IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JESSICA Y. RICE, )
)

Plaintiff, )

)

¥ C.A. No. N19C-05-158 CLS

ANDREW RICE, RPCIV,LLC, _)
d/b/a PORTER FORD, )
)

Defendant. )

Date Submitted: April 3, 2020
Date Decided: August 20, 2020

Upon Defendant Porter Ford’s Motion for Summary Judgment
DENIED.

ORDER

Cynthia G. Beam, Esquire, Reger, Rizzo & Darnall, LLP, Wilmington, Delaware,
Attorney for Plaintiff.

Eric Scott Thompson, Esquire, Franklin & Prokopik, P.C., Newark, Delaware,
Attorney for Defendant.

Shae L. Chasanov, Esquire, Swartz Campbell, LLC, Wilmington, Delaware,
Attorney for Defendant.

SCOTT, J.
INTRODUCTION

Before the Court is Defendant’s, RCP IV, LLC d/b/a Porter Ford (“Porter
Ford”), Motion for Summary Judgment. Porter Ford contends that this Court should
grant summary judgment in its favor because Plaintiff J essica Y. Rice (“Mrs. Rice”)
has failed to identify an expert to testify that Porter Ford’s employee breached his
duty of care in replacing automobile brakes and caused the automobile accident that
resulting in harm to Mrs. Rice.

In the present case, it is disputed whether Porter Ford’s repair of the
automobile brakes was negligent and thereby caused Mr. Rice’s automobile to rear-
end another vehicle. The inquiry in this Motion is whether expert testimony is
needed to establish a prima facie case that Porter Ford, and/or its employee, breached
its standard of care and therefore potentially liable to Mrs. Rice for her injuries.

After reviewing the Motion and Plaintiff's Response, the Court finds that
Porter Ford’s Motion is DENIED. Parties should submit an amended Scheduling

Order which allows for expert testimony.

BACKGROUND
On June 2, 2017, Mrs. Rice was a passenger in a vehicle driven by her

husband, Defendant Andrew Rice (“Mr. Rice”), when Mr. Rice’s vehicle rear-ended
the vehicle in front of them.' Mrs. Rice alleges that the accident occurred as a result
of Porter Ford’s “fail[ure] to properly replace the brake pads and resurface the brake
rotors on the subject vehicle’”* after Mr. Rice had taken the vehicle to Defendant
Porter Ford to replace the brake pads and, after allegedly experiencing a brake
malfunction, later fix the alleged brake malfunction.’ As a result, Plaintiff initiated
this suit by filing a Complaint against Porter Ford and Mr. Rice for compensation
for “personal injuries, pain and suffering, past and future Medical expenses, interest
pursuant to 6 Del. C. Section 2301(d), and cover costs.”*

Defendant Porter Ford has moved for summary judgment, pursuant to
Superior Court Civil Rule 56, on the basis that Plaintiff has failed to identify experts

by the Court’s Civil Case Management Order deadline of November 29, 2019

(“November Deadline”).

STANDARD OF REVIEW
Under Superior Court Civil Procedure Rule 56, summary judgment is proper
when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.* Summary judgment will not be granted if material facts

 

' Compl. at § 7.

2 Id at 414.

3 Id. at § 13.

4 Id. at p. 5.

> Super. Ct. Civ. R. 56(c).
are in dispute or if “it seems desirable to inquire more thoroughly into the facts to
clarify the application of the law to the circumstances.”® This Court considers all of
the facts in a light most favorable to the non-moving party.’

In a motion for summary judgment, the moving party bears the initial burden
of showing that there are no material issues of fact.’ If the moving party makes this
showing, then the burden shifts to the nonmoving party to show that there are
material issues of fact.”

Delaware Rule of Evidence 702 provides that “[i]f scientific, technical or
other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education may testify thereto in a form of an opinion or
otherwise.”!® In Weaver v. Lukoff,"' the Supreme Court of Delaware stated that “[a]s
a general rule the standard of care applicable to a professional can only be

established through expert testimony. An exception to this rule exists, however,

 

