IN THE SUPREIVIE COURT OF THE STATE OF DELAWARE

Defendants-B elow,
Appellees.

CHERYL EMERSHAW— . §
ANDRIEUX, '§ No. 181, 2014
§
Plaintiff-Below, §
Appellant, §
- § Court Below—Superior Court
v. § of the State of Delaware
§ in and for Sussex County
JEFFREY S. BIDDLE and STATE § CA. No. 812003-009 THG
FARM MUTUAL AUTOMOBILE §
INS. C0., §
§
§
§

Submitted: February 25, 2015
Decided: March 16, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.
O R D E R
This 16th day of March 2015, it appears to the Court that:
(1) Plaintiff-Below/Appellant Cheryl Emershaw—Andrieux (“Emershaw”)
appeals from a ﬁnal judgment of the Superior Court that was entered in favor of

the Defendants-Below/Appellees Jeffrey S. Biddle (“Biddle”) and State Farm

Mutual Automobile Insurance Company (“State Farm”).
(2) In this appeal, Emershaw contends that the trial court erred when it
denied her motion for a new trial. In support of that contention, Emershaw argues

that the jury failed to follow the instructions provided by the trial court and that the

jury’s verdict was against the great weight of the evidence. We have determined
that the Superior Court properly denied Emershaw’s motion for a new trial.

(3) On June 4, 2010, Emershaw was stopped in her vehicle at a red light,
with her son in the passenger front seat, on Delaware Route 24 near Rehoboth
Beach, Delaware. While stopped behind Emershaw’s vehicle at the red light,
Eiddle’s vehicle came into contact with the rear of Emershaw’s vehicle. Biddle
contends his vehicle was pushed into Emershaw’s vehicle as a result of an
unknown/phantom vehicle hitting his vehicle from behind and pushing his vehicle
into Emershaw’s vehicle.

(4) Immediately after the accident, Emershaw and Biddle made a left turn
and pulled over to make certain no one was injured and to exchange information.
Biddle testiﬁed, at that time, he observed the driver of the phantom vehicle slow

down, shrug his shoulders, and then drive away. The phantom vehicle was never

identiﬁed.

(5) On March 8, 2012, Emershaw ﬁled a complaint in the Delaware
Superior Court against Biddle and Emershaw’s uninsured motorist carrier, State
Farm, which stands in the place of the unknown/phantom driver.

(6) At trial, Biddle testiﬁed that he was not at fault because the
unknown/phantom driver pushed his vehicle into Emershaw’s. Emershaw and her

son testiﬁed that no other vehicles were involved in the accident. However, both

Emershaw and her son testiﬁed they were looking forward and did not see the
collision as it occurred. Emershaw’s claim of injury was supported by one
physician who examined her but had not treated her.

(7) The jury found Biddle’s and the phantom vehicle’s negligence to be
zero percent each. The jury also found the amount of personal injury damages
proximately caused by the accident to be zero.

(8) Emershaw ﬁled a motion for a new trial. The trial judge denied the
motion. This is Emershaw’s appeal from that decision.

(9) The standard of review for new trial motions in the Superior Court
and in this Court was set forth in Storey v. Camper, as follows:

Thus, on weight of the evidence motions, we hold that a
trial judge is only permitted to set aside a jury verdict
when in his judgment it is at least against the great
weight of the evidence. In other words, barring
exceptional circumstances, a trial judge should not set
aside a jury verdict on such grounds unless, on a review
of all the evidence, the evidence preponderates so heavily
against the jury verdict that a reasonable jury could not
have reached the result.

We turn now to the role of this Court on appeal.
Generally, in an appeal from either the grant or denial of
a new trial, the sole question is whether the decision
constituted an abuse of discretion.

When the motion for a new trial solely on weight of the
evidence grounds is denied in a jury case, this Court on
appeal is bound by the jury verdict if it is supported by

evidence1 because Delaware Constitution, Art. IV, § 11
states that “on appeal [in civil cases] ﬁ‘om a verdict of a
jury, the ﬁndings of the jury, if supported by evidence,
shall be conclusive.”2 This Constitutional language was
added in 1960 when the appeal provision replaced the
writ of error. Its inclusion reemphasizes the prime role of
the jury as a continuing concept in Delaware
Constitutional Law.3

(10) Emershaw argues that the jury failed to follow the trial court’s
instructions because the jury found neither defendant negligent, even though the

verdict form stated the “[t]otal between Defendant Biddle and phantom vehicle

must equal 100%."

