Anderson v. NITIN ENTERPRISES, INC.

• Decision Date: 04 March 2010
• Docket Number: Civil Action No. 08C-12-138-JOH.
• Citation: 995 A.2d 154
• Parties: Susan ANDERSON, as Guardian Ad Litem for Kayla Anderson, Plaintiffs v. NITIN ENTERPRISES, INC., d/b/a Dunkin Donuts, Defendant.
• Court: Delaware Superior Court

995 A.2d 154

Susan ANDERSON, as Guardian Ad Litem for Kayla Anderson, Plaintiffs v. NITIN ENTERPRISES, INC., d/b/a Dunkin Donuts, Defendant.

Civil Action No. 08C-12-138-JOH.

Superior Court of Delaware, New Castle County.

Submitted: February 19, 2010.

Decided: March 4, 2010.

Bruce L. Hudson, Esquire, of the Law Offices of Bruce L. Hudson, Wilmington, Delaware, attorney for plaintiffs.

Melissa L. Rhoades, Esquire, of Tighe & Cottrell, P.A., Wilmington, Delaware, attorney for the defendant.

OPINION

HERLIHY, Judge.

This personal injury case is scheduled for trial March 15th. A pre-trial conference was held on February 18th. Shortly before the pre-trial conference, the defendant has filed two motions in limine. They are to: (1) preclude introduction of the first $15,000 of plaintiffs' damages under Delaware's no-fault law as the injured plaintiff's injuries arose out of the use of a vehicle and (2) preclude introduction of a DVD taken several years after the incident at issue. In the pre-trial stipulation, the plaintiffs proposed to amend their cause of action to include a claim for inadequate training and/or supervision. Defendant offered a verbal objection to the proposed amendment, and the Court heard extensive oral argument on all three motions.

Factual Background

On October 30, 2007, Kenneth Anderson drove up to defendant Dunkin' Donuts¹ take-out window at an establishment in Middletown. The facts are a little unclear. Kenneth Anderson ordered five hot chocolates.² Members of the family were in the vehicle with him. An employee of Dunkin' Donuts handed Kenneth Anderson a carrier with five cups in it. He handed it to his seven year-old daughter, Kayla, to hold until they got home. She placed it in her lap. As her father started to pull away from the take-out window, one of the cups spilled as apparently its lid was not secured. The hot chocolate spilled in Kayla's lap, burning her.

Motion to Preclude Damages

A

Defendant moves to preclude the first $15,000 of plaintiff's claim for medical expenses. Their argument is premised on Kenneth Anderson's PIP insurance, and that Kayla's injury arose out of his use of the motor vehicle. Under Delaware law, Defendant notes, where such coverage exists for an injury arising out of the use of a motor vehicle, the first $15,000 in medical expenses (and/or lost wages) cannot be introduced into evidence. This, defendant asserts, means plaintiffs' "boardable" damage claim is "diminished" by $15,000.

B

Plaintiffs response is that Kayla's injuries did not arise out of Kenneth Anderson's use of his motor vehicle. They refer to a Supreme Court opinion establishing three tests for courts to employ to determine if the injury arose out of the use of a motor vehicle. The circumstances of this case, they contend, do not satisfy those tests resulting in a determination that the $15,000 bar does not apply and plaintiffs can introduce all of Kayla's medical expenses.

C

Kenneth Anderson's PIP policy provides coverage for him and certain others when injured as a result of the use of his vehicle. Kayla is one of those covered persons. His policy meets the requirements of Delaware law requiring every owner of a motor vehicle to be registered in Delaware to have certain minimum coverage for bodily injury, death, or property damage in the amount of $15,000 for any one person arising out of the ownership, maintenance or use of a motor vehicle.³ When such coverage exists, the first $15,000 in medical expenses (and/or lost wages) is precluded from being introduced into evidence.⁴

The issue in this case boils down to whether Kayla's injury arose out of the use of her father's motor vehicle. The Delaware Supreme Court in Nationwide General Insurance Co. v. Royal⁵ established a three-part test employed to determine if the injury arose out of the use of a motor vehicle, adopting tests from the Minnesota Supreme Court:

The Minnesota Supreme Court adopted a three-part test to determine the availability of coverage in a car-to-car shooting. In Continental Western Insurance Co. v. Klug, the court analyzed: (1) whether the vehicle was an "active accessory" in causing the injury—i.e., "something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury;" (2) whether there was an act of independence significance that broke the causal link between use of the vehicle and the injuries inflicted; and (3) whether the vehicle was used for transportation purposes. The Klug approach provides a flexible framework that takes into account the circumstances of the injury and promotes the legislative purpose of Delaware's underinsured motorist statute—the "protection of innocent persons from the negligence of unknown or impecunious tortfeasors." For this reason, we adopt Klug's three-part test as the standard by which the courts of this State should determine whether an injury has arisen out of the operation, use or maintenance of a motor vehicle.⁶

The Delaware Supreme Court recognized that the resolution of the "use" issue is "highly fact specific."⁷ This Court has to observe, of course, that the Royal three-part test makes a judge, not a jury, a fact finder on this issue. Fortunately, in this case, as in Royal, the basic facts are not disputed.

