Opinion
C.A. No. 04C-06-289 SCD.
Submitted: April 5, 2006.
Decided: January 5, 2007.
On defendant William H. Porter, Inc., d/b/a Porter Nissan's motion to dismiss plaintiffs' claim of negligence per se:
GRANTED.
ORDER
Defendant William H. Porter, Inc., d/b/a Porter Nissan has filed a motion to dismiss plaintiffs' claim of negligence per se. Plaintiffs have filed a response, opposing the motion to dismiss, which defendant GEICO has joined. Upon review of the papers submitted, it appears that:
1. On or about August 29, 2002 a 1999 Mercury Cougar was stolen from the lot of the Porter Nissan dealership located at 600 Ogletown Road, Newark, Delaware 19711.
2. Plaintiffs allege in their Amended Compliant that Porter Nissan violated 21 Del. C. § 4182 by allowing the Mercury Cougar to stand unattended, without locking its doors, and without removing the keys from within the vehicle and/or placing the keys in a secure location.
3. On September 13, 2002, the vehicle was involved in a single-vehicle accident on route 15 in Middletown, Delaware, in which Gary Robbins, II was killed.
4. 21 Del. C. § 4182 provides as follows:
No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway.
5. The case law provided by defendant Porter Nissan is on point and provides that "§ 4182 only applies to vehicles on the highways as required under 21 Del. C. § 4101."
Jewell v. Absher, 2002 WL 970464 (Del.Super.) at *3 fn. 2, see also Reese v Wheeler, 2001 WL 914014 (Del.Super.) at *1, Carter v. Haley, 1998 WL 960726 (Del.Super.).
6. 21 Del. C. § 4101 defines a "highway" as:
The entire width between boundary lines of every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel, but does not include a road or driveway upon grounds owned by private persons, colleges, universities or other institutions.
7. Because the vehicle in this case was parked on private property, the lot of the Porter Nissan dealership, and not on a highway, § 4182 does not apply.
WHEREFORE, defendant William H. Porter, Inc., d/b/a Porter Nissan's motion to dismiss plaintiffs' claim of negligence per se is GRANTED.
IT IS SO ORDERED.