Opinion
C.A. No. 06C-01-020.
Date Submitted: March 21, 2007.
June 29, 2007.
Edward C. Gill, Esquire, The Law Offices of Edward C. Gill, Georgetown, Delaware.
Arthur D. Kuhl, Esquire, Michael R. Ripple, Esquire, Reger Rizzo Kavulich Darnall, LLP, Wilmington, Delaware.
Dear Counsel:
Pending before the Court are Defendant's Motions for Summary Judgment, one on the issue of punitive damages and the other on the issue of negligence, Defendant's Motion in Limine to Preclude Evidence of Alcohol Use, and the parties' Cross-Motions in Limine to exclude the testimony of the other party's expert witness. For the reasons set forth herein, I am granting Defendant's Motion for Summary Judgment on the issue of negligence. Because this Motion disposes of the case, it is unnecessary for me to consider the other outstanding Motions.
Factual Background
The pertinent facts are undisputed. On Friday, March 19, 2004, Camille Stanley ("Defendant") and Brenda Sims ("Plaintiff") both attended a party in Milton, Delaware. Defendant left the party before Plaintiff did and backed into Plaintiff's parked car, a 1990 Geo Metro soft top convertible, as she left the area. Defendant asserts that the force of the impact was so slight that she did not, in fact, realize she had backed into Plaintiff's car until she was contacted by Plaintiff the following day, Saturday. T-17. Defendant subsequently examined her vehicle and realized "two little things on the bumper" were missing from the rear of her car. T-18. A police officer was summoned and Defendant returned to the scene where Plaintiff's vehicle was still located (Plaintiff did not drive the vehicle in the interim). Plaintiff's car had been hit on the left side and documentation was made as to a dent in the driver's side door. T-50. Plaintiff testified at the arbitration hearing that she noticed that the side bracket on the left hand side of the bar to which the vehicle's soft top attached when in the "closed" or "down" position was broken and "hanging there". T-24. Plaintiff testified she believed it was unsafe to operate her vehicle in light of this damage. T-26. Nevertheless, after the police officer wrote a report, which did not document the alleged damage to the roof, T-50, Plaintiff drove her car home. On her way home, Plaintiff stopped by the car's former owner's place of employment to ask him to help her latch the top. He told Plaintiff to put the top down for now and he would help her secure the top later. T-27. Plaintiff lowered the top and continued to drive the car for the remainder of the day. During the course of the day, Plaintiff drove around the Milton area and drove the car (still with the top in the down position) to dinner in Milford, a town approximately ten miles north of Milton. After dinner, Plaintiff decided to try to latch the soft top with the assistance of her dinner companions. T-28. She was unable to securely fasten both sides of the top and a small gap remained between the soft top and the left side of the bar to which the top was attached. T-29, T-27. Plaintiff testified she felt the car was safe to drive in this condition, T-29, even though the roof was in the same position it had been in the previous day when she deemed the car unsafe to drive. T-88. Plaintiff testified the reason for her change in opinion was because it had started to rain. T-88. In any event, Plaintiff made it home safely that evening.
Citations are to the May 5, 2006, arbitration transcript, attached as "Exhibit A" to Defendant's Motion for Summary Judgment on the issue of negligence. Citations will be as follows: "T-___".
At this point in the transcript, Plaintiff incorrectly states that the damage was located on the right side of the car but corrects this assertion on the following page of the transcript. T-25.
Sunday, Plaintiff did not use her vehicle. On Monday, Plaintiff again drove the vehicle. Plaintiff testified she wanted to take the car by the insurance company to inquire as to what she had to do to document the damage to the car from the Friday night accident. T-89. On the way, she stopped to take care of some business in Rehoboth and Lewes. T-30. While Plaintiff was driving on King's Highway in Lewes, the soft top of the car start to shake and the top lifted. T-31. Plaintiff testified that "[t]he car became like a parachute with the air in it" and she was "picked up and thrown into [a] tree". T-31. Plaintiff's vehicle was damaged as a result of this incident and Plaintiff also suffered personal injuries as a result of the accident.
