Opinion
C. A. No. 06C-02-023 THG.
November 14, 2007.
William B. Wilgus, Esquire, Millsboro, DE.
Michael F. McTaggart, Esquire, Department of Justice, Carvel State Office Building, Wilmington, DE.
David C. Malatesta, Jr., Esquire, Kent McBride, P.C., Wilmington, DE.
Jeffrey A. Young, Esquire, Young and McNelis Attorneys, LLC, Dover, DE.
Dear Counsel:
This is the Court's decision as to Defendant's application that I apportion the jury award as to damages reflecting Plaintiff's percentage of negligence or alternatively strike the damages award entirely.
As the case is fresh, a full review of the evidence is not necessary.
The jury heard that Mrs. Brittingham passed several vehicles in a no-passing zone. She also passed where there is a curve, thus preventing her from seeing oncoming traffic. As a result of her conduct, multiple collisions occurred. Plaintiff was injured when she collided with the van she was following. That van made an emergency stop to avoid the collision site of Mrs. Brittingham's vehicle and Mr. Mesick's vehicle. The jury found that Plaintiff was comparatively negligent. The jury determined Plaintiff to have been 79% responsible for the accident and Mrs. Brittingham 21% responsible for the accident.
If this were only a negligence case, that would be the end of it, but Plaintiff also alleged that Mrs. Brittingham's decision and/or conduct in passing vehicles on a curve, in a no-passing zone, constituted reckless conduct. This was a fact issue that the jury decided in favor of Plaintiff. Mrs. Brittingham acknowledges that the comparative negligence of Plaintiff is trumped by the jury's determination that Mrs. Brittingham was reckless.
Mrs. Brittingham argues that based upon the jury's initial finding of — $0 — damages, and the jury's subsequent notes, it was obvious the jury did not want to award Plaintiff anything. I do not take issue with this argument. Plaintiff did not present herself in the best light during her testimony. One could reasonably infer she had an "attitude" with one or more of the attorneys and just "didn't come off very well". Nevertheless, based upon the reckless conduct verdict, Plaintiff was entitled to an award of damages to reasonable compensate for her broken leg which required surgery, a plate, screws, etc.
When the jury initially entered a — $0 — verdict, I instructed the jury to resume deliberations and determine an amount that fairly compensated Plaintiff and to not reduce this amount by any fault of Plaintiff. With reluctance, the jury did this and awarded $83,333.00. This award is reasonable in view of the injuries, recovery, and pain and suffering.
The fact that the jury may not have liked Plaintiff and not wanted to award her damages is not the dispositive question. When the jury determined Mrs. Brittingham was reckless, then Plaintiff became entitled to a fair and reasonable damage award. As noted earlier, Mrs. Brittingham acknowledges that her reckless conduct trumps the comparative negligence of Plaintiff. Therefore, no apportionment of the verdict is appropriate.
Mrs. Brittingham also argues that since the jury really did not want to give Plaintiff anything, I should enter a — $0 — verdict as reflecting the jury's true intent. That would be wrong and contrary to the instructions to the jury to decide the case objectively and not on emotion.
Finally, Mrs. Brittingham now argues that her conduct was only negligent and not reckless. Mrs. Brittingham argues I should so find as a matter of law. This was a fact question and the jury has spoken.
Objectively, the jury found Mrs. Brittingham was comparatively negligent and reckless. Objectively, the jury awarded $83,333.00 in damages. It would be a miscarriage of justice to do anything other than enter judgment in this amount, together with costs and interests, from October 2, 2007.
IT IS SO ORDERED.