foreseeability analysis in Delaware

2024Pa. 2001). 98 Id. at 250 . 99 Id. at 252–53. 25 foreseeability to the facts of this case, it is plain the Bradleys’ claim is not covered by the policy.”100 It is difficult to discern how this finding, so tightly linked to the foreseeability of a claim by identified clients who have stated through their attorney a present intention to file suit, supports Zurich’s contention that the Tillery Letter is a “claim for damages.” Equally unavailing is Westrec Marina Management, Inc. v. Arrowhead Indemnity Co.,101 a California case in which coverage hinged on whether Westrec had timely reported a claim

2024Pa. 2001). 98 Id. at 250 . 99 Id. at 252–53. 25 foreseeability to the facts of this case, it is plain the Bradleys’ claim is not covered by the policy.”100 It is difficult to discern how this finding, so tightly linked to the foreseeability of a claim by identified clients who have stated through their attorney a present intention to file suit, supports Zurich’s contention that the Tillery Letter is a “claim for damages.” Equally unavailing is Westrec Marina Management, Inc. v. Arrowhead Indemnity Co.,101 a California case in which coverage hinged on whether Westrec had timely reported a claim

2021More generally, expanding the foreseeability test to reach Krawetz as the human decisionmaker for the signatory entity would clash with and erode the general rule that individuals who sign agreements on behalf of the corporate entities they represent are not personally bound by forum selection clauses in those agreements.61 Like the distinction between corporate entities, the distinction between entities and their human decisionmakers is a meaningful one that should not easily fall to the closely related test; this Court and others have acknowledged 60 Carlyle, 779 F.3d at 219 . 61 E.g., Baker

2021In that case, the defendant and party at issue were both controlled by a common controller.152 Thus, the determination that the forum selection clause conferred personal jurisdiction was not predicated solely on facts regarding the negotiations, 149 779 F.3d 214 (3d Cir. 2015). 150 Id. at 219 (citing Weygandt, 2009 WL 1351808 , at *4; then citing Capital Grp.

2025Plaintiffs allege Defendants acted in misfeasance as well as nonfeasance by creating, marketing, and selling a “dangerous infant product” and failing to warn about potential hazards with the product.48 Plaintiffs argue Defendants’ deprivation of “normal opportunities for self-protection” by marketing a safe product formed a special legal relationship between the parties.49 However, Plaintiffs do not need to establish the relationship between the parties because Plaintiffs allege affirmative acts of misfeasance by Defendants. 45 Mower, 422 P.3d at 843 (citing Jeffs, 275 P.3d 228 ). 46 Mower, 42

2025Plaintiffs allege Defendants acted in misfeasance as well as nonfeasance by creating, marketing, and selling a “dangerous infant product” and failing to warn about potential hazards with the product.48 Plaintiffs argue Defendants’ deprivation of “normal opportunities for self-protection” by marketing a safe product formed a special legal relationship between the parties.49 However, Plaintiffs do not need to establish the relationship between the parties because Plaintiffs allege affirmative acts of misfeasance by Defendants. 45 Mower, 422 P.3d at 843 (citing Jeffs, 275 P.3d 228 ). 46 Mower, 42

2024Where the harm is intentionally caused by a third party, the Second Restatement directs the inquiry to whether the intentional act by the third party – here, the contradictory affidavit submitted by Wilson – is within the scope of 30 Id. 31 Restatement (Second) of Torts § 442B (Am.

2019Ill. 1984); Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509 , 514 n.5 (9th Cir. 1988)). 37 Id. at *5. 38 See, e.g., McWane, 2015 WL 399582 , at *8 (“[I]t would suffice to show either foreseeability or a direct benefit to demonstrate that a party is closely related to the agreement.” (emphasis in original)). 39 See Capital Gp., 2004 WL 2521295 , at *7 (holding that the non-signatory was closely related to the contract’s forum selection clause based almost exclusively on its finding that 12 category, this Court analyzed foreseeability only after finding a direct benefit, and the foreseeabi

1991In McKeon v. Goldstein, Del.Supr., 164 *1107 A.2d 260 (1960), the foreseeability test was described as “something which should have been reasonably foreseeable or reasonably anticipated.” Id. at 262; Nutt, 526 A.2d at 567 .

1990In applying the doctrine of foreseeability the particular injury or precise form of the injury need not be perceived or foreseen, but if there is some probability of harm sufficiently serious that an ordinary reasonable person would take precautions to avoid it then failure to take such care is negligence. 401 F.2d at 556-57 .

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.

1987Cf. Cooke v. Elk Coach Line, Del.Super., 180 A. 782 (1935); Szymanska v. Equitable Life Ins., Co., Del.Super., 183 A. 309 (1936); State v. Clark, Del.Super., 20 A.2d 127 (1941); Clemens v. Western Union Telegraph Co., Del.Super., 28 A.2d 889 (1942) — above decisions by Layton, C.J.; Torrack v. Corpamerica, Del.Super., 144 A.2d 703 (1958) — decision by Christie, J.; Warburton v. Phoenix Steel Corporation, Del.Super., 321 A.2d 345 (1974), aff'd, Del.Supr., 334 A.2d 225 (1975) — decision by Taylor, J.; Vadala v. Henkels & McCoy, Inc., Del.Super., 397 A.2d 1381 (1979) — decision by Walsh, J.