Going in reverse order, no one disputes that the third test in Royal is met, whether the vehicle here was used for transportation purposes. Kenneth Anderson drove up to Dunkin' Donuts' take-out window, neither he nor anyone else in the vehicle got out, and he drove off after getting the hot chocolate and doughnuts.

Neither side disputes that the second Royal test is satisfied. Neither side argues there was an act of "independent significance" that broke the causal link between the vehicle's use and Kayla's injuries. Each side is arguably in a conundrum. On this test, the defendant does not claim such an act occurred. At trial, however, they will assert that Kenneth Anderson's own negligence, in failing to insure the lids were tight before passing the tray to Kayla and not telling her to be extra careful, was greater than its alleged negligence. On the plaintiffs' side, they do not agree Kenneth Anderson was negligent, or, at least, that his actions operated to create an act of independent significance.

There is no Delaware case law to help with this answer to this question. But here there is a key fact which suggests a negative answer. To drive safely away from the take-out window, Kenneth Anderson had to pass the tray with five cups of hot chocolate to someone else.

In Buckingham v. State Farm Mutual Automobile Insurance Co.,⁸ this Court had

a "road rage" case. The incident occurred at a traffic light and a little later the "offended" party got out of his car and assaulted the insured in his car. This Court held the vehicle was an "active accessory" to the cause of the injury. It also found that it was not an act of "independent significance" for the other driver to get out of his car and then assault the insured. This Court ruled the sequence of events was unbroken, the assailant was only briefly out of his car, and the events were continuous. This meant the second test was met.⁹

On appeal, this Supreme Court upheld this Court's finding that the vehicle in which the plaintiff insured was riding was an "active accessory" to the injury.¹⁰ The Court said the insured's actions in how he handled his car provoked the rage. But the Supreme Court reversed this Court's finding on independent significance. The assailant getting out of his car was such an act, meaning Royal's second test was not met.¹¹

Here, however, the sequence of events was unbroken. The injury occurred in the vehicle as it was in motion. Kenneth Anderson's passing of the tray to Kayla was not an act of independent significance but part of the trip to get hot chocolate with the family and to be able to drive safely by not holding a tray.

The Court has no trouble in finding the events here satisfy Royal's first test, whether the vehicle was "an active accessory" in causing the injury. The vehicle was the means to get to the Dunkin' Donuts. No one got out of it. Rather than going inside to get the hot chocolate, the take-out window was used. To drive safely, Kenneth Anderson had to hand the tray to someone else. The vehicle was in motion when the hot chocolate spilled. All of this shows that the vehicle was more than the mere "situs" of the injury and that its forward motion was a cause of Kayla's injury.

In this day-in-age, injuries like this are foreseeable. This Court in Buckingham correctly noted that the first Royal test has an element of foreseeability.¹² Take-out windows are a fact-of-life at many fast food establishments. Many serve hot chocolate and coffee or other hot beverages from them. The element of foreseeability is here self-evident.

Consequently, this Court holds Kayla's injuries arose out of the use of her father's motor vehicle. It is an insured risk under his policy which he has as mandated by Delaware law. That law, 21 Del. C. § 2118(h), therefore, precludes the admission into evidence of the first $15,000.00 of Kayla's medical expenses.

Motion to Exclude DVDs

A

The defendant has moved to exclude one of two DVDs. One shows portions of the events on October 30, 2007, and its admissibility is not contested. The other DVD shows unrelated events during a site visit by counsel on August 6, 2009. The defendant supplied DVDs on February 26th which, at the Court's request, are compatible with the Court's DVD players.

B

The record surrounding the events is partly unclear and at one point seemingly contradictory. The contradictory part was noted section of this opinion covering the damage issue.¹³ It is whether the tray with the cups of hot chocolate which the employee handed to Kenneth Anderson was one designed to securely hold four cups or five.

There are three segments to the October 30th DVD. The first is from...