Opinion
C.A. No. 04C-09-183 SCD.
Submitted: February 2, 2007.
Decided: April 4, 2007.
Decision upon plaintiffs' motion for new trial, or, in the alternative, for judgment notwithstanding the verdict — DENIED.
Lawrence A. Ramunno, III, Esquire Ramunno, Ramunno Scerba, P.A., Wilmington, DE, Atorney for Plaintiff.
Nancy Chrissinger-Cobb, Esquire Chrissinger Baumberger, Wilmington, DE, Attorney for Defendant.
Dear Counsel:
This is a claim for personal injuries allegedly sustained by Franklin Mentore as a result of a slip and fall at a Popeye's Restaurant. His wife sought damages for loss of consortium. The case was tried before a jury. On October 24, 2006, after presentation of all the evidence, the jury found that Popeye's was not negligent. Plaintiffs filed a motion for a new trial claiming that the verdict was against the great weight of the evidence and that the Court erred in refusing to admit certain evidence. For the reasons set forth herein, plaintiffs' motion for a new trial is DENIED.
Standard for New Trial
A jury's verdict will be upheld unless it is against the great weight of the evidence. Great deference must be given to the jury verdict in deciding a motion for a new trial that is based upon insufficient evidence. The factual findings of a jury should not to be disturbed if there is any competent evidence upon which the verdict could reasonably be based. The jury's verdict should not be set aside unless a reasonable jury could not have reached the result.Plaintiffs' Contentions
Plaintiffs seek a new trial on the grounds that the verdict is against the weight of the "uncontradicted evidence," and that "the jury's decision must have been based on speculation or possibilities rather than on the issue of the negligence of the Defendant." Plaintiffs' argument, which is full of conclusions and factual allegations not supported by record references, claims that the uncontradicted evidence shows that there was a dangerous condition on the floor which caused Mr. Mentore to fall. Plaintiffs also claim that the uncontradicted evidence shows that the defendant should have known about the dangerous condition since the restaurant was not very large and the janitor, as well as the cashiers, were within close proximity to the dangerous condition. According to plaintiffs, the janitor, Frank, was within five feet of the spill when the accident occurred and the evidence indicated that he did nothing to warn Mr. Mentore of the dangerous condition. Therefore the plaintiffs contend that the jury's decision as to negligence must have been based on speculation or possibilities rather than on the issue of the negligence of the defendant.Plaintiffs argue that the Court improperly excluded testimony that would establish the defendant knew about the dangerous condition.
Plaintiffs also contend that the Court improperly excluded an interrogatory answer which indicated that the defendant knew about the dangerous condition because a customer had warned the restaurant staff of it before the plaintiff fell. Plaintiffs' counsel attempted to introduce an interrogatory answer that was signed and verified by an officer of defendant's corporation. Plaintiffs contend that the interrogatory answer indicated that the defendant knew, through their employees/agents, that there was a spill prior to plaintiff's accident. Plaintiffs argue that interrogatory answers are clearly admissible. Plaintiffs conclude that, "the only possible reason for the jury to find no negligence had to be the failure of notice and both the employee's statement and Defendant's Interrogatory answer 57 established notice."
Summary of Evidence
Plaintiffs presented two witnesses on the issue of liability. Mr. Mentore testified that he took his wife and children to a Popeye's restaurant for dinner. He claims that while walking from the counter to the seating area he slipped on a dark liquid near a garbage can and fell, sustaining injury. He also testified that he lost consciousness momentarily as a result of the fall.
Mr. Mentore testified that after he fell he was helped directly to the counter by his wife and another customer. He said that he asked the Popeye's staff to call for help and they ignored him. He also testified that the manager ran into an office and closed the door when he asked for help. Mr. Mentore, who did not have a cell phone, testified that he made no attempt to locate a cell phone from another customer in the restaurant to call for help. He remained in the restaurant for 45 minutes following the accident waiting for someone to help him and when he did not receive any help he drove home with his wife and three young children. He was taken to the hospital several hours later for medical attention.
Mrs. Mentore testified that she was not looking at her husband when he fell. She said that after her husband fell, the whole family laughed because everyone thought it was funny. When she realized that her husband was not getting up she, and two other customers, helped him to his feet and directly back to the table where the children were sitting. She testified that they remained in the restaurant for only a few minutes before they left and drove home. Mrs. Mentore made no mention of her husband asking for help or of the manager running into an office.
