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finding that a reasonable fact finder could determine that the defendant acted with a willful and wanton disregard for the safety of others because the defendant was traveling up to twenty miles per hour over the speed limit as she approached an intersection with a red light, went straight through the intersection without applying her breaks at any time, and was talking on her cell phone
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C. A. No. 08C-02-043 CLS.
Submitted: December 29, 2010.
Decided: March 5, 2010.
On Plaintiff's Motion to Amend the Complaint and Motion to Strike the Affidavit.
GRANTED IN PART; DENIED IN PART.BACKGROUND
On or around September 3, 2006, Defendant Linda Kusters ("Kusters") was travelling westbound on Route 2, Kirkwood Highway, in New Castle County, Delaware. Plaintiff Nancy Howell ("Howell") was travelling northbound on Route 7 attempting to cross the intersection when her car was struck on the right side by the front end of Kusters' vehicle. According to the police report, Kusters disregarded a red light and struck Howell's car. At the time of the collision, Howell had a green light. The Complaint alleges that Howell suffered serious bodily injuries, pain and suffering, inconvenience, mental anguish and disability.
Compl. ¶ 7.
The Complaint was filed on February 6, 2008. On June 30, 2008, Howell filed a Motion to Amend her Complaint to request punitive damages. That Motion was heard before the Court on July 15, 2008, and the Court permitted the Motion to remain open until after the completion of witness depositions. Depositions were completed on May 22, 2009. Mediation took place on November 9, 2009, but was unsuccessful. Howell re-filed her Motion to Amend the Complaint on December 29, 2009. Howell argues that, based on the police report and witness testimony, Kusters was traveling at a high speed, was talking on her cell phone, ran a red light, and never applied the brakes before striking Howell. Based on this testimony, Howell seeks to amend her Complaint to request punitive damages.
On or around January 14, 2010, Kusters filed a response to Howell's Motion arguing that it should be denied because the Motion was filed after the deadline for submitting case dispositive motions. Kusters further argues that the Motion to Amend should be denied because the amendment would fail under Rule 12(b)(6). Specifically, Kusters argues that Howell has not alleged sufficient facts to support that Kusters' conduct was a wilful or wanton disregard for the rights of plaintiff, but has only provided enough evidence to make a showing that she was negligent.
Dispositive motions were due by October 30, 2009 per the Trial Scheduling Order.
Superior Court Rules of Civil Procedure 12(b)(6) governs dismissal for failure to state a claim upon which relief can be granted.
After Kusters filed her Response, Howell filed a Motion to Strike Defendant's Response and Defendant's Exhibit F attached to the Response. On January 15, 2010, the Court held a hearing on these Motions and counsel for Plaintiff orally withdrew the Motion to Strike the Response. Therefore, only the Motion to Amend and the Motion to Strike Defendant's Affidavit are issues before the Court.
Exhibit F is an unsigned affidavit by Linda Kusters stating that, at the time of the accident, she was driving to take her dogs to the kennel and that she was not on her phone during the accident. She states that after the accident she removed her phone from her purse and called her husband. Df.'s Ex. F.
DISCUSSION
Motion to Amend
Superior Court Civil Procedure Rule 15(a) states that, after responsive pleadings are filed, a party may amend a party's pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Therefore, the trial court has broad discretion in permitting or refusing an amendment to a complaint. Generally, absent a showing of substantial prejudice or legal insufficiency, the court "must exercise its discretion in favor of granting leave to amend." Generally, substantial prejudice increases with the passage of time.Additionally, the proposed amendment must be legally sufficient, meaning, that it must survive a motion to dismiss under Rule 12(b)(6). Therefore, "all the allegations in the amended complaint must be accepted as true, and the proposed amendment will not be dismissed unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."
E.I. Du Pont De Nemours Co., 2008 WL 555919, at *1.
Id.
In the current case, Kusters concedes that pleadings may be amended under appropriate circumstances, however, she argues that a claim of punitive damages would fail under Rule 12(b)(6). Punititive damages are a valid remedy if Howell establishes a prima facie case that Kusters' driving exhibited wilful and wanton disregard of others' safety. Inadvertence, mistake, or errors of judgment are considered acts of mere negligence and do not rise to the level required for claims of punitive damages. Punitive damages are awarded to punish outrageous conduct and to deter such conduct in the future. To be successful, Howell must establish that Defendant's behavior reflected a "conscious indifference" or "I don't care" attitude. Where the evidence supports a reasonable inference that Defendant's conduct meets the standard for recovering punitive damages, the question of punitive damages is typically for the trier of fact.
Porter v. Turner, 954 A.2d 308, 312 (Del. 2007).
Jardel Co. v. Hughes, 523 A.2d 518, 529 (Del. 1987).
Id.
Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983) (quoting Eustice v. Rupert, 460 A.2d 507, 509 (Del. 1983)).
Jardel, 523 A.2d at 527.
In a recent case, Porter v. Turner, the Delaware Supreme Court affirmed the award of punitive damages after finding sufficient evidence to support a finding that the driver exhibited wilful and wanton disregard for the rights of other motorists when he ran the red light. The evidence presented at trial indicated that "Porter faced a red light for eight seconds and, nevertheless, accelerated his tractor trailer through the intersection." If believed by the jury, the Court found this testimony established more than Defendant merely carelessly disregarding a red light, but could constitute wilful and wanton disregard for the safety of others.
