CYNTHIA E. MCGRELLIS Plaintiff,
JAMES BROMWELL and JENNIFER BROMWELL, Defendants.
Submitted: March 14, 2019
Defendants James Bromwell and Jennifer Bromwell's Renewed
Motion for Directed Verdict, GRANTED.
Plaintiff, Cynthia E. McGrellis, Pro se.
Melissa L. Rhoads, Esquire, Tighe & Cottrell, P.A.,
Wilmington, Delaware, Attorney for Defendants.
R. Wallace, Judge.
a personal injury case that has been tried before a
jury. At the close of Plaintiff Cynthia E.
McGrellis's case in chief, Defendants James and Jennifer
Bromwell moved for a directed verdict on Ms. McGrellis's
sole negligence claim.The Court denied the Bromwells' motion
without prejudice with leave to renew.The jury could not
reach a unanimous decision and the Court declared a
mistrial.The Bromwells have now filed a Renewed
Motion for Directed Verdict under Superior Court Civil Rule
Factual and Procedural Background
The Parties, Their Dogs, and This Suit.
Bromwells live on Balmore Lane in the neighborhood of
Highland West. On December 31, 2016, Ms. McGrellis, an
around-the-corner neighbor, was injured while walking her
leashed dog, Riley, along the center of Balmore
Lane. That afternoon, as Ms. McGrellis and Riley
passed the Bromwells' home, Tara, a dog the Bromwells had
been fostering for a few weeks, exited the house through the
front storm door. Moments later, Ms. McGrellis fell to the
street and sustained a serious shoulder injury. Neither Ms.
McGrellis nor Riley entered upon the Bromwells' property
at any point. And no evidence suggests Tara traveled
beyond the bounds of the Bromwells'
January, 2017, Ms. McGrellis, through counsel, brought suit
against both Mr. Bromwell and Mrs. Bromwell to recover
damages for her personal injuries, alleging causes of action
sounding in strict liability under 16 Del. C. §
3053F, and negligence. By the time trial commenced, Ms.
McGrellis was proceeding pro se and had withdrawn
her § 3053F claim.
complaint, Ms. McGrellis alleged that the Bromwells'
negligent failure to secure Tara within their residence was
the proximate cause of her fall and the resulting
injuries. The Complaint states that Tara exited
the Bromwells' house and ran in the direction of Ms.
McGrellis and Riley as they were walking by on Balmore
Lane. Ms. McGrellis continued to hold onto
Riley's leash when she was "pulled by [Riley], who
was startled and trying to flee." It was this,
the Complaint says, that caused Ms. McGrellis to lose her
balance and fall in the street.
Complaint alleges that the Bromwells negligently: (i) failed
to secure Tara within their residence; (ii) failed to secure
Tara when they heard her bark and cause a commotion as Ms.
McGrellis and Riley walked near the residence; (iii) failed
to secure the main door to their residence to prevent Tara
from exiting; and (iv) failed to secure their storm door to
prevent Tara from exiting the home.In their Answer, the
Bromwells denied the Complaint's allegations and asserted
a number of defenses including, inter alia: Ms.
McGrellis failed to state a claim for relief, and Ms.
McGrellis's comparative negligence barred recovery for
The Trial Testimony of the Only Two Eyewitnesses as to How
Ms. McGrellis Was Hurt.
trial, Ms. McGrellis testified that as she and Riley walked
in the middle of the street past the Bromwells' home,
Tara "bolt[ed] out of the door like a missile and came
at [her] and [her] dog." Ms. McGrellis testified that
she fell down onto the street as soon as she saw "black
fur coming at [her]." On cross-examination, Ms.
McGrellis testified that she was still holding on to
Riley's leash when she went down, but she is unsure of
whether Riley pulled her to the ground.
Bromwell was also a trial witness. Mr. Bromwell testified
that he was inside his house with his two dogs (one of which
was Tara) when they began to bark. Mr. Bromwell said that
when he checked at the front door to see what
prompted the barking, Tara "nosed her way
outside." Mr. Bromwell testified that when he came
outside to retrieve Tara, he saw Ms. McGrellis walking Riley
in the street; Riley, he observed, "was
bucking." Mr. Bromwell testified that Tara never
made it any further than "the edge of [his front]
step" before he "bent down, grabbed her, turned
around, went back, put her inside the door, secured the door,
and then came back for Ms. McGrellis." When he
returned to check on Ms. McGrellis, Mr. Bromwell saw her
lying on the ground.
The Parties' Questions Posed to the Jury.
At the close of the case, the Court instructed the jury that
Ms. McGrellis must prove all the elements of her negligence
claim against the Bromwells by a preponderance of the
evidence. These elements were explained to the
jury as follows:
(1) That the Bromwells were negligent in securing or
controlling their dog, Tara; and
(2) That Ms. McGrellis sustained damages that were
proximately caused by the Bromwells' negligence.
jury was also instructed that the Bromwells, having pleaded
comparative negligence, must prove the following elements of
that defense by a preponderance of the
(1) That Ms. McGrellis was negligent in her failure to
maintain a proper lookout, to maintain control of her person,
or to maintain control her own dog; and
(2) That Ms. McGrellis's negligence was a cause of her
own injury and, therefore, she was contributorily negligent.
verdict form required the jury answer the following
questions, in relevant part:
(1) Were the Bromwells negligent in a manner that proximately
caused Cynthia McGrellis's alleged injuries?
(2) Was Cynthia McGrellis comparatively negligent in a manner
that proximately caused her alleged injuries?
jury was unable to reach an agreement and, as a result, the
Court declared a mistrial.
III. Standard of Review
Deciding a Renewed Motion for Directed Verdict.
for directed verdict are controlled by this Court's Civil
Rule 50(a), which reads:
If during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue,
the Court may determine the issue against the party and may
grant a motion for judgment as a matter of law. . .
as here, the Court denies a mid-trial motion, Rule 50(b)
allows the motion to be renewed post-trial. Viewing the
evidence in the light most favorable to the non-moving party,
the Court must then determine "whether the evidence and
all reasonable inferences that can be drawn therefrom could
justify a jury verdict in favor of the
Plaintiff." But the Court must be always mindful
that it is ever the Plaintiff's burden to establish a
prima facie basis for recovery as to all elements of her
be held liable in negligence, a defendant must have been
under a legal obligation-a duty-to protect the plaintiff from
the risk of harm which caused h[er]
injuries." Whether a legally cognizable duty exists
"is entirely a question of law, to be determined by
reference to the body of statutes, rules, principles and
precedents which make up the law; and it must be determined
by the court." If no duty exists, this Court "is
authorized to grant judgment as a matter of
Prima Facie Negligence Claim - Plaintiff's Burden.
behavior is ordinarily defined as the failure to meet the
standard of care that the law requires. Where a
plaintiff fails to establish a prima facie case of
negligence, a defendant is entitled to judgment as a matter
of law. A prima facie claim for negligence
requires a plaintiff to establish that: (1) the defendant
owed plaintiff a duty of care; (2) the defendant breached
that duty; (3) the defendant's breach was the proximate
cause of plaintiff's injury; and (4) the plaintiff
incurred damages as a result of the defendant's
Allowing a Dog Into One's Own Yard to Run and Bark
Violates No Recognizable Duty to Guard Those Passing on an
Adjoining Public ...