BRITTINGHAM v. DAVIS, S08C-07-013 RFS (Del.Super. 4-14-2010)

CA. No. S08C-07-013 RFS.Superior Court of Delaware, Sussex County.Submitted: April 6, 2010, April 8, 2010.
Decided: April 14, 2010.

Upon Defendant’s Motion for Costs. Granted.
Upon Plaintiff’s Motion for New Trial. Denied.

Edward C. Gill, Esquire, Georgetown, DE.

Jeffrey A. Young, Esquire, Young McNelis, Dover, DE.

RICHARD F. STOKES, Judge

Dear Counsel:

I have before me Defendant Jeffrey Davis’s Motion for Costs in regard to the above-referenced case and Plaintiff Stacie Brittingham’s Opposition to the Motion. Defendant seeks $1400 for Dr. Barrish’s trial deposition prepayment; $255.25 for the court reporter’s appearance and transcript of Dr. Barrish’s deposition; and $250 for Craig Karsnitz’s reading in of Dr. Barrish’s deposition testimony at trial. The total amount sought is $1905.25. Plaintiff opposes the motion in its entirety, asserting that Defendant’s insurer, State Farm, incurred the costs, not Defendant. Plaintiff makes this representation

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on information and belief, which does not suffice to override the fact that costs are allowed as of course to a prevailing party.[1]
For the reasons explained below, the Motion for Costs is granted.

Pursuant to Rule 54(d), costs are allowed when the prevailing party applies for said costs within ten days, as Defendant has done. Rule 54(h) provides that deposition fees for expert witnesses are recoverable if the deposition is introduced into evidence at trial, which it was in this case. Furthermore, Rule 68 provides that a plaintiff must pay costs where the defendant made a prejudgment offer that is rejected and that exceeds the judgment obtained by the plaintiff. The purpose of Rule 68 is to encourage the settlement of litigation by shifting the risk of proceeding with the lawsuit to the offeree.[2] In this case, Defendant made a pre-trial offer of judgment in the amount of $15,000, which Plaintiff rejected and which exceeded the zero recovery obtained at trial. Defendant is entitled to the recovery of his costs.

In addition to the rules pertaining to costs, the Court has discretion in determining the appropriate amount of costs due to the prevailing party.[3] Here, Defendant has

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submitted a copy of the bill for $1400 received from Dr. Barrish’s office and a copy of the invoice for $255.25 from the reporting Company. The Court finds the amounts to be reasonable for the taking of a deposition from an expert medical witness, and the motion is granted as to both. Defendant seeks to recover $250 for the time taken for Craig Karsnitz, Esquire, to read Dr. Barrish’s deposition testimony into the record at trial. The Court also finds this to be a reasonable amount for Mr. Kartsnitz’s professional time. The motion for this portion of the costs is also granted.

For these reasons, Defendant’s Motion for Costs isGRANTED.
IT IS SO ORDERED.

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Dear Counsel:

I have before me Plaintiff Stacie Brittingham’s Motion for a New Trial in regard to the above-referenced case. At trial, the jury returned a verdict of negligence on the part of both parties, assigning 55 percent fault to Plaintiff and 45 percent fault to Defendant. Plaintiff now argues that there was no evidence upon which a jury could rationally have found that she was negligent to any degree; that no reasonable jury could have found that her negligence exceeded Defendant’s; and that the verdict was inconsistent.

On a motion for a new trial, this Court will set aside a jury’s verdict only where the

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evidence weighs so heavily against it that a reasonable jury could not have returned the result.[1a] The verdict must be upheld unless it is against the great weight of the evidence.[2a] Issues of negligence are typically fact-intensive determinations that lie within the province of the jury.[3a]

If Plaintiff means to suggest that the jury was biased or otherwise unreasonable, she has not introduced any evidence to Support such a position, and the Court rejects this notion altogether. Plaintiff s argument that there was no evidence upon which to find any negligence on her part is also unavailing. Plaintiff made the same argument at trial, and I denied her motion for a directed verdict at that time. Without anything new, I deny the motion for a new trial based on the argument that there was no evidence on which a jury could find negligence on Plaintiff’s part.

The accident occurred in an unobstructed intersection where traffic is controlled by two stop signs. The evidence showed that the collision took place to the rear broadside of Plaintiff’s SUV, pushing both vehicles through the intersection, spinning Defendant’s vehicle and causing Plaintiff’s air bag to deploy. The jury is the ultimate decider of the parties’ credibility. Plaintiff was tentative and did not know or remember important details. She admitted broadsiding the rear of Defendant’s truck. Defendant’s testimony

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was unflinching, and he believed the right of way belonged to him under the circumstances.[4a] While a ticket was given, he explained it was paid only for convenience and not out of a feeling of responsibility. The jury was free to accept the defense evidence as more credible and to reject Plaintiff’s description of the event.[5a]

Further, I agree with counsel’s observation that “The Plaintiff was never able to answer adequately why, if she came to a complete stop and traveled only 30 feet, she was unable to get her vehicle stopped before crashing into the rear broadside of the Defendant’s truck.”[6a] The jury could find that Plaintiff did not keep proper lookout, control or attention while running into Defendant’s red-colored Cherokee Jeep. The intersection was unusually designed with traffic flowing from Route 9 onto the east and west bound lanes of Plantation and Beaver Dam Roads. The design itself called for cautious driving, as did the potentially hazardous conditions on the afternoon of November 10, 2006. As Plaintiff had a better vantage point, Plaintiff could be found responsible for not seeing and guarding against obvious dangers and could also be found

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to be 55 percent negligent. The jury was instructed to draw reasonable and common sense conclusions from the evidence, and I find that the Jurors did just that. Thus, Plaintiff s first two arguments have no merit.

Concerning the alleged inconsistency of the verdict, as Defendant points out, this accident could have occurred in several different ways, each of which would result in the apportionment of negligence in different amounts. The jury concluded that Plaintiff was 55 percent negligent, and, other than conclusory assertions as to what she believes the verdict should have been, Plaintiff has not shown that the jury’s determination was inconsistent with the evidence.[7a]

For all these reasons, Plaintiff s Motion for a New Trial isDENIED.
IT IS SO ORDERED.

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