Opinion
C.A. No. 03C-10-010(THG).
Submitted: January 27, 2005.
Decided: February 3, 2005.
Craig Karsnitz, Esquire, Young Conaway Stargatt Taylor LLP, Georgetown, DE.
Deirdre Ann O'Shea, Esquire, Smith O'Donnell Procino Berl LLP, Georgetown, DE.
Colleen D. Shields, Esquire, Elzufon Austin Reardon Tarlov Mondell, P.A., Wilmington, DE.
Daniel F. Wolcott, Jr., Esquire, David E. Moore, Esquire, Wilmington, DE.
Robert J. Leoni, Esquire, Morgan Shelsby Leoni, Newark, DE.
Dear Counsel:
This is the Court's decision regarding Norfolk Southern Corporation's Motion for Summary Judgment as to the punitive damages claim by Plaintiffs, Jeanette and Deborah Eby, Cynthia Adamire and the Estate of William L. Eby. For the following reasons, the Motion is GRANTED.
According to Superior Court Civil Rule 56(c) summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court must view the record in a light most favorable to the non-moving party, and if it finds that there are no material issues of fact therein, it may grant a motion for summary judgment. The burden is first on the moving party to show that there are no material issues of fact. The burden then shifts to the non-moving party to demonstrate what material issues of fact remain.
See Sup. Ct. Civ. Rule 56(c).
See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
See id.
On June 29, 2003, in Seaford, Delaware, a collision occurred between a motor vehicle driven by the decedent, William Eby, and a stump grinder which broke loose from a vehicle driven by defendant Steven J. Thompson. The stump grinder separated from Mr. Thompson's vehicle just after the truck passed over a set of railroad tracks owned and operated by Norfolk Southern Corporation. The crossing traverses Route 20 just west of the City of Seaford. Mr. Eby was killed in the accident and his wife, Jeanette, was injured. The Plaintiffs, Jeanette Eby, Deborah Eby, Cynthia Adamire and the Estate of William Eby instituted a personal injury and wrongful death suit against several parties. The Defendants include Steven Thompson, Al Gove, Al's Affordable Tree Care, Rental Equipment Center, Inc., Croft Trailer Supply, Inc., and Norfolk Southern Corporation.
Norfolk Southern Corporation (hereinafter "Norfolk") filed this Motion for Summary Judgment in response to Plaintiff's claim for punitive damages against it. The Plaintiffs allege, inter alia, that the motor vehicle accident was caused by Norfolk's failure to properly maintain and repair potholes in the railroad ties and tracks involved in the accident. The police report filed after the accident described the pothole as:
damage in the bed of the railroad track on the south edge of the roadway, north of the white fog line, between the rails of the track. The damage was almost square in shape. The damage measured 1'2" by 1'2" at its largest points. The narrowest width measured 7 and a half inches in length. It measured two and three quarter inches in depth. I watched traffic crossing the tracks on separate occasions, but never observed any eastbound traffic come close to the damaged portion of the railroad track. Vehicles observed ranged from commercial tractor-trailers to compact cars. The center of the damage was located 1'6" north of the south edge of the roadway and 24'6" east of the Reference Point. There was no evidence located at the scene to indicate this occurred as a result of the collision and appears to have been pre-existing damage.
Based on this damage and Norfolk's preexisting knowledge of it, Plaintiffs included a claim for punitive damages based on Norfolk's alleged failure to maintain a safe crossing.
Discovery yielded considerable information about Norfolk's oversight and maintenance of the crossing at issue. Roger Beavers, a Norfolk employee, was responsible for a monthly inspection of the crossing. Prior to the accident, Mr. Beavers noticed the damage on two monthly visits and reported the problem to his supervisor, Steven Carpenter. Mr. Carpenter also visited the crossing and inspected the damage before the date of the accident. Both men assessed the nature of the damage and determined that immediate repair was unnecessary. Mr. Beavers testified in his deposition that there was no attempt to patch the hole at the crossing with asphalt or gravel. Mr. Carpenter and Mr. Beavers agreed to keep a watchful eye on the area to ensure that the damage did not develop into a serious risk.
The Plaintiffs obtained an expert's report by Alan J. Blackwell, a railroad consultant, who they contend will testify that Norfolk failed to follow its own safety standards and industry safety standards by allowing the damage at the crossing to go untreated.
