Opinion
C.A. No. 96C-10-260.
Submitted: December 1, 1999.
Decided: April 27, 2000.
Ben T. Castle, Esquire, Young, Conaway, Stargatt Taylor, Rodney Square North, Wilmington, DE 19801. Attorney for Plaintiff Deardorff Associates, Inc.
Kathleen Loughead, Esquire, Cozen O'Connor, The Atrium, 1900 Market Street, Philadelphia, PA 19103. Attorney for Plaintiff Deardorff Associates, Inc.
David G. Culley, Esquire, Tybout, Redfearn Pell, 300 Delaware Avenue, P.O. Box 2092, Wilmington, DE 19899. Attorney for Plaintiff Harford Mutual Insurance Company.
Jeffrey Welch, Esquire, Welch White, 824 Market Street, #805, P.O. Box 25307, Wilmington, DE 19899. Attorney for Plaintiffs, Ralph Paul and Rosalind Paul.
James P. Hall, Esquire, Phillips, Goldman Spence, P.A., 1200 North Broom Street, Wilmington, DE 19801, Attorney for Third Party Defendants Ralph Paul and Rosalind Paul.
Ralph K. Durstein, III, Heckler, Frabizzio Durstein, 1300 Mellon Bank Center, 919 N. Market Street, P.O. Box 128, Wilmington, DE 19899-0128. Attorney for Plaintiff Donegal Mutual Insurance Company.
Stephen P. Casarino, Esquire, Casarino, Christman Shalk, 222 Delaware Avenue, Suite 1220, P.O. Box 1276, Wilmington, DE 19899. Attorney for Defendant and Third Party Plaintiff, Mamie A. Brown d/b/a Hair.
OPINION AND ORDER ON DEFENDANT'S MOTION FOR JUDGEMENT NOT WITHSTANDING THE VERDICT AND/OR MOTION FOR NEW TRIAL
On May 25, 1999, Defendant Mamie A. Brown filed a motion for judgment notwithstanding the verdict rendered against her and/or a new trial pursuant to Superior Court Rules 50(b) and 59(a). The trial of this matter was held from May 4, 1999 thru May 13, 1999. The briefing of that motion having been completed, that which follows is the Court's decision on the issues so presented.
NATURE OF THE PROCEEDINGS AND STATEMENT OF FACTS
This action arises from a fire which appeared to have begun in a beauty salon located in the Colony Fair Shopping Center on or about April 20, 1996. The salon as well as several adjoining businesses suffered fire, water and smoke damage as a result. The salon was owned and operated by Defendant Mamie A. Brown doing business as "Hair." Plaintiff Harford Mutual Insurance Company filed an action on December 30, 1997 against Defendant Brown seeking reimbursement of monies it paid for fire related losses as insurer of the owners of the real estate upon which the building housing the shopping center was situated and the adjacent apartment complex, and two tenants.
Colony North Apartments Company owned the real property, including the building, known as Colony Fair Shopping Center. Ralph Paul and Rosalind Paul, owned and operated Colony North Apartments Co., Ralph Paul, Inc., and Deardorff Associates, who conducted business as tenants of the Colony Fair Shopping Center.
Deardorff Associates filed a separate action on October 28, 1996 against Defendant Brown seeking to recover damages which were beyond the available insurance coverage. Defendant Brown then filed a third party action against Ralph Paul and Rosalind Paul as owner of the shopping center seeking contribution from them contending that certain alleged building code violations were responsible in whole or in part for the losses sustained. The Pauls in turn counterclaimed against Defendant Brown for losses they allegedly sustained which were beyond their available insurance coverage. The final piece of litigation arising out of the fire was filed on October 7, 1997 by Donegal Mutual Insurance Company seeking reimbursement for compensation paid to First Step Corp., Inc., doing business as The Fox Point Grille, a restaurant located in close proximity to but not a part of the Colony Fair Shopping Center. The losses sustained by the Fox Point Grille constituted business lost and food spoilage during and/or immediately following the fire. The actions were consolidated by order of this Court entered on March 2, 1998.
The Plaintiffs alleged that the fire and resulting losses were proximately Caused by the negligence of Defendant Brown, directly and/or through the negligence of her employee Lasheie Carter-Davis ("Carter-Davis"). At the time of the fire, Carter-Davis had worked for Defendant Brown approximately one year. She was responsible for cleaning up the premises, which included removal of ashtray waste, and taking out the trash along with the overall maintenance of the salon. Smoking was allowed but was restricted to the "waxing room". Carter-Davis smoked.
On the day of the fire, Carter-Davis brought several cigarettes to work and smoked at least two. Neither she or Defendant Brown, who did not smoke, recall the presence of any other smokers in the salon on the day in question. The trash can where the contents of ashtrays were emptied, was not emptied although Carter-Davis denied placing any cigarettes in that receptacle. Defendant Brown initially thought cigarettes caused the fire and that Carter-Davis was responsible because she smoked. She also indicated that she left early on the day of the fire and should not have left Carter-Davis alone in the salon. However, she later changed her mind as to who and/or what caused the fire.
