STATE OF DELAWARE TRANSPORTATION COMPENDIUM OF LAW

Transcription

1 STATE OF DELAWARE TRANSPORTATION COMPENDIUM OF LAW Prepared by James W. Semple Cooch and Taylor The Brandywine Building 1000 West Street, Tenth Floor Wilmington DE, Tel: (302)

2 A. RECOVERY FOR RESPONDEAT SUPERIOR, NEGLIGENT ENTRUSTMENT, AND NEGLIGENT RETENTION, HIRING AND SUPERVISION 1. RESPONDEAT SUPERIOR Generally, a viable cause of action against the employee for negligence is a condition precedent to imputing vicarious liability for such negligence to the employer pursuant to the theory of respondeat superior. Greco v. University of Delaware, 619 A.2d 900, Del. Supr., (1993), citing 2 Mechem on Agency 2012, pp (1914). See RESTATEMENT (SECOND) AGENCY 217B(2) (1958) and its comments. Therefore, where the alleged basis for the liability of an employer is the negligence of an employee, the employer cannot be held liable unless the employee is shown to be liable. Clark v. Brooks, Del.Super., 377 A.2d 365, 371 (1977). 2 Mechem on Agency Hence, generally, if absence of culpability on the part of the employee to the injured person has been established by litigation, the employer cannot be held liable to the injured person. Clark v. Brooks, 377 A.2d at 371. But see inter-spousal immunity exception in Fields v. Synthetic Ropes, Inc., Del. Supr., 215 A.2d 427 (1967). Delaware has not imposed liability on a trucking carrier regardless of whether a negligent act was caused by the carrier s actual employee. Hall v Steger, Del. Super., 211 A.2d 628 (1956) involved an action for injuries sustained in a collision of an automobile in which plaintiffs were riding with a truck driven by one of defendants on return trip after delivering a load of steel, hauled by him for another defendant under a one-way lease of truck to such defendant. The Superior Court, granted defendantlessee's motion for summary judgment, held that such a lease was not a subterfuge or sham, violated no regulation of Interstate Commerce Commission, and showed on its face that defendant driver was not lessee's agent at time of accident. No Delaware court has yet considered whether the FMCSA regulations intended to have sweeping effects on the obligations of motor carriers-lessees, and impose liability without regard to negligence by the driver. 2. NEGLIGENT ENTRUSTMENT To make a prima facie case of negligent entrustment, a plaintiff must show all of the following: (1) entrustment of the automobile; (2) to a reckless or incompetent driver whom (3) the entrustor has reason to know is reckless or incompetent; and (4) resulting damages. Leary v Eschelweck, Del. Super., 2012 WL (2012), citing Perez Melchor v. Balakhani, Del. Super., 005 WL , at *1 (2005). 2

