Laws v. Webb

• Citation: 658 A.2d 1000
• Decision Date: 11 April 1995
• Docket Number: 1994,No. 211,211
• Parties: Diane C. LAWS, Plaintiff Below, Appellant, v. Barbara J. WEBB, Defendant Below, Appellee. * . . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1000

658 A.2d 1000

Diane C. LAWS, Plaintiff Below, Appellant, v. Barbara J. WEBB, Defendant Below, Appellee.

No. 211, 1994 ^*.

Supreme Court of Delaware.

Submitted: April 11, 1995.

Decided: May 12, 1995.

Appeal from Superior Court. Affirmed.

I. Barry Guerke, Parkowski, Noble & Guerke, P.A., Dover, for appellant Diane C. Laws.

James W. Semple, Morris, James, Hitchens & Williams, Wilmington, for appellee Barbara J. Webb.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ., constituting the Court en banc.

WALSH, Justice:

In this appeal from the Superior Court, we address, inter alia, whether the common law doctrine of last clear chance was abrogated by the legislative adoption of comparative negligence in Delaware. We conclude that the doctrine of last clear chance, both in theory and application, is incompatible with the principles of comparative fault which underlie the Delaware statute (10 Del.C. § 8132). Accordingly, we affirm the Superior Court's refusal to instruct the jury on the effect of last clear chance. Additionally, we have concluded that the Superior Court ruled correctly regarding the admissibility of the plaintiff-appellant's alcohol consumption and the investigating officer's statements regarding accident causation. Although we find that the trial court erred in permitting the investigating officer to testify concerning the non-issuance of a traffic citation, we find such error harmless under the facts of this case. Accordingly, we affirm the judgment of the Superior Court.

I

The Superior Court proceedings arose from a motor vehicle-pedestrian accident which occurred on South Market Street in Wilmington on November 10, 1988. At approximately 7:30 p.m. on that date, the defendant-appellee, Barbara Webb ("Webb"), was driving southbound on South Market Street after picking up her father at the Wilmington train station. At the point of the accident, South Market Street is a one way street with four lanes. Webb testified that she was driving in the second lane from the right at approximately thirty miles per hour. The street was wet because of an earlier rain, but visibility was aided by street lights and signs from adjacent businesses.

Webb testified that, after emerging from a curve in the street, she saw someone, later identified as the plaintiff-appellant Diane Laws ("Laws"), talking to another person approximately 300 feet away. According to the testimony of Webb and her father, Laws was in the right-hand lane within approximately one to three feet of the curb, and she was walking in the direction of the Webbs' car while looking away and conversing with a person who was on the curb. Webb testified that she maintained her speed of thirty miles per hour ¹ until, when within thirty feet from the car, Laws "darted out" erratically into the street. Webb applied her brakes and attempted, unsuccessfully, to swerve to the right to avoid hitting Laws. Laws was struck by the left front side of the car near the headlight. The impact sent Laws tumbling over the driver's side of Webb's car. As a result, Laws suffered serious injuries to her legs and pelvis. Laws has no recollection of the accident, and she was later told by medical personnel that the traumatic experience caused her to suffer from retrograde amnesia.

The area at which Laws was struck was not a crosswalk nor a location otherwise designated for pedestrians. Police Officer Kenneth Jackson ("Officer Jackson") responded to the accident, and he prepared a standard accident report after a cursory investigation. Because Laws could not remember anything from the accident, Officer Jackson relied almost exclusively upon the statements of Webb and her father in his investigation and determined that the cause of the accident was "improper crossing." He did not, however, issue a traffic citation to either party. The medical records from the hospital to which Laws was transported after the accident revealed that Laws had a blood alcohol content reading of 248 milligrams per deciliter upon arrival. At the hospital, Laws told medical personnel that she had been drinking two pints of vodka a day during a two-day span prior to the accident. Laws' husband ("husband") also stated to medical personnel that his wife was in a DUI program. ²

Prior to trial, Laws filed a motion in limine to exclude all testimony or other evidence regarding her consumption of alcohol prior to the accident. In granting her motion in part, the court excluded her blood alcohol reading, her late husband's statements concerning her drinking, and her orthopedic surgeon's testimony. The court did admit, however, Laws' statement that she had been drinking prior to the accident, as well as hospital records that confirmed this statement. In an apparent second attempt to exclude this evidence from consideration by the jury, Laws then admitted negligence in attempting to cross South Market Street at an improper location. The court denied Laws' "renewed" motion in limine.

