Opinion
C.A. No. 98C-06-009-WTQ.
Submitted: August 17, 2000.
Decided: August 21, 2000.
Letter Opinion and Order on Plaintiff's Motion for a New Trial MOTION GRANTED .
Dear Mr. Erhart and Mr. Casarino:
The Plaintiff raises two points in her Motion for a New Trial, neither point frivolous.
First, it is argued that, as a prerequisite to emergency vehicle statutory immunity and, as limited in this case, the gross negligence standard, the Defendant is required to show the reasonableness of the warning given by the Defendant as the emergency vehicle driver. Since it is uncontested that the Defendant used the emergency warning lights available and since there is no evidence that this emergency lighting system was other than reasonable, the Court is not inclined to the view that the Defendant loses the partial immunity embodied in the gross negligence standard in accordance with the Court's ruling in this case. The Court therefore cannot conclude that it was error not to give the requested "Reasonableness of Warning" charge.
But this issue does raise the question in my mind whether the Court should have added something to the "Gross Negligence Specifically" charge about failure to give adequate warning under the circumstances. If a reasonable drives in the Defendant's position should have been aware of the intersection, then perhaps it was incumbent to give an audible warning through the use of the horn. There perhaps should have been an additional comment in the charge to that effect, perhaps in the "Control" portion of the charge.
But, having raised the question, the Court would tend to discount it. My recollection is the horn issue was raised by Plaintiffs counsel and covered by argument and is inherently in the "attention" aspect of the standard "Control" charge. I do not believe any less than perfect handling of this question affected "the substantial rights of the parties." If there was error m this respect, the error, standing alone, comes within the confines of the much-ignored Rule 61 of the Superior Court Civil Rules.
Just as a reminder, Rule 61 reads as follows:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the Court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the Court inconsistent with substantial justice. The Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
This Rule should be the most cited Rule in the book. But it is frequently ignored by Courts at all levels; ironically the corresponding and more strict Criminal test, harmless beyond a reasonable doubt, seems to get more attention.
Second, Plaintiff raises the issue of improper argument when Defense Counsel said Plaintiffs expert gave no testimony about any gross negligence or deviation from the standard of care regarding Defendant's driving. The Defendant says the comments were proper and, if improper, cured by the Court's prompt ruling striking them. Let me respond to both points.
As to the first point on the second issue raised, I do not like to opine because I am sure Defense Counsel's remarks were not intended to go contrary to the Court's Order. But boiled down, here is what happened. While the Court did permit the police expert to voice certain opinions, the Court, in ruling on Defense Counsel's objection, prohibited the witness from giving an opinion as to whether the Defendant was grossly negligent, giving that ultimate issue to the jury. In his closing argument, Defense Counsel argued that the expert's view was not supportive of the Plaintiffs case because he did not opine Defendant was grossly negligent. Although unintentional, this was a highly significant deviation from acceptable argument in the total context, in effect, although surely not in intent, directly flaunting the ruling of the Court. Indeed, had the Plaintiffs expert witness been permitted to give his opinion on the subject, one can reasonably guess it would have been that the Defendant was in fact grossly negligent.
As to the second point on the second issue raised, it is true that the Court acted promptly because the Court was somewhat stunned by the comment in light of its prior ruling. The Court promptly and properly directed the jury to disregard the offensive remarks. But the Court's explanation to the jury certainly raises the question of how well the Court responded to the situation. The Court noted the witness was not permitted by the Court to answer questions going to gross negligence and that we did not know what the expert's answers would have been.
The Court's view on this issue was simple, at least in the Court's mind. The ultimate issue of "gross ns negligence" was one for the jury under the appropriate legal standard and the cards should not be stacked by an expert opinion. But it would be useful to the trier of fact's understanding and determination to hear from an emergency vehicle expert, one with specialized knowledge not common to the them. I contemplated that we would debate the "grossness" of the behavior before the jury on the elements of negligence brought out in the evidence, both lay and expert. Maybe that attempt to split the baby was flawed from the beginning. Perhaps it would have been better to bar the expert entirely, as the Defendant wanted, or permit the expert to testify on the ultimate issue, as Rule 704 of the Delaware Uniform Rules of Evidence permits and as the Plaintiff wanted.
In any event, the Court did not even play its own game plan well. The advice to the jury that the expert witness "did that because he wasn't permitted to by the Court" and "[w]e don't know what his answers would have been" was hardly enlightening. The jury at the least should have been told specifically on the spot that the issue of gross negligence was a factual determination for them and that in making that determination they should consider all the evidence of negligence from all the witnesses including the expert witness. In short, there was a serious deviation from the direction of the trial, as set by the Court, and it was the Court's responsibility to immediately reset the board in a manner understandable to the jury. The Court failed to adequately meet the responsibility and I cannot say the combined impact of the improper argument of counsel and the inadequate response of the Court was harmless.
The Motion for a New Trial is GRANTED. IT IS SO ORDERED.
Were I to be the Judge on retrial, I would revisit the charge as suggested in the first argument on this Motion and I would revisit the ruling as to the expert testimony as suggested in the second argument on this Motion. I therefore suggest that my successor Court should not consider itself bound by the "law of the case" in these two areas.