IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Transcription

1 IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY WALTER CARROW, JR., CMX INC., ) Plaintiffs ) ) v. ) C.A. No. U ) EDWARD SLAUGHTER, JR. ) D/B/A ED SLAUGHTER S NEW & ) USED AUTO PARTS, ) Defendants ) Submitted: October 18, 2010 Decided: December 2, 2010 DECISION AFTER TRIAL Richard L. Abbott, Esquire, Hockessin, Delaware, Attorney for Plaintiffs Nicholas M. Krayer, Esquire, Wilmington, Delaware, Attorney for Defendants ROCANELLI, J. This is a breach of contract and negligence action. Walter Carrow Jr. and CMX, Inc. ( Carrow ) filed this lawsuit against Edward Slaughter Jr. d/b/a Ed Slaughter s New and Used Auto Parts ( Slaughter ). The Court reserved its decision after the trial. The parties submitted post-trial memoranda. This is the Court s decision after trial in favor of Defendants.

2 FACTS Carrow is a tractor-trailer operator with twenty-eight years experience operating commercial vehicles, and has experience as a mechanic performing routine maintenance on tractor-trailers. Thus, Carrow has significant experience operating tractor-trailers; inspecting tractors and the trailers he personally hooked up to his tractor; and he is familiar with federal inspection guidelines for tractor-trailers. Carrow emphasized the importance of pre-trip inspections, including the need to ensure that the trailer is properly attached to the tractor and that the pin assembly of the trailer is secure. Carrow also emphasized the importance of annual Department of Transportation ( D.O.T. ) inspections, as well as the importance of affixing annual D.O.T. inspection stickers in easily-seen locations on the both the tractor and the trailer. Slaughter operates a business in Dover, Delaware known as Ed Slaughter s New & Used Auto Parts. Among other things, he purchases cars, crushes them, and sells the crushed cars for scrap. In addition to the machinery used to crush cars, Slaughter owns a trailer used to haul the crushed cars. Slaughter s brother John Slaughter is a commercial truck driver who drives a tractor-trailer and hauls freight, including hauling approximately 25 loads of crushed cars for Slaughter during the period March 2006 to December On or about July 9, 2007, Slaughter had a load of crushed cars to be hauled to a scrap yard in Philadelphia. John Slaughter was unavailable to haul the load. Slaughter s wife, Melanie Slaughter, contacted Carrow and asked Carrow to haul the load of crushed cars. Carrow and Melanie Slaughter had a relationship prior to her marriage with Slaughter, and Carrow is the father of Melanie Slaughter s youngest child. In other 2

3 words, the parties are not strangers. Indeed, Slaughter s testimony that he has good relationship with Carrow was not disputed. At the time of the incident which gave rise to this lawsuit: (i) Carrow owned a 1998 Volvo tractor through CMX, Inc., a Delaware corporation, which is wholly owned by Carrow; (ii) Carrow leased his tractor to Daily Express and agreed to haul freight exclusively for Daily Express; and (iii) Daily Express insured Carrow s tractor and Daily Express trailers attached to Carrow s tractor. When Carrow agreed with Melanie Slaughter to haul a load of crushed cars from Slaughter s business premises in Dover to a scrap yard in Philadelphia, Carrow knew he was not authorized by Daily Express to pull that load and knew that it violated his exclusive contract with Daily Express to do so. Also, Carrow told Melanie Slaughter that he was not insured to haul the load. When Carrow arrived at Slaughter s business, he met briefly with Slaughter; they agreed on a price of $ cash; and Slaughter paid Carrow in advance. The trailer was already loaded with the crushed cars that were strapped down. The load was consistent with Carrow s expectations. Carrow was satisfied with the way in which the crushed cars were loaded and secured. John Slaughter testified that a load of crushed cars is top heavy. Carrow testified on cross-examination that it was a heavy load which could be affected by the center of gravity. He also conceded, when asked on cross-examination, that in general it could be a difficult load to pull because of how high the load is, which in turn raised the center of gravity. However, in Carrow s experience with high and heavy loads, it was a good load. There was approximately 44,000 pounds of crushed cars on the trailer. 3

