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Eby v. Thompson2/3/2005
ically watched traffic pass over the crossings to determine the stability of the crossing pads and observed no movement or any evasive actions taken by drivers in reaction to the hole. It is also worth noting that the officer investigating the accident "watched traffic crossing the tracks on separate occasions, but never observed any eastbound traffic come close to the damaged portion of the railroad track." All of this information indicates that Norfolk recognized the pothole as a potential for danger, but made a reasonable decision as to its treatment. Nothing in the record indicates that this determination was unreasonable, egregious or a willful neglect of public safety. The Plaintiffs failed to demonstrate Norfolk's wanton disregard for public safety.
The employees charged with inspecting and maintaining the safety of the crossing used their best judgment in assessing the danger posed by the damage to the tracks. Their failure to predict the pothole's contribution to the accident that resulted in Mr. Eby's death and Ms. Eby's injuries does not warrant the application of punitive damages. The Plaintiffs have failed to present any evidence that Norfolk's conduct was intentional or egregious. The leading case on punitive damages requires that
here the claim of recklessness is based on an error of judgment, a form of passive negligence, the plaintiff's burden is substantial. It must be shown that the precise harm which eventuated must have been reasonably apparent but consciously ignored in the formulation of the judgment.
Norfolk's actions do not meet this standard of recklessness. For the above reasons, the Motion for Summary Judgment on the issue of punitive damages as to Norfolk is GRANTED.
Very truly yours,
Page 1 2 3 Delaware Personal Injury Attorneys
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