Opinion
C.A. No. 02C-12-009 WCC.
Submitted: February 14, 2005.
Decided: March 31, 2005.
On Defendant's Motion Pursuant to Rule 50(b) For Judgment as a Matter of Law or In The Alternative For a New Trial Pursuant to Rule 59. DENIED.
On Plaintiff's Motion for Costs. GRANTED IN PART.
Michael Hood, Esquire, Wilmington, DE.
Stephen P. Casarino, Esquire, Wilmington, DE.
Dear Counsel:
The defendant has filed a Rule 50(b) motion seeking a reversal of the jury's verdict or in the alternative for a new trial. Under Rule 50, the Court is required to consider the evidence in the light most favorable to the plaintiff and determine whether the facts are sufficient for a reaso nable jury to find in the plaintiff's favor. Put another way, are the facts such that no reasonable juror could find in favor of the plaintiff. Under Rule 59, the trial court, while considering all of the evidence presented, may not set aside the jury's verdict unless the evidence weighs so heavily against the jury verdict that a reasonable jury could not have reached the result and to allow the decision to remain would be a miscarriage of justice. In neither case may the Court substitute its own judgment of the facts or simply reverse because it disagrees with the verdict. Under these standards, the Court finds the defend ant's motions should be denied.
Mumford v. Paris, 2003 WL 231611, *2 (Del.Super.).
Messick v. Star Enterprise, 1998 WL 110082, *4 (Del.Super.).
On the evening of December 1, 2000, the plaintiff was assaulted in the parking lot of the business establishment owned and operated by the defendant. There is really no dispute that this business operates in a relatively poor, high crime area of the county located just south of the city of Wilmington. It also appears from the testimony that this shopping center, particularly in the area of the defendant's liquor store, was an area of regular drug activity and there was significant loitering and drinking outside of the establishment. The safety concerns relating to its location are evidenced by the bulletproof encasement of the liquor store that required customers to come to a window and order alcohol which then would be retrieved by the employee and handed through an opening in the bulletproof window to the customer upon payment. In addition, the liquor store maintained a weapon for protection and it appears the defendant was previously made aware of the proliferation of illegal activity outside of its premises. The Court finds the jury could have easily questioned the credibility of the defendant's owners when they testified that they knew of very little illegal activity and when it was brought to their attention they had reacted to it either by chasing away the participants or calling the police. If the jury found this testimony not to be credible, it could equally have found that the activity was simply tolerated by the defendant for the economic benefit it received from the crowd around the store unless such activity got out of hand.
It is within this atmosphere that the plaintiff came to buy alcohol and was subsequently assaulted. While the Court questions whether the plaintiff is totally an innocent victim of this assaultive behavior, this alone does not relieve the defendant of liability. It would be folly to argue, as the defendant attempts to do, that it was "unaware" of the dangerous atmosphere outside its premises. A business owner cannot put his head in the sand (or, as in this case, lock himself behind bulletproof glass) and deny know ledge of this activity. Such a statement is simply one of convenience and is not credible. The defendant has simply made a business judgment, weighing the economic benefits of the shopping center activity versus the economic risk if an individual is harmed.
The Court agrees that Section 344 of the Restatement of Torts (2) has been adopted by the Delaware Supreme Court and establishes the standard for liability of business owners in these situations. The section states:
Jardel Co., Inc. v. Hughes, 523 A.2d 518 (Del. 1987).
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Commentary to the section further states:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
The primary argument made by the defendant is that the prior criminal activity at this business was not sufficient to find that it was reasonably foreseeable that the plaintiff would be assaulted. The Court disagrees.
First, this was not the first fight that had occurred in the defendant's parking lot, so the defendant at least had some general knowledge of the potential conduct of its patrons. As such, this made it a jury issue as to the defendant's foreseeability of the conduct. But even more determinative of this issue is the general criminal activity of drug dealing, public drunkenness and loitering that the defendant was aware of and allowed to continue. This is exactly the kind of "character" of one's business that is referenced in the commentary to the Restatement and provides a basis for liability.
In addition, the Court finds that the Delaware Supreme Court has rejected the defendant's "specific" crime argument in Jardel:
Jardel's proposed foreseeability standard — limited to specific crimes — is unrealistic. Criminal activity is not easily compartmentalized. So-called "property crimes," such as shoplifting, may turn violent if a chase ensues and, as the evidence in this case indicates, family quarrels may become violent with the risk that deadly weapons may be used. Moreover, the repetition of criminal activity, regardless of its mix, may be sufficient to place the property owners on notice of the likelihood that personal injury, not merely property loss, will result.
Id. at 525.
The defendant cannot lock itself behind bulletproof glass, arm itself with a weapon and then reasonably argue that crimes were not "foreseeable" by patrons outside their business. The jury easily could have found, based upon the evidence presented, that the defendant was aware of the criminal conduct and that the type of assaultive behavior that lead to the plaintiff's injury was clearly foreseeable by the defendant. Therefore, the Court denies the defendant's Rule 50 motion as well as the request for new trial.
The final matter is the plaintiff's request for costs. The defendant has not objected to the following costs request:
Filing Fees $175.00 Sheriff's Fees $30.00 Demand for Trial Fee $150.00 Subpoena for Fred Harris $35.00 Court Reporter Fee $370.40
Plaintiff has also requested an additional court fee, which was submitted on February 14, 2005 after the motion had been filed. The Court finds this additional cost of $225.00 is also appropriate and it will be awarded.
The real dispute here centers around the two experts presented by the plaintiff in this case. Dr. Bodenstab's deposition was read to the jury and lasted approximately an hour and a half. Consistent with the guidelines established in Warrington v. Peterson, the Court will grant a fee of $1,250.00.
2004 WL 397050 (Del.Super.).
The requested fee for Dr. Wolfe is more complex. First, he is not a medical doctor so the fees, set forth in Warrington, do not apply to his expertise. Secondly, the plaintiff has failed to submit any documentation to support the $3,000.00 requested to compensate Dr. Wolfe. As such, it is unclear whether this fee includes the costs associated with preparing the litigation report; the time necessary to prepare his testimony or is limited to his in court testimony. Simply put, if the plaintiff wants the costs relating to this expert ordered, he has an obligation to give the Court at least some information from which it can make a reasonable decision. The Court will give the plaintiff 30 days to submit an itemized billing for Dr. Wolfe's $3,000.00 fee. If nothing is provided to the Court within that time frame, the costs will be disallowed.
In summary, the following is awarded:
Filing Fee $ 175.00 Sheriff Fee $ 330.00 Demand for Trial $ 150.00 Subpoena for Fred Harris $ 35.00 Court Reporter Fee $ 370.40 Additional Court Fee $ 225.00 Dr. Bodenstab $1250.00 Dr. Wolfe ________ Total $2535.40
IT IS SO ORDERED.