4 Carrow hooked up the tractor to the trailer by lining it up and backing it in to make sure that the pin assembly latched to the tractor. Carrow attached the air and electric lines. To ensure that the trailer was properly hitched to his tractor and that the trailer brakes worked properly, Carrow put his tractor in gear, drove forward, applied his brakes and then released his brakes. The purpose was to tug against the coupling assembly to test it. Carrow was satisfied with how the pin assembly held and how the brakes operated. Carrow also performed a pre-trip visual inspection: he walk[ed] around, checked the lights and ducked down to visually inspect the coupling assembly which was well-greased. Carrow did not see any rusting and had no concerns about the coupling assembly. Carrow did not crawl under the trailer. According to Carrow, the purpose of a pre-trip visual inspection was to check anything obvious. Carrow testified that he was not required to crawl under the trailer because that is what an annual [D.O.T.] inspection is for. Nevertheless, despite his detailed testimony on direct examination about the importance of regular D.O.T. inspections consistent with federal regulations and the need for a clearly-posted and current D.O.T. inspection sticker, Carrow conceded on crossexamination that he knew the trailer did not have a D.O.T. inspection sticker. Carrow also agreed that he should not have hauled the trailer under those circumstances. Carrow s pre-trip visual inspection revealed that the trailer had a soft tire which was the only thing that needed attention. Slaughter and Carrow agreed that Carrow would stop at Mike s and get the tire fixed before continuing on to Philadelphia. At 4

5 Mike s, the trailer was jacked up and the tire was fixed. Carrow did not inspect under the trailer while it was lifted on a jack. After getting the tire fixed, Carrow continued driving the tractor-trailer to the salvage yard where he intended to weigh in, unload the trailer, weigh out, and return the ticket and the trailer to Slaughter. Carrow testified that he knew where the salvage yard was located; knew how to get there; and was familiar with the area. Nevertheless, Carrow took a wrong turn from an exit ramp and had to circle back. The road was uneven due to trolley tracks in both directions. Photographs introduced as exhibits showed vehicles tilting to the right while going around the curve in the road. Carrow stated that the whole rig felt funny as he was going around the curve and it did not feel right. When Carrow looked in the side view mirror, he saw the wheels of the trailer in the air. Carrow tried to compensate by cutting over to the right but it was too late. The trailer tipped over onto its right side and brought the tractor down with it. Carrow conceded that if the load is high and the tractor is traveling too fast, then it could tip. He also conceded that his speed might have been a contributing factor in the accident. Carrow and his passenger exited the tractor by climbing out the front windshield. The coupling assembly did not fail. The tractor was still attached to the trailer when they both tipped over. The tractor and the trailer were on their sides, but no vehicles came off the trailer. The cargo was still securely tied down and no cables were broken. Carrow further testified that he could see the underside of the trailer. Despite such visibility, Carrow testified that he did not inspect the tractor or the trailer at the scene of the accident. 5

6 Emergency vehicles responded to the accident site. The crushed automobiles were released from the trailer by cutting the cables and allowing the crushed vehicles to fall to the ground. The crushed automobiles were loaded onto two flatbed trucks and towed away. The tractor was removed from the scene by a tow truck. A dumpster was brought to the scene and spilled oil, fuel and debris were cleaned up. Substantial costs were incurred to right the tractor and the trailer; to tow and store them; and to clean up the resulting trash on the roadway. Carrow, Slaughter and Melanie Slaughter testified regarding trips to court and payments of various fines. However, the evidence was inconclusive regarding whether Carrow received any citations for moving violations. The evidence was also unclear regarding citations paid by Slaughter related to the condition or inspection-status of the trailer. The Court finds that the testimony of the witnesses on the subject of the citations issued and fines paid to be unreliable. No findings are made and the Court does not rely upon any alleged facts related to citations to make its rulings. ANALYSIS This Court must decide two issues: (1) whether Slaughter is liable under breach of contract; and (2) whether Slaughter is liable for negligence, including Plaintiffs' theories of negligence per se and res ipsa loquitur. It is the duty of the Court to weigh the evidence that is presented. Carrow bears the burden to prove his case by a preponderance of the evidence. The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists. 1 1 Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967). 6

