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Prince v. Ferritto, LLC

Superior Court of Delaware, Kent

December 2, 2019


          Submitted: November 25, 2019


          Jeffrey J Clark, Judge.

         On this 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:

         1. The 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. Prince.

         2. The 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.

         3. On 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 work related.

         4. 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.

         5. In 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.

         6. 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.

         7. In 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 incident.

         8. 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.

         9. Ms. 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.

         10. Two 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."[1] 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."[2] 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."[3] 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 result.'"[4]

         11. Ms. 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, ...

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