Opinion
C.A. No. 97C-12-050-WTQ.
Submitted: June 29, 2000.
Decided: August 8, 2000.
Letter Opinion and Order on: Plaintiffs' Motion for New Trial and Additur — MOTION DENIED; Defendant's Motion Costs — MOTION GRANTED in part .
Dear Counsel:
In instructing the jury on damages, this Court has taken three approaches, generally illustrated as follows:
1. What dollar amount of damages, if any, do you award Plaintiff on account of the personal injuries proximately caused by the Defendant's negligence?
2. What dollar amount of damage do you award Plaintiff on account of the personal injuries proximately caused by the Defendant's negligence?
3. What dollar amount of damage do you award Plaintiff on account of the personal injuries proximately caused by the Defendant's negligence? The amount of the award is up to the Jury, but an award in some amount must be made.
In this case, the Court followed the second or middle route. In refusing to follow the first route, the route most favorable to the Defendant, the Court did say in passing it thought one dollar had been shown. But the Court did not follow the third route, the route most favorable to the Plaintiffs.
I would hope the Trial Judge would be given considerable discretion in the damage instructions with regard to these varying approaches.
In some cases, it is clear that the major issue is whether any damage was suffered, such as when the whole focus is on Plaintiffs credibility. The Jury should know expressly from the Court that a zero verdict is permitted. The first route may well be appropriate in such a case.
In other cases, the "no damage" issue is more subtle, a judgment as to whether a clear trifling injury is worthy of compensation. The Jury's view is crucial in that instance and the initiative of the zero verdict choice, if it so be, should normally come from the Jury. The second seems to me to be appropriate in the typical trifling injury case.
Finally, there are cases where the Trial Judge formally rules at the instruction stage that some compensable damages is required as a matter of law. Then the third route is available as a follow-up to the ruling. See Jury charge in Sartin v. Pinkowski, Del. Super., C.A. No. 96C-02-053, Quillen, J.
The Court here does not consider itself bound to grant additur because it denied the "if any" instruction request of the defense and then indicated its view that there was one dollar of damages. The issue of whether the Plaintiff is entitled to some recovery as a matter of law is an open one as a post-trial matter, as it often is in route 2 instruction cases. Hall v. Dorsey, Del. Super., C.A. No. 96C-06-045, Quillen, J. (Nov. 5, 1998). In the case at bar, the Court did not follow the third route and did not therefore formally instruct the jury that it had to return some award. Moreover, something significant has happened since the Court and counsel discussed instructions. The Jury, without any instruction or suggestion from the Court, (i.e. no "if any" instruction), has expressed its view that no injury worthy of compensation has occurred as a result of the accident. More often than not, it is for the Jury to judge whether a claim is so minimal as to be unworthy of compensation. Id. (Slip Op. at 6).
In this case, there was evidence which would justify the conclusion that Sharon Maloney's back and neck injuries were not caused by the December 8, 1995 accident. In that event, the only injury might have been the discomfort of the immediate impact and the inconvenience of going to the hospital on the day of the accident. In my opinion, the Jury was acting within its legitimate province when the Jury determined that the damages were not worthy of compensation.
Accordingly, the Motion for a new trial and additur is DENIED. IT IS SO ORDERED.
Turning to the Defendant's Motion for costs, it seems to me that zero verdict cases raise special issues about the policy granting cost awards to the prevailing party as a matter of course. The Court should consider, under the limited discretion granted in Superior Court Civil Rule 54(d) ("unless the Court otherwise directs") and 10 Del. C. § 5101 ("Generally"), the underlying facts in these cases, the Defendant's negligence exclusively proximately caused the accident, and in all cases at least one remedial professional has testified that the Plaintiffs injuries were proximately caused by the accident. Here there was a rear-end collision. It is not always clear to me in "no damage" cases that justice lies with the prevailing party on the issue of costs. Otter v. Murray, et al, Del. Super., C.A. No. 92C-09-224, Quillen, J. (Oct. 27, 1995); Moyer v. Owens, Del. Super., C.A. No. 95C-10-101, Quillen, J. (June 4, 1997).
In this case, however, the Defendant filed a timely offer of judgment in the amount of $1,500. That offer, followed by a more favorable Defendant's verdict, seems to eliminate discretion as to any cost incurred after the making of the offer. Super. Ct. Civ. R. 68. The amount of expert fees is fixed by the Court in its discretion. 10 Del. C. § 8906.
Under the circumstances of this case, the Court will award the following costs in favor of the Defendant and against the Plaintiffs: $1,000 for the trial testimony of Dr. John B. Townsend, III, M.D., $19 for subpoena service of Philip Evans, $75 for the arbitrator's fee, and $100 for the trial de novo fee, for a total of $1,194. IT IS SO ORDERED.