Motion for Summary Judgment Standard of Review
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1 986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp., supra. If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Analysis
Defendant presents three theories to support her argument that she is entitled to summary judgment on the issue of negligence. First, Defendant argues she is entitled to summary judgment because Plaintiff is unable to produce any evidence that the damage resulting from the March 19th accident caused the March 22nd accident. Second, Defendant posits she is entitled to summary judgment because Plaintiff's actions constituted the greater degree of negligence in this matter and, therefore, she is precluded from recovery under Delaware's comparative negligence statute. Fin all y, Defendant argues she is entitled to judgment in her favor as a matter of law because the injury for which Plaintiff seeks recovery was not reasonably foreseeable. I find this last argument persuasive and grant Defendant's Motion for Summary Judgment on this basis, as explained further below.
In Delaware, in order to prevail on a negligence claim, a plaintiff must prove by a preponderance of the evidence that the defendant's action breached a duty of care in a way that proximately caused plaintiff's injury. Russel v. K-Mart Corp., 761 A.2d 1, 5 (Del. 2000). A proximate cause is one "which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred." Id. (internal quotation marks and citation omitted). Plaintiff's negligence or even a third party's negligence does not necessarily create an independent intervening proximate cause sufficient to break the causal link between the defendant's assumed negligence with the injury. See Stucker v. American Stores, Corp., 171 A. 230, 232 (Del. 1934). An intervening act does not relieve a tortfeasor of liability if such act "ought to have been foreseen" or "if, according to the usual experience of mankind, the result ought to have been apprehended". Sirmans v. Penn, 588 A.2d 1103, 1106 (Del. 1991). Thus, one's duty encompasses protecting against reasonably foreseeable events, including the negligence of others. Id. at 1107. However, "damage cannot be attributed to a given negligent act as the proximate cause when it appears that subsequent to that negligence a new and independent and unexpected factor intervenes which itself appears to be the natural and real occasion of the mischief." Stucker, 171 A. at 232-33 (emphasis added). As the Sirmans decision makes clear, the issue of causation is thus intertwined with the scope of an actor's duty. "In an action for negligence, it is for the court to ascertain whether as a matter of law a duty exists between the parties." Kovach v. Brandywine Innkeepers Ltd. Partnership, 2000 WL 703343, at *2 (Del.Super. Apr. 20, 2000), rev'd on reargument on other grounds, 2001 WL 1195944 (Del.Super. Oct. 1, 2001).
Assuming, without deciding, (1) that the mechanism which attaches the soft top to the body of Plaintiff's car was damaged as a result of the March 19th accident, and (2) that, as a result of this damage, the top did, in fact, lift up from the body of the car and cause Plaintiff to run into the tree, I nevertheless find that Plaintiff's operation of her car in light of her awareness that the car was unsafe to drive constituted an intervening cause of the March 22nd accident, sufficient to break the casual connection between any negligence on Defendant's part and Plaintiff's injuries. That is, Plaintiff's actions were not reasonably foreseeable as a matter of law.
The investigating officer and another passerby witness testified at the arbitration hearing that they did not see any sign that the roof was improperly latched. T-37-38 (testimony of investigating officer, Trooper Steven Smyk); T-62 (testimony of witness, Cynthia White).
Plaintiff admits she identified structural damage to the top attachment mechanism when she examined her car on Friday evening. T-24. Plaintiff admits she thought the vehicle was unsafe to drive due to this structural damage. T-26. Despite this awareness, however, Plaintiff proceeded to drive her vehicle. Perhaps Plaintiff would be entitled to present her case to a jury if Plaintiff had merely driven her car long enough to relocate it to a safe location while she made arrangements for its repair. However, Plaintiff used the car to run errands. Moreover, she drove the car to dinner that evening. Finally, she drove the car the following Monday to make a few work-related visits prior to allegedly visiting her insurance company. In sum, Plaintiff did not take reasonable steps to protect her safety. As such, she is barred from seeking recovery from Defendant for the injuries she suffered as a result of the March 22, 2004, accident. A tortfeasor is not responsible for damage that ensues when the plaintiff has unreasonably and repeatedly failed to take reasonable steps to protect her safety.
I am not ruling that Plaintiff's recovery is barred on the theory of contributory negligence. Rather, Plaintiff's negligence in continuing to drive her vehicle was so flagrant in nature that it served to break the casual connection between Defendant's tortious conduct and Plaintiff's injury.
Conclusion
For the reasons explained above, Defendant's Motion for Summary Judgment on the issue of negligence is granted. The case against Defendant is accordingly dismissed.IT IS SO ORDERED.