Opinion
C.A. No. 99C-03-102 RRC
Submitted: April 27, 2001
Decided: June 29, 2001
Upon Plaintiff's Motion for New Trial. Denied.
This 29th day of June, 2001, upon consideration of the submissions of the parties, it appears to this Court that:
1. Teresa Pinkowski Norton ("Plaintiff") brought suit against Lois J. Mulligan ("Defendant") for personal injuries and damages sustained by Plaintiff in an automobile accident, which occurred on November 25, 1997.
2. The case proceeded to trial whereupon the jury found that both Plaintiff and Defendant acted negligently in causing the motor vehicle accident but that Plaintiff was more negligent than Defendant. Since Delaware follows the doctrine of comparative negligence and the jury found Plaintiff to be more negligent than Defendant, Plaintiff was not awarded any damages.
3. The facts of the case are as follows: Defendant was traveling southbound on Limestone Road (Route 7) New Castle County, Delaware. Defendant, who intended to make a left turn onto Stoney Batter Road, pulled into the left turn lane and came to a complete stop. Although Defendant apparently had a green arrow, she anticipated the green arrow would soon turn to a solid green light. Once stopped, Defendant testified that she thought she had ascertained it was safe to proceed in the turn. Defendant proceeded to cross the intersection and as she did, Defendant did not see Plaintiff's car approaching the intersection.
Defendant then entered the right lane of the northbound traffic of Route 7, and struck Plaintiff's vehicle broadside. As Plaintiff proceeded through the intersection, Plaintiff had a solid green light in her favor.
4. At trial, Plaintiff and Defendant testified along with the investigating police officer, and two witnesses, Gloria Hawkinson and Eleanor Holt. Ms. Hawkinson testified that she was driving in the left hand lane headed north on Route 7. Plaintiff was driving in the left hand lane behind Ms. Hawkinson, before Plaintiff passed Ms. Hawkinson using the right hand lane. According to Ms. Hawkinson, Plaintiff had just entered the right hand lane when Plaintiff came upon the intersection of Route 7 and Stoney Batter Road. Plaintiff had a solid green light at that time and although passing Ms. Hawkinson, Plaintiff was apparently still within the posted speed limit.
Eleanor Holt, the other witness who observed the accident, was stopped at the intersection. She testified that she saw Defendant make her left turn and that Defendant was about to complete the turn when Plaintiff's vehicle entered the intersection.
Defendant's vehicle collided with Plaintiff's vehicle, which caused approximately 53 feet of skid marks and sent Plaintiff's vehicle spinning 90 degrees. Both vehicles were rendered complete losses from this accident.
5. Plaintiff filed a Motion for a New Trial on March 22, 2001. Plaintiff asserts four grounds supporting her Motion for New Trial. First, Plaintiff claims that "[t]he Court committed an error of law by instructing the jury . . . that the plaintiff could be found negligent for violating the provisions of 21 Del. C. § 4168(a) and (b)." Plaintiff essentially claims that 21 Del. C. § 4168 was not intended to apply to a favored motorists driving on a dual highway and thus this Court's instruction to the jury that this statute did apply was improper. Plaintiff's second argument asserts that this Court erroneously instructed the jury that 21 Del. C. § 4122(1) set a duty for Plaintiff. Plaintiff asserts that this statute was also not intended to "control the conduct of a favored motorist on a dual highway with respect to the presence of a non-favored vehicle entering the highway from another roadway." Plaintiff argues this statute was intended to apply to vehicles traveling in the same direction on the same road. Thirdly, Plaintiff asserts that this Court committed an error of law in allowing a lay witness, Ms. Hawkinson, to testify that the accident was caused by Plaintiff's conduct. Plaintiff's fourth contention asserts that the jury's verdict was against the great weight of the evidence.
Plaintiff's Motion for New Trial at 1.
Plaintiff's Motion for New Trial at 1-2.
Plaintiff's Motion at 3.
6. Defendant contends that Plaintiff's first argument "misconstrues the factual context for which the charge of 21 Del. C. § 4168 was given" and that when the facts are construed correctly, 21 Del. C. § 4168 is applicable to this "very situation." Defendant also asserts that the jury was correctly instructed that Plaintiff could be negligent for a violation of 21 Del. C. § 4122(1). Defendant further contends that D.R.E. 701 specifically permits Ms. Hawkinson's testimony, as to the events she was able to perceive. Lastly, Defendant contends the verdict was supported by the weight of the evidence adduced at trial and that it is not proper for this Court to second guess the determination of negligence made by this jury.
Defendant's Response at 2.
7. When considering a motion for a new trial, the jury's verdict is presumed to be correct. When considering a motion for a new trial, the Court must determine whether the jury's verdict is against the great weight of the evidence. A jury's verdict should not be disturbed unless it is manifest that it was the result of passion, prejudice, partiality or corruption, or that it was clearly in disregard of the evidence or applicable rules of law. The verdict must be manifestly and palpably against the great weight of the evidence or for some reason, or a combination of reasons, justice would miscarry if it were allowed to stand.
