Summary
discussing Legros and finding it would be "inappropriate to burden the Plaintiff with the costs Defendant seeks."
Summary of this case from Burton v. KyleOpinion
C.A. No. 00C-02-003 HDR
Submitted: October 3, 2002
Decided: October 29, 2002
Upon Plaintiff's Motion For New Trial — DENIED
Upon Defendant's Motion For Costs — DENIED
Robert B. Young, Esq. Young Young 300 S. State Street Dover, DE 19901
Jeffrey S. Friedman, Esq. Silverman McDonald 1010 N. Bancroft Parkway, Suite 22 Wilmington, DE 19805
This is a civil action arising from a collision that occurred on August 14, 1999. Defendant admitted that he caused the impact but contested the issue of proximate cause for any injury, medical expense or wage loss. The jury expressly found that Defendant's negligence did not proximately cause any injury to Plaintiff. Plaintiff has moved for a new trial. Defendant has moved for costs to be assessed under Rule 54, 68 and 10 Del. C. § 5101.
A jury verdict is presumed to be correct and just. The Court has the authority to grant a new trial if the verdict is out of proportion to the injury so as to shock the Court's conscience and sense of justice, or if the verdict is based upon passion, partiality, prejudice or mistake on the part of the jury.
Mills v. Telenczak, 345 A.2d 424 (Del. 1975).
Storey v. Castner, 314 A.2d 187 (Del. 1973); McCloskey v. McKelvey, 174 A.2d 691 (Del.Super.Ct. 1961).
All of the Plaintiff's complaints in this case were subjective. While there was expert opinion based upon those complaints, it is apparent that the jury did not find Plaintiff to be credible. Plaintiff's credibility was the central issue in this case and there was evidence that impeached her testimony. Based upon the evidence presented, a reasonable jury could have found that any injury to Plaintiff was not caused by Defendant.
Kossol v. Duffy, Del. Supr., 2000 WL 1780799, Berger, J. (Nov. 29, 2000); DeMarie v. Copio, Del. Super., C.A. No. 98C-06-028, Witham, J. (ORDER) (Aug. 28, 2001); Hayes v. Bartoli, Del. Super., C.A. No. 99C-03-299, Slights, J. (ORDER) (Feb. 27, 2001); Wood v. Reihl, Del. Super., C.A. No. 99C-05-021, Ridgely, P.J. (ORDER) (Jan. 30, 2001).
Turning to the issue of costs, Defendant seeks an award of $4,663.99. However, costs under Rule 68 are inapplicable because the Plaintiff did not recover any judgment from Defendant. An award of costs under Rule 58 is discretionary.
Hercules, Inc. v. AIU Ins. Co., Del. Supr., 2001 WL 965080 (2001); Legros v. Jewell, Del. Super., 2001 WL 660106 (2001).
As in Legros v. Jewell, I am satisfied that an assessment of costs against Plaintiff would cause "a severe financial hardship and in all probability would simply become an uncollectible assessment serving no real purpose." It is inappropriate to burden the Plaintiff with the costs Defendant seeks.
2001 WL 660106 at pp. 1-2.
Accordingly, Plaintiff's Motion For New Trial is DENIED and Defendant's Motion For Costs is DENIED.