Opinion
C.A. No.: 01C-08-094-FSS.
Submitted: August 25, 2003.
Decided: September 25, 2003.
Upon Plaintiffs' Motion to Alter or Amend Judgment and in the Alternative for a New Trial — DENIED.
ORDER
On January 31, 2000, Helene Maltman slipped and fell on the sidewalk outside of the A.C. Moore store, which then was located off the Kirkwood Highway where Almart's used to be. Mrs. Maltman and her husband, Wesley, sued A.C. Moore and its landlord, Able Associates, for negligence. They alleged that Mrs. Maltman's fall was caused by Defendants' failure to clear the sidewalk of ice and to keep it clear. In particular, the Maltmans claimed that due to the way water dripped off the store's roof, dangerous ice accumulated on the sidewalk under the drip line in freezing weather. Although Mrs. Maltman undeniably fell and broke her wrist, the jury decided on August 14, 2003 that no one was liable.
The Maltmans filed a timely motion for judgment notwithstanding the verdict, or alternatively, a new trial. They challenge the pretrial proceedings and the verdict in two ways. First, they claim the court erred by excluding their safety expert's testimony. Second, they argue that the verdict was against the great weight of the evidence.
I.
In response to Defendants' motion in limine, shortly before trial the court held a hearing at which the Maltmans' safety expert testified. The court excluded the proffered testimony because it would not have been helpful to the jury. On the contrary, the court found that the expert's testimony merely restated the legal standard of care, about which the court would, and did, instruct the jury. Thus, even though the safety expert was reliable and his testimony was relevant, the testimony was inadmissible under D.R.E. 403 because it was needlessly cumulative, confusing and a waste of time. The court's bench ruling is a matter of record.
In summary, the safety expert offered reasons why Defendants' alleged failure to clear the sidewalk of ice did not meet reasonable safety standards. He concluded that Defendants' failure to address the roof's tendency to channel water onto the sidewalk was substandard maintenance, which "resulted in a dangerous condition that was a cause of Maltman's fall." The expert did not, however, go so far as to say that the roof was defective. His opinions only covered the building's maintenance.
To support his conclusions, the expert was prepared to testify about: the store's location; meteorology; and an assortment of building, maintenance and safety codes, such as the BOCA code. The testimony's upshot was that in wet, freezing weather, ice patches would form on the sidewalk in the area where Mrs. Maltman eventually fell, and Defendants were required to exercise due care to prevent ice from accumulating where customers, like Mrs. Maltman, were known to walk.
The court concluded that the expert's opinions did little or nothing more than restate Defendants' legal duty. In pertinent part, the court charged the jury:
A property owner or occupant has a duty to inspect the premises, including sidewalks and entry ramps, and keep them reasonably safe from the hazards associated with the natural accumulation of ice and snow. Although a property owner or occupant is not an insurer of the safety of its invitees, the owner or occupant must take reasonable steps to make the premises safe. The owner or occupant of the premises may relieve itself of liability, even though an invitee may be injured on the premises, by taking reasonable steps to make the area safe. The owner or occupant is entitled to await the end of the snowfall and a reasonable time thereafter to take action to make the premises safe from the hazardous condition caused by the accumulation of ice and snow. It is not enough, however, merely to warn an invitee of the hazard.
If a property owner or occupant is aware of a dangerous accumulation of ice or snow, or if it is aware of conditions on the property that make the dangerous accumulation of ice and snow in a particular location, under foreseeable circumstances likely, then the property owner or occupant has a duty to prevent the dangerous accumulation of ice or snow there. An accumulation of ice or snow is dangerous if its presence makes it more likely that an unsuspecting pedestrian walking across it will slip and fall.
The jury instruction was based on the pattern instruction on hazards of ice and snow, but it took into account the admittedly known tendency for ice patches to form in front of the store. The court's instructions were favorable to the Maltmans. The instructions made it unmistakably clear that if the jury found that Mrs. Maltman slipped on ice, Defendants were liable. The instructions all but imposed strict liability on Defendants.