Three experts, including the Assistant Fire Marshal for the State of Delaware, testified on behalf of the Plaintiff Harford regarding the cause and origin of the fire. They concluded that the fire originated in the trash can in the laundry room and that it was caused by the careless disposal of a cigarette butt which had not been extinguished. The Plaintiffs also offered a cigarette fire expert who testified that the circumstances surrounding the fire, including the time line and physical remains, were completely consistent with a fire generated by a carelessly discarded cigarette. Defendant Brown's expert testified that the fire started on the second floor or in the ceiling of the laundry room. However, other than to disagree with the conclusion reached by the Plaintiffs' experts as to causation, he did not provide any evidence as to what did in fact cause the fire and did agree with them that fires burn up and out. Significantly, evidence was introduced which showed burn marks in the shape of a "V" on the wall in the utility room near the aforementioned trash can.
At the conclusion of the trial, the jury found that the Defendant Brown was negligent in a manner proximately causing the fire. They also found that the building involved in the fire was not constructed in violation of the BOCA code entitling the Defendant to contribution from the Pauls. Damages were awarded to Harford Mutual Insurance and Deardorff Associates respectively in amounts of $907,717.00 and $123,458.81. The Pauls and Donegal were not awarded any damages. On May 25, 1999, the instant motion was filed.
No award was made in favor of these parties notwithstanding the existence of a stipulation put before the jury that Donegal had paid its insured $6,335.39, and the invoices and bills submitted by the Pauls representing the losses which they allegedly suffered in that regard.
DISCUSSION
Defendant Brown has essentially raised three arguments in support of her motion. First, she contends that the Court erred by finding that there was sufficient evidence for the jury to find that Carter-Davis was acting within the course and scope of employment while taking "smoke breaks." Further, the jury was allowed to reach conclusions which could not be reasonably inferred from the evidence presented at trial and therefore the verdict was against the great weight of the evidence. Lastly, Defendant Brown asserts that the jury's verdict was also against the great weight of the evidence because it was inherently inconsistent given the facts and positions of the parties in the case and must have been based on bias, prejudice, or some other improper consideration. Unfortunately for the Defendant Brown, these arguments are not persuasive.
In this regard, every jury verdict is presumed to be correct. The Delaware Supreme Court permits interference with jury verdicts only with great reluctance. Burns v. Coca-Cola Bottling Co., Del. Supr., 224 A.2d 255, 256 (1966). When presented with a motion for directed verdict or judgment notwithstanding the verdict, the trial judge does not weigh the evidence. McClosky v. McKelvey, Del. Supr., 174 A.2d 691, 693 (1961). Superior Court Civil Rule 50(b) requires that the Court consider the evidence in a light most favorable to the non-moving party. Parks v. Ziegler, Del. Supr., 221 A.2d 510, 511 (1996). Only then, if all facts and inferences could compel reasonable persons to reach just one conclusion, that the movant is entitled to judgment, should the Court grant such motion. Eustice v. Rupert, Del. Supr., 460 A.2d 507, 508-09 (1983). On the other hand, if the jury verdict is supported by palpable evidence, it must be upheld. Gannett Co., Inc. v. Re, Del. Supr., 496 A.2d 553, 557 (1985). Since a motion for judgment notwithstanding the verdict under Rule 50 (b) is a renewal of a motion for directed verdict made post-trial, it is subject to the same standard applied to test the latter. Keating v. Stark, Del. Super., C.A. No. IN99C-JN-175, Silverman, J. (December 12, 1994) (Op. and Order) (citingEpiscopo v. Minch, Del. Supr., 203 A.2d 273, 276 (1964)).
First, viewing the evidence in a light most favorable to the Plaintiffs, it is apparent that the verdict was not fatally flawed as Defendant Brown contends. There was testimony which was conflicting and as a result, reasonable persons could reach a different conclusion based upon that evidence. Concors Supply Co., Inc. v. Giesecke International Ltd., Del. Super., C.A. No. 83C-MR-122, Toliver, J. (April 28, 1992), Op. and Order at 2. Specifically, Carter-Davis was present on the day of the fire and was responsible for cleaning up the premises. She admitted smoking two cigarettes during breaks and was the only person who smoked remaining in the salon when it closed. Furthermore, expert testimony established that it was likely that a cigarette started the fire and to have done so, the cigarette would have to have been smoked at the close of the day. In finding that Defendant Brown was responsible for the fire, the jury apparently rejected the opinion offered by her expert in favor of that proffered by the Plaintiffs' experts.
Second, to the extent Defendant Brown argues that Carter-Davis was not acting within the scope of her employment when she smoked during breaks and that as a result, Defendant Brown should not have been found vicariously liable for the fire which occurred as a result, she is incorrect. The Delaware Supreme Court has adopted the test set forth in the Restatement (Second) of Agency § 228 (1957) for determining whether the acts of an employee are within the course and scope of employment. Coates v. Murphy, Del. Supr., 270 A.2d 527 (1970) Delaware cases have also held that where an employee combines his personal business with that of his employer, the "dual purpose" rule should be applied. Wilson v. Joma Inc., Del. Supr., 537 A.2d 187 (1988).
