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Malinowski v. United Parcel Service3/11/2002
t, 722 A.2d at 1063 (quoting Mellor, 712 A.2d at 377). Insofar as plaintiff's first motion is based on newly discovered evidence, we reserve discussion of that issue until we review the second motion for new trial.
The plaintiff argues that Hogan was negligent as a matter of law. This argument lacks merit. In Malinowski I, this Court noted that Hogan was not confronted with a sudden emergency. Instead, the evidence revealed that Hogan had observed the boys from 340 feet, and he perceived the danger, that he sounded his horn and attempted to make eye contact with the boys, and that he did not decelerate. Thus, Hogan arguably appreciated the danger and had a duty to take additional measures to avoid the accident. However, it would still be possible for a reasonable jury to find that Hogan acted with due care and thus, was not negligent. See Malinowski I, 727 A.2d at 197-98. During the second trial, Hogan testified to the same events. Taking all the evidence in the light most favorable to plaintiff, it remained entirely possible for the jury to find that despite Hogan's realization of the dangerous situation, that he acted reasonably and was not negligent. Therefore, the trial justice properly rejected plaintiff's claim.
Motion for a New Trial
The plaintiff's final argument is based on newly discovered evidence, that warrants, in her view, a third trial. Pursuant to Rule 59, "a trial justice * * * may grant a new trial * * * 'if the trial justice is satisfied that newly discovered evidence has come forward which was not available at the * * * trial and is of sufficient importance to warrant a new trial.'" Landfill & Resource Recovery, Inc. v. Gelinas, 703 A.2d 602, 603 (R.I. 1997) (quoting Tillson v. Feingold, 490 A.2d 64, 66 (R.I. 1985)). "The party appealing an adverse ruling on a motion for a new trial assumes the burden of convincing the court on appeal that the trial justice, in considering the motion, overlooked or misconceived material evidence or was otherwise clearly wrong." Id. (citing Atlantic Paint & Coatings, Inc. v. Conti, 119 R.I. 522, 532, 381 A.2d 1034, 1039 (1977)). Finally, where a party premises its motion for new trial on newly discovered evidence, she has the burden of showing that it undertook "reasonable diligence in attempting to discover the * * * evidence that he now asserts was 'newly discovered' for use at the original trial." Cronan ex rel. State v. Cronan, 774 A.2d 866, 881-82 (R.I. 2001) (citing State v. Bassett, 447 A.2d 371, 375 (R.I. 1982)).
The plaintiff presented arguments in support of her motion for a new trial in five supplemental memoranda to the court. To summarize, plaintiff points out that in 1992, an original analysis of the tachograph evidence in the case was made by DVD corporation, a California company. The plaintiff wished to have DVD re-examine the tachograph in the second trial, but relied on UPS's representation that it no longer was in business. In December 1999, plaintiff "discovered" that DVD was still in business in California, though it had moved since 1992. After the second trial, plaintiff submitted the original DVD report to a second company, Tachograph Analysis Consultants Limited (TACL), which gave its opinion that the tachograph was in such poor condition that it suggested someone had tampered with it. Thus, plaintiff claimed this was "newly discovered evidence" suggesting that (a) UPS officials had lied about DVD's existence; and (b) the report issued by TACL supported plaintiff's spoliation argument and warranted a new trial.
The trial justice disagreed because (1) the evidence presented by plaintiff was not presented in the proper form, (2) the evidence could have been discovered earl
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