Lacey v. Beck, Del. Super., 161 A.2d 579, 580 (1960).
James v. Glazer, Del. Supr., 570 A.2d 1150, 1156 (1990).
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
McCloskey v. McKelvey, Del. Super., 174 A.2d 691 (1961).
8. This Court's instruction to the jury that 21 Del. C. § 4168(a) and (b) were applicable to Plaintiff's conduct was not erroneous. The language of this statute sets forth that any person driving on a highway, which includes a through highway, has a duty to drive at a reasonable and prudent rate of speed under the circumstances and that the driver shall have "regard to the actual and potential hazards" that exist at the time the driver is driving on that highway. At the outset, this Court generally agrees with Plaintiff that "a favored driver on a dual highway with a green light in his favor has a right to assume that he could traverse the intersection safely and that cross traffic would stop in obedience to the red light."
See 21 Del. C. § 4168(a).
Storey v. Castner, Del. Supr., 314 A.2d 187, 191 (1973). Cf. Bullock v. State, Del. Supr., ___ A.2d ___ (2001) (discussing Storey v. Castner and the duty of favored drivers on through highways and reiterterating the Court's prior rule that there is "no duty to be aware of an increased risk that someone would disregard a red light just because [the favored driver] entered the intersection on a yellow light.").
Similarly this Court notes that "[a] motorist who enters an intersection with a green light in his favor may not be held to the same standard of care as the motorist who enters an uncontrolled intersection or an intersection controlled merely by a warning device." Plaintiff however, is still under a duty to act as a reasonable and prudent driver and to maintain a lookout that is proper under the circumstances.
Id. (citing Smith v. United News Company, 196 A.2d 302, 305 (1964)).
Maintaining a proper lookout includes the duty to be aware of potential and actual dangers. This Court has previously explained the rule for favored drivers on through highways. In Williams v. Chittick, this Court stated:
Unless the driver on the through highway has some warning of danger likely to occur at such intersection, the words 'appropriate reduced speed' have no significance . . . [but] [t]his does not mean that he does not have to keep such lookout as a reasonably prudent person would do in order to discover possible danger or to act carefully under existent conditions.
Williams v. Chittick, Del. Super., 139 A.2d 375, 378 (1958).
The Chittick court further noted that "[o]f course, cases may arise where under certain circumstances the driver on a favored road may be guilty of negligence contributing to the accident." The situation in the present case could have been found by the jury to be one of those "certain circumstances."
Chittick at 378.
The intersection at issue in this case was not an "uncontrolled intersection" nor was it controlled by "cautionary signals" where Plaintiff would have "a duty to proceed more warily." In making the decision to pass Ms. Hawkinson on the right hand side of the highway, the Plaintiff could have been found by the jury to have acted imprudently. In the words of Chittick, the jury may have found that Plaintiff did not act "keep such lookout as a reasonably prudent person would do in order to discover possible danger" under these circumstances. In doing so, the jury could have found that Plaintiff did not act as a reasonable and prudent driver, even though Plaintiff was the favored driver on this highway.
See State v. Vannicola, Del. Super., IN90-07-0076, Barron, J. (July 11, 1991) (Letter Op.) at 2.
Chittick at 378.
Plaintiff likewise overlooks the fact that the jury was given instructions that aid in finding Plaintiff had no duty to keep a proper lookout for another's negligence. The instruction, which was read to the jury charged as follows:
[a] favored driver on a dual highway has a right to assume that a motorist who approaches an intersection on a less-favored street will not enter thereon until he can do so with reasonable safety . . . [i]n the present case, this means that [Plaintiff], the favored driver, had no duty to slow her vehicle or take any evasive action until the Defendant's vehicle had entered or had started to enter the intersection where the collision occurred.
Trial Jury Instructions.
The jury was also given instructions that "nobody is required to anticipate someone else's negligence, . . . [that] "a driver is allowed to assume that another driver will not act negligently . . . [and that] a driver is required to act reasonably and prudently under the circumstances of the particular situation."
Trial Jury Instructions.
This Court finds that 21 Del. C. § 4168(a) and (b) were correctly given to the jury based on the potential of Plaintiff's possible negligence.
9. Second, Plaintiff asserts that this Court incorrectly instructed the jury that Plaintiff was negligent if they found Plaintiff had violated 21 Del. C. § 4122(1). This statute reads as follows.
Whenever any roadway has been divided into 2 or more clearly
marked lanes for traffic, the following rules in addition to others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
The statute by its terms does not state that it is solely applicable to vehicles headed in the same direction on the same highway. The statute simply states that when attempting a lane change, the driver must first determine that it is safe to proceed. If the driver has not ascertained that "such movement can be made with safety" and the driver proceeds to switch lanes and accident ensues, then that driver has violated the statute. Thus, it was not erroneous for this Court finds to instruct the jury accordingly.