6 Infante v. Horizon Servs., Inc., 2019 WL 3992101, at *1 (Del. Super. Aug. 23,
2019).

7 Td.

8 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

9 Td. at 681.

10 D.R.E. 702; see also Smith v. Chrysler Corp., 1996 WL 945018, at *2
(Del.Super.) (emphasis added).

| Weaver v. Lukoff, 1986 WL 17121 (Del. 1986).
when the professional’s mistake is so apparent that a layman, exercising his common

sense is perfectly competent to determine whether there was negligence.”!*

PARTIES’ ASSERTIONS

Porter Ford asserts that, without “identif[ying] experts to testify on
[Plaintiffs] behalf regarding any conduct by [Defendant Porter Ford] that deviated
from any standard of care[,]”'? Defendant is entitled to summary judgment. In
support of its Motion for Summary Judgment, Defendant directs the Court’s
attention to the Trial Scheduling Order that requires the Plaintiff to identify experts
by the November Deadline.'*

In response, Plaintiff argues that “the facts of the instant case do not require
an expert opinion since the cause of negligence is easily ascertainable to a lay jury.”)>
Further, in the alternative, Plaintiff argues that “the facts in this case can give rise to
916

an inference of negligence under the doctrine of res ipsa loquitur.

DISCUSSION
Where “negligence is charged against a person or firm in a trade, the jury is
instructed that:

[Plaintiff] has alleged that [defendant] was negligent in [the alleged negligent
conduct]. One who undertakes to render services in the practice of a profession or

 

2 Td. at *1.

'3 Def.’s Mot. for Summ. J. at § 3.

4 Id.

15 P].’s Br. in Opp. to Def.’s Mot. for Summ. J. at ¥ 1.
16 Id. at § 10.
trade is always required to exercise the skill and knowledge normally held by
members of that profession or trade in good standing in communities similar to this
one. If you find that [defendant] held [itself] out as having a particular degree of
skill in [its] trade or profession, then the degree of skill required of [defendant] is
that which [it] held [itself] out as having.”’’

There are cases in Delaware that speak as to whether expert testimony is
needed to establish the appropriate standard of care, but in different contexts.

In Hazel v. Delaware Supermarkets, Inc.,"* the Court found that expert
testimony was not required when the plaintiff fell in the frozen food aisle of a grocery
store because “it is within the common knowledge of a lay jury whether water on
the floor, in the aisle of a public grocery store, creates an unsafe condition.”

Similarly, in Brown v. Dollar Tree Stores, Inc.,”> expert testimony was not
required as to whether a mop, which caused a child's injuries, was defectively
designed because the mop was “so basic that it should be understood by the average
juror, and that the average juror should be able to evaluate whether [the] mop was

defective.’”*!

 

17 Brandt v. Rokeby Realty Company, et al., 2004 WL 2050519, at *6
(Del.Supcr.)(citing Tydings v. Lowenstein, 505 A.2d 443, 445 (Del.1986); Seller v.
Levitz Furniture, Co., 367 A.2d 999, 1007-08 (Del.1976); Sweetman v. Strescon
Indus.. Ine., 389 A.2d 1319, 1324 (Del.Super.Ct.1978); See also Restatement
(Second) of Torts § 299A (1965)).

18 Hazel vy. Delaware Supermarkets, Inc., 953 A.2d 705, 709 (Del. 2008)

19 Roberts v. Daystar Sills, Inc., 2008 WL 8203205, at *2 (Del. Super. Dec. 8,
2008) (citing Hazel, 953 A.2d 705).

20 Brown v. Dollar Tree Stores, Inc., 2009 WL 5177162 (Del. Super. Dec. 9, 2009).
21 Brown v. Dollar Tree Stores, Inc., 2009 WL 5177162, at *4 (Del. Super. Dec. 9,
2009).
Conversely, in Abegglan v. Berry Refrigeration Co.,”* this Court determined
that an expert was needed where a plaintiff claimed that a ceiling tile fell on the
plaintiff due to an allegedly ill-repaired ice machine, and the tile caused injuries to
the plaintiff. This Court noted that “jurors would be unable to sufficiently determine
whether there was negligence,” and “a layperson would be unable to form an
intelligent judgment, without the aid of an expert, as to whether the repairman's
actions fell below the standard of care and caused the ceiling tile to fall or whether
the leaking of water prior to the repair caused the tile to fall.””’

