition testimony that he was aware of well-documented and significant non-work-related visual issues. The Board was also “highly concerned” with claimant’s expert basing his vision rating upon convergence insufficiency symptoms, when nobody was attributing this condition to any specific trauma to the eyes. The defense expert pointed out that convergence insufficiency was due to the concussion/brain injury, and thus was a brain rather than ophthalmologic/eye disorder. The Board agreed with the defense expert that the convergence insufficiency symptoms were covered in the accepted head and vestibular ratings.

This is an important decision to consider when faced with allegations of multiple different permanencies from the same head injury.

Should you have any questions or concerns regarding this Decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

Darriel Tynes v. City of Wilmington, IAB Hrg. No. 1543176 (Feb. 6, 2026).

EMPLOYMENT LAW UPDATE

Delaware Court Dismisses Title VII, ADEA & FMLA Claims

Plaintiff was employed as a fully-tenured professor at Delaware State University and was appointed to be the university’s Graduate Program Director. She had also served as the chairperson of the university’s Dissertation Advisory Committee. During that time, Plaintiff allegedly failed to escalate what she knew to be a graduate-level instance of plagiarism within a student’s dissertation. Plaintiff was then placed on administrative leave. During the leave period, the university found that the Plaintiff had not been properly maintaining certain graduate school files. Plaintiff was removed from her position as Graduate Program Director but was otherwise allowed to return to her position as a fully-tenured professor on or about December 18, 2023.

Upon Plaintiff’s return from administrative leave, she was assigned to teach undergraduate courses for the spring 2024 semester that were not Plaintiff’s normal courses taught but were within the area of instruction that were extant upon Plaintiff’s original hire.

In January 2024, Plaintiff requested FMLA leave which was granted. Plaintiff was later assigned an undergraduate courseload for the fall 2024 semester. Two days prior to the start of the fall semester Plaintiff requested additional FMLA leave and permission to teach her courses remotely. The university responded that the courses were not subject to remote facilitation and proposed that her courses be co-taught to accommodate the additional FMLA leave.

Plaintiff declined the university’s proposal and asked instead for a full courseload of graduate level courses. The university responded that the Plaintiff needed to accept the university’s proposal or else the Plaintiff would be terminated with cause. Plaintiff did not reply to two separate university requests and was terminated on October 29, 2024.

In November 2024, Plaintiff filed a second amended Complaint asserting claims against the university arising from Title VII, ADEA, and FMLA.

The District of Delaware, upon motion by the university, dismissed Plaintiff’s Complaint because it did not assert the prima facie facts necessary to sustain her claims against the university.

First, to sustain a Title VII race/national origin discrimination claim, a plaintiff must, among other things, prove that she is qualified for the position at issue. In this case, the Plaintiff herself provided information in her own exhibits that she was not qualified to be employed as a Graduate Program Director.

Similarly, the qualification element is also necessary to sustain an ADEA age discrimination claim. In addition, and among other elements, an ADEA plaintiff must also plead that the “plaintiff was ultimately replaced by another employee who was sufficiently younger.”  In this case, the Plaintiff’s “Complaint is silent on the age of her replacement.”

Finally, Plaintiff’s FMLA retaliation claim failed because the Court found no nexus between FMLA claim and her termination. The university’s position was that Plaintiff was terminated for refusing to teach the assigned courses and because she did not respond to the university’s requests to discuss the issue.

Ultimately, the Court granted the university’s motion to dismiss Plaintiff’s Complaint with prejudice as she “failed to plead facts sufficient to support her three claims.”

If you have any questions about this case or about defending employment law claims, please contact an attorney in our liability department.

Nirmaljit K. Rathee, M.A., PH.D. v. Delaware State University, C.A. No. 1:24-CV-00777-TMH (D. Del. April 16, 2026)

LITIGATION LAW UPDATE

Motions in Limine: When is Evidence of a Non-Party’s Negligence Admissible?

Plaintiff Pousson and Defendant D’Andrea were guests at Massey’s Landing Resort, a beach community owned by Sun Communities and managed by Blue Water. Multiple incidents occurred involving two separately rented golf carts during the Pousson/D’Andrea stay, one of which resulted in this litigation. The litigated event occurred when plaintiff, while riding drunk as a passenger on a golf cart rented and operated by defendant D’Andrea, was “ejected” during a U-turn, resulting in injuries.

Defendants filed multiple motions on several issues, including a request to be released from all liability based on three executed liability waivers. The court reviewed the waivers and found all three to be unenforceable, noting that Delaware law disfavors contractual provisions releasing a party from its own fault: “as a matter of public policy, a provision exonerating a party for its own negligence will only be given effect if the language ‘makes it crystal clear and unequivocal that the parties specifically contemplated’ such a release.” (internal citation omitted).

The first waiver was entitled “The Water Feature Waiver, Contract, and Release of Liability.” Regarding the use of water features at Massey’s Landing, users agree “to assume all liability . . . even if arising from negligence from other participants, employees, or management of [the Resort].” The Court agreed this provision was clear to exonerate defendants from their own negligence, but it appeared to apply solely to the use of water features and without reference to the use of golf carts. The second waiver, The Golf Cart Liability waiver, clearly pertained to golf cart usage, but stated “in exchange for the privilege to rent this golf cart, you are accepting responsibility for your own negligence. . . .” There is no provision in this waiver specifically exonerating defendants from their negligence, only that the user will accept responsibility for his or her own negligence. The final waiver, The Short-Term Rental Agreement Disclaimer, similarly affirmed that users accepted a degree of responsibility and that they would “indemnify and hold harmless [the Resort] . . . due to his/her . . . participation in any activities. . . ” but there is no language specifically exonerating defendants from actions arising from their negligence.

Overall, the Court concluded that the waivers were insufficient to exonerate defendants from actions arising from their own negligence, and the case was generally allowed to proceed.

Lisa Pousson v. Lianna D’Anrea, Sun Communities, Inc. and Blue Water Hospitality Management, LLC, C.A. No. S23C-04-020 MHC, March 31, 2026