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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ROMAN OIL COMPANY, Defendant Below, Appellant, v. STANZETTA BIBBS and RYAN BIBBS, Plaintiffs Below, Appellees. Submitted: Decided: ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. N12A-05-002 EMD

January 4, 2013 March 14, 2013

On Appeal from the Court of Common Pleas Decision AFFIRMED John V. Work, Esquire, Law Office of John V. Work, 800 N. King Street, Suite 303, Wilmington, Delaware 19801, Attorney for Appellant. Douglas A. Shachtman, Esquire, The Shachtman Law Firm, 1200 Pennsylvania Ave., Suite 302, Wilmington, Delaware 19806, Attorney for Appellees. DAVIS, J. INTRODUCTION This is an appeal from a decision of the Court of Common Pleas awarding Appellees Stanzetta Bibbs and Ryan Bibbs damages in the amount of $10,612.24 for losses they incurred when heating oil spilled in the basement and driveway of their home during and after a delivery by Appellant Roman Oil Company ("Roman Oil"). After a trial on the matter, the Court of Common Pleas concluded that Roman Oil was 60%

negligent and the Bibbs were 40% negligent in causing the Bibbs' claimed damages. The Court based its determination on a finding that Roman Oil primarily caused the spill because its employees failed to remain at the home's fill connection while oil was being pumped from a truck into the home. Roman Oil appeals the decision on the basis that the Court of Common Pleas erred in applying the doctrine of res ipsa loquitur. For the reasons set forth below, the Court of Common Pleas' decision is AFFIRMED, as the Court of Common Pleas' decision rests upon a finding of negligence--a basis independent from an application of res ipsa loquitur. PROCEDURAL POSTURE The Court of Common Pleas held a trial for this matter on December 1 and December 2, 2011. The Court allowed for post-trial briefing on the applicability of the doctrine of res ipsa loquitur to the case. Roman Oil submitted a memorandum on December 16, 2011. The Bibbs submitted a memorandum on December 23, 2011. The Court of Common Pleas issued its Decision After Trial on April 2, 2012. Roman Oil filed its Notice of Appeal with this Court on May 2, 2012. The Court issued a briefing schedule on August 21, 2012. Roman Oil submitted its Opening Brief on September 10, 2012. The Bibbs submitted their Answering Brief on October 1, 2012. Roman Oil submitted its Reply Brief on October 16, 2012. This matter was assigned to a judge on October 24, 2012. It was reassigned to this Judge on January 4, 2013. FACTUAL BACKGROUND The factual conclusions of the Court of Common Pleas are straightforward and uncontested. The Bibbs reside in a home in New Castle, Delaware which uses oil to produce heat. Until December 2009, the Bibbs procured oil under a delivery contract

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with Burns and McBride Oil Company ("Burns and McBride"). On December 2, 2009, while the Bibbs were at work, Burns and McBride delivered oil to the Bibbs' residence and placed an invoice in the mailbox. Unaware of the delivery, and under the belief that she had cancelled oil deliveries from Burns and McBride, Ms. Bibbs placed an order on December 2, 2009 with Roman Oil for 200 gallons of oil to be delivered the next day. Ms. Bibbs testified that she did not see the Burns and McBride delivery invoice when she placed a check for the Roman Oil delivery in her mailbox on the morning of December 3, 2009. The Bibbs' oil tank was located in the basement of their home, without a gauge on the exterior of the house to show a measurement of its contents. Like most other houses that have oil tanks in their basements, the Bibbs' house has two outlets located outside the house. According to David Roman, the owner of Roman Oil Company, one outlet is a fill connection, and the other is a vent alarm. A vent alarm produces a whistling sound caused by the output of air from the tank while it is being filled through the fill connection. The whistle ceases once the tank is full. When a delivery person hears the whistle stop, he or a co-delivery person should stop the flow of oil. Mr. Roman testified that a deliveryman should never walk away from the connection while oil is pumping as the oil tank could rupture if the pumping is not stopped within seconds of when the whistle stops. Mr. Roman also testified that an oil tank which is considered full would produce at least some whistling sound upon the pumping of additional oil into the tank. On the morning of December 3, 2009, two Roman Oil employees arrived at the Bibbs' home to deliver oil. The driver, James Lecomb, testified that his co-deliveryman, John Finch, connected the truck's hose to the fill connection and turned on the oil pump,

