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[T] Bell Sports9/7/2000
, express or implied, is conceptually distinct from a negligence claim because the latter focuses on the manufacturer's conduct, whereas a breach of warranty claim evaluates the product itself. See Cline v. Prowler Indus. of Md., Inc., Del. Supr., 418 A.2d 968, 978, n.19 (1980) (the focus of a negligence claim is the manufacturer's conduct and the breach of an accepted standard of conduct); Borel v. Fibreboard Paper Prod. Corp., 5 Cir., 493 F.2d 1076, 1094 (1973) (in a products liability case with th inconsistent verdicts, it is within the jury's prerogative so long as evidence supports the finding); Community Television Serv. v. Dresser Indus., Inc., D. S.D., 435 F.Supp 214, 216 (1977) (jury could find defendant neither negligent nor strictly liable while finding as a matter of law that representations in a brochure created an express warranty that defendant breached). Based on the foregoing authorities, we find no fatal inconsistency between the jury's verdict negating negligence but finding breach of warranty.
V.
Finally, we consider Bell's contention that it was entitled to a mistrial after the discharge of one juror from the panel during deliberations. This claim is predicated on the fact that prior to the juror's dismissal, the panel indicated it was deadlocked. Because the juror was dismissed without an explanation, Bell claims that the remaining jurors were left with an impression that the juror had done something wrong and whichever side that juror was supporting would have "lost credibility." The jury's verdict was, therefore, conceivably swayed against Bell as a result of that juror's dismissal.
The granting of a mistrial for juror misconduct is part of the trial judge's case management function and is reviewed under an abuse of discretion standard. See Temple v. Raymark Indus., Del. Supr., 1998 WL 138929, at *2 (1998) (ORDER). We find no merit to this argument. It is undisputed that the trial judge determined that the dismissed juror shared no extraneous information with any other members on the panel prior to his dismissal. Compare Diaz v. State, Del. Supr, 743 A.2d 1166 (1999) (ruling juror's comments in open court regarding the interpretation of live testimony prejudicial). The trial judge dealt with the situation upon learning of the juror's misdeed by swiftly discharging him and subsequently allowed the jury to continue its deliberations. Id. Moreover, prior to trial, both parties had agreed that should circumstances warrant it, an eleven-member panel was acceptable. See Super Ct. Civ. R. 48.
The trial court did not abuse its discretion in dismissing this juror and there was no basis to order a mistrial.
The judgment of the Superior Court is AFFIRMED.
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