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Delaware Electric Cooperative8/3/2001
rther opportunity to render the damages award in a proper fashion. To the extent the original award did not reflect the intention of the jury, it would have been a miscarriage of justice to have entered such a verdict.
We conclude that the trial judge properly exercised his discretion in permitting the jury to modify the damages portion of its verdict to reflect its real intent.
(6) DEC next argues that the Superior Court erred in not permitting Mark Nielson, a DEC employee, to testify concerning how EMT employees could perform the pole relocation work in a safe manner. Nielson had not been identified as an expert and plaintiffs objected on that ground. The trial court sustained the objection and noted that Nielson had already testified as a witness for plaintiffs and the proposed testimony was cumulative. Nielson testified as a fact witness for plaintiffs and DEC concedes that he had not been designated as an expert prior to trial. Under the circumstances, and in considering the fact that the trial judge viewed the proffered factual testimony as cumulative, we conclude that the trial judge did not abuse his discretion in barring the witness from testifying as an expert. See Duphily v. Delaware Elec. Co-op, Del. Supr., 662 A.2d 831, 835-36 (1995).
(7) DEC's third claim of error is directed to the Superior Court's refusal to grant a new trial on liability on the ground that DEC had established the affirmative defense of superseding negligence on the part of EMT and the jury's rejection of that defense was not supported by the evidence. In denying the motion for a new trial, the Superior Court noted that, under the evidence presented at trial, the jury could have concluded that three entities were negligent: DEC, Wells and, on a superseding basis, EMT. But, as the Superior Court noted, proximate cause is ultimately a fact question and the jury "could rationally conclude that EMT's continued use of the manner of operation that had worked well where the wires were higher was not extraordinarily negligent." We construe that language to mean that while negligent, EMT's conduct did not necessarily constitute a superseding cause and a jury finding to that effect was not against the greater weight of the evidence. We conclude that the Superior Court's ruling properly applied the standards for the application of superseding cause set forth in Duphily. Accordingly, we affirm the denial of a new trial.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is,
AFFIRMED.
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