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while Mr. Lecomb got back inside the truck to set the truck's GPS system for the next delivery location. Fifteen to twenty seconds later, Mr. Finch ran up to the truck and informed Mr. Lecomb there was a problem. The employees observed oil spilled in the driveway near the fill connection. Mr. Finch had shut off the pump. The two employees took measures to clean the spill and informed Roman Oil of the incident. When Mr. Bibbs returned home for lunch on December 3, 2009, he observed the oil spill in the driveway. Upon entering the home, he discovered the floor of the basement was covered in about half an inch of oil. Mr. Bibbs called Ms. Bibbs, and she called Roman Oil. Roman Oil employees (Mr. Roman, Mr. Finch, James Rider and Jabaar Rider) arrived to the home later in the afternoon to clean up basement. The oil tank had ruptured, and carpeting, wood wall paneling, furniture, appliances, and personal belongings were damaged and had to be removed from the basement. Ms. Bibbs testified that Mr. Finch apologized for the spill and stated that he was next to the truck, dealing with family issues, when he should have been standing next to the house while the oil was pumping. Ms. Bibbs further testified that Mr. Rider told her that he was part of the oil delivery team, and that Mr. Finch was standing next to the truck when Mr. Finch should have been standing next to the house when the oil was pumping. Ms. Bibbs also stated that Mr. Rider told her that, on December 3, 2009, Mr. Rider knew that Mr. Finch was having issues with his family and told Mr. Finch to "get his head on straight" so that he did not cause an accident. Ms. Bibbs testified that she overheard Mr. Rider tell Mr. Finch that Roman Oil was "fixing your mistake." The Court of Common Pleas also made specific findings of fact and conclusions of law with respect to damages (amount or otherwise) and contributory negligence. On

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appeal, the Appellant does not contend that the Court of Common Pleas erred on the element of damages or contributory negligence. Accordingly, for purposes of the appeal, this Court will not address the decision below on these issues. THE COURT OF COMMON PLEAS' DECISION AFTER TRIAL The Court of Common Pleas' Decision After Trial contains a detailed recitation of its factual findings. In the discussion that follows, the Court first notes that the Bibbs claims were "set forth in narrative form and [did] not clearly articulate" a theory for recovery. 1 The Court acknowledged that "the language of the original complaint and the amended complaint [was] sufficient to make a claim based upon negligence" 2 and, "Further, prior to trial, the Bibbs notified the Court on November 22, 2011 that plaintiff will rely upon the legal doctrine of res ipsa loquitur [to] establish liability." 3 The Court proceeded to set forth the legal standards for negligence and negligence by res ipsa loquitur. 4 After citing the doctrine of res ipsa loquitur, the Court commenced application of the law to the facts. The Court considered evidence that it was company policy for a Roman Oil employee to remain at the fill connection while oil is being pumped, that Mr. Finch did not remain at the fill connection while pumping oil into the Bibbs' home, and that Ms. Bibbs failed to notice a delivery ticket from Burns and McBride in her mailbox when she placed a check there to pay for the Roman Oil delivery on December 3, 2009. 5 The Court then determined that

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Bibbs v. Roman Oil Co., CPU4-10-001652, 2012 WL 1114617, at *6 (Del. Com. Pl. Apr. 2, 2012). [Hereinafter "Op. at *___."] 2 Id. at *6. 3 Id. 4 Id. at *6-*7. 5 Id. at *7.

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the primary reason the spill occurred and the damages were sustained is because Roman employees failed to remain at the fill connection when the oil was being pumped. If Finch had remained at the fill connection, he would have been in a position to hear the whistle stop and discontinue the oil flow. Under the provisions of 10 Del. C.

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