Submitted: November 25, 2019
Jeffrey J Clark, Judge.
2nd day of December, 2019, having considered
Plaintiff Deedra Prince's motion for judgment as a matter
of law and motion for a new trial, and Defendants Ferritto,
LLC, and Synoski Real Estate Management, LLC (collectively
referred to in the singular as "Ferritto")'s
responses in opposition, it appears that:
parties tried this premises liability case before a jury from
November 12, 2019 through November 15, 2019. The jury
returned a defense verdict and found that Ferritto was not
negligent in any manner that proximately caused injury to Ms.
facts relevant to both motions are those presented at trial
when viewed in the light most favorable to the non-movant,
Ferritto. The trial centered on Ms. Prince's testimony
that her foot broke through a floor board on the porch of a
home she rented from Ferritto in June 2016. Ms. Prince had
complained to Ferritto about the poor condition of the porch
in October 2015. Thereafter, Ferritto sent a contractor to
the rental unit to inspect it. The contractor told Ferritto
that the porch was safe. Thereafter, Ms. Prince again
complained about the porch's condition in the Spring of
2016. The additional complaints did not specifically
reference the porch's deck.
May 4, 2016, a podiatric record first referenced Ms.
Prince's left ankle pain. On that date, she saw Dr.
Barton for the first time and described left ankle pain that
she had been suffering for approximately two years. She
testified that Dr. Barton told her that her complaints were
Following that visit, Ms. Prince testified that, on June 25,
2016, she stepped through one of the porch's floor boards
and injured her left foot. There were no eyewitnesses other
than Ms. Prince. She testified that she felt no pain at the
time. Rather, her pain did not start until several hours
later when she arose from bed. Ms. Prince did not notify
Ferritto that she allegedly stepped through the deck until
greater than two weeks after the alleged incident. When she
notified Ferritto of this by text, she alluded that her left
foot and ankle pains were related to work.
the early morning hours of June 26, 2016, Ms. Prince's
boyfriend drove her to the Kent General Emergency Room. Kent
General records reflected that she hurt herself when getting
out of bed. They also reflected that she denied any acute
injury. The records did not mention any trauma, much less a
porch related incident.
After the emergency room visit on June 26th, Ms.
Prince again saw Dr. Barton. Her initial visit after the
alleged incident was on July 11, 2016. The record of her
initial visit reflected that she was "unsure of the
onset" of her left foot and ankle pain. Thereafter, she
followed with him for approximately five months. Over the
next five months, Dr. Barton's records referenced nothing
about the porch incident contributing to her injury.
addition, during that period, Ms. Prince attended physical
therapy. At her first visit, she referenced the onset of her
pain being when she "stood up in the middle of the night
to use the restroom and fell to the floor in pain."
Throughout her course of therapy from August through December
2016, her records mentioned nothing about the alleged porch
After the close of the evidence and after the parties'
summations, Ms. Prince orally moved for judgment as a matter
of law pursuant to Superior Court Civil Rule 50(a)(1). She
did so as the jury began its deliberations. At that point,
the Court deferred its decision and directed her to renew it
in writing, if necessary, after the jury returned its
verdict. In the motion, she focuses solely on Ferritto's
closing argument. Namely, she argues that Ferritto's
counsel admitted negligence and that its negligence caused at
least some harm to Ms. Prince. In advancing that argument,
she focuses on a power point slide used by opposing counsel
during her closing. The slide referenced the amount of bills
that Ms. Prince claims and that $1, 313.75 of them were
related to her injury. She argues that, as a consequence of
opposing counsel's closing and her use of that slide,
judgment as a matter of law is appropriate as to (1)
Ferritto's negligence and that (2) such negligence
proximately caused her at least some injury.
Prince alternatively moves for a new trial pursuant to
Superior Court Civil Rule 59(a). In that motion, she seeks a
new trial on two bases. First, she focuses on a jury question
posed to the Court during deliberations. There, the jury
asked the Court how the Court would calculate a reduction in
damages in the comparative negligence context. In response,
with input from the parties, the Court referred the jury to
the comparative negligence instruction. Because of that
question, Ms. Prince argues that the jury must have, at that
point, already found that Ferritto was negligent. She also
argues that the jury's verdict was against the great
weight of the evidence. In that regard, she emphasizes Ms.
Prince's pre-injury texts to Ferritto complaining about
the condition of the porch.
separate standards apply to these motions. First, a motion
for judgment as a matter of law is appropriate when "a
party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to
find for the party on that issue." The Court must
view the findings in the light most favorable to the
non-moving party and determine whether a reasonable jury
could "justifiably find in favor of the non-moving
party." In contrast, when considering a motion for
a new trial, the Court must "weigh the
evidence in order to determine if the verdict is one
which a reasonably prudent jury would have
reached." The motion should be granted "only if
the jury's verdict is 'clearly the result of passion,
prejudice, partiality, or corruption,' or the evidence
'preponderates so heavily against the jury verdict that a
reasonable jury could not have reached the
Prince cites no authority in support of her motion for
judgment as a matter of law based upon opposing counsel's
comments at closing. Furthermore, even if such admissions
were binding, Ferritto's counsel did not admit what Ms.
Prince alleges. Rather, she admitted in her argument that the
bills were reasonable and necessary-not reasonable,
necessary, and related to the incident. Furthermore,
defense counsel caveated any admission she did make by
arguing that any medical bills awarded would be appropriate
only if the jury found that the incident had occurred. For
Ms. Prince's argument to prevail, Ferritto would have
also had to concede that the incident happened and that it
was negligent. Ferritto's counsel did neither. Here,
after proper instruction on the law, ...