Summary
In Van Arsdall, the plaintiff was a passenger in a vehicle being driven by her husband; after they were in an accident with another vehicle, the plaintiff sued both her husband and the other drive.
Summary of this case from Streetie v. Progressive ClassicOpinion
C.A. No. 99C-03-010
Submitted: February 8, 2001
Decided: May 31, 2001
Upon Consideration of Plaintiff's Motion For New Trial Or, In the Alternative, For Additur GRANTED IN PART, DENIED IN PART.
Edward R. McNamara, Esq., Dover, Delaware. Attorney for Plaintiff.
Brian D. Shirey, Esq., Georgetown, Delaware. Attorney for Defendant Van Arsdall.
Collin M. Shalk, Esq., Wilmington, Delaware. Attorney for Defendant Wilk.
ORDER
Upon consideration of the plaintiffs motion for a new trial, or, in the alternative, additur, the defendants' responses, and the record of the case, it appears that:
1. A jury awarded the plaintiff, Marjorie L. Van Arsdall, a verdict of $768 against her husband, defendant James W. Van Arsdall. It returned a defense verdict for defendant Virginia Wilk. The plaintiff has now filed a motion for a new trial, or in the alternative, additur. For the reasons which follow, the motion is granted as to the verdict against Mr. Van Arsdall and denied as to the verdict for Ms. Wilk.
2. On October 31, 1997, at about 9:00 a.m., Mr. Van Arsdall was driving his vehicle from Smyrna-Clayton toward Kenton on U.S. Route 300 in dense fog. His wife was seated on the passenger side of the front seat. They had left their residence in Hartly about 6:30 — 7:00 a.m. that morning, and after going to Kentwood Estates near Dover to pick up a friend's children, to Townsend to drop off their own children, and stopping at the bank in Smyrna, were on their way back home. There was an unusually dense fog cover that morning. In the meantime, Ms. Wilk departed her house in Cheswold to go to the Mamie Warren Senior Center. The Mamie Warren Senior Center is on Route 300 a short distance to the Kenton side of the intersection of Route 15 (Mt. Friendship Road) and Route 300. Route 15 and Route 300 form a T-shaped intersection. Route 15 is the stem of the "T" and dead ends at Route 300. The Mamie Warren Senior Center is on the opposite side of Route 300 from Route 15, to the "left" of the "T" formed by the two roads. Ms. Wilk had her lights on because of the fog. After she left Cheswold she turned onto on Route 15 and came to a stop at the stop sign facing her at the intersection of Route 15 and Route 300. Her intention was to turn left onto Route 300, and then right off Route 300 into the Senior Center. According to her testimony she sat there for a few minutes while traffic on Route 300 passed by. She testified that all of the vehicles which passed while she waited had their lights on. When she thought it was clear, she pulled out to make her left turn. However, at that moment the Van Arsdall vehicle was approaching the intersection from Ms. Wilk's right. When Ms. Wilk pulled out, she pulled into the path of the oncoming Van Arsdall vehicle, which then struck her vehicle on the passenger side. As a result of the accident, Ms. Van Arsdall suffered a broken arm which required surgery.
3. Both Mr. and Ms. Van Arsdall testified that Mr. Van Arsdall had his headlights on. Both testified that Mr. Van Arsdall checked out the car that morning before they left home to make sure that everything was working properly, including the lights. In fact, Mr. Van Arsdall testified that it was his usual practice to do so each time he operated the vehicle. They both testified that the lights were on when they left the bank in Smyrna to head home and that the lights were on at the time of the accident. Ms. Wilk testified that Mr. Van Arsdall did not have his headlights on. The investigating police officer asked Mr. Van Arsdall whether he had his lights on at the time of the accident, and he said yes. A witness from a house near the intersection, however, gave testimony which was clearly damaging to the Van Arsdall's. She testified that she heard the collision and immediately went to the accident scene. She testified that the lights of the Van Arsdall vehicle were not on when she arrived at the scene. She testified that from a distance of 10 or 15 feet she watched while Mr. Van Arsdall, who was standing beside his vehicle, reached inside and turned the headlights on. Mr. Van Arsdall testified that he did not turn the headlights on and that he reached in the car to open the hood latch because he was concerned about gas leaking out of the carburetor onto the engine. The witness left the scene to go to work before the investigating police officer arrived to conduct his investigation. Ms. Wilk was charged with failing to yield the right of way to an oncoming vehicle, pled guilty and paid her fine.
4. The jury concluded that Ms. Wilk was negligent but that her negligence was not the proximate cause of the accident. It concluded that Mr. Van Arsdall was also negligent and this his negligence did proximately cause the accident. The $768 which it awarded the plaintiff against her husband corresponded to an exact amount of medical bills which Ms. Van Arsdall incurred over and above her PIP coverage.
5. The plaintiff contends that the jury's verdict was inconsistent and so grossly inadequate that it should shock the Court's sense of justice, that the jury Verdict Form was confusing in that the first sentence of the 5th question was not consistent with the second, that the verdict indicates that the jury was either confused or prejudiced, and that the finding that defendant Wilk's negligence was not a proximate cause of the accident is manifestly and palpably against the weight of the evidence.
6. Defendant Van Arsdall contends that any negligence on his part cannot be an intervening cause, that Ms. Wilk's negligence must be a proximate cause of the accident, and that the jury's determination that it was not a proximate cause is unreasonable and must be set aside. He contends that a new trial should be granted as to both him and Ms. Wilk.