7 I. BREACH OF CONTRACT To state a claim for breach of contract, Carrow must establish three elements by a preponderance of the evidence. First, Carrow must prove that a contract existed. Second, Carrow must establish that Slaughter breached an obligation imposed by the contract. Finally, Carrow must show that he incurred damages as a result of the breach. 2 There is no dispute that a valid contract existed. Both parties conceded at trial that an oral agreement existed whereby Carrow agreed to utilize his tractor to haul a load for Slaughter, using Slaughter's trailer. Neither party disputes the legality of the verbal agreement. Conversely, there is a dispute regarding the second element -- whether Slaughter breached any duty or obligation imposed by the oral agreement. Carrow predicates the contractual obligation owed to him upon the implied covenant of good faith and fair dealing. Carrow argues that said covenant required that Slaughter act in good faith to provide an adequate and safe trailer for Carrow to utilize in order to transport the load he was contracted to haul. 3 Carrow asserted at trial that Slaughter breached the covenant by providing a trailer that was poorly maintained, not properly inspected and that had a defective trailer hitch thereby causing an accident that resulted in damages to Carrow. Slaughter contends that Carrow failed to prove by a preponderance of the evidence that Slaughter breached any such covenant. Under Delaware law, every contract includes an implied covenant of good faith and fair dealing -- a promise of faithfulness to an agreed upon common purpose and 2 VLIW Technology, LLC v. Hewlett-Packard, Co., 840 A.2d 606, 612 (Del. 2003). 3 Plaintiff s Complaint, 23. 7

8 consistency with the justified expectations of the other party. 4 In Nemec v. Shrader, the Delaware Supreme Court explained that [t]he implied covenant of good faith and fair dealing involves a cautious enterprise, inferring contractual terms to handle developments or contractual gaps that the asserting party pleads neither party anticipated. [O]ne generally cannot base a claim for breach of the implied covenant on conduct authorized by the agreement. We will only imply contract terms when the party asserting the implied covenant proves that the other party has acted arbitrarily or unreasonably, thereby frustrating the fruits of the bargain that the asserting party reasonably expected. When conducting this analysis, we must assess the parties' reasonable expectations at the time of contracting and not rewrite the contract to appease a party who later wishes to rewrite a contract he now believes to have been a bad deal. Parties have a right to enter into good and bad contracts, the law enforces both. 5 The Delaware Supreme Court recognizes that an occasional need will arise for a Court to imply contract terms to fulfill the parties' reasonable expectations at the time of contracting. 6 However, the Court has cautioned that this quasi-reformation... should be [a] rare and fact-intensive exercise, governed solely by issues of compelling fairness. 7 This Court agrees that an implied covenant of good faith and fair dealing existed, as it does in every Delaware contract. Notwithstanding that finding, the Court concludes that Carrow failed to prove by a preponderance of the evidence that Slaughter breached any contractual obligation to Carrow, implied or otherwise. In order to decide if Slaughter breached the implied covenant, this Court must assess the parties' reasonable 4 Superior Vision Services, Inc. v. Reliastar Life Insurance Co., Noble, V.C., 2006 WL , at *5 (Del. Ch. 2006) (citation omitted) A.2d 1120, (Del. 2010) (citations omitted) (emphasis provided). 6 Id. at 1126 (citation omitted); Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005) (citations omitted). 7 Dunlap, 878 A.2d at 442 (citing Cincinnati SMSA Ltd. Pshp. V. Cincinnati Bell Cellular Sys. Co., 708 A.2d 989, (Del. 1998)). 8

9 expectations at the time of contracting. 8 The implied covenant only applies to circumstances that could not have been anticipated, not developments that the parties simply failed to consider. 9 The Court finds that Carrow failed to prove any cognizable claim for a breach of the implied covenant. At the time of contracting, the parties reasonable expectations were that Carrow would haul the load that Slaughter loaded and secured, using Slaughter's trailer. The parties did not discuss the quality of the equipment on the trailer, and there was no discussion regarding the maintenance and/or inspection history of the trailer. Two sophisticated parties negotiated the contract terms. Slaughter paid Carrow in full; Carrow inspected the trailer and its load and found it to be in good working order; and then used it to haul a load of crushed cars. The Court further finds that Slaughter did not act arbitrarily or unreasonably. Slaughter presented the trailer to Carrow as is and made no promises, assurances or misrepresentations that the trailer was inspected and/or in perfect working order. No evidence was presented that showed the pin assembly was defective or rusted prior to the accident. Evidence at trial further demonstrated that the pin plate on the trailer remained attached during and after the accident. Carrow testified that he visually inspected the pin assembly after the accident when the trailer was in the storage yard. According to Carrow, the pin assembly was rusted. However, Carrow conceded that he did not see any rust on the pin assembly during his pre-trip visual inspection. Rather, he testified it was well-greased at the time of his inspection. Slaughter and John Slaughter testified that the pin assembly was not rusted prior to the accident. 8 Nemec, 991 A.2d (citation omitted). 9 Id. (citations omitted). 9

