Opinion
C.A. No. 04C-12-066 RRC.
Submitted: September 19, 2008.
Decided: December 3, 2008.
Decision After Stipulated Non-Jury Trial. Verdict for Defendant.
Bernard A. Van Ogtrop, Esquire, Seitz Van Ogtrop Green, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Michael A. Pedicone, Esquire, Michael A. Pedicone, P.A., Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
A jury trial in this underinsured motorist automobile accident case resulted in a verdict of $2,000,000 for Plaintiff Antoinette A. Chilson. This Court granted Defendant's Motion for a New Trial on Liability and Damages pursuant to Superior Court Civil Rule 59. Following the Court's ruling, the parties elected to have this Court try the case, without a jury, on the entire record of the case. For the reasons discussed below, this Court finds that Plaintiff did not meet her burden of proof to establish negligence by a preponderance of the evidence. Therefore, Defendant is not liable for any injuries sustained by Plaintiff.
I. FACTS AND PROCEDURAL HISTORY
This case arises from an automobile accident occurring on the night of February 10, 2003. Plaintiff was involved in two accidents that night, both taking place on Lorewood Grove Drive, a two-lane country road located near Middletown.
The first accident occurred at approximately 8:30 p.m. when Plaintiff ran off the road and struck a tree. Plaintiff testified that it was "really cold outside," and that her car slid on ice on the road. Plaintiff's car became stuck in a snow bank by the road. Plaintiff called her husband, William R. Chilson, to ask him to bring his truck so he could tow her car out of the snow bank. Mr. Chilson quickly arrived, and was able to extricate Plaintiff's car. The airbag in Plaintiff's car had deployed, and Plaintiff testified that she felt "tingling on the right side of [her] face and on [her] right inner arm near [her] shoulder." Nonetheless, her car was still operable, and Plaintiff felt comfortable to drive. The Chilsons decided they would drive the vehicles back to their home, which was located near the accident. They made it safely back to their home, but then decided that Plaintiff should go to the hospital.
Trial Tr. at 45 (May 29, 2007).
Id. at 45.
Id. at 46.
Id.
Id. at 78.
Id. at 46.
Id. at 79.
At about 9:00 p.m., while on their way to the hospital in Mr. Chilson's truck, driven by Mr. Chilson, the Chilsons were struck on Lorewood Grove Drive by a vehicle driven by Joseph W. Lloyd, Sr. The collision caused the Chilsons' truck to run off the road and hit a tree; the Chilsons' truck was "totaled" in the accident, and Plaintiff was taken to the hospital in an ambulance.
Id. at 49.
Id. at 51.
In Plaintiff's deposition of Mr. Lloyd, Mr. Lloyd testified that, immediately after the accident as he got out of the car, he realized that the road was covered in "black ice" (which was also stated in a police accident report), and that he had hit this black ice while going around a curve in the road, had crossed the middle line, and had fishtailed into the Chilsons' truck. Mr. Lloyd testified that he had driven on the road before, and that there had been a "mist" that night, but that he had been unaware of any black ice on the road. Mr. Lloyd testified that as he "slowed down to make the turn, [he] hit the gas again, [and] that's when [he] started sliding." He did not receive a ticket from the police for the accident.
Delaware State Police Corporal Eric T. Lochstoer Dep., at 2.
Lloyd Dep., at 6-7.
Id. at 5.
Id. at 4-6.
Id. at 13.
Id. at 9.
Plaintiff sought medical attention for the injuries she suffered that night. Immediately after the second accident, she complained of pain in her right shoulder, right hip, right knee, chest, neck and back. In the emergency room, medical staff performed a "Glasgow Coma Scale," a test designed to determine whether Plaintiff had a concussion. The test returned a "normal score," indicating that she did not have a concussion. An MRI of Plaintiff's neck, taken on September 24, 2003, showed a "minute central protrusion" of one of Plaintiff's disks. Plaintiff later complained to her physician, Dr. Alan Fink, a neurologist, of neck and back pain that "waxed and waned," and also of a greater frequency and severity of the migraine headaches she had suffered before the accidents. Mr. Chilson apparently suffered no physical injuries in the accident.
Trial Tr. at 51 (May 29, 2007).
Fink Dep., at 36.
Id. at 23.
Id. at 24.
Id. at 22-23.
