Summary
discussing the requirement of paying attention when approaching a curb
Summary of this case from Taylor v. United StatesOpinion
CIVIL ACTION No. 05C-03-215-JOH.
Submitted: August 16, 2007.
Decided: September 13, 2007.
Upon Motion of Plaintiffs for a New Trial — DENIED.
W. Christopher Componovo, Esquire, of Weik Nitsche Dougherty Componovo, Wilmington, Delaware, attorney for plaintiffs.
Thomas J. Gerard, Esquire, of Marshall Dennehy Warner Coleman Goggin, attorney for defendant.
MEMORANDUM OPINION
Plaintiff Esdella McFadden sued Delaware Racing Association, d/b/a Delaware Park, claiming she had slipped on a defective curb, fallen and suffered a severe elbow injury. Jacob McFadden sued for loss of consortium. On July 24, 2007, a jury found that Delaware Park was negligent but that its negligence was not a proximate cause of any injury to Esdella McFadden.
She has now moved for new trial. Her contentions are: (1) the verdict questionnaire was confusing in its sequence of questions to be answered and (2) the proximate cause question was misleading since it asked if Delaware Park's negligence was a proximate cause of her injuries and did not ask if it were a proximate cause of her fall.
The verdict form was not confusing, and it asked the jury to make its determination in the appropriate sequence. Further, the correct rule is whether a party's negligence is a proximate cause of injury. Accordingly, McFadden's motion for a new trial is denied.
Factual Background
On August 22, 2003, McFadden, who was then around 65, took her mother to Delaware Park where both intended to play the slot machines. McFadden left her mother off near the entrance and then parked her car.
Outside the entrance doors to the casino is a sidewalk area. Customers can drive up to that area either as here, to discharge passengers, or take advantage of the valet parking service. At the edge of the sidewalk area is a curb separating the street from the sidewalk. The curb is painted yellow.
After parking her car, McFadden walked back toward the entrance. She was wearing open toe sandals. She testified that she stepped over without incident a curb (not the one in issue in this case) in the parking lot. She also said she was very familiar with the entrance area as she had been to the casino "hundreds of times."
McFadden testified that her walk across the parking lot was normal. There were no distractions. She said that as she stepped up onto the curb her foot began to slide. This, she related, caused her to lose her balance and fall. She fell hard on her right side suffering a severe, multiple fracture in her elbow. She has had surgery on it, but continues to suffer pain and complications.
There were two valet parking attendants on the sidewalk near the entrance doors. One of them testified; he said the other was looking in another direction. He told the jury he saw McFadden walking across the lot. As she did so, he said, she was looking down at her pocketbook, held to her stomach and "rifling" through it. She denied she was doing that. The attendant testified McFadden tripped over the curb and had not stepped up. He went over to her right away.
McFadden remained prone on her back on the sidewalk in intense pain until put into an ambulance. While on the sidewalk, she testified that one of the valet attendants came over to her. She told the jury that this attendant pointed out to her an area of the curb which was chipped or worn more than normal. That attendant, she further related, told her that this area was what caused her to fall or where she had fallen. She claimed she was able to see it as she was being put on the stretcher. On cross-examination, it was brought out that McFadden had never mentioned this conversation during her pre-trial deposition nor to any Delaware Park employee.
The attendant who saw her trip and fall testified that neither he nor any other person he knew of said any such thing.
During her case-in-chief, McFadden introduced a picture of the curb area. There is a portion of the curb which is cracked or chipped a bit at the leading edge. The yellow paint is also significantly faded. An employee of Delaware Park who is an emergency medical technician testified. She was the first medical person to reach and start treatment on McFadden. She is seen in a video which starts after McFadden is on the ground. She testified she looked around the area where McFadden was but found nothing out of order with the sidewalk or curb. She also said it is part of her job to conduct regular inspections for potentially unsafe conditions around the Park. Any such inspection did not prompt her to report a chipped curb.
McFadden was taken to Christiana Hospital by ambulance where she was treated. A Delaware Park employee brought her back to the casino from the hospital. When she returned, she met with a Delaware risk management person. According to the records of that person (introduced as a business record), McFadden is quoted as saying that she tripped because of "these lousy shoes." There was no rebuttal testimony to this evidence.
The jury was given the standard Delaware law on landowner duties and potential liability. It was asked to answer a series of questions:
1. Do you find that defendant Delaware Park knew or should have known there was a deteriorated curb on the premises?
___ Yes Go to Question No. 2
___ No Stop and summon the bailiff
2. Do you find that defendant Delaware Park was negligent in any way claimed by plaintiff Esdelia McFadden?
___ Yes Go to Question No. 3
___ No Stop and summon the bailiff
3. Was the negligence of defendant Delaware Park a proximate cause of injury to plaintiff Esdelia McFadden?
___ Yes Go to Question No. 4
___ No Stop and summon the bailiff
4. Do you find that plaintiff Esdelia McFadden negligently contributed to her own injury?
___ Yes Go to Question No. 5
___ No Go to Question No. 6
5. Using 100% as the total negligence of the parties that combined to proximately cause injury to Esdelia McFadden, what percentage of such negligence do you attribute to her?