10 The Court finds that Carrow failed to prove by a preponderance of the evidence that the pin assembly was rusted before the accident. The Court rejects the testimony of Carrow regarding the condition of the pin assembly after the accident as inadequate to meet his burden of proof regarding the condition of the pin assembly before the accident. Carrow failed to prove by a preponderance of the evidence that Slaughter breached the implied covenant of good faith and fair dealing. This Court cannot use hindsight to judicially rewrite the contract terms, nor will this Court invoke the covenant's protections absent proof by a preponderance of the evidence that Slaughter acted in an arbitrary or unreasonable manner; that the developments could not have been reasonably anticipated by either party at the time of contract; or that Carrow was in a position of unequal bargaining power and otherwise exploited by Slaughter. Indeed, this Court finds to the contrary. Carrow was a seasoned tractor-trailer driver, who knew full well that the trailer had not been inspected consistent with D.O.T. regulations. Carrow was also a sophisticated and experienced party to the contract. He and Slaughter both understood the terms of the agreement. Carrow was aware that risks were inherent in undertaking this task. Carrow knew he had no insurance for the job. Carrow stated to Slaughter s wife that Carrow s employer, Daily Express, would not provide insurance in the event of an accident due to the exclusivity provision of his employment contract. Carrow knowingly assented to the terms of the agreement. The Court will not make a better agreement for Carrow than he made for himself. Accordingly, the Court finds that Carrow failed to prove that Slaughter breached any obligation, implied or otherwise, by a preponderance of the evidence. Because the Court 10

11 concludes that Plaintiffs failed to meet their burden to show that Defendants breached any contractual obligation, the Court need not reach the third prong of the analysis as to whether damages are due and owing. II. NEGLIGENCE To establish a cause of action for negligence, a plaintiff must prove each element by a preponderance of the evidence. First, the plaintiff must show that a duty existed for the defendant to conform to a specific standard of care. Second, the plaintiff must establish that the defendant breached that duty of care. Third, it is the plaintiff s burden to prove that the breach proximately caused the plaintiff's harm. Finally, the plaintiff must demonstrate harm. 10 The Court finds that Slaughter owed a duty to Carrow to furnish the trailer in good working order, including an intact, non-rusted pin assembly. Notwithstanding said duty, this Court concludes that Carrow did not establish by a preponderance of the evidence that Slaughter breached the duty of care he owed to Carrow. Carrow argues that Slaughter breached his duty of care by providing a trailer that was poorly maintained, not properly inspected, and that had a defective trailer hitch; however, there was no record evidence that the pin assembly was rusted prior to the accident. Slaughter and John Slaughter both denied that the pin assembly was rusted prior to the accident. Carrow submitted nothing beyond speculation and/or conjecture to the contrary. The evidence presented does not support a finding of a defective condition on the trailer prior to the accident, and there was no evidence presented that Slaughter failed to 10 Jones v. Crawford, 1 A.3d 299, 302 (Del. 2010) (citation omitted). 11

12 maintain the trailer or keep it in good working order. Accordingly, Carrow failed to prove by a preponderance of the evidence that Slaughter breached any duty of care owed as to the condition of the trailer. Carrow's claim for negligence fails. III. NEGLIGENCE PER SE Alternatively, Carrow argued at trial that Slaughter's failure to comply with federal regulations to have the trailer inspected annually by the D.O.T. constitutes negligence as a matter of law or negligence per se. Specifically, Carrow claims that Slaughter s failure to inspect and/or maintain the trailer pursuant to federal regulations resulted in a defective trailer hitch that failed, and that Slaughter s non-compliance proximately caused Carrow's harm. Carrow is correct that Delaware law provides that the violation of a statute, or a regulation having the force of a statute, enacted for the safety of others, may constitute negligence per se. 11 However, the statutory violation alone does not establish liability. 12 To be actionable, the Plaintiff must establish a causal connection between the statutory violation and the injury alleged. 13 Specifically, Carrow has the burden of proof to establish by a preponderance of the evidence that Slaughter s statutory violation proximately caused the harm alleged. Delaware recognizes the traditional but for definition of proximate cause. 14 A proximate cause is defined as one which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result 11 Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, (Del. 2002). 12 Id. 13 Id. 14 Duphily v. Delaware Elec. Coop., Inc., 662 A.2d 821, 828 (Del. 1995) (citations omitted). 12

