Alexander v. Cahill
| Decision Date | 02 April 2003 |
| Docket Number | No. 630,2001.,630,2001. |
| Citation | 829 A.2d 117 |
| Parties | Arlene ALEXANDER and Leon Alexander, as next friend of Darryl Alexander, Plaintiff Below, Appellant, v. Frank CAHILL and Lehane's Bus Service, Defendants Below, Appellees. |
| Court | United States State Supreme Court of Delaware |
Stephen B. Potter (argued) and Jennifer-Kate Aaronson of Potter Carmine & Leonard, Wilmington, for appellant.
Richard D. Abrams (argued) of Heckler & Frabizzio, Wilmington, for appellee Lehane's Bus Service.
Benjamin C. Wetzel, III (argued) and Natalie M. Ippolito of Bailey & Wetzel, P.A., Wilmington, for appellee Frank Cahill.
Before HOLLAND, BERGER and STEELE, Justices.
In this appeal, Appellant Darryl Alexander seeks reversal of the judgment of the Superior Court in a personal injury case and a new trial against Appellees Frank Cahill and LeHane's Bus Service. We conclude that the trial judge erred by allowing a police officer to give his lay opinion on the cause of the accident, and by admitting evidence of third-party settlements contrary to Delaware Rule of Evidence 408. Although not warranting reversal on its own, we deem it necessary to address whether a party must assert the "Choice of Evils" defense in the pleadings or in a pretrial stipulation, and voice our disapproval of the trial judge's procedure for handling objections.
On February 24, 1999, a multi-car accident occurred on Route 13 in New Castle, Delaware. As a result, Alexander, a passenger in a school bus, sustained an injury. Four defendants were involved in the accident: (1) Frank Cahill; (2) LeHane's Bus Service Inc.; (3) Knotts, Inc. and its bus driver Cormae Bash (collectively "Knotts"); and (4) Edward Bermudez and the owner of his vehicle Monaghan Rubber Company (collectively "Bermudez").
Cahill was driving northbound on Route 13, a four lane divided highway, in the right-hand lane. He noticed that a school bus (the LeHane bus) traveling on the southbound side of Route 13 had activated its yellow lights. Cahill stopped his vehicle in the right-hand lane on the northbound side of Route 13 and watched the school bus discharge the students. Two of the students crossed in front of the bus, and crossed the northbound side of Route 13. As the students reached the median separating the northbound and southbound lanes, the school bus turned off its lights and drove away. Sandra Hoke, LeHane's school bus driver, testified that she stopped at a legitimate bus stop, but not the correct stop for the two students that crossed the highway. She testified that she knew the two students had to cross the highway to get home, but that the students insisted that she stop and let them off on the wrong side of the highway so that they need not wait for the bus to turn around. Hoke testified that the students used force and intimidation to ensure her compliance. At oral argument, Alexander's counsel remarked that Hoke's testimony described the "bus from hell."
As the two students stepped off the median into the northbound lanes, an unidentified school bus passed Cahill's vehicle on the right-hand shoulder. Defendant Burmudez's white truck followed the unidentified school bus. However, Bermudez could not stop behind Cahill because he followed the school bus too closely. As a result, Bermudez pulled over to the right-hand shoulder, following the unidentified school bus, and stopped nearly evenly with Cahill's vehicle.
A third school bus, the Knotts' bus operated by Cormae Bash, was traveling behind Burmudez. Bash's bus was traveling approximately 50 to 55 miles per hour. She failed to the see traffic slowing down or the brake lights because her passengers were allegedly acting up. Bash tried to avoid the accident by driving between Cahill's vehicle and Bermudez's truck. Unfortunately, Bash's bus collided with both vehicles.
Alexander was a passenger in the Knotts school bus driven by Bash. As a direct result of the accident, he sustained serious and permanent injuries. Alexander brought negligence actions against Knotts, Bermudez, Cahill, and LeHane. On November 9, 2001, the Superior Court approved settlements with defendants Bermudez and Knotts, and Alexander executed a Joint Tortfeasor Release, releasing his claims against Bermudez and Knotts. The trial against remaining defendants LeHane and Cahill began on November 26, 2001.