The defense presented no liability witnesses.
Standard of Proof
To prove a claim of this nature, the plaintiffs must prove by a preponderance of the evidence that Popeye's breached a duty of care; that Popeye's breach proximately caused Mr. Mentore to fall and that the he sustained injury. Plaintiffs needed to show that there was a dangerous or defective condition on the premises, that Popeye's had actual or constructive notice of it, and that Popeye's failed to take reasonable steps to correct it or warn of it. The defendant denied any negligence or liability for injury.
Russell v. K-Mart, 761 A.2d 1, 5 (Del. 2000).
Howard v. Food Fair Stores, New Castle, Inc., 201 A.2d 638 (Del. 1964).
Plaintiffs offered no evidence, other than the testimony of Mr. Mentore, that there was a liquid on the floor. He testified that he did not see a liquid on the floor before he fell and that when he fell he blacked out. There was no testimony from other family members, staff, or customers as to the existence of the alleged liquid on the floor. There was no evidence presented of a liquid, or stain, on Mr. Mentore's clothes after he fell. Plaintiffs provided no testimony of how long this liquid had allegedly been on the floor. Mr. Mentore testified that he walked by the area where he fell at least three (3) times prior to the fall without incident.
Plaintiffs also failed to offer any admissible evidence that Popeye's had notice of a liquid on the floor prior to the accident or of how long it had been there. Mr. Mentore testified that after he fell (presumably once he regained consciousness) he observed a Popeye's employee mop the area in which he had just fallen.
Plaintiffs' counsel attempted to elicit hearsay testimony through Mr. Mentore allegedly made by an employee concerning the area in which he fell. Plaintiffs' counsel argued that the testimony should come in as a party admission under D.R.E. 801(d)(2)(D). The record did not support the conclusion that the alleged statement was made by an agent or servant concerning a matter within the scope of his agency or employment. This objection is apparently moot as defendant says that the testimony was presented through Mrs. Mentore.
Plaintiffs' counsel also sought to introduce certain interrogatory answers which indicated that there was a spill in the dining room prior to the fall. The interrogatories were verified by the Comptroller of the defendant. The scope of information provided in an interrogatory answer is greater than the scope of admissible evidence. Superior Court Civil Rule 33(c) entitled Scope; use at trial states: "Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence." The interrogatory answer in question states:
57. Please state whether you or any employee received any complaint, warning or notice of any form written or verbal, of the dangerous, defective condition of the premises in general and area wherein the Plaintiff was injured in particular prior to the accident in which the Plaintiff was injured.
ANSWER: A customer indicated there was a spill in the dining room.
58. If so, for each complaint, warning or notice, either written or verbal, state:
(a) The date and time it was received;
(b) Whether it was written, oral and if oral, the substance of it:
(c) The name or other means of identification and address of the person by whom it was given;
(d) The name, address and job title of the person who received it;
(e) The nature and location of the danger or defect to which it related;
(f) Whether any action was taken as a result of it and if so, a description of the action and the time at which it was taken.
ANSWER: Immediately prior to the incident, a customer indicated there was a spill in the dining room. The floor was mopped and dried and yellow caution signs were placed in the area.
Plaintiffs' counsel argued that the answer to interrogatory 57 is an admission under D.R.E. 801(d)(2)(C) because the interrogatory answers were verified by the Comptroller of the corporation and was therefore a statement by a person authorized by the party to make a statement concerning the subject. Assuming, arguendo, that the interrogatory answer is otherwise admissible, the defendant objected to use of interrogatory 57 unless interrogatory 58 was read also. Plaintiff refused to read both, so interrogatory 57 was excluded. The rule of completeness required the exclusion of 57 without 58.
Ayers v. State, 844 A.2d 304, 311 (Del. 2004), D.R.E. 106.
Conclusion
Viewing the evidence in a light most favorable to the defendant, the jury could have found that there was no liquid on the floor or that Popeye's did not have notice of it. Mr. Mentore's testimony about the presence of the liquid was not corroborated by any other witness or evidence. His credibility was repeatedly challenged throughout the course of his testimony on issues of liability and damages. The jury may have rejected his testimony as to the cause of the fall, and simply concluded that he fell on his own.The verdict is not against the weight of the evidence. Plaintiffs' Motion for a New Trial is DENIED.
IT IS SO ORDERED.