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

WALTER CARROW, JR., CMX INC., Plaintiffs v. EDWARD SLAUGHTER, JR. D/B/A ED SLAUGHTER'S NEW & USED AUTO PARTS, Defendants

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C.A. No. U408-05-062

Submitted: Decided:

October 18, 2010 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.

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 2006. 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

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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 $350.00 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.

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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

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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.

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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

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Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967). 6

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

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VLIW Technology, LLC v. Hewlett-Packard, Co., 840 A.2d 606, 612 (Del. 2003). Plaintiff's Complaint,

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