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Nelson v. Fregoso

Superior Court of Delaware, Kent

November 18, 2014

ELIZABETH NELSON and CHRISTOPHER NELSON, Plaintiffs,
v.
ABILEM FREGOSO, Defendant.

Submitted: August 21, 2014

Upon Plaintiffs' Motion for New Trial, or in the Alternative, Additur.

Edward C. Gill, Esquire of the Law Office of Edward C. Gill, P.A., Georgetown, Delaware; attorney for Plaintiffs.

Brian T. McNelis, Esquire of Young & McNelis, Dover, Delaware; attorney for Defendant.

ORDER

WILLIAM L. WITHAM, JR. RESIDENT JUDGE

Before the Court is Plaintiff's motion for a new trial, which Plaintiff seeks solely as to the issue of damages. In the alternative, Plaintiff seeks additur. Defendant does not oppose a new trial on both liability and damages, but does oppose a new trial strictly on the issue of damages and also opposes Plaintiff's alternative motion for additur. The Court has carefully considered the parties' submissions and the applicable legal authority. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART and DENIED IN PART, and a new trial is ordered on both liability and damages.

BACKGROUND

Plaintiffs Elizabeth Nelson and Christopher Nelson (hereinafter "Plaintiff" or "Plaintiffs") seek to recover damages from Defendant Abilem Fregoso (hereinafter "Defendant") for injuries sustained in a motor vehicle accident that occurred on November 18, 2010. This matter proceeded to a jury trial from August 11 through August 13, 2014. Liability and damages were both contested issues.

This Court issued a jury instruction on comparative negligence, which stated in pertinent part:

Under Delaware law, a plaintiff's contributory negligence doesn't mean that the plaintiff can't recover damages from the defendant as long as the plaintiff's negligence was no greater than the defendant's negligence. Instead of preventing a recovery, Delaware law reduces the plaintiff's recovery in proportion to the plaintiff's negligence.
If you find contributory negligence was a proximate cause of the accident, you must determine the degree of that negligence, expressed as a percentage, attributable to Elizabeth Nels on. Using 100% as the total combined negligence of the parties, you must determine what percentage of negligence is attributable to Elizabeth Nelson.

The Court issued to the jury a special verdict form which the jury was instructed to use for assigning percentages to the respective negligence of Plaintiff and Defendant, if any. The verdict form included the following:

3. Apportion the amount of negligence between defendant Fregoso and plaintiff Nelson that you have found were the ...

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