Likewise, the Court in Vohrer v. Kinnikin determined that the plaintiff's case
was similar to the plaintiff in Abegg/an, and different than the plaintiffs in Haze/ and
Brown, when a plaintiff allegedly received an electrical shock from a stove.”* The
Court held that “[wJhile a kitchen stove may be a common household item, the
stove's electrical wiring and circuitry, as well as the wiring of the outlet to which the
stove is connected, are not matters within the common knowledge of the

layperson.””°

 

2 Abegglan v. Berry Refrigeration Co., 2005 WL 6778336 (Del. Super. Dec. 2,

2005).
3 Td. at *3.
24 Vohrer v. Kinnikin, 2014 WL 1203270 (Del. Super. Feb. 26, 2014).

25 Td. at *4,
Finally in Roberts, a plaintiff sued defendants when he fell off scaffolding at
a construction site.2° This Court held that the plaintiff needed to produce expert

testimony on the standard of care at a construction site.” The Court noted that

a lay jury is not acquainted with routine practices observed at a closed construction
site. A lay jury has common knowledge of what conditions are expected and
reasonable in a grocery store or when walking down a residential street but the
determination of what conditions are expected and reasonable at a closed
construction site requires specialized knowledge. Without an expert to explain the
routine practices and acceptable conditions at a closed construction site, where
trade persons are trained to work in and around precarious conditions, the jury
would be left to speculate as to the standard of care.”®

Based on the arguments before the Court, the Court finds that an alleged
“failure to properly replace the brake pads and resurface the brake rotors on the
subject vehicle””? reflects the holdings of Roberts, Abegglan, and Vohrer, and is
different from Hazel and Brown. Automobile brake replacement and maintenance 1s
wholly separate and distinct from cleaning up water on the floor in a grocery store.”

Porter Ford renders automobile maintenance services. In rendering these
services, Porter Ford and its employees hold themselves out as having a particular

degree of skill and expertise, thus, requiring Porter Ford to exercise a specialized

 

26 See Roberts, 2008 WL 8203205.

27 Td.

28 Roberts, 2008 WL 8203205, at *2; See also Small v. Super Fresh Food Markets,
Inc., 2010 WL 530071, at *3—4 (Del. Super. Feb. 12, 2010)(“This Court will not
require Plaintiff to produce an expert to testify as to the applicable standard of care
required of the grocer in this case.”).

29 Compl. at § 14.

30 See Roberts, 2008 WL 8203205.
degree of care.*! Without expert testimony in this case, “jurors would be forced to

9932

surmise about the particular degree of skill and how to measure it against”’* Porter
Ford’s repair of the automobile’s brakes.

Several courts outside of this jurisdiction have required expert testimony in
matters concerning alleged negligent brake inspection and repair to establish the
applicable standard of care. A Michigan trial court case “determined that expert
testimony was required to establish the duty of care owed by [defendant] in
inspecting the brakes on plaintiff's vehicle and to establish causation.”*’ Next, an
Oregon appellate court found, in a wrongful death case alleging that a dealership
was negligent in performing warranty maintenance and repairs on the vehicle’s
braking system, that expert testimony that used a Technical Service Manual
established sufficiently a standard of care to permit the jury to find Defendant’s
servicing and repair work as negligent as alleged.** Finally, a District of Columbia

appellate court found, in a case where a passenger in a vehicle was injured when that

vehicle’s brakes failed and brought suit against the automobile repair service

 

31 Id. (citing Ruddy v. Moore, 1997 WL 717790, at *8 (Del . Super. )(expert
testimony presented concerning HVAC installation)).

32 Td.

33 Matzinger v. Three R’s Forst Products, 2005 WL 473797, at *1.

34 Cessnun v. Signer Motors, Inc., 64 Or. App. 129 (1983).
company, that “the instant case required expert testimony for resolution of the
question of liability.”*°
This Court finds that expert testimony is necessary in this matter. A jury is not
acquainted with routine practices involving brake replacement and maintenance.
Additionally, Res Ipsa Loquitur is not applicable in this matter because the
accident occurred fourteen days after Mr. Rice’s vehicle left Porter Ford’s control

and it is possible that something else could have caused the accident.*°

CONCLUSION
For the forgoing reasons, Defendant’s Motion for Summary Judgment is
DENIED. Parties are to submit an amended Scheduling Order for procuring an

expert as discussed above.

IT IS SO ORDERED.

BAA >

The Honorable Calvin L. Scott, Jr.

 

35 Mozie v. Sears Roebuck and Co., 623 A.2d 607, 613 (1993).
36 See Compl. at § 11-14.