At trial, Officer Jackson, testifying for the plaintiff, stated that he had investigated nearly twenty accidents involving pedestrians and that he prepared a standard police report as a part of his regular procedure in investigating accidents. On cross-examination, Officer Jackson testified (over Laws' objection) that he did not charge either party with a traffic violation, but that, on a section of the accident form that he prepared regarding the accident in dispute, he identified the "primary cause of the accident" as "improper crossing."

Both parties presented expert testimony from accident reconstruction experts. Laws' expert testified that Webb had sufficient time to avoid the accident if she had exercised due care by braking normally when she realized that Laws was not going to clear her pathway. It was his opinion that Webb's actions caused the accident. Webb's expert testified that, to the contrary, Webb had insufficient time to avoid striking Laws, and that Laws' erratic behavior in crossing the street was the cause of the accident.

At the conclusion of plaintiff's case, both parties moved for directed verdicts, which the court denied. At the conclusion of all the evidence, Laws renewed her motion, which was again denied. Laws also tendered to the court a proposed jury instruction on the doctrine of last clear chance. Webb, meanwhile, moved to preclude the last clear chance doctrine from consideration by the jury. The court reserved judgment on that matter until the prayer conference, at which time the court granted Webb's motion. The court ruled that the adoption of the comparative negligence statute in Delaware abolished the last clear chance doctrine, and it thus denied Laws' request for a jury instruction on last clear chance. Laws properly excepted to the court's ruling.

The jury rendered its verdict in the form of special interrogatories. The first question posed read: "Was there negligence by the defendant which was a proximate cause of the incident in which negligence or injury resulted to the plaintiff?" The jury answered in the negative, obviating the need for further answers and resulting in a verdict in favor of Webb. Laws then filed post-verdict motions attacking the trial court's ruling on last clear chance as well as its ruling on disputed evidentiary matters. These motions were denied and this appeal followed.

II

Laws first claims that the Superior Court erred in its ruling that the last clear chance doctrine was abolished by the enactment of Delaware's comparative negligence statute. Laws contends that the doctrine survives the advent of comparative negligence because the doctrine of last clear chance is a special application of proximate causation under Delaware law. We have reexamined the doctrine of last clear chance in light of our current system of comparative negligence and conclude that the "all or nothing" approach to liability which characterizes that doctrine is incompatible with our current system that apportions liability based upon comparative fault. In our view, the remaining vestiges of last clear chance have become totally subsumed within the theory of comparative negligence.

Prior to the enactment of Delaware's comparative negligence statute, the courts of this State recognized the traditional form of contributory negligence as a part of our common law. James v. Krause, Del.Super., 75 A.2d 237, 241 (1950). Under that formulation, a person whose negligence contributed to (proximately caused) his injury in any respect could not recover from any other party whose negligent conduct was also a proximate cause of his injury. Id.; Culver v. Bennett, Del.Supr., 588 A.2d 1094, 1097-98 (1991). In its traditional form, contributory negligence was as an "all or nothing" standard; when operative, it constituted an absolute bar to any recovery by an injured plaintiff regardless of the amount of negligence by a defendant. Culver, 588 A.2d at 1097. The doctrine was criticized virtually from its very onset on the basis that it operates inequitably by placing upon one party the entire burden of an injury instead of distributing responsibility in proportion to each party's fault. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 65, at 453 (5th ed. 1984) (hereinafter "Prosser and Keeton "); 4 Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, The Law of Torts, § 22.3, at 287-88 (2nd ed. 1986).

The last clear chance doctrine was judicially created to ameliorate the harsh consequences to a negligent plaintiff of strict adherence to the contributory negligence rule. Prosser and Keeton, supra, § 66, at 464. Delaware has long recognized the doctrine of last clear chance as an exception to the rule that contributory negligence bars recovery. Cummins v. Spruance, Del.Super., 4 Harr. 315 (1845); Lord v. Poore, Del.Supr., 108 A.2d 366, 369 (1954). Essentially, the doctrine of last clear chance provides that the negligence of a plaintiff that places him in...