___ % Go to Question No. 6
6. What is the total amount of Esdelia McFadden's damages? (Do not reduce the damages by the percent of negligence, if any, attributed to Esdelia McFadden. The Court will do so.)
$ ___ Go to Question No. 7
7. What is the total amount of Jacob McFadden's damages, if any?
$ ___ Summon the bailiff
Jury Instructions by Herlihy, J., dated July 24, 2007.
The jury answered the first two questions in the affirmative: Delaware Park knew there was an unsafe curb and that Delaware Park was negligent. But the jury found that Delaware Park's negligence was not a proximate cause of McFadden's injuries. That answer, of course, was a verdict for Delaware Park.
McFadden argues the third question, the one on proximate cause, should have been asked after questions four and five. She contends all the negligence questions should have first been asked and than the one on proximate cause. Additionally, she asserts the proximate cause question should have been phrased to ask if Delaware Park's negligence was a proximate cause of her fall. In not being so phrased, she claims the question is confusing to the degree a new trial is warranted.
Applicable Standards
A jury's verdict is presumed to be correct. It will be set aside only if it is against the great weight of the evidence. A jury's factual findings should not be disturbed if there is any competent evidence on which its verdict can be based. Credibility of witnesses is a function of the jury and not the Court.
Dunn v. Riley, 864 A.2d 905, 906 (Del. 2004).
Reinco, Inc. v. Thompson, 906 A.2d 103, 110-111 (Del. 2006).
Williams v. State 539 A.2d 164, 168 (Del. 1988).
Knight v. State, 690 A.2d 929, 932 (Del. 1996).
Discussion
The jury's verdict betrays no confusion on its part. In addition to its singular role to determine credibility, it has the collateral role and ability to accept portions of a witness' testimony and reject others. It was basically uncontroverted that McFadden suffered a substantial injury. That, however, was not the issue. A s is the case in slip/trip and fall cases, the issue is liability, i.e., negligence.In this case, on the other hand, the issue was more discrete, and it boiled down to the very issue on which this case really turned, and there is competent evidence in the record to support the jury's findings. McFadden's picture of the curb area in question showed faded yellow (warning, of course) paint and an eroded or chipped curb. That area did not appear to be fresh. The jury's findings also demonstrate that it did not accept the EMT's testimony that she examined the area of McFadden's fall but saw no defects. In a sense, it determined that the defect was there to be found. An obvious conclusion is, therefore, that (1) the curb was defective and (2) Delaware Park was on notice of it. These two conclusions satisfy portions of what a business invitee must prove in order to hold a landowner liable. But a business invitee needs to prove a causal relationship in addition to these two factors. This is where McFadden's case foundered.
Wilson v. Derrickson, 175 A.2d 400, 402 (Del. 1961).
Robelen Piano Co. V. DiFonzo, 169 A.2d 240, 245 (Del. 1961).
The jury was free to reject, at its verdict manifests, her testimony that a Delaware Park employee told her on what she had slipped. It apparently rejected her testimony too, all offered for the first time at trial, that while being put on the stretcher and in excruciating pain, she glanced over at the chipped curb. The jury also had testimony that McFadden was not paying attention to where she was walking, as she is required to do, as she approached the curb.
The jury's findings most logically represent findings based on competent evidence before it that McFadden failed to prove what caused her to trip and fall. This is so because the jury never reached the issue of whether she was contributorily negligent. The curb may have been unsafe and Delaware Park knew it or should have known it, but she did not show the fall and her subsequent injuries were caused by it.
This was Delaware's Park's basis for a directed verdict at the end of McFadden's case.
McFadden argues that the proximate cause question should have used "fall" instead of "injury". First, the Court recalls she did not object during the prayer conference to the use of "injury ." Even if she did it is, in this case at least, a distinction without a difference. As noted earlier, the jury did not suffer from the confusion McFadden asserts. The question it answered, as phrased, is accurate under Delaware law.
Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991).
Her next argument is the order in which the verdict questions were posed. What that argument overlooks is the basic order of her proof set out in the instructions, as Superior Court has done for many years and in a logical fashion. She has to prove Delaware Park's negligenceand that such negligence was a proximate cause of her injuries. It is not uncommon for juries to find negligence but no proximate cause. And these really are findings that need be logically considered before the jury reaches the issue of negligence, if any, on her part.
Yet McFadden argues the issue of whether Delaware Park's negligence was a proximate cause should have been determined after the jury determined any comparative negligence on her part. This makes no sense.
Conclusion
For the reasons stated herein, plaintiffs Esdelia and Jacob McFadden's motion for new trial is DENIED.
IT IS SO ORDERED.