7. Defendant Wilk contends that the jury's verdict as to her is consistent with the facts and the law and should not be disturbed. She further contends that the Court should grant additur as to the verdict against Mr. Van Arsdall.
8. When considering a motion for a new trial, the jury's verdict is presumed to be correct. A verdict should be set aside only when it is against the weight of the evidence, or where the amount of an award "is so grossly out of proportion to the injuries suffered as to shock the Court's conscience and sense of justice." 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).
Young v. Frase, Del. Supr., 702 A.2d 1234 (1997).
Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979).
McCloskey v. McKelvey, Del. Super., 174 A.2d 691 (1961).
9. The plaintiff first contends that the first and second sentences of paragraph five of the verdict form were confusing and inconsistent. In paragraphs one through four, the jury determined, respectively, that defendant Wilk was negligent, that her negligence was not a proximate cause of the plaintiffs injury, that defendant James Van Arsdall was negligent, and that his negligence was a proximate cause of the plaintiffs injury. Paragraph five addressed apportionment of damages between the two defendants. It read as follows:
(5) Apportion the amount of negligence among the parties that you have found to have been negligent. If you find that a party was not negligent or did not proximately cause the injury, that party must be assigned 0%. The assigned percentages must total 100%.
In response to this instruction, the jury apportioned 0% to Ms. Wilk and 100% to Mr. Van Arsdall. There is nothing at all confusing or inconsistent about the verdict form. The first sentence obviously has to be read in context with the second sentence. The jury's assignment of 0% to Ms. Wilk and 100% to Mr. Van Arsdall was completely consistent with its determination that although both were negligent, Mr. Van Arsdall's conduct alone was a proximate cause of the accident.
10. The plaintiff next contends that the jury's determination that Ms. Wilk's conduct was not a proximate cause of the accident is against the great weight of the evidence. The plaintiff argues that since the jury determined that she was negligent by pulling out in front of Mr. Van Arsdall, and since the accident would not have occurred but for her doing so, her negligence must be a proximate cause of the accident unless Mr. Van Arsdall's conduct was an efficient intervening cause. She argues that Mr. Van Arsdall's conduct cannot be an efficient intervening cause because it was reasonably foreseeable by Ms. Wilk that a vehicle may be approaching the intersection on Route 300. Mr. Van Arsdall joins in this argument and adds that his alleged negligence in failing to display his headlights could not be an intervening cause because it occurred prior to Ms. Wilk's negligence, not subsequent to it.
11. It was clearly within the jury's discretion to conclude that Mr. Van Arsdall did not have his headlights on at the time of the accident and that, given the conditions, his failure to do so was negligence. It is well-settled, as appears to be acknowledged by all three parties, that negligence and proximate cause are separate issues, and that a finding that a party is negligent does not, by itself, create any inferences as to whether that negligence is a proximate cause of the injury. It is also well-settled that the issue of proximate causation, including any issue of intervening causation, is ordinarily a question of fact for the jury. Here the negligence of Mr. Van Arsdall in not having his headlights on at a time of unusually dense fog could be viewed as a continuing act still in motion when Ms. Wilk pulled out into the intersection. In this case the plaintiff contended that Ms. Wilk was negligent in a number of ways. The jury could have concluded that she was negligent in at least one of the ways contended, but also have concluded that she could not actually see the Van Arsdall vehicle, which was traveling without lights. The evidence permitted the jury to find that Mr. Van Arsdall's failure to have his lights on, not Ms. Wilk's act of proceeding into the intersection, was the direct, proximate cause of the accident. I conclude that the jury's verdict was neither inconsistent nor against the weight of the evidence.
Wilmington Countiy Club v. Cowee, Del. Supr., 747 A.2d 1087 (2000); Duphily v. Delaware Electric Cooperative, Del. Supr., 662 A.2d 821 (1995).
Duphily at 830; McKeon v. Goldstein, Del. Supr., 164 A.2d 260 (1960).
12. Finally, the plaintiff asks for a new trial or additur with respect to the verdict against Mr. Van Arsdall. It is obvious that the jury awarded the exact amount of those unpaid medical bills which it determined to be related to the accident, but awarded zero for the injury itself. It is not surprising to the Court that a jury may have a problem giving a damages award to one spouse against the other where they testify, as they did here, that they are happily married, and there is no evidence that they have separate estates. Nonetheless, by refusing to do so, the jury clearly failed to follow the Court's instructions. The jury was instructed that if it found for Ms. Van Arsdall against a defendant, it should award her "the sum of money that in your judgment will fairly and reasonably compensate her for . . . compensation for pain and suffering that she has suffered to date . . ." It was obvious that Ms. Van Arsdall's arm was severely injured in the accident. By not including any award for pain and suffering, the jury disregarded this portion of the Court's instructions and rendered a verdict which is clearly inadequate as a matter of law. A new trial or additur is, therefore, in order.
13. In this case, additur is an appropriate remedy. In determining a reasonable additur, the Court must grant the defendant every reasonable factual inference and determine what the record justifies as an absolute minimum. The Court concludes that the evidence requires a verdict of not less than $12,500 in addition to the $768, or a total of $13,268.
Carney v. Preston, Del. Super., 683 A.2d 47 (1996).
14. A new trial on damages only against Mr. Van Arsdall will be ordered unless that defendant files a written acceptance of$ 13,268.00 within ten days of the date of this order. If the defendant accepts the additur, the jury's verdict of $768 will be stricken and an award of $13,268 will be entered on the record in Marjorie L. Van Arsdall's favor.
IT IS SO ORDERED.