10. Plaintiff next asserts that this Court committed an error of law in permitting a lay witness to testify as to her opinion as to why the accident occurred.
D.R.E. 701 speaks directly to this issue as it governs testimony by lay witnesses. The rule provides that a lay witness is permitted to testify if that witness "cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact." The rule additionally requires that the "opinions and inferences [of the lay witness] do not require a special knowledge, skill, experience or training."
Ms. Hawkinson testified that as Defendant began to make her left turn, Plaintiff was driving behind Ms. Hawkinson. Ms. Hawkinson also testified that in her opinion, Defendant did have time to complete her turn. Ms. Hawkinson was driving in front of, and then next to Plaintiff and obviously had an opportunity to perceive the event. An opinion of this sort does not require special skill and knowledge, experience or training. Similar to this issue, this Court in Dick v. Koutoufaris held that it was proper for a lay witness to testify as to the conditions of a parking lot, as "the witnesses would have been unable to convey their description of he parking lot without testifying in terms of inferences and opinion." The witness testified in Koutoufaris that the parking lot, where a waitress was raped, robbed and beaten after being abducted from the parking lot, was "dark," "spooky," "inadequately lit," "unsafe" and "dangerous." There, this Court held that the lay witnesses testimony fell "squarely within [D.R.E. 701's] rule" as the description of the parking lot did not require any special knowledge or skill, or experience on the part of the lay witness. The Court determined that that testimony was governed by D.R.E. 701, and was thus proper.
Dick v. Koutoufaris, Del. Super., C.A. No. 88C-NO-114, Gebelein, J. (Jan. 30, 1991) (Mem. Op.).
Id. at 7.
Id.
Id.
Ms. Hawkinson's testimony, that the "collision occurred due to Plaintiff's negligent conduct" was an opinion given by a person who was present during the collision and she observed the collision take place. Since Ms. Hawkinson was driving in almost the exact position that Plaintiff had been driving in, before Plaintiff made the lane change, Ms. Hawkinson could be capable of ascertaining whether or not Plaintiff could have had time to avoid the accident. Similar to approximating the speed at which a vehicle is traveling, and similar to the lay witnesses testimony in Koutoufaris, Ms. Hawkinson's testimony did not require special skill, knowledge, or experience and was thus a proper opinion as to which she testify. Lastly, Defendant's calling her to testify did not violate any pre-trial understanding.
Plaintiff's Motion for a New Trial at 4.
11. Plaintiff lastly asserts that the jury's verdict was against the weight of the evidence, which warrants a new trial. "A jury is free to accept or reject in whole or in part testimony offered before it, and to fix its verdict upon the testimony it accepts." It is not the function of this Court upon a review of the trial and testimony adduced therein, to second guess a jury's findings. It is the jury's province to determine, and allocate when comparative negligence is an issue, the parties' degree of fault.
Gier v. Kananen, Del. Super., No. 522, 1992, Horsey, J. (June 7, 1993) (ORDER) (citing Debernard v. Reed, Del. Supr., 277 A.2d 684, 685-686 (1971)).
In this case the jury found both parties negligent and further found Plaintiff more negligent than Defendant. The jury was instructed that Plaintiff was not required to anticipate someone else's negligence, that Plaintiff, who was a favored driver, had the right to assume that a motorist on a less favored intersection will not enter that intersection until able to do so with reasonable safety, and that Plaintiff had no duty to slow the speed of her vehicle or take any evasive action. Thus, even though Ms. Hawkinson was permitted to testify, the jury was nonetheless instructed on Plaintiff's rights as a favored driver.
Trial Jury Instructions.
As previously stated, this Court correctly applied and the jury was correctly instructed on 21 Del. C. § 4168(a) and (b). Similarly, this Court's instruction the jury that Plaintiff could be found negligent in violation of 21 Del. C. § 4122(1) was correct. The testimony of the lay witness, Ms. Hawkinson, was also properly admitted into evidence. Therefore, with this evidence before them, the jury was free to determine that Plaintiff and Defendant were both negligent and that Plaintiff's actions were more negligent than Defendant's actions. As this Court has previously held
A new trial may be ordered [only] when the jury's verdict goes against the great weight of the evidence. It is not a sufficient ground for a new trial that the verdict is merely against the preponderance of testimony, or that the court may have arrived at a different result. The factual findings of a jury will not be disturbed if there is any competent evidence upon which the verdict could reasonably be based.
Thompson v. Papastavros Associates, Del. Super., 729 A.2d 874, 877 (1998) (internal citations omitted).
12. For the foregoing reasons, Plaintiff's Motion for a New Trial is DENIED.
IT IS SO ORDERED.
cc: Prothonotary Kenneth M. Roseman, Esquire, Attorney for Plaintiff. Stephen P. Casarino, Esquire, Attorney for Defendant.