The issue before the Court is whether Plaintiff's claim of punitive damages is appropriate given the facts of this case. After reviewing the Plaintiff's allegations, I find that the punitive damages claim must fail.
Punitive damages are intended to act as a deterrent to defendants rather than compensation to a Plaintiff. Punitive damages are a special class of damages, reserved for defendants who exhibit a wanton or willful disregard for the rights of others or an "I don't care attitude." "The penal aspect of public policy considerations which justify the imposition of punitive damages require the Court to impose these damages only after a close examination of whether the defendant's conduct is outrageous because of evil motive or reckless indifference to the rights of others." But "[i]nadvertence, mistakes or errors of judgment which constitute mere negligence will not suffice."
Cloroben Chemical Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983).
Greenlee v. Imperial Homes Corp., 1994 Del. Super. LEXIS 386, at *23-26.
Id.
In Furek v. University of Delaware, a former student and fraternity pledge sued the University for not curtailing hazing activities which it was aware were frequently practiced in the Greek system. He suffered serious physical injuries when a hazing incident went amiss. The Superior Court denied the University's motion for summary judgment on punitive damages. The facts that developed during the trial, however, led to the dismissal of the punitive damages claim. The Court found that
Furek v. University of Delaware, 594 A.2d 506, 511 (Del. 1991)
Id. at 509-10.
Id. at 511-12.
the University's conduct might be faulted in terms of its failure to exercise greater control over a known hazardous activity . . . [but] [w]hile the University is chargeable with notice of hazing activities on its campus in the years preceding Furek's injuries, its response, which a jury could deem ineffectual, was, nonetheless, well-intentioned and not characterized by a conscious disregard of a known risk.
Id. at 523.
Likewise, Norfolk's conduct in this case was well-intentioned and well-reasoned given the information it had available to it.
The record is void of any evidence that Norfolk exhibited a wanton or willful disregard for the Plaintiffs or public safety, or an "I don't care attitude" as to the potential danger posed by the pothole. Instead, Norfolk performed monthly inspections on the area and investigated any potential areas of concern. Norfolk company policy requires that "[i]f person making the inspection detects unsafe conditions or deviations exceeding allowable limits, he is to initiate corrective action." Both Mr. Beavers and Mr. Carpenter determined that the area was one of interest, but not of concern.
Upon inspection of the pothole, Norfolk's representatives found that "it was not unsafe. It was something [they] needed to monitor. And if [they] saw the condition worsen, [they] would then determine a plan to correct it." The determination was a reasoned judgment call as to the safety of vehicular traffic over the crossing. Both men testified in their depositions that their visual inspections did not result in any concern of serious danger to automobile traffic. Mr. Carpenter specifically watched traffic pass over the crossings to determine the stability of the crossing pads and observed no movement or any evasive actions taken by drivers in reaction to the hole. It is also worth noting that the officer investigating the accident "watched traffic crossing the tracks on separate occasions, but never observed any eastbound traffic come close to the damaged portion of the railroad track." All of this information indicates that Norfolk recognized the pothole as a potential for danger, but made a reasonable decision as to its treatment. Nothing in the record indicates that this determination was unreasonable, egregious or a willful neglect of public safety. The Plaintiffs failed to demonstrate Norfolk's wanton disregard for public safety.
Uniform Police Collision Report at 3.
The employees charged with inspecting and maintaining the safety of the crossing used their best judgment in assessing the danger posed by the damage to the tracks. Their failure to predict the pothole's contribution to the accident that resulted in Mr. Eby's death and Ms. Eby's injuries does not warrant the application of punitive damages. The Plaintiffs have failed to present any evidence that Norfolk's conduct was intentional or egregious. The leading case on punitive damages requires that
[w]here the claim of recklessness is based on an error of judgment, a form of passive negligence, the plaintiff's burden is substantial. It must be shown that the precise harm which eventuated must have been reasonably apparent but consciously ignored in the formulation of the judgment.
See Jardel Co. v. Hughes, 523 A.2d 518, 531 (Del. 1987).
Norfolk's actions do not meet this standard of recklessness. For the above reasons, the Motion for Summary Judgment on the issue of punitive damages as to Norfolk is GRANTED.