954 A.2d 308 (Del. 2008).
Id. at 310.
Id. at 312.
In Estate of Rae v. Murphy, the Delaware Supreme Court affirmed the trial court's conclusion that the facts did not rise to the level of wilful and wanton conduct necessary to support a claim for punitive damages. In Rae, the evidence showed that Defendant, driving slightly over the speed limit, turned his head to speak to the passenger in his car as he was approaching the intersection. While he was distracted, the light turned red and Defendant failed to stop striking decedent's vehicle. The Court found these facts only established Defendant was negligent and that "these facts alone do not elevate the culpability of his conduct from negligence to the level of `conscious indifference' or [an] `I don't care' attitude."
Id. at 1268.
Id.
Id. at 1270.
Based on the reasoning in the recent Supreme Court cases above, this court finds that a reasonable factfinder could determine that Kusters acted with a wilful and wanton disregard for the safety of others and, therefore, grants the Motion to Amend the Complaint. Taking all the allegations as true, Kusters was travelling up to twenty miles over the speed limit as she approached the intersection with a light that multiple witnesses testified was clearly red. She went straight through the intersection without applying her breaks at any time. Additionally, she was talking on her cell phone as she went through the red light and entered the intersection. These facts, if believed, could support a finding that Kusters was more than merely negligent and acted with a "conscious indifference" or "I don't care" attitude by blatantly disregarding a traffic device and continuing through a busy intersection without regard for the red light. Whether the evidence admitted at trial supports a finding for punitive damages is for the factfinder to determine and should not be decided by the Court at this time. Because the facts could support a claim for punitive damages, Plaintiff's Motion is GRANTED.
Motion to Strike Defendant's Affidavit
Plaintiff filed a Motion to Strike Exhibit F of Defendant's Response to the Motion to Amend. She argues that the affidavit was produced after discovery depositions and that it conflicts with the discovery testimony and, therefore, it should not be considered. Specifically, she argues that the testimony of the original deposition clearly demonstrated that Kusters remembered nothing from right before the intersection where the collision occurred until after the collision occurred and that the newly admitted affidavit includes testimony that she does know what occurred during this time period. Defendant's Response did not include an argument opposing the Motion to Strike the Affidavit, but focused solely on opposing the argument that Defendant's Response was untimely. Additionally, the Court notes that the Affidavit attached as Exhibit F is not signed, nor is it notarized. Therefore, it is not in proper form for the Court to consider.
If the affidavit was properly signed and notarized, the Court would deny Plaintiff's Motion to Strike the Affidavit. The "sham affidavit" doctrine generally refers striking or disregarding an affidavit that is submitted in response to a motion for summary judgment where the affidavit contradicts the affiant's prior sworn testimony. This doctrine denies a witness a second opportunity to create a genuine issue of material fact by submitting an affidavit that contradicts earlier deposition testimony, when the witness, in the initial deposition, answered unambiguous questions with clear answers that negated any genuine issue of material fact. "An affidavit of that kind, in those circumstances, is deemed to create sham issues, and will not be considered by the trial court." Therefore, before striking an affidavit under the sham affidavit doctrine, the trial court must find the following:
Cain v. Green Tweed Co. Inc., 832 A.2d 737, 740 (Del. 2003).
Id.
Id.
(1) prior sworn deposition testimony; (2) given in response to unambiguous questions; (3) yielding clear answers; (4) later contradicted by sworn affidavit statements or sworn errata corrections; (5) without adequate explanation; and (6) submitted to the court in order to defeat an otherwise properly supported motion for summary judgment.
In re Asbestos Litig. Sweetman Trial Group, 2006 WL 3492370, at *5 (Del. Super. Nov. 28, 2006).
In its evaluation of these factors, the Court should consider:
(a) whether the affiant was cross-examined during [the] earlier testimony; (b) whether the affiant had access to the pertinent evidence at the time of [the] earlier testimony or whether the affidavit was based on newly discovered evidence; and (c) whether the earlier testimony reflects confusion which the affidavit attempts to explain.
Id. (citations omitted).
If the affidavit does not meet the above criteria, then it will not be struck.
Although this affidavit was not submitted in response to a Motion for Summary Judgment, Plaintiff's argument for striking the affidavit rests on the sham doctrine principle, therefore, the Court applies the same analysis. The affidavit in question does not contradict any testimony contained in the original deposition of Kusters. A review of the deposition indicates that Kusters does not remember anything from the Kohl's intersection until the collision occurred, including the color of the light. During the deposition, Kusters does recall that, after the accident, she got her cell phone out of her purse to call the police but, instead, called her husband because someone else had already informed the police about the accident.
Kusters Dep. 20-21.
Id. at 36.
Nothing in the affidavit contradicts this testimony, but simply clarifies her previous testimony. In the affidavit, the only arguable statement is "[a]s I drove, my cell phone was in my purse. I was not using my cell phone in any way while I was driving when the accident occurred." Howell asks this Court to determine that because Kusters does not remember anything from right before the accident until the collision occurred, she would not know that her phone was in her purse. The Court refuses to accept this argument. Based on her original deposition testimony that she took her cell phone out of her purse, a reasonable inference is that her phone was located in her purse during the accident. This is not contradictory of her original sworn testimony. Because the affidavit does not contract the deposition testimony, the Motion to Strike the Affidavit is DENIED.
Kusters Aff. ¶ 2.
IT IS SO ORDERED.