The criteria of the test are:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) It is of a kind he is employed to perform;
(b) It occurs substantially within the authorized time and space limits;
(c) It is actuated at least in part by a purpose to serve the master . . .
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Id. at 528.
This rule is invoked when the "[c]onduct of an employee, although done in part to serve the purposes of the servant or a third person, may be within the scope of employment if the employer's business actuates the employee to any appreciable extent. . . ." Id. at 189. In simpler terms, "[t]he mere fact that the primary motive of the servant is to benefit himself or a third person does not cause the act to be outside the scope of employment." Id. The jury was instructed in accordance with these authorities. While Carter-Davis' "smoke breaks" were for her own personal benefit, they occurred on the premises of the salon with Defendant Brown's permission. In addition, her work duties included removing trash and debris from waste receptacles and ashtrays along with the overall maintenance of the salon. Consequently, under the instructions given, there was evidence from which the jury could conclude that any failure to properly dispose of trash, including cigarette butts, occurred within the scope of her employment. In addition, there was no attack on the jury instructions in this regard. Further, the jury could have found that Defendant Brown was negligent in failing to safely maintain the premises even if Carter-Davis was not the culprit because she allowed smoking on the premises and did not take care to see that the by products of that activity were properly disposed of.
No matter how the situation is viewed, there was a reasonable basis in fact and in law upon which the jury could reasonably have premised its verdict. Defendant Brown is therefore not entitled to the entry of a judgment notwithstanding the verdict.
Alternatively, Defendant Brown argues that the Court should vacate the jury's verdict and grant a new trial. A request for a new trial serves an entirely different purpose than a motion for a judgment notwithstanding the verdict and is subject to different standards. Peters v. Gelb, Del. Supr., 314 A.2d 901 (1973); and McCloskey v. McKelvey, Del. Super., 174 A.2d 691 (1961). Superior Court Civil Rule 59 provides that a new trial may be granted for "any of the reasons for which new trials have heretofore been granted in the Superior Court." When considering such a motion, the jury's verdict, again, is presumed to be correct. Lacey v. Beck, Del. Super., 161 A.2d 579, 580 (1960). The Court must determine whether it is against the great weight of the evidence.James v. Glazer, Del. Supr., 570 A.2d 1150, 1156 (1990). In other words, barring exceptional circumstances, a new trial is granted unless, on a review of the entire record, the evidence preponderates so heavily against the verdict that a reasonable jury could not have reached the result. Storey v. Camper, Del. Supr., 401 A.2d 458, 465 (1979). A jury's verdict will also be set aside where 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. Storey v. Castner, Del. Supr., 314 A.2d 187, 193 (1973).
Given the record in this case as referenced above, it is readily apparent that the jury's verdict was not against the great weight of the evidence. Equally obvious is the absence of any evidence indicating that the verdict was the result of speculation about information not in evidence or that it it was based upon some bias or other improper consideration.
Again, experts testified that the fire was caused by an improperly discarded cigarette. Others testified about Defendant Brown's policy relative to smoking by patrons of the salon as well as Carter-Davis, generally and on the date of the fire. Indeed, Defendant Brown's initial reactions at the scene of the fire was to direct responsibility for the fire first to Carter-Davis based upon her habit of smoking at work and then to herself for leaving Carter-Davis alone to close the salon. The defense, although disagreeing with the Plaintiffs' experts as to causation, could only state where, but not how, the fire started. Consequently, the Court must conclude that the jury did not engage in speculation or reach a verdict that was contrary to the weight of the evidence.
A similar result must be reached relative to the contention that the verdict was the result of some bias, prejudice or other improper consideration. Simply put, Defendant Brown has failed to present any evidence which would substantiate this claim.
Finally, the verdict is not fatally flawed because the jury did not award damages to the Pauls or Donegal, particularly in light of the stipulation regarding the extent of those damages if the jury determined that there was negligence and proximate cause on the part of Defendant Brown. Defendant Brown does not state exactly how or why the verdict as to Donegal and Paul affects the validity of the verdict rendered against her. However, assumingarguendo that there was an inconsistency of which the Court should take cognizance, all that can be said is that the jury should have awarded a larger judgment against her, rather than less. Such an argument is not one which the Court finds an appropriate basis upon which to overturn the verdict that was in fact rendered. Defendant Brown is not, as a result, entitled to a new trial for any of the reasons advanced.
The Court does address this issue more fully in its response to Donegal's motion to alter or amend judgment filed contemporaneously with this decision.
CONCLUSION
For the foregoing reasons, the Defendant Brown's motion for a judgment notwithstanding the verdict and in the alternative, a new trial, is hereby denied.
IT IS SO ORDERED.