Opinion
C.A. No. 07C-08-137 CLS.
Date Submitted: April 8, 2011.
Date Decided: April 13, 2011.
On Plaintiff's Motion in Limine to Exclude Evidence of a Non-Party's Guilty Plea for Speeding.
DENIED.On Plaintiff's Motion for Summary Judgment.
Stephen B. Potter, Esq., Wilmington, DE., Attorney for Plaintiff.
Dawn Courtney Doherty, Esq., Wilmington, DE. Norman H. Brooks, Jr., Esq., Wilmington, DE. Brett T. Norton, Wilmington, DE., Attorneys for Defendants.
ORDER
Introduction
Before the Court is Plaintiff's motion in limine to exclude evidence of a non-party's guilty plea for speeding. The Court has reviewed the parties' submissions. For the reasons that follow, Plaintiff's motion in limine is DENIED.
Facts
On March 7, 2006, Plaintiff, William O. Murrey, Jr. ("Mr. Murrey"), was traveling eastbound on East 12th Street ("E. 12th St.") in the City of Wilmington, which is a four lane divided highway approaching the southbound I-495 entrance ramp. Tim J. Shank ("Defendant Shank") was driving a garbage truck westbound on E. 12th St. and allegedly made a left turn into the path of Mr. Murrey's oncoming vehicle. Using skid marks, Officer Gerald J. Connor ("Officer Connor") of the Wilmington Police Department calculated Mr. Murrey was driving between 42 mph and 45 mph in a posted 25 mph zone. Officer Connor cited Mr. Murrey for driving at an unsafe speed in violation of 21 Del. C. § 4168(a). Mr. Murrey pled guilty to the violation. Defendant Shank was cited and pled guilty to failing to yield the right of way in violation of 21 Del. C. § 4132.Mr. Murrey accepted an offer of judgment on October 15, 2010. Only Angela Murrey's ("Plaintiff") loss of consortium claim remains. Plaintiff alleges Defendant Shank was negligent in failing to yield the right of way. The Defendants allege Mr. Murrey was negligent for driving at an unsafe speed. This motion in limine concerns the admissibility of Mr. Murrey's guilty plea to driving at an unsafe speed.
Discussion
I. Mr. Murrey's Guilty Plea is More Probative than Prejudicial Under D.R.E. 403 Because the Doctrine of Collateral Estoppel Prevents Plaintiff From Raising Her Only Argument that Prejudice Exists, the Correct Speed Limit on E. 12th St.
Mr. Murrey's guilty to plea to driving at an unsafe speed at the time of the accident is more probative than prejudicial under D.R.E. 403. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." In support of her argument that Mr. Murrey's guilty plea be excluded, the Plaintiff contends Mr. Murrey was unaware of the lawful speed on E. 12th Street. However, the doctrine of collateral estoppel prevents her from advancing that argument.
The Plaintiff may not challenge Mr. Murrey's guilty plea to driving at an unsafe speed because it is barred by the doctrine of collateral estoppel, also known as issue preclusion. "Collateral estoppel prohibits a party from relitigating a factual issue that was adjudicated previously." "In Delaware, the rule of collateral estoppel applies only when the fact sought to be established in the second proceeding has been actually litigated and determined in the first proceeding." The purpose behind the doctrine is to prevent "contradictory fact-finding by different tribunals." Collateral estoppel applies when "(1) a question of fact essential to the judgment (2) [was] litigated and (3) determined (4) by a valid and final judgment." A guilty plea is considered a full litigation of guilt of the criminal charge. Collateral estoppel prevents a litigant who pled guilty and was convicted by a court to challenge the conviction in a subsequent civil trial.
M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 520 (Del. 1999).
Id.
Patterson v. Shahan, 1995 WL 108925, at *2 (Del. Super. Ct.) ( citing Auerbach v. Cities Service Co., 134 A.2d 846, 851 (Del. 1957)).
Diamond State Youth, Inc. v. Webster, 2008 WL 4335875 (Del. Super. Ct.).
M.G. Bancorporation, Inc. 737 A.2d at 520.
Petrella v. Alexander, 1991 WL 236921, at *1 (Del. Super. Ct.) ( citing Warmouth v State Bd. Of Examiners in Optometry, 514 A.2d 1119 (Del. Super. Ct. 1985)).
Diamond State Youth, Inc., 2008 WL 4335875, at *1.
