Courts have taken judicial notice of very general facts relating to misuse of machinery, such as the fact that mechanical devices sometimes go awry,58 and that, notwithstanding safety features, oil burners still occasionally explode.59 Courts have also taken judicial notice of the general nature of grocery carts and their operation in supermarkets,60 the noisy and odorous nature of cars and public garages,61 and that the average normal braking distance of a car travelling at 25 miles per hour is (or was in 1973) 91 feet.62 Judicial notice of the braking distance will usually require reference to a publication dealing with this subject.

Courts recognize “the existence of ordinary instincts, passions, emotions and motives which universally, in a greater or lesser degree, influence the actions and conduct of mankind.63 This does not suggest, however, that a court will take judicial notice that a particular individual acted out of a particular emotion, instinct or motive. On one occasion a court took judicial notice of human reflex action, stating that it was common knowledge that vehicle drivers who drop their cigarettes instinctively reach down to recover them to prevent burning the upholstery.64

Courts will take judicial notice of the days of the week, months of the year, the time of the setting of the sun and other things contained in almanacs.65 Courts have also taken judicial notice of general facts relating to medicine, health and illness, such as the period of human gestation,66 the frequent use of blood transfusions by hospitals in modern times,67 the frequent use without incident of general anesthesia,68 that a person can die from a large overdose of barbiturates,69 and the fact that many mentally-ill persons are of good physical health and live to be quite old.70 

The Delaware Supreme Court has taken judicial notice of facts derived from reputable scientific journals and well-accepted knowledge in the scientific community.70.1 Related thereto, one court has taken judicial notice of the properties of a drug as set forth in the Physicians Desk Reference.70.2

Courts have taken judicial notice of certain societal conditions, such as the difficulty society has in dealing with drug offenses,71 that people are seriously injured and die on the highways by individuals driving under the influence of drugs or alcohol,72 and that urban riots are accompanied by violence, destruction and a complete disregard of the law and the rights of others.73  Courts have also taken judicial notice of life expectancy table,73.1 the state of financial markets,73.2 and economic conditions affecting local real estate markets.73.3

Courts have judicially noted certain facts relating to occupations, such as the fact that merchants operate on credit,74 that the occupation of a carpenter is dependent upon the weather,75 that taxi drivers promptly report their destinations over their radiophones after picking up a fare for the benefit of the dispatcher,76 and that farmers harvest wheat before complete maturity to prevent shattering of the grain.77

In a criminal case, it is improper to use judicial notice to establish the identity of the defendant, particularly where the use of a false identity is the criminal act at issue.77.1

Courts have also noted that non-lawyers have been candidates for the office of the Attorney General of the State of Delaware78 and that the monetary reward of public officials is, in general, below that of comparable private practice or employment.79

Courts take judicial notice of the fact that alimony represents taxable income to the recipient and is deductible by the payor.79.1

In connection with issues of statutory interpretation, courts will take judicial notice of the laws and conditions existing at the time of the adoption of a statute.80

Courts also take judicial notice of the legal rate of interest81 and the Federal Reserve Discount Rate,81.1, currency exchange rates81.2 and that the date of a postmark on a letter “invariably reflects the date of mailing, or a few hours thereafter.”82

The rise of the Internet has caused parties to seek judicial notice of information contained on web sites. While courts make take judicial notice that websites make certain factual assertions, whether those factual assertions can be taken as reliable and uncontroverted will depend on the source.  For example, reports made by government websites may be deemed reliable.82.1  However, factual assertions from other websites may require further inquiry as to the reliability of the source.82.2

Finally, one court has taken judicial notice of the fact that “Santa Claus has a well waxed sleigh, eight nimble reindeer and thus, great mobility.”83

58. Pennsylvania R. Co. v. Tharp, 189 A.2d 423, 426 (Del. 1963).

59. Hunter v. Quality Homes, Inc., 68 A.2d 620, 623 (Del. Super. 1949).

60. Jackson v. Hearn Bros., Inc., 212 A.2d 726, 727 (Del. 1965).

61. Myers v. Fortunato, 110 A. 847, 849 (Del. 1920).

62. McGraw v. Corrin, 303 A.2d 641, 644 (Del. 1973).

63. Affiliated Enterprises, Inc. v. Waller, 5 A.2d 257, 261 (Del. Super. 1939).

64. Carey v. Bryan & Rollins, 117 A.2d 240, 243 (Del. Super. 1955).

65. Le Gates v. Ennis, 180 A. 325 (Del. Super. 1935); State v. Chandler, 2 Del. 553, 2 Harr. 553, 562 (Del. Super. 1837). See also Jewell v. Pennsylvania R. Co., 183 A.2d 193, 195 (Del. 1962) (court took judicial notice that on April 26, 1960, trees could not have been in full leaf); Lano v. Lano, No. CN89-7050. slip op. at 3, Conner, J. (Del. Fam. Sept. 29, 1992)(judicial notice that February 14th, 1991, was Valentine’s Day, and that February 15th and 16th fell on a weekend that year).