During trial, Cahill's counsel cross-examined Trooper Einbrod, who appeared at the scene after the accident. Counsel asked, "it's fair to say, is it not, ... that you issued citations to Mr. Bermudez and Ms. Bash, and attributed the cause of the accident to Ms. Bash?" Trooper Einbrod responded, "yes." Alexander's attorney objected, but the trial judge denied the objection.1
Cahill's attorney also cross-examined Alexander's mother regarding Alexander's settlement with defendants Knotts and Bermudez. Cahill's attorney asked, "you and your husband have reached a settlement on behalf of your son against the Defendant[s] Knotts and Bermudez ... and have or will receive moneys for releasing liabilities against them; is that right?" Alexander's mother responded, "yes, sir."2
The trial judge's closing instructions informed the jury that two of the defendants had settled their claims with the plaintiff, but that they were not to consider the settlement in their verdict. He instructed them to determine who among all the defendants were negligent, which were the proximate cause, and then to apportion the degrees of fault based on percentages. The jury returned a verdict of $125,000 in favor of Alexander, but apportioned 98% of the liability on Knotts, 2% on Cahill, and none on LeHane or Burmudez. Alexander appealed.
Alexander raised a number of issues on appeal, four of which we discuss, and the resolution of two of which requires a new trial.
The first issue is whether the trial judge erred by allowing a police officer to give a lay opinion of the cause of the accident.
The second issue is a two part inquiry: First, did the trial judge improperly instruct the jury that two of the parties had settled their claims with Alexander; and second, if the judge correctly instructed the jury about the third-party settlements, did he nonetheless err by allowing the parties to elicit testimony from witnesses about the nature of the settlement.
The third issue requires that we address whether a civil litigant may raise Delaware's "Choice of Evils" defense at trial without having given the defense notice that he would do so either in a pleading or in the pretrial stipulation.
The fourth issue we address is whether a trial judge should resolve evidentiary objections by forcing attorneys to confer and settle them on their own in the open courtroom in the presence of the jury.
The first issue on appeal is whether the trial judge abused his discretion by allowing a police officer to give a lay opinion of the cause of the accident. Delaware Rule of Evidence 701 states:
"A lay witness may only express an opinion when the perception of the witness cannot be communicated accurately and fully without expressing it in terms of an opinion ...."4 For example, the phrase "X was drunk" is an opinion, but probably admissible because it would be difficult to articulate using facts like "X had impaired speech, poor physical coordination, and telltale breath."5
On cross-examination by Cahill's attorney, Trooper Einbrod testified:
Bash pled guilty to the citation, therefore, testimony that he did so was correctly admitted as an admission against interest. However, the Trooper's testimony that he attributed the cause of the accident to Bash was a conclusion based on his opinion as a layman without the required foundation and, therefore, inadmissible.
In Laws v. Webb,7 we concluded that a trial judge did not abuse his discretion when an officer "did not testify that Laws' improper crossing was the legal or proximate `cause' of the accident, but rather, he testified that, at the time of the accident, he merely filled in the `primary cause' box on his report with the phrase `improper crossing.'" In Laws, the officer also repeatedly emphasized to the jury that he was not qualified to determine causation, and that he was not an accident reconstruction expert.
Here, Trooper Einbrod could have testified about the position of the cars on the road, locations of skid marks and other facts he witnessed based on his own experience. He arguably could have testified that he checked the "primary cause" box on the citation he gave to Bash, appropriately qualified, although the relevance of that act may be questionable.8 He cannot testify, however, that he inferred from what he observed and heard that Bash was the "cause of the accident;" that conclusion is for the jury.9 Therefore, the trial judge abused his discretion by allowing Trooper Einbrod to testify, based on his investigation after the accident, that Bash caused the accident. While like the officer in Laws, Trooper Einbrod did not qualify as an expert and his proffered opinion, unlike in Laws, where the officer made it clear that the gratuitous reference to...
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