The Plaintiff may not challenge her husband's guilty plea to driving at an unsafe speed in this subsequent civil case because his plea of guilty is considered an actual and full litigation on the issue of speed on E. 12th St. Since Mr. Murrey was charged with driving at an unsafe speed in violation of 21 Del. C. § 4168(a), a determination of the speed limit on E. 12th St. was a question of fact essential to whether or not he was driving at an unsafe speed. Accordingly, Mr. Murrey's guilty plea is considered a full litigation on the issue of the speed limit on E. 12th St.
The Plaintiff also relies upon Hawkins v. Schreiber to demonstrate the prejudicial effect of allowing the guilty plea to be admissible at trial. In that case, the officer investigating the accident issued a citation before he finished his investigation. After issuing the citation, the officer obtained information that called into doubt his decision to issue the citation. The Hawkins Court ruled it would permit the officer to testify he probably would not have issued the citation if he had all the information available to him at the time it was issued, but only after the guilty plea was mentioned. Plaintiff contends that situation is similar to this case. The Court disagrees. In contrast to Hawkins, Officer Connor has never stated he received information that made him second guess issuing Mr. Murrey a citation for driving at an unsafe speed. Officer Connor testified at his deposition that Mr. Murrey was driving between 42 mph and 45 mph, above the posted 25 mph speed limit. As a result, there is little, if any, prejudicial effect in finding Mr. Murrey's guilty plea admissible. Since the guilty plea goes directly toward comparative negligence, it is more probative than prejudicial under D.R.E. 403. II. Mr. Murrey's Guilty Plea is Not Admissible as a Statement Against Interest Under D.R.E. 804(b)(3) Because He Is Probably Available to Testify at Trial.
2000 WL 33113798 (Del. Super. Ct.).
Id. at *1.
Id.
Id. at n. 13.
The Defendants seek admission of Mr. Murrey's guilty plea as a statement against interest, an exception to hearsay. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Generally, hearsay is inadmissible unless it meets an exception. A statement against interest is an exception to hearsay requiring the declarant to be unavailable to testify at trial, and the statement be
so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true.
A declarant is unavailable to testify when the person:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
(3) Testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.
Here, the Defendants have not stated how Mr. Murrey will be unavailable to testify at trial. Since he is probably available to testify at trial the defense will have the opportunity to ask him on the stand whether he pled guilty to driving at an unsafe speed. Therefore, it is unnecessary to consider whether the guilty plea satisfies the other requirements of D.R.E. 804(b)(3).
III. Mr. Murrey's Guilty Plea is Admissible as a Self-Authenticating Business Record From the Department of Motor Vehicles.
A motor vehicle record, such as a guilty plea to driving at an unsafe speed, is admissible as a business record of the Department of Motor Vehicles. The business records exception to hearsay permits the admission of
Owens v. State, 894 A.2d 407 (Del. 2006) (TABLE).
A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with D.R.E. 902(11), D.R.E. 902(12) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
In order for the motor vehicle record to be self-authenticating it would have to be accompanied by a written declaration of its custodian or other qualified person that it meets the requirements of D.R.E. 803(6). Here, the Defendants could attempt to obtain a certified copy of Mr. Murrey's driving record from the Department of Motor Vehicles along with the required written declaration. The driving record of Mr. Murrey would be admissible under D.R.E. 803(6) if a proper foundation was laid and the authentication requirements of D.R.E. 902(11) were satisfied.
See Rodgers v. M.K. Coale Enterprises, 1993 WL 390369 (Del. Super. Ct.).
IV. Mr. Murrey's Guilty Plea is Also Admissible as a Self-Authenticating Public Record if the Defendants Introduce the Court of Common Pleas Criminal Docket.
The Court of Common Pleas' Criminal Docket, depicting Mr. Murrey's guilty plea to driving at an unsafe speed, is admissible under the public record exception to hearsay. As a public record it is self-authenticating. The public records exception permits the introduction of records or reports "of a public office or agency setting forth its regularly conducted and regularly recorded activities." The public record is properly authenticated when "a copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, . . . certified as correct by the custodian or other person authorized to make the certification." Here, the criminal docket of the Court of Common Pleas would be admissible as a public record so long as it was properly authenticated.
See United States v. Crute, 238 F. App'x. 903, 905 (3d Cir. 2007); Crossley v. Lieberman, 868 F.2d 566, 568 (3d Cir. 1989).
Conclusion
Based on the forgoing, Plaintiff's Motion in Limine to Exclude Evidence of a Non-Party's Guilty Plea for Speeding is DENIED.IT IS SO ORDERED.
Introduction
Before the Court is Plaintiff's motion for summary judgment. The Court has reviewed the parties' submissions. For the reasons that follow, Plaintiff's motion for summary judgment is DENIED.