Mr. Chilson originally brought a claim for loss of consortium, but he abandoned it prior to the submission of the case to the jury.
Plaintiff made a claim against Mr. Lloyd's insurance carrier, Dairyland Insurance Company, for the injuries she suffered in the second accident. The claim against Mr. Lloyd's insurance carrier was resolved upon the insurance carrier's payment of $15,000, the policy limit available to Mr. Lloyd.
Plaintiff had an insurance policy with Defendant Allstate Insurance Company at the time of the accident. Plaintiff's insurance policy with Allstate included underinsured motorist coverage for up to $100,000. Plaintiff claimed that the $15,000 paid to her by Mr. Lloyd's insurance carrier was inadequate to compensate Plaintiff for her damages. She presented an underinsured motorist claim against Defendant, which was rejected.
In December 2004, Plaintiff filed a complaint against Defendant seeking payment of the underinsured motorist claim in an amount sufficient to compensate her for her damages, together with interest and costs.
Prior to trial, Defendant moved to exclude testimony from Dr. Fink that in Dr. Fink's opinion the second accident was more significant than the first accident in contributing to Plaintiff's injuries. Defendant argued that the Court should exclude this testimony because it conflicted with the evidence and, as a result, could not have been within a reasonable medical probability. The Court denied Defendant's motion, holding that Defendant's objection went to the weight of the evidence, and not its admissibility.
The two day trial began on May 29, 2007. Defendant moved for judgment as a matter of law as to liability at the conclusion of Plaintiff's case and at the conclusion of all of the evidence, asserting that Mr. Lloyd had not been negligent because he was unaware of the black ice, and that there had been otherwise no negligent conduct on his part. In opposition, Plaintiff noted that it was a cold February night, and that it had rained earlier that day. Plaintiff asserted that weather conditions should have put Mr. Lloyd on notice that the roads were likely to be icy that night. Plaintiff pointed to Mr. Lloyd's testimony that he "hit the gas again" as he rounded the curve as additional evidence of Mr. Lloyd's negligence. The Court denied Defendant's motion, but stated that, while there was "not the strongest amount of evidence in the world of negligence in this case," the negligence issue nevertheless was for the jury to determine.
Trial Tr. at 134 (May 29, 2007).
The jury deliberated for about an hour and fifteen minutes, and awarded Plaintiff $2,000,000. Defendant filed a motion for judgment as a matter of law, which was denied because the Court was required to view the evidence in a light most favorable to the plaintiff. Defendant's motion for new trial on damages and liability was granted and Plaintiff's motion for prejudgment interest was denied. The parties later agreed that this Court should try the case, without a jury, on the entire record of the case. Thus, the record of the first trial is exactly the same as the second "trial."
Chilson v. Allstate Ins. Co., 2007 WL 4576006, *3 (Del.Super. 2007).
Id. at *5.
Letter from Bernard A. Van Ogtrop, Esquire, D.I. 62. ("[W]e have agreed that his matter should be resolved by you, that is, non-jury.")
II. CONTENTIONS OF THE PARTIES
Plaintiff contends that Mr. Lloyd was negligent. Plaintiff asserts that weather conditions (it was a cold February night and it had rained earlier that day) should have put Mr. Lloyd on notice that the roads were likely to be icy that night. In addition, Plaintiff contends that Mr. Lloyd's testimony that he "hit the gas again" as he rounded the curve is indicative of negligence.
Second, Plaintiff maintains that while she sustained injuries in both accidents, the second accident was more significant than the first and that her injuries flow substantially from the second accident involving Mr. Lloyd.
Last, Plaintiff contends that because of the various injuries, the permanency of those injuries and the significant change in her lifestyle, she is entitled to $100,000, the policy limit of her underinsured motorist coverage.
In response, Defendant contends that Mr. Lloyd was not negligent and that the accident was the result of black ice, of which Mr. Lloyd was unaware. Defendant highlights the fact that there was no testimony to support a finding that when Mr. Lloyd "hit the gas" it was unreasonable or a breach of the duty of care. In addition, Defendant maintains that there was no evidence that Mr. Lloyd was exceeding a reasonable speed, driving carelessly, or violating any other duty that he owed motorists on the roadway.
Second, Defendant maintains that Plaintiff has failed to provide a credible, scientific basis to support a finding that the second accident, rather than the first, was the proximate cause of Plaintiff's injuries.