13 would not have occurred. 15 Delaware courts have consistently ruled that there can be more than one proximate cause of an accident or injury. 16 Carrow testified that the trailer lacked a D.O.T. sticker. Slaughter admitted that the trailer had not been inspected consistent with D.O.T. regulations. By not having the trailer inspected, Slaughter failed to comply with a federal regulation. As noted previously, non-compliance with the federal regulation is evidence of breach of a duty as a matter of law. However, as stated above, such finding does not end this Court's analysis. Even if the failure to have the trailer inspected breached a standard of care, Delaware law still requires Carrow prove that the lack of inspection proximately caused Carrow's harm. This Court finds that Carrow failed to prove by a preponderance of the evidence that Slaughter s failure to have the trailer inspected caused the accident. When the issue of causation is presented in a context which is not a matter of common knowledge, expert testimony may provide a sufficient basis for a finding of causation; however, in the absence of such expert testimony it may not be made. 17 Under Delaware law, for expert testimony to be admissible, it must be both relevant and reliable. 18 A trial judge acts as a gatekeeper in assessing whether an expert's testimony has a reliable basis in the knowledge and experience of the relevant discipline. 19 Said opinion must be based on the methods and procedures of science, not subjective belief 15 Duphily, 662 A.2d at 828 (citing Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991)). 16 Id. (citations omitted). 17 Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1376 (Del. 1991) (citing W. Keeton, Prosser and Keeton on the Law of Torts 269 (5th ed. 1984)). 18 M.G. Bancorporation v. LeBeau, 737 A.2d 513, 521 (Del. 1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). 19 Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del. 2006) (citations omitted). 13

14 or speculation. 20 Moreover, Delaware Rule of Evidence ( D.R.E. ) 702 states that [i]f scientific, technical or the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. Plaintiffs' counsel proffered Carrow as an expert in maintenance, up-keep, operation and inspection of tractors and trailers. Plaintiff s counsel also proffered Carrow as an expert on the subject of causation; specifically to establish that the trailer's pin assembly proximately caused the accident. Defense counsel argued that Carrow lacked the requisite qualifications under D.R.E The party proffering the witness as an expert has the burden to prove such qualification by a preponderance of the evidence. 21 Carrow produced no proof that he was certified by D.O.T. regarding D.O.T. inspections, general maintenance of tractors and trailers, and pre-trip inspections. However, based on Carrow s extensive experience operating commercial vehicles and performing routine maintenance, the Court allowed Carrow to present a lay opinion on these subjects pursuant to D.R.E Under Delaware law, testimony of a witness who possesses expertise in a certain area is not ipso facto expert testimony.... [A] distinction is drawn between testimony based upon one s personal knowledge of the facts of the case, and testimony by a witness, who has been properly qualified as an expert, in the form of an opinion or otherwise concerning a subject area relevant to the case. In short, a witness may testify as to his or her own experience, knowledge and observation about the facts of the case without giving expert testimony as defined in the rules of evidence Id. at 1210 (citing In Re TMI Litigation, 193 F.3d 613, 669 (3d Cir. 1999)). 21 Bowen, 906 A.2d at 795 (citations omitted). 22 Duphily, 662 A.2d at 835 (citations omitted). 14

