Opinion
C.A. No. 99A-08-002 HDR.
Submitted: December 14, 1999
Decided: February 4, 2000
Upon Appeal from the Court of Common Pleas AFFIRMED
William W. Pepper, Sr., Esq. of Schmittinger Rodriguez, P.A., Dover, Delaware, for Plaintiff Below-Appellant.
Gary H. Kaplan, Esq. and Julie M. Sebring, Esq. of Goldfein Joseph, Wilmington, Delaware, for Defendant Below-Appellee.
ORDER
This 4th day of February, 2000, upon consideration of this appeal, and the record in this case, it appears that:
(1) Plaintiff Herbert Huston has appealed the decision of the Court of Common Pleas which concluded that Roger Horsey was not liable for the damage to Huston's vehicle. Huston sued Horsey for damage to his tractor caused by another person who moved Huston's vehicle. The trial court found that Horsey was not negligent and that it was not foreseeable that Jermaine White, a youthful and inexperienced driver, would attempt to drive Horsey's truck. The trial court also found that the poor driving of White was the proximate cause of the damage to Huston's tractor.
(2) On August 23, 1995, Horsey attended the Laurel Auction Block near Laurel, Delaware. Horsey parked his truck next to Huston's 1994 tractor, but he did not remove his keys from the truck and he left the vehicle unlocked. Horsey was purchasing watermelons from Huston which were being loaded from Huston's tractor to Horsey's truck. After the watermelons were loaded, White moved Horsey's truck and caused $3,849.83 worth of damage to Huston's tractor. Although White had been employed by Horsey on other occasions, he was not authorized to move the truck nor employed by Horsey on the day in question.
At trial Huston contended that Horsey is liable for the damage because White was authorized by Horsey to drive the truck. Alternatively, Huston argued that Horsey was negligent by failing to remove his keys from the truck and that it was foreseeable that an unauthorized person would attempt to move the truck.
The Court of Common Pleas rejected both arguments. It found that White was not employed by Horsey on the date of the accident. There was no evidence that White was authorized to drive the truck or employed by Horsey on the day in question. Additionally, the Court of Common Pleas found that Horsey's actions were not the proximate cause of the accident. It heard testimony that it was the custom to leave keys in a vehicle at the auction, and for over twenty years, Horsey had been doing so without incident. The trial court found that Horsey was not liable for the damage to Huston's tractor.
(3) On appeal, Huston contends that the Court of Common Pleas erred in finding that Horsey's failure to remove his keys from the truck was not the foreseeable cause of the accident. Specifically, he argues that empirical data indicates it is foreseeable that an unsecured vehicle with the keys left in the ignition will be taken and involved in a collision.
(4) In response, Horsey argues that the Court of Common Pleas properly took custom into account in determining that he was not negligent by leaving his keys in the truck at the location involved. Additionally, he argues that Huston is impermissibly trying to introduce "empirical data" which was not offered into evidence and was not part of the record.
(5) Upon an appeal from the Court of Common Pleas, a civil action is "reviewed on the record and shall not be tried de novo." On such an appeal, this Court will not disturb findings of fact if those findings are "supported by the record and are the product of an orderly and logical deductive process." This Court has the duty to review the sufficiency of the evidence and to test the propriety of the findings below.
Ensminger v. Merritt Marine Construction, Inc., Del. Super., 597 A.2d 854, 855 (1988) (citing State v. Cagle, Del. Supr., 332 A.2d 140 (1974).
State v. Cagle, Del. Supr., 332 A.2d 140, 142-143 (1974).
(6) Proximate cause is a question of fact. The customs of the community, or of others under like circumstances, are factors to be taken into account in determining whether conduct is negligent. However, such circumstances are not controlling where a reasonable man would not follow them.
Delaware Electric Cooperative, Inc. v. Pitts, C.A. No. 90, 1993, Horsey, J. (Oct. 22, 1993).
Restatement (2nd) of Torts, § 295A (1965).
Id.
(7) During the trial, the Court of Common Pleas heard testimony that it was customary to leave keys inside of unlocked vehicles at the Laurel Auction Block. This practice has taken place for over twenty years without incident. This evidence was uncontradicted by Plaintiff. The trial court gave this testimony weight and based its findings upon this evidence. Additionally, the uncontradicted evidence at trial indicated that Horsey had not employed White nor authorized White to move his vehicle. Nor did Horsey know, or have reason to know that White would attempt to move the vehicle. It is evident from the trial record that the findings of the trial judge are supported by the record and are the product of an orderly and logical deductive process. Accordingly, I find no basis to disturb the judgment of the trial court.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Court of Common Pleas is AFFIRMED.
DuPont Ridgely, President Judge