Last, because the second accident with Mr. Lloyd was not the result of Mr. Lloyd's negligence, Defendant asserts that Plaintiff is not entitled to recover under her underinsured motorist policy and thus should receive no payment from Defendant.
III. Conclusions of Law
Negligence is defined in the Superior Court Civil Pattern Jury instructions as
the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. . . . If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person's conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn't negligent. The mere fact that an accident occurred isn't enough to establish negligence.
Del. P.J.I. Civ. § 5.1 (2000).
To prevail in a claim for negligence, a plaintiff must establish that "1) the defendant owed the plaintiff a duty of care; 2) the defendant breached that duty; 3) the plaintiff was injured; and 4) the defendant's breach was the proximate cause of the plaintiff's injury."
Campbell v. DiSabatino, 947 A.2d 1116, 1117 (Del. 2008).
It is undisputed that Mr. Lloyd owed Plaintiff, and all others on the road, a duty to operate his vehicle in a reasonable and prudent manner. However, Plaintiff must present evidence that Mr. Lloyd breached the duty of care. The evidence on the record of breach of the duty of care is scant. The only evidence of breach of the duty of care was Mr. Lloyd's testimony that as he "slowed down to make the turn, [he] hit the gas again, [and] that's when [he] started sliding," combined with the fact that there were inclement weather conditions.
Lloyd Dep., at 13.
In denying Defendant's Motion for Judgment as a Matter of Law, this Court noted,
Absent the fact that Mr. Lloyd admitted that he had "hit the gas," the Court would have had a more difficult time deciding this motion; however, the evidence, especially coupled with Mr. Lloyd's apparent acceleration, supports the jury's finding of negligence.
But, in deciding Defendant's Motion for Judgment as a Matter of Law, the Court was required to view the facts in the light most favorable to Plaintiff. In this new trial based on the entire record, the Court is now the fact-finder and the 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 the plaintiff's injury." A preponderance of the evidence exists upon "the side on which the greater weight of the evidence is found."
When determining a motion for a judgment as a matter of law under Rule 50(b), the court does not weigh the evidence, but rather views the evidence in the light most favorable to the non-moving party and, drawing all reasonable inferences therefrom, determines if a verdict may be found for the party having the burden. McCloskey v. McKelvey, 174 A.2d 691, 693 (Del.Super. 1961).
Russell v. K-Mart Corp., 761 A.2d 1 (Del. 2000) (citations omitted).
Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967).
After carefully weighing all the evidence the Court finds (contrary to the jury's finding in the first trial) that Plaintiff has not proven by a preponderance of the evidence that Mr. Lloyd was negligent, and thus Plaintiff cannot recover from Defendant. It is undisputed that there was "black ice" on Lorewood Grove Drive at or near the location of the second accident. This conclusion is supported by the fact that Mr. Lloyd did not receive a ticket, nor did Plaintiff offer evidence that Mr. Lloyd was exceeding a reasonable speed, driving carelessly, or violating any other duty. As stated, the only significant evidence of Mr. Lloyd's negligence was his bare statement that he "hit the gas [while rounding the curve]." Therefore, because this Court finds that Plaintiff failed to prove Mr. Lloyd's negligence by a preponderance of the evidence, Defendant is not liable for any damages.
Because the Court finds insufficient evidence to support a finding of negligence, it need not reach the other issues raised by Defendant.
"Black ice" is a "thin, nearly invisible coating of ice that forms on paved surfaces." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th Ed. 2004).
See, e.g., Monahan v. Devaul 706 N.Y.S.2d 521 (N.Y. 2000) (holding that the defendant motorist's skidding on ice did not, in and of itself, require a finding of negligence, and upholding a verdict in favor of defendant. The evidence showed that defendant had skidded on ice through a stop sign, and had run into a guardrail, which had caused injury to the plaintiff, his passenger). Cf., e.g., George v. Graham 561 A.2d 1361 (Vt. 1989) (affirming the trial court's holding that there was sufficient (though "not abundant") evidence to find a driver negligent, despite the fact that the defendant, a motorist, was not exceeding the speed limit. The evidence showed that it had rained the previous day in the area of the accident, that temperatures had been below freezing at the time of the accident, and that the defendant had entered into another motorist's lane and had caused the accident).