15 On the other hand, after voir dire as well as argument from both parties, the Court ruled at trial that Carrow was not qualified to testify as an expert under D.R.E. 702 on the subject of causation. The Court found the testimony elicited during defense counsel's voir dire to be dispositive. Carrow stated that he had no formal education or training as a mechanic, or certifications in the field. He had not taken courses in engineering or physics. Carrow possessed on-the-job experience but could cite only one time in his 28 years of experience that a pin assembly failed and in that instance Carrow did not inspect that trailer or its assembly and did not investigate the accident. Carrow's only accident reconstruction training was limited to 12 hours by fire instructors. Carrow was never certified as an accident reconstruction expert. Carrow has not published any material in the related fields. Therefore, the Court did not permit Carrow to offer expert testimony on the subject of causation because he lacked the requisite knowledge, skill, experience, training or education to be qualified as an expert under Daubert. 23 Carrow could not articulate a reliable scientific methodology as required under Daubert to support his conclusions To determine whether an expert s principles and methodology are rooted in science and derived from scientific method, the U.S. Supreme Court has identified several factors for a court to consider: (1) whether a theory or technique has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique had a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. Bowen, 906 A.2d at 794 (citing Daubert, 509 U.S. at ). The Delaware Supreme Court has noted that these factors are not a definitive checklist or test but rather each inquiry must be made in light of the facts of a particular case. Id. (citations omitted). 24 D.R.E. 702 imposes a special obligation upon a trial judge to ensure that any and all testimony is not only relevant, but reliable. The trial judge must decide whether an expert s testimony has a reliable basis in the knowledge and experience of [the relevant] discipline. The foci of a Daubert analysis are the principles and methodology used in formulating an expert s testimony, not on the expert s resultant conclusions. Bowen, 15

16 Carrow s testimony lacked any reliable underlying methodology and sufficient facts and data to support his opinion. Because no competent evidence was presented on the issue of causation, the Court cannot conclude that the accident was caused by Slaughter s failure to have the trailer inspected or that it was caused by Slaughter s failure to properly maintain the trailer. Accordingly, Carrow s claim for negligence per se fails. IV. RES IPSA LOQUITUR The Supreme Court of Delaware set forth the definitive standard for res ipsa loquitur in General Motors Corp. v. Dillon as follows: if the particular manner in which the plaintiff shows the injury to have occurred is so unaccountable that the only fair inference of the cause was the negligence of the defendant, or, stated another way, if the manner in which the injury occurred would lead reasonable persons to conclude that it would not have happened in the absence of some negligence on the part of the defendant, then the doctrine of [r]es ipsa loquitur is properly applicable to establish the negligence of the defendant. 25 Delaware courts have further found that [u]nder the doctrine of res ipsa loquitur, five elements must be shown: (1) the occurrence is one that does not normally happen if proper care is exercised by the person who has management and control over the circumstances leading up to it; (2) the facts warrant an inference of negligence of such force so as to call for an explanation or rebuttal from the defendant; (3) the cause of the injury must have been under the management or control of the defendant at the time the negligence likely occurred; and (4) where the injured party participated in events leading up to the occurrence, his or her own conduct must be excluded as a responsible cause; (5) there must be a causal connection between the defendant's act or omission and the accident A.2d at 794 (citing M.G. Bancorporation, 737 A.2d at 521) (quoting Daubert, 509 U.S. at 589) A.2d 1020, 1023 (Del. 1976). 26 Daniels v. Ranshaw, C.A. No AP, 2007 WL , at *2 (Del. Com. Pl. March 20, 2007) (citations omitted). 16

17 In this case, this Court cannot infer from the record that this accident would not have happened absent Slaughter s negligence. Based upon the evidence presented, this Court finds the accident would have happened regardless of whether the trailer had been inspected pursuant to D.O.T. regulations. Carrow s testimony indicated that the truck started to lean and, once he realized that, he tried to correct it by moving to the right of the roadway but was unsuccessful. Carrow stated at the scene that he might have prevented the accident by driving more slowly. Thus, there were other reasons for the tractor and trailer to have tipped, all of which preclude this Court from excluding Carrow as a cause. Moreover, as discussed previously, Carrow failed to prove any causal connection between the lack of D.O.T. inspection and the accident. Res ipsa loquitur translates to the thing speaks for itself. That is not the case here. This Court finds that other factors contributed to the accident. Accordingly, Carrow s claim for negligence based on a theory of res ipsa loquitur fails. CONCLUSION Based on the findings of fact and conclusions of law, the Court concludes that Plaintiffs have not met their burden of proof to establish Defendants liability under theories of breach of contract or negligence. Therefore, Judgment is hereby entered on behalf of Defendants and against Plaintiffs. IT IS SO ORDERED. Andrea L. Rocanelli The Honorable Andrea L. Rocanelli 17