3 3. NEGLIGENT HIRING, RETENTION, AND SUPERVISION In Smith v Williams, Del. Super., 2007 WL (2007), the Superior Court held that, unlike vicarious liability under the theory of respondeat superior, an employer can be held independently liable under the theories of negligent hiring and supervision. In order to prevail on such a claim, the plaintiff must prove the basic elements of negligence against the employer, i.e. duty, breach, proximate cause, and damages. In general, an employer has a duty to prevent foreseeable injury to others by exercising reasonable care to avoid employing an incompetent employee. Id. An act is considered foreseeable if the employer knew or should have known of the employee's propensity to engage in similar criminal, tortious, or dangerous conduct. Id. This is a difficult burden to prove in most instances and the failure to provide strong evidence in support will likely lead to the dismissal of such claims. B. PUNITIVE DAMAGES Punitive damages are imposed in situations where the defendant's conduct, although unintentional, has been particularly reprehensible, i.e., reckless, willful or wanton, consciously indifferent or motivated by malice or fraud. Estate of Rae v. Murphy, 956 A.2d 1266, 1270 (Del. 2008); Jardel Co., Inc. v. Hughes, 523 A.2d 518, (Del. 1987); Howell v. Kusters, 2010 WL , at *2 (Del. Super. Ct. Mar. 5, 2010). In addition, mere negligence itself is not a basis for awarding punitive damages. Premcor Ref. Grp., Inc. v. Matrix Serv. Indus. Contractors, Inc., 2008 WL , at *9 (Del. Super. Ct. May 7, 2008) (citing Rhinehardt v. Bright, 2006 WL , at *5 (Del. Super. Ct. July 20, 2006)). Inadvertence, mistake, or errors of judgment are considered acts of mere negligence and do not rise to the level required for claims of punitive damages. Howell, 2010 WL , at *2. Punitive damages are permitted when the defendant s conduct is reprehensible, even though it may be unintentional. For example, in products liability cases the imposition of punitive damage claims [is] limited to the persistent distribution of an inherently dangerous product with knowledge of its injury causing effect among the consuming public. See White v. APP Pharms., LLC, 2011 WL , at *3 (Del. Super. Ct. Apr. 7, 2011) (denying a motion to dismiss punitive damages where plaintiff alleged the defendant pharmaceutical company distributed an inherently dangerous drug with a known dangerous side effect). Where the evidence supports a reasonable inference that a defendant's conduct meets the standard for recovering punitive damages, the question of punitive damages is typically for the trier of fact. Howell, 2010 WL , at *2. Delaware courts have established that the factual predicate for punitive damages must be attributable to the conduct of the charged party, not to a joint tortfeasor. Premcor Ref. Grp., 2008 WL , at *9 (quoting Empire Fin. Servs., Inc. v. Bank of New York, 2007 WL , at *6 (Del. Super. Ct. June 19, 2007)). This is true regardless of whether or not the joint tortfeasor's negligence is found to be a contributing factor in the underlying action. Id. 3

4 In actions arising in contract, punitive damages may be assessed only if the breach of contract is characterized by willfulness or malice. Tackett v. State Farm Fire & Cas. Ins. Co., 653 A.2d 254, (Del. 1995); Segovia v. Equities First Holdings, LLC, 2008 WL , at *24 (Del. Super. Ct. May 30, 2008) (holding that in a breach of contract claim, the law is settled that [p]unitive damages are only awarded in situations of willful and outrageous' conduct that flows from evil motive or reckless indifference to the rights of others ; Casson v. Nationwide Ins. Co., 455 A.2d 361 (Del. Super. Ct. 1982). Accordingly, punitive damages are rarely awarded in breach of contract actions, even where the defendant intentionally breached the contract. See E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 445 (Del. 1996) ( [N]o matter how reprehensible the breach, damages that are punitive... are not ordinarily awarded for breach of contract. ). In general, a plaintiff cannot recover punitive damages for breach of contract unless the conduct also independently amounts to a tort. Landry v. Mabey Bridge & Shore, Inc., 2011 WL , at *3 (Del. Super. Ct. Nov. 7, 2011). Punitive damages may be recovered against the estate of a deceased tortfeasor. Estate of Farrell ex rel. Bennett v. Gordon, 770 A.2d 517 (Del. 2001) (adopting this minority rule as the better approach because, absent a specific statutory restriction, the deterrence effect of the award is unaltered, and perhaps even enhanced, by the assessment of punitive damages against the estate of the tortfeasor ) (internal citation omitted). There is no statutory cap on punitive damages. However, Delaware case law imposes a limitation of reasonable relation between the amount of punitive damages awarded and the amount of compensatory damages. Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 892 (Del. 1983) ( [A]n award of punitive damages may not be disproportionate in amount to the award for compensatory damages.... (citing Reynolds v. Willis, 209 A.2d 760 (Del. 1965))); see also Presley v. Silberberg, 1988 WL 90545, at *2 (Del. Super. Ct. Aug. 11, 1988) (applying reasonable relation test and reducing punitive damages); but see Cloroben Chem., 464 A.2d at 892 (reiterating that a verdict should not be set aside unless it shock[s] the Court s conscience and sense of justice ). Bifurcation is available under Superior Court Rule 42 and, in federal courts, Federal Rule of Civil Procedure 42. At least one Delaware court has explicitly refused to require a plaintiff to prove punitive damages by clear and convincing evidence. Simon v. Beebe Med. Ctr., Inc., 2004 WL , at *1 (Del. Super. Ct. Mar. 15, 2004). The court found the appropriate standard was the more moderate preponderance of the evidence. Id. This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws 4

5 or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice. 5