Facts
On March 7, 2006, Plaintiff, William O. Murrey, Jr. ("Mr. Murrey"), was traveling eastbound on East 12th Street ("E. 12th St.") in the City of Wilmington, which is a four lane divided highway approaching the southbound I-495 entrance ramp. Tim J. Shank ("Defendant Shank"), was driving a garbage truck westbound on E. 12th St. and allegedly made a left turn into the path of Mr. Murrey's oncoming vehicle. Using skid marks, Officer Gerald J. Connor ("Officer Connor") of the Wilmington Police Department calculated Mr. Murrey was driving approximately 45 mph in a posted 25 mph zone. Officer Connor cited Mr. Murrey for driving at an unsafe speed in violation of 21 Del. C. § 4168(a). Mr. Murrey pled guilty to the violation. Defendant Shank was cited for failing to yield the right of way in violation of 21 Del. C. § 4132. He pled guilty to the violation.In his deposition, Officer Connor testified that it was a clear, lit day and the roadway was dry. He also estimated Defendant Shank had visibility of about one-half mile. Daniel Southerland also indicated Defendant Shank had nothing obstructing his view. During his deposition, Defendant Shank testified he did not see Mr. Murrey's vehicle before the accident.
Pl. Motion for Summary Judgment Ex. A, Connor Dep. 18:18-19.
Id. at 18:18-19.
Pl. Motion for Summary Judgment Ex. B, Southerland Dep. 14:21-24.
Def. Response Ex. 2, Shank Dep. 11:20-12:18.
Mr. Murrey accepted an offer of judgment on October 15, 2010. Only Angela Murrey's ("Plaintiff") loss of consortium claim remains. Plaintiff claims there are no issues of material fact as to liability alleging Defendant Shank was negligent in failing to yield the right of way, entitling her to judgment as a matter of law. The Defendants have raised the defense of comparative negligence alleging Mr. Murrey was negligent for driving at an unsafe speed.
Standard of Review
Superior Court Civil Rule 56 allows a defendant to file a motion for summary judgment. Summary judgment is appropriate when the moving party is able to show there are no genuine issues of material fact. Once met, the burden then shifts to the nonmoving party to demonstrate issues of genuine material fact exist. The facts are viewed in the light most favorable to the nonmoving party.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citation omitted).
Id. at 681.
Grabowski v. Mangler, 938 A.2d 637, 641 (Del. 2007) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, (1986)).
Discussion
Since there is an issue of material fact as to whether Mr. Murrey was more negligent than the Defendant Shank, summary judgment is inappropriate. Comparative negligence is not a bar to recovery "where such negligence was not greater than the negligence of the defendant . . . but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff." When the defense of comparative negligence is raised, "[t]he apportionment of negligence is typically the province of the jury, unless no other reasonable inference can be drawn from the evidence produced than the fact that plaintiffs negligence exceeded the defendant's negligence by 51%." When there is no testimony, such as this case, that a plaintiff's car was within the sight of the defendant, then a jury could find that the plaintiff's car was not in sight when the defendant started his turn. The burden of proving plaintiff's car was able to be seen is on the plaintiff and remains a question of fact for the jury.There is nothing in the record to suggest Defendant Shank saw Mr. Murrey's vehicle prior to the accident, so the negligence of the two drivers is a question of fact to be decided by a jury. The depositions of Officer Connor and Daniel Southerland indicate there was nothing to obstruct Defendant Shank's view at the time of the accident. In his deposition, Officer Connor stated "[i]t was a clear, lit day, and dry roadway." He also stated Defendant Shank had visibility of about one-half of a mile. Daniel Southerland also indicated there was nothing to obscure Defendant Shank's view of oncoming traffic. In his deposition, Defendant Shank stated he did not see Mr. Murrey's vehicle approaching the intersection. The record suggests Defendant Shank did not see Mr. Murrey's car approaching the intersection despite the clear day and having visibility of at least one-half mile. Therefore, a jury could infer that Mr. Murrey was driving at least 45 mph in a posted 25 mph zone and that he was more negligent than Defendant Shank in causing the accident. The negligence of both drivers is a question of fact for a jury to decide and granting summary judgment would be inappropriate.
Pl. Motion for Summary Judgment Ex. A, Connor Dep. 18:18-19.
Id. at 18:4-13.
Pl. Motion for Summary Judgment Ex. B, Southerland Dep. 14:21-24.
Def. Response Ex. 2, Shank Dep. 11:20-12:18.
Conclusion
Based on the forgoing, the Plaintiff's motion for summary judgment is
DENIED.
IT IS SO ORDERED.