         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                  IN AND FOR NEW CASTLE COUNTY

ROBERT PATTON,                     )
                                   )
     Plaintiff/Appellant,          )
                                   )
           v.                      )     C.A. No. N13A-10-006 JAP
                                   )
DARRYL L. YANCEY                   )
                                   )
     Defendant/Appellee.           )



                         Submitted: July 14, 2014
                        Decided: September 22, 2014



                            MEMORANDUM OPINION



Appearances:

Andres Gutierrez de Cos, Esquire, Wilmington, Delaware – Attorney for
Plaintiff/Appellant

Darryl L. Yancey - Pro Se Defendant/Appellee
         On May 3, 2013, the Court of Common Pleas ordered a default judgment

against Darryl Yancey for the intentional tort of assault and battery.

Subsequently, the court held an inquisition hearing and awarded Patton zero

damages. Plaintiff appealed the zero verdict to this court. It is now ORDERED

that the judgment is AFFIRMED in part and REVERSED in part, and the case

be REMANDED.



                                                 Background

         This case involves a road rage incident between Robert Patton and Darryl

Yancey. There is evidence that the incident was precipitated by Plaintiff, but

because of the default judgment in Plaintiff’s favor, the court will consider any

proven injury to Plaintiff to be compensable.                             In any event at some point

Defendant struck Plaintiff in the head with a club known as a “tire beater.” 1

The blow caused Patton to suffer a 4 inch laceration.                                         Patton filed an

intentional tort claim in the Court of Common Pleas seeking $49,999.99 in

damages for pain and discomfort, medical expenses and lost wages. 2 Yancey

did not file an answer or otherwise respond and therefore, a default judgment

was ordered.

         Plaintiff introduced little evidence to show compensable injuries.                                       He

introduced no photographs, medical records or documentation of lost wages.

Indeed the only evidence was his testimony which can best be described as


1
   Defendant is a truck driver. There was testimony that truck drivers frequently carry tire beaters which they use to
screen the tires for possible low pressure.
2
   Compl. ¶¶ 6-13.

                                                          2
perfunctory. Plaintiff testified he suffered a laceration and that he suffered a

fractured skull.            However he did not introduce any medical testimony or

records to document his skull fracture. 3 Plaintiff also testified he was unable

to work for a period of time. Plaintiff’s work was intermittent, and there was no

evidence as to how many work opportunities Plaintiff lost because of his

injuries. The upshot of this is the only evidence upon which the trial court

could base an award was Plaintiff’s testimony that he suffered a four inch

laceration which hurt for about a month.

                                                    Analysis 4

         This court reviews the denial of a motion for a new trial for an abuse of

discretion. 5 Thus, the lower court’s decision will not be disturbed unless the

“evidence preponderates so heavily against” the decision. 6                                  Although, in one

sense it is understandable that the trial court awarded zero damages, that

award insofar as it relates to pain and suffering, is contrary to the law.

Because Plaintiff failed to introduce sufficient evidence to show lost wages and

medical expenses, the trial court’s decision not to award damages for those is

affirmed.

                  Typically after a default judgment is ordered, an inquisition

hearing is held to determine damages. 7 The preponderance of evidence is the



3
  Plaintiff’s testimony about the laceration was sufficient to show he suffered such a laceration because a lay
person can readily diagnose a laceration. It is beyond the ken of lay persons, however, to diagnose a skull fracture.
Consequently his testimony about a skull fracture, without more, is insufficient.
4
  The Defendant/Appellee, Darryl Yancey, did not file an appellant brief to this court.
5
  Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
6
  Id.
7
  CCP Civ. R. P. 55(b)(2).

                                                          3
evidentiary standard for this kind of hearing. 8 Accordingly, “[e]vidence that is

unrebutted when presented by one side . . . should . . . be considered

conclusive.” 9       Plaintiff offered substantially no evidence to support his claim

Here, it is unrebutted that plaintiff suffered a laceration on his head and

suffered pain for about a month.                       It is well settled that “where evidence

conclusively establishes the existence of an injury, however minimal, [an]

award of zero damages is against the weight of the evidence and it is an abuse

of discretion to deny a new trial.” 10 The Supreme Court stated in Maier v.

Santucci, 11 “once the existence of an injury has been established causally

related to the [tortuous conduct] . . . a verdict of at least minimal damages” is

required. 12       Despite the minimal evidence presented, Patton conclusively

established an injury, in the form of a laceration, was caused by Yancey and is

therefore entitled to at least “minimal damages.”

        The trial court’s dismissal of Plaintiff’s claims for medical expenses and

lost wages is AFFIRMED.                   Its denial of Plaintiff’s claims for compensatory

damages for his laceration is REVERSED and REMANDED.

        It is SO ORDERED, this 22nd day of September, 2014.



                                                                      __________________________
                                                                         John A. Parkins Jr.



8
   Jagger v. Schiavello, 93 A.3d 656, 659 (Del Super. Ct. 2014) (quoting Storey v. Camper, 401 A.2d 458, 465 (Del.
1979).
9
    Amalfitano, 794 A.2d at 578 (internal quotations omitted).
10
   Maier v. Santucci, 697 A.2d 747, 748 (Del. 1997).
11
   697 A.2d 747 (Del. 1997).
12
   Id. at 749.

                                                        4
