The opinion of the court was delivered by: M. Faith Angell United States Magistrate Judge
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter was referred to me by the Honorable Eduardo C. Robreno to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. §636(c) and Fed.R.Civ.P. 73 by Order dated November 18, 2010. See Docket Entry No. 9. A Summary Trial was held before me on March 17, 2011.
Plaintiff Sharon Fields instituted this action against Defendants Vincent A. Satinsky and National Freight, Inc., incorrectly designated as NFI Industries, Inc., alleging their negligence in regard to a motor vehicle accident that occurred on November 19, 2008, between 11:00 and 11:30 p.m. Ms. Fields alleges that while she was operating her 2006 Nissan four-door sedan northbound on Route I-95 in Wilmington, Delaware, near the Delaware Avenue on-ramp, she was rear-ended by a truck driven by Mr. Satinsky. See Complaint ¶8. She states that she felt something hit the back of her car, then her car began spinning in a counterclockwise direction, moving from the right lane in which she was driving, across the center and left lanes of the highway. See N.T. 3/17/11 at 45-46. Her vehicle hit the left guardrail and subsequently spun clockwise back across the road, hitting the right guardrail. Id. at 47. Finally, her car was hit once more as the vehicle driven by Mr. Satinsky "smashed up against [her] car". N.T. 3/17/11 at 48.
Traffic was light at the time, and Ms. Fields was unaware of Mr. Satinsky's vehicle until she was hit from behind. In fact, it was when she was spinning towards the center of the highway that she realized that it was a tractor-trailer that had impacted her car. See N.T. 3/17/11 at 46. She indicated that the truck was out of control, ending up in a jack-knifed position before straightening out and ultimately stopping on the right shoulder of the road. Id. at 47-48. Her car sustained quite a bit of damage and was declared "totaled". Plaintiff's Trial Exhibit 5.
After both vehicles came to a rest, Ms. Fields got out of her car, and Mr. Satinsky, in turn, got out of his truck and came quickly towards Ms. Fields. See N. T. 3/17/11 at 47, 48. Ms. Fields asserts that Mr. Satinsky was "hollering and screaming, and telling [her] to shut up and be quiet, that [she] wasn't hurt". N.T. at 48-49. While at the side of the road, Ms. Fields made a series of telephone calls on her cell phone to the daycare provider who was caring for Ms. Fields' granddaughter at the time, her daughter, her goddaughter, and her best friend. See N.T. 3/17/11 at 49, 50.
Ultimately, the police, an ambulance and emergency medical technicians arrived on the scene. The Police Report indicates that the movement of Ms. Fields' vehicle was described as "movements essentially straight ahead", and she received no traffic citation. Plaintiff's Exhibit 5. Ms. Fields was placed on a stretcher by EMT's and transported to Christiana Care Hospital. See N.T. 3/17/11 at 53, 54; Plaintiff's Trial Exhibit 20. Ms. Fields describes herself as "hysterical" when she got to the hospital. N.T. 3/17/11 at 54, 113. She was not bleeding, and there was no visible bruising on her body. See N.T. 3/17/11 at 113. Ms. Fields did indicate, though, that there "was bruising to [her] body that you couldn't see, but [she] could see". N.T. 3/17/11 at 113. She was diagnosed with "neck/back strain". Plaintiff's Trial Exhibit 20. Ms. Fields was discharged from the emergency room, and she was taken home by her daughter. Id.; Defendants' Trial Exhibit 15.
Mr. Satinsky, in turn, testified that on the night of the accident, he was driving a 1994 Freightliner Century Class tractor trailer on his regular route as a driver for National Freight, Inc. He asserts that he was in the right-hand lane going north on I-95, when he "felt the truck rock a little bit". N.T. 3/17/11 at 154. He put on his brakes and began slowing down. At that point, he saw Ms. Fields' car coming in front of the truck. She traveled past the front of the tractor, spun around, hit the guardrail on the left-hand side of the highway, came back in front of the truck and spun around again, hitting the guardrail on the right-hand side, where she came to a rest. See N.T. 3/17/11 at 154-155. He indicates that Ms. Fields hit his front axle outside tire, careened off, went in front, hit the guardrail, came back around and banged into the right-hand guardrail and came to rest. Id. at 154, 156. His rear tire skidded, but the truck did not jackknife. Id. at 157. He states that he did not impact Ms. Fields' car again after she bumped into his tire. See N.T. 3/17/11 at 160, 171-172. There was no damage to Mr. Satinsky's vehicle, but for a mark on his tire. Id. at 161, 186. The Police Report indicates that the movement of Mr. Satinsky's truck was described as "essentially straight ahead", and he received no traffic citation. N.T. 3/17/11 at 191; Plaintiff's Exhibit 5.
