Opinion
No. 05C-12-081-JRS.
June 6, 2007.
Ben T. Castle, Esquire, Young Conaway Stargatt Taylor, LLP, DE.
Roger D. Landon, Esquire, Murphy Landon, DE.
Dear Counsel:
As you know, on April 18, 2007, a jury returned a verdict in favor of the defendant in the above-captioned matter after a three-day trial. Plaintiffs, Victor Khomenko and Anya Khomenko ("plaintiffs"), have moved for a new trial based on allegedly improper comments made during defense counsel's closing argument to the jury. For the reasons that follow, the motion for new trial is DENIED. Defendant, Yakov Vasil Yevich Levitskiy ("defendant"), has moved for costs. For the reasons that follow, that motion is GRANTED.
On May 31, 2005, Mr. Khomenko was riding his bicycle home from work on the shoulder of the northbound lanes of Rt. 141 in Wilmington, Delaware. Mr. Levitskiy was also traveling on northbound Rt. 141 in an automobile he used to deliver pizzas for Domino's Pizza. A collision occurred between Mr. Khomenko's bicycle and Mr. Levitskiy's automobile which caused serious injuries to Mr. Khomenko. The plaintiffs alleged that the collision occurred as a proximate result of the defendant's negligence; the defendant alleged that he was not negligent or, if he was, then Mr. Khomenko was contributorily negligent. Needless to say, liability was hotly contested at trial.
In closing arguments, defense counsel made three references to the fact that the plaintiffs were seeking monetary compensation from the defendant. In the first instance, after reviewing evidence he contended justified a finding that Mr. Khomenko was 100% at fault for the accident, defense counsel argued:
[A]nd if that's what you determine happened, then that accident is 100% this man's fault (pointing to Mr. Khomenko), and he's not entitled to collect money from my client for that.
D.I. 32, Ex. A. at 13 (emphasis supplied).
Shortly thereafter, when discussing the burden of proof, defense counsel said:
But on the other side of the coin is the burden of proof, because when they get here, they have to prove that what they are saying happened is what happened and that they are entitled to money. They have to do that. They have to bear that burden. They can't just say, gosh, I was hurt badly, I hope somebody, you know, will give me some money. They have to actually prove that it's the other person's fault.
Id. at 15-16 (emphasis supplied).
Plaintiffs allege that these comments were intended improperly "to encourage sympathy on behalf of the individual defendant, a recent immigrant to the U.S., and to portray plaintiffs as unreasonably grasping." Plaintiffs also argue that defense counsel's comments left the jury with the impression that Mr. Levitskiy would have to pay any monetary judgment out of his own pocket even though there was ample insurance available through Domino's Pizza, for whom the defendant was working at the time of the accident. In response, defendant argues that his counsel's comments to the jury regarding plaintiffs' claims for monetary damages were entirely appropriate.
D.I. 31 at ¶ 2.
Id.
Plaintiffs also argue, albeit in a footnote, that the defense verdict is "inexplicable" given the great weight of the evidence supporting their claims of negligence. Defendant disagrees and argues that plaintiffs simply did not carry their burden of proof.
With respect to plaintiffs' arguments regarding defense counsel's comments during his closing remarks, plaintiffs acknowledge that they did not object to the comments during trial and, consequently, a plain error standard of review applies. "Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
See Culver v. Bennett, 588 A.2d 1094, 1096 (Del. 1991)("The failure to object at trial constitutes a waiver of the right to raise an issue on appeal unless the error is plain.") (citation omitted).
Id. (citation ommitted).
After carefully reviewing the trial transcript, the Court cannot conclude that defense counsel's remarks were so prejudicial as to undermine the fairness of the trial. The jury was well aware of the fact that plaintiffs were seeking monetary compensation for their injuries. The jury was also well aware of the fact that the plaintiffs sought to hold the defendant responsible for their damages. Consistent with Delaware practice, the presence of insurance was not mentioned. Plaintiffs elected not to sue Domino's Pizza on the theory of respondeats superior. Thus, in the jury's eyes, Mr. Levitskiy necessarily was the only party to be held accountable for the plaintiffs' damages. And, while defense counsel's comments were moving in the direction of improperly diminishing the plaintiffs' legitimate claims for compensation (assuming negligence), the comments did not cross that line, and certainly did not undermine the fairness of the trial process. Plaintiffs' motion for new trial on this basis must be DENIED.
See Pinkett v. Brittingham, 567 A.2d 858, 861-62 (Del. 1989).
With respect to plaintiffs' argument that the verdict was against the weight of the evidence, the Court again must disagree. The defendant offered evidence from which a reasonable jury could conclude that Mr. Levitskiy was safely traveling north bound on Rt. 141 when Mr. Khomenko suddenly, and without warning, brought his bicycle from the shoulder into Mr. Levitskiy's lane of travel. The Court cannot and will not substitute its own impressions of the evidence, or conclusions from the evidence, for those of the jury. The applicable standard of review on a motion for new trial allows the Court to set aside a jury verdict only if the verdict "shocks the court's conscience and sense of justice." The Court's conscience is not shocked by the jury's verdict in this case.
See Storey v. Castner, 314 A.2d 187, 193 (Del. 1973)("A verdict will not be set aside simply because it is excessive in the mind of the Court . . .").
id.
The defendant has sought a total of $1,125.00 in prevailing-party costs, which amount includes an expert witness fee and court costs. The plaintiffs have not filed an opposition to the motion. Accordingly, pursuant to the Court's Civil Case Management Plan the motion is deemed unopposed. In any event, the Court is satisfied that the costs are reasonable and recoverable. Accordingly, defendant's Motion for Costs is GRANTED — he is awarded $1,125.00 as recoverable prevailing-party costs pursuant to 10 Del. C. §§ 5101, 8906 and Superior Court Civil Rule 54(d).
IT IS SO ORDERED.