(11) The instructions to the jury included the following deﬁnition of
negligence:

Negligence is the lack of ordinary care; that is, the
absence of the kind of care a reasonably prudent and
careﬁil person would exercise in similar circumstances.
That standard is your guide. If a person’s conduct in a
given circumstance doesn’t measure up to the conduct of
an ordinarily prudent and careful person, then that person
was negligent. On the other hand, if the person’s conduct
does measure up to the conduct of a reasonably prudent
and careful person, the person was not negligent.

(12) The jury was also instructed that negligence is never presumed and
negligence “must be proved by a preponderance of the evidence before plaintiff is

entitled to recover. No presumption that the defendant or defendants were

' Storey v. Camper, 401 A.2d 453, 465 (Del. 1979) (internal citations omitted).
2 Id. citing DEL. CON. art. 1v, {5 11.

3 Id. at n.8; see also McCoo! v. Gehret, 657 A.2d 269 (Del. 1995) (reviewing the history of fact ﬁnding by juries in
Delaware).

4

negligent arises ﬁ-om the mere fact that an accident occurred.” In addition, the jury
was instructed that it was Emershaw’s burden of proving the defendants were
negligent by a preponderance of the evidence.

(13) Finally, the jury was instructed: “If two or more defendants are
negligent and their negligence combines to cause injury, you must determine their
relative degrees of fault. Using 100 percent as the total amount of the defendants
negligence, you must decide the percentage of each defendant’s negligence . . . I’ll
give you a special-verdict form for this one to allow you to make these answers.”

(14) At no time during the prayer conference was any objection raised by
Emershaw to the jury instructions proposed by the trial judge, which included
“negligence is never presumed” and a requirement that Emershaw prove her case
by a preponderance of the evidence.

(15) The record reﬂects that the jury was properly instructed that “[i]t must
not single out any one instruction alone as stating the law, but [i]t should consider

1’

all these instructions together as a whole. As a general rule, “Delaware law. . .
presumes that the jury followed the judge’s instructions.”4
(16) When the jury instructions are read as whole, it is clear that the

sentence on the Special Verdict Form “Total between Defendant Biddle and

phantom vehicle must equal 100%” is only applicable if both defendants are found

 

to be negligent. Since the jury found that neither defendant was negligent, the
sentence did not apply. Accordingly, the jury did not fail to follow the trial judge’s
instructions.

(17) Emershaw also argues that a new trial was warranted because the jury
verdict was against the great weight of the evidence. The record reﬂects that
Emershaw’s claim is without merit. Emershaw’s conclusory statement that the
jury verdict was against the great weight of evidence is unavailing. In denying
Emershaw’s motion for a new trial, the trial judge ruled that a reasonable jury
could have found that there was no negligence (an accident) and alternatively, that
the collision was not the proximate cause of Emershaw’s injuries.

(18) The only evidence presented about what happened came from Biddle.
He testiﬁed he was stopped behind Emershaw’s vehicle, was impacted in the rear,
and then pushed forward where he came into contact with her vehicle. Emershaw
and her son had no information and presented no testimony about what took place
behind Emershaw’s vehicle before they felt an impact to the rear of the vehicle.
They merely testiﬁed that there was an impact. The jury was instructed that
negligence is not preswned but must be established by Emershaw by a
preponderance of the evidence. In denying the motion for a new trial, the trial
judge determined that a reasonable jury could conclude Emershaw’s evidence “that

an accident occurred” was not sufficient to prove negligence.

(19) In denying the motion for a new trial, the trial judge noted that:
Emershaw did not provide her expert with her medical history; avoided questions
regarding her chronic back pain; and put her credibility at issue due to the fact that
she used a cane at trial but not at her medical examination. Based on these facts,
the trial judge found that a reasonable jury would discount the testimony of
Emershaw and her expert and ﬁnd the collision was not the proximate cause of her
back pain.

(20) In this case, the trial judge stated the Storey standard and then applied
it to the facts. The record reﬂects that the trial judge did not abuse his discretion
when he found that a reasonable jury could return a verdict in favor of both
defendants because Emershaw failed to meet her burden of proof as to both
negligence and damages.

NOW, THEREFORE, IT IS ORDERED that the judgments of the Superior

Court be, and the same hereby, are AFFIRlVIED.

BY THE COURT:

/s/ Randy J. Holland

Justice