Mr. Satinsky testifies that he parked his truck in front of Ms. Fields' car on the right side of the road, and ran back to her car to see if she was all right. See N.T. 3/17/11 at 162. He reports that she was screaming at him, "why did you hit me?"; whereupon, he replied "I didn't hit you, you hit me". He further states that, upon his asking Ms. Fields' how she was, she replied "I'm a little shook up, but I seem to be okay". N.T. 3/17/11 at 162. He, too, remembers the telephone calls made by Ms. Fields; in fact, he remembers being handed her phone so that he could tell her daughter that she was all right. See N.T. at 3/17/11 at 163. Mr. Satinsky states that he also made a phone call to his company to report the accident. Id. at 184. Mr. Satinsky further reports that Ms. Fields appeared to be calm as they waited for the police and ambulance to arrive on the scene. Id. at 164, 181-182.
All parties agree that it is Delaware law that governs this matter. See N.T. 3/17/11 at 199. Generally, automobile operators in Delaware must exercise reasonable care under the circumstances. A failure to use reasonable care is considered negligence. Violation of a motor vehicle statute or regulation is evidence of negligence as well, or it can be negligence per se if the violated statute is one that has been enacted for the safety of the public while using the roadways. Thus, in order for Ms. Fields to succeed in this negligence action, she must prove by a preponderance of the evidence that Defendants failed to exercise reasonable care under the circumstances, or that they otherwise failed to conform to some applicable standard of conduct, and that the failure was the legal cause of the harm suffered by her. However, under Delaware's comparative negligence statute, a plaintiff is barred from recovering damages for negligence that results in injury to a person or property where the plaintiff's own negligence was greater than that of the defendant (i.e. where the plaintiff was more than 50% at fault for the accident). See 10 Del. Code §8132.
As stated, Ms. Fields must establish Mr. Satinsky's negligence by a preponderance of the evidence.*fn1 "[A] party proves a fact by a preponderance of the evidence when [she] proves that the fact's existence is more likely than not." Greenwich Collieries v. Director, Office of Workers' Compensation Programs, 990 F.2d 730, 736 (3d Cir. 1993). A "'preponderance' is not dependent upon the number of witnesses testifying on either side but rather upon the credibility which, in the light of all the evidence in the case, the jury attributes to their testimony and the effect of that testimony in inducing belief in its truth". Burch v. Reading Company, 240 F.2d 574, 578-579 (3d Cir. 1957). "[T]he [fact finder] must be convinced by the fair preponderance of the evidence that the facts were as the plaintiff asserted them to be." Id. at 579. "If in the mind of the fact finder the evidence seems equally balanced the charge is not established and the complaint must be dismissed." Virgin Islands Labor Union v. Caribe Construction Company, 343 F.2d 364, 367 (3d Cir. 1965).
Testifying for Plaintiff at trial were Ms. Fields and her daughter, Nicole Fields-Lewis. Mr. Satinsky testified on behalf of himself and his employer.
Ms. Fields testified that the accident at issue occurred on a Thursday night between 11:15 and 11:30 p.m. See N.T. 3/17/11 at 41. She had left her place of employment at Comcast in Wilmington, Delaware, driving her Nissan Sentra, to pick up her granddaughter at a "night day care" facility in northeast Wilmington. Id. at 43. She described her journey and the accident as follows:
Q Tell Judge Angell what route you took.
A Your Honor, I would leave Comcast. Comcast is located on 4008 North Dupont Highway. I would get in my vehicle after warming it up, and I would head northbound, going toward Wilmington.