66. Equitable Trust Co. v. MeComb, 168 A. 203, 206 (Del. Ch. 1933).

67. Fischer v. Wilmington General Hospital, 149 A.2d 749, 752 (Del. Super. 1959).

68. Shaw v. Metzger, C.A. No. 77C-DE-101, slip op. at 2, Taylor, J. (Del. Super. Feb. 19, 1985), reh’g denied, C.A. No. 77C-DE-101, Taylor, J. (Del. Super. Feb. 22, 1985).

69. Prudential Ins. Co. v. Gutowski, 113 A.2d 579, 586 (Del. 1955).

70. State Bd. of Trustees v. Boyer, 159 A.2d 793, 795 (Del. Super. 1960).

70.1. Brzoska v. Olson, 668 A.2d 1355, 1357 n.1 (Del. 1995).

70.2. Webb v. Dickerson, C.A. No. 01c-02-269JRJ, slip op. at 9 n.25, Jurden, J. (Del. Super. Mar. 11, 2002).

71. Rash v. State, 318 A.2d 603, 604 (Del. 1974).

72. Broughton v. Warren, 281 A.2d 625, 629 (Del. Ch. 1971).

73. State v. Ayers, 260 A.2d 162, 169 (Del. 1969).

73.1. Spencer v. Goodill, C.A. No. 08C-06-183 RRC, slip op. at 9-10, Cooch, J. (Dec. 4, 2009).

73.2. Airborn Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 135 (Del. Ch. 2009); In re Lear Corp. Shareholder Litigation, 967 A.2d 640, 656 (Del. Ch. 2008); County of York Employees Retirement Plan v. Merrill Lynch & Co, Inc., C.A. No. 4066-VCN, slip op. at 20, Noble, V.C. (Del. Ch. Oct. 28, 2008).

73.3.  Reserves Development Corp. v. Wilmington Trust Co., C.A. No. 4144-CC, Chandler, C. (Del. Ch. Nov. 7, 2008).

74. Keedy v. Sterling Electric Appliance Co., 115 A. 359, 361 (Dcl. Ch. 1921).

75. Pryor v. Brickley, 5 A.2d 242, 244 (Del. Super. 1939).

76. Garner v. State, 145 A.2d 68, 73 (Del. 1958).

77. Cubbage v. Clernents, 14 A.2d 378, 379 (Del. Super. 1940).

77.1. Fawcett v. State, 697 A.2d 385, 388 (Del. 1997).

78. In re Oberly, 524 A.2d 1176, 1180 (Del. 1987).

79. Application of Young, 104 A.2d 263, 266 (Del. 1954).

79.1. A.S. v. R.S., No. CN09-01160, Newell, J. (Del. Fam. Ct. Feb. 1, 2010).

80. In re Cypress Farms Ditch, 180 A. 536, 538 (Del. Super. 1935); State v. Grier, 88 A. 579, 585 (Del. Gen. Sess. 1913).

81. See 6 Del. C. § 2301.

81.1.  Dittrick v. Chalfant, 948 A.2d 400, 408 & n.18 (Del. Ch.), aff’d mem., 935 A.2d 255 (Del. 2007); M&G Polymers USA, LLC v. Carestream Health, Inc., C.A. No. 09C-11-242 PLA, slip op. at 9, Ableman, J. (Del. Super. May 21, 2010).

81.2.  In re Transamerica Airlines, Inc., C.A. No. 1039-VCP, slip op. at 9, Parsons, V.C. (Del. Ch. July 22, 2009), aff’d mem., 991 A.2d 19 (Del. 2010).

82. Minnick v. State Farm Mut. Auto. Ins. Co.,174 A.2d 706, 712 (Del. Super. 1961).

82.1. Dittrick v. Chalfant, 948 A.2d 400, 408 & n.18 (Del. Ch.), aff’d mem., 935 A.2d 255 (Del. 2007) (court refers to website of Federal Reserve Board to determine Federal Discount Rate).

82.2.  See, e.g., Jianniney v. State, 962 A.2d 229, 232 (Del. 2008) (Mapquest may be subject to judicial notice for mapping information, but not for statement about driving time, absent evidence of general use by the public and reliability).

83. Serio v. Serio, No. CN89-8083, slip op. at 2, Crompton, J. (Del. Fam. Oct. 28, 1992).

© 2010  David L. Finger