DEL. P.J.I. CIV. § 15.11 (2000).
Defendants accepted the jury instructions and they did not try to shirk the heavy legal duty imposed on them. Instead, Defendants' employees clearly admitted to the jury that they knew about the roof's tendency to drip and create ice patches where Mrs. Maltman went down, under the conditions that Defendants admitted they knew existed when Mrs. Maltman was injured. Defendants openly or tacitly agreed that if the jury found that Mrs. Maltman slipped on the ice as she claimed, one, the other, or both Defendants were liable. Defendants' position simply was that Mrs. Maltman did not slip on any ice. As discussed in Section II, below, the verdict seems to reflect Defendants' view of the facts surrounding Mrs. Maltman's fall.
The Maltmans rely heavily on Ward v. Shoney's, Inc., where the court improperly excluded a plaintiff's expert. That case is not on point. First, Ward concerns D.R.E. 702. The court excluded the Maltmans' expert under D.R.E. 403.
Ward v. Shoney's, Inc., 817 A.2d 799 (Del. 2002).
Furthermore, after excluding the expert in Ward, the trial court granted summary judgment for Shoney's. Here, by contrast, after excluding the Maltmans' expert, the court itself instructed the jury along the lines of the excluded expert's opinion.
Having listened to the evidence, instructed the jury and received the verdict in this case, the court is convinced that even if the jury had heard a safety expert, retained by the Maltmans, go on about building, maintenance and safety codes, that would not have convinced the jury that Mrs. Maltman actually slipped on any ice. The verdict was less likely because the jury failed to understand Defendants' duty. Plaintiffs probably lost because they failed to prove that Mrs. Maltman fell on the ice in the first place.
II.
The Maltmans presented a plausible, circumstantial case supporting their claim that Mrs. Maltman slipped on ice in front of the store. Nevertheless, the court cannot say that the "no liability" verdict was against the great weight of the evidence. Mrs. Maltman did not testify that she saw ice or felt ice as she slipped.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979). See Id. at 464 (interpreting McCloskey v. McKelvey, 174 A.2d 691, 696 (Del.Super.Ct. 1961)) (trial judge may only set aside verdict if it exceeds bounds of reason); Philadelphia, B. W. R. Co. v. Gatta, 85 A. 721, 729 (Del. 1913) (court will not sustain verdict rendered against evidence).
She claimed that as she lay on the ground, she felt ice beneath her, through her coat and by her hand. She explained how she failed to see the ice before she fell, characterizing it as "black ice." Defendants' witnesses testified, however, that there was little or no ice in the immediate vicinity.
The court instructed the jury to apportion liability between Defendants and Mrs. Maltman. Through a note sent out during its deliberations, the jury asked the court whether it had to find anyone liable. The court gave a supplemental instruction permitting the jury to find no one liable, if the facts supported that conclusion. Eventually, that was the verdict: no liability.
The verdict's implications are reasonably clear and they are supported by substantial evidence. The jury obviously found that Defendants did not allow a dangerous accumulation of ice to remain on the sidewalk. Or, if they did, Mrs. Maltman did not slip on it. Similarly, the jury did not conclude that Mrs. Maltman failed to maintain a proper lookout as she walked across the sidewalk. The verdict's import is that Mrs. Maltman simply tripped and fell. The fall was not caused by ice or inadvertence. It simply was a fall. Sometimes, people fall and even though they are hurt, no one is to blame. Accidents happen.
No one could believe that Mrs. Maltman was faking. She fell and she suffered a serious, painful injury. Her wrist will probably never be the same. Mr. Maltman lost some of his wife's companionship and so, he also was injured by her fall. The court assumes that the jury felt bad about what happened to these people. The court certainly feels that way. Nevertheless, even if reasonable minds might differ about this case's outcome, the verdict can be seen as reflecting a principled, informed view of the evidence presented at a fair trial. Therefore, Plaintiffs are not entitled to relief from Defendants.
III.
For the foregoing reasons, Plaintiffs' motion filed August 15, 2003 is DENIED.
IT IS SO ORDERED.