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Kern v. Autman

Superior Court of Delaware, New Castle County

December 27, 1961

Walter KERN, Plaintiff-Appellee,
Beatrice L. AUTMAN, Defendant-Appellant.

William F. Taylor (Morford, Young & Conaway), Wilmington, for plaintiff-appellee.

Ralph F. Keil (Keil, Shaffer & Keil), Wilmington, for defendant-appellant.

LYNCH, Judge.

This case involves an automobile accident between the parties, which took place on the evening of April 28, 1961, at [54 Del. 404] about

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8:15 P.M. on the parking area of the Wilmington Merchandise Mart, a suburban shopping center, located on and along Governor Printz Boulevard, stretching between the Lea Boulevard and Edgemoor Road in suburban New Castle County, Delaware. The Merchandise Mart has an approximate total lot area somewhat in excess of 1,000,000 square feet. There are a number of stores located in the Mart area. The parking areas are painted to show individual parking spaces. There are traffic lanes, about two car lengths in width throughout the Mart, used by shoppers in going from one store to others. Evidence tended to show that in the intersections of these traffic lanes there was some kind of a marker which would denote the intersection of the traffic lanes. It does not appear how clearly these traffic lanes are marked.

There is no evidence before me which tends to show that the proprietor of the Merchandise Mart had adopted and posted any traffic rules and regulations. It would seem in light of the traffic problems that arise on the days and nights when there are many shoppers and the traffic is heavy in the parking areas, that the proprietor of the Mart would do well to consider adopting traffic rules and regulations,--perhaps in conformity with the existing State Statute--so that persons coming to shop at the Mart would have some rules or guides on how to proceed and, thus, be guided in using the traffic lanes.

Obviously, the statutory 'Rules of the Road' are not applicable, since the Mart and its parking areas are on private property. The proprietor, however, could, by posting appropriate signs, adopt the statutory traffic rules and regulations which would, thus, put into effect the ideas that underlie and are now to be found in the statutory 'Rules of the Road'.

It may be pointed out, for what it is worth, that what are now known as the statutory 'Rules of the Road', affecting the operation of vehicles and the rights and duties of operators of vehicles toward one another, are not of recent [54 Del. 405] origin, see Wilson v. Rockland Mfg. Co., 2 Harr. 67; Reynolds v. Naudain, 2 Harr. 317; and McLane v. Sharpe, et al., 2 Harr. 481. In these cases, which are more than 100 years old, no statutes were involved and yet our Court laid down Rules of the Road for guidance of such traffic as was then existent. Such 'Rules of the Road' undoubtedly grew up by custom, 60 C.J.S. Motor Vehicles § 207, then and theretofore existent,--see and compare State for the use of Thompson v. McClay, 1 Harr. 520; Tempelman v. Biddle, 1 Harr. 522; White v. Wilmington City Railway, 6 Penn. 105, 111-112, 63 A. 931 (Super.Ct.) and Wheatley v. The H & H Poultry Company, 6 Terry 502, 504-506, 75 A.2d 702 (Super.Ct.1950)--and came to be recognized for what they were.

While the statutory 'Rules of the Road' should not be applied as such, they are indicative of the manner and usage of persons operating various types of motor vehicles, dating back from the days of horse drawn vehicle to the automobile, and I cannot believe that a motorist who accommodates himself on the highway to the 'Rules of the Road', as now codified by statute, puts aside and forgets those rules when he or she leaves the public highway and proceeds into and along private ways, including those to be found in parking areas in the modern suburban shopping centers, in disregard of them.

I think it is eminently proper to assume and expect motorists driving on these parking areas to operate their motor vehicles thereon in the same manner as they would operate them along the public highways and in obedience to the statutory 'Rules of the Road'. In Gray, The Nature and Sources of the Law, Chapter IX, pp. 235-236, and compare Id. Chapter XII, at page 293, et seq. the learned author commented:

'Another part of the law in which custom plays an important part is in cases of negligence, * * *. In determining whether a man has been

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reckless or negligent in doing or not doing an act, we do not inquire whether he has taken every possible precaution. The test is whether he has acted as a [54 Del. 406] reasonable man, and this must be settled largely upon whether he has acted in accordance with general practice, that is, on custom.'

For these reasons I regard these statutory 'Rules of the Road' as evidence of the customs that should and do guide the use of and traffic or traffic lanes in shopping centers, particularly at the Merchandise Mart, and as applicable to this case.

I cannot state too strongly that I am not applying the statutory 'Rules of the Road' to the case at bar; rather I am looking to them as evidence of and expressing the customs, the manner and usages of persons operating motor vehicles as they usually drive on public highways, and how they accord their operation of motor vehicles in keeping with such 'Rules of the Road'. I am applying these statutory 'Rules of the Road' to the operation of automobiles, regardless of the ownership of the property or the nature of the right of way over which they are being operated. I do this because I believe that the relative rights and duties of motorists, based on the statutory 'Rules of the Road', can be properly applied and I ...

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