I would turn left from Route 13 onto West 2nd Street, and I would, after turning left, get in my right-hand lane because I know that I will be turning right onto Adams Street, North Adams Street.
I would take North Adams Street all the way out until I got to 10th Street. Once that light, that light there's an intersection there, turned green I would proceed toward Interstate 95, which is what I did every night I worked that shift.
As I was going onto the highway from West 10th Street onto I-95 northbound, I was driving in my far right-hand lane, because my exit was only a couple of miles up the road, which is Concord Avenue, Concord Pike.
So, it's Concord Pike to the left, it's Concord Avenue to the right, and I was right there through the intersection that Delaware Avenue actually has coming onto 95 also. It's about four minutes away from where I get on at. Q Four minutes. It's four minutes north of where you got on?
A Four minutes north of where I got on there.
Q So. You had been on the 95 for a few minutes before you got to the Delaware Avenue entrance way?
Q You were in the right-hand lane?
A I was in the right-hand lane. . . . . .
A There was no traffic at all. Traffic was very minimal. I could look in my rear-view mirror and, Judge, I could see traffic, but it was so far back that I felt like I could have been off before it caught up to me.
But, like I said, it was just about -- I was through the on-ramp from Delaware Avenue to 95 when I felt the impact. I didn't know what at that time had hit me. I just knew I was crashed into, something had really hit me, and had hit me hard.
Q Where did the impact -- what part of your car was impacted, to the best of your understanding being where you were?
A To the best of my understanding, it was in the back, because I could feel it.
A Your Honor, when I felt the impact I had looked at my car wheel, and my wheel, it looked fine. I thought my car was great. I felt something hit me. I didn't know what it was, and I was driving and then all of a sudden my wheel started shimmying, and that's when I said oh, my, something's wrong, and it started spinning in a counterclockwise position toward the left-hand side of I-95.
I'm going about fifty-five miles an hour, so as I went to spin counterclockwise toward the left, the car just immediately like when it impacted the cement guardrail it really impacted hard. I was seat belted in, but I was like thrown about really hard. . . . then it continued to skid, going back toward a clockwise position on the opposite side of the road.
At this point, Your Honor, is when I observed, I looked out of my window, my driver's side window, and I looked, and that's when I seen what looked to be, maybe it was my perception because it was so dark, and maybe being so little it looked like a monster to me because it was so big.
That's when I noticed that it was out of control, and that's when I said oh, my god, I just got hit by a tractor-trailer. . . . I could see him rolling the wheel and turning the wheel, but the tractor-trailer was like in two different lanes, like it wasn't straightened up.
By this time, I had crashed, because I was looking but I wasn't paying attention to where my car was going, and I had actually impacted the right-hand side of 95 . . .
. . . .I went to push my brake, because my car is still moving. I went to push my brake to slow my car down, and to my amazement my car slowed down. . . .
It slowed down. When I went to push the impact -- I mean the door release button, it unlocked itself without any help from anybody. It unlocked itself and I took my foot, my left foot, and I didn't know if it was going to be jammed, but I just kicked it open with all my force and the door opened up.
. . . . Before all this happened, I must tell you as I was looking out of my window and I observed the tractor-trailer was still not in control, he still didn't have control of his rig, and the trailer part of his tractor was coming directly at me. . . . .
His trailer came directly at me, and it was really odd because he smashed up against my car. It was like just this loud bang, and then he came and he moved right -- as soon as he hit me he came right off of me, and that's when I could see him working with his wheel. He was really, really, working with his wheel.
He finally got his truck under some kind of control, because when he hit me he was in a just like a V shape, it was like the front of it was in one lane and one part of it was in another lane, and he finally got it straight and he pulled up maybe a mile up, a half a mile up the road, parked on the right-hand shoulder where I was parked at . . .
Mr. Satinsky testified that his drive began routinely also. Working for NFI Industries, Inc., he would begin his evening around 4:00 p.m. when he would get instructions from his boss as to what he was supposed to do that particular night. See N.T. 3/17/11 at 150. He testified:
Normally we worked at Cott Beverage in Concordville, Pennsylvania, we were actually, what they call a dedicated account. The first thing we would normally do is pick up a load of full soda bottles, their product, and take it to the warehouse in Aston which was approximately nine miles away.
At that point we would do what we call in the trucking industry a drop and hook, we would drop the one trailer, either back it into a door or leave it on their parking lot, pick up an empty trailer and then head down to Haver [sic] de Grace, Maryland where would pick up empty soda bottles from a company called Constar, and they make all the bottles.
At that point we would drive them back up to the Cott warehouse in Concordville and do another drop and hook, pick up another load of sodas, and we normally did two to three of these loops an evening.
N.T. 3/17/11 at 150. Mr. Satinsky was operating a 1994 Freightliner Century Class tractor with a fifty-three-foot trailer on the night in question. He had gone down to Havre de Grace to pick up a load of bottles, and he was on his way back up. See N.T. 3/17/11 at 152-153. He describes the accident with Ms. Fields as follows:
Q What I'm going to ask you to do, please, is to in your own words and in as much detail as you can, just tell the Court exactly what happened on that particular night.
A It was a little bit after 11:00. I hadn't looked at my watch to see the exact time, but apparently it was about quarter after or so. I was in the right-hand lane coming north on I-95 and nice weather, you know, very little traffic, no problems or anything.
I was driving along and I passed the entrance to, I forget the name of the street, and I felt the truck rock a little bit. Like if you were in your car and somebody rocks the roof goofing, like that, not where I got thrown around, but just I could feel something.
At that point I hit my brakes and started slowing down. At that point I saw Ms. Fields' car coming in front of the truck, she had -- when me and the police officer looked it over, she had hit my right rear tire. There is twin axles back there, she hit the front axle outside tire, there was a big scuff on it.
She traveled past the front of the tractor, spun around, hit the guardrail on the left-hand side, came back in front of me and spun around again and hit the guardrail on the right-hand side where she came to rest. . . . . .
THE WITNESS: Okay. Now, right now we have three lanes of the highway. There is another lane being added, this is where the entrance to the (inaudible) are.
BY MR. BERGER: Q What lane are you in?
A I'm in the right hand, right rear lane.
THE COURT: You were not coming up the ramp?
THE WITNESS: No, I was on the highway.
BY MR. BERGER: Q How long had you been on Route 95 North in the far right lane? A Pretty much forever, there was very little traffic. Normally, the only time I get into the middle lane would be if somebody needs to merge in, pull over to let them in and then you pull back over, it is just courtesy.
THE COURT: But at that point you had come up already?
THE WITNESS: Yeah, I was already -- I had been on 95 since Maryland. . . . . .
A Okay. So I did notice here coming up here, but she came up and she hit this tire and careened off, went in front, hit the guardrail, came back around like this and banged into this guardrail and came to rest. Now, meanwhile, these things don't stop as fast as a car, her car stopped when I was in front of her.
At that point -- and the truck never did jackknife. The police officer and me went out and looked at the skid marks and they were a straight line, so -- . . . . .
Q Did it skid a little bit though?
A Yes, the rear tire skidded, simply because I only had about five thousand pounds. Now, on a full load, I can carry like forty-three thousand pounds, so it was a light load. But, it didn't --
Q Did you leave the right lane at all?
A No, not at all. In fact, the skid marks look like somebody drew them on the street with a magic marker, they were perfectly straight. . . . . .
A The on ramp comes on, it goes up and then goes back off like that. THE COURT: Yes, so there is an extension.
THE WITNESS: Yeah. So at this point there were four lanes, there were actually four lanes at this point, right.
BY MR. BERGER: Q There was some issue about there is some property damage that is back here and here. Can you explain to the Court how the car got damaged here and here?
A That would be hitting the two guardrails. Now, a lot of people think the front bumper on these trucks is like some kind of monster, a five beam or whatever, actually it is a cover. It is the same as it is on your car, it is plastic.
If I would have hit her that hard, my bumper would have been all over the street just like hers. I had no damage to the vehicle. . . . . .
Q The plaintiff had testified that when she was coming along she was able to see you doing ...