Morabito v. Zigler

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY MORABITO, §
§ No. 101, 2024
Plaintiff Below, §
Appellant, § Court Below–Superior Court
§ of the State of Delaware
v. §
§ C.A. No. N21C-08-219
RYAN ZIGLER, §
§
Defendant Below, §
Appellee. §

Submitted: October 18, 2024
Decided: January 6, 2025

Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.

ORDER

After considering the parties’ briefs and the record on appeal, it appears to the

Court that:

(1) The plaintiff-below, appellant, Anthony Morabito, sued the defendant-

below, appellee, Ryan Zigler, in the Superior Court for negligence, seeking damages

for injuries that Morabito sustained in a three-car motor vehicle collision.

(2) In February 2024, the case proceeded to a jury trial. The undisputed

evidence showed that: (i) Morabito, Zigler, and Erin Johnson were operating motor

vehicles in the left northbound lane of Route 1 near Christiana Mall during the early

morning hours of September 18, 2019; (ii) Morabito’s car was positioned directly
behind Johnson’s vehicle and directly in front of Zigler’s vehicle, and (iii) the three

vehicles were traveling at roughly the same speed—somewhere between 50 and 65

miles per hour—when the traffic in front of them unexpectedly slowed or came to a

stop. Johnson testified that she brought her vehicle to a complete stop in response

to the traffic buildup. Morabito testified that he began to apply his brakes after he

saw Johnson’s brake lights illuminate, but he was struck from behind by Zigler and

pushed into the rear of Johnson’s car. Morabito told the jury that he then drifted past

Johnson’s car and came to a stop on the left shoulder of the highway. Zigler’s version

of events differed: he testified that when he saw Morabito’s vehicle swerve to the

right—into the adjacent line of traffic—he “locked up” his brakes and ran into

Johnson’s vehicle.1 Johnson testified that Zigler helped her out of her car, Zigler’s

car was the only one she saw behind her when she exited her vehicle, and she

assumed Zigler was operating the vehicle that hit hers.

(3) The jury also heard testimony from the investigating police officer,

Detective Michael Adkins. Detective Adkins prepared a police report in connection

with his investigation. In that report, Detective Adkins documented statements made

by the three drivers at the scene: (i) Johnson said that her car was struck from behind

by Morabito’s (not Zigler’s) vehicle; (ii) Morabito said that he was slowing down

and believed that he had ample time to come to a complete stop before hitting

1
App. to Answering Br. at B-0483.

2
Johnson’s car when he was struck from behind by Zigler; and (iii) Zigler said that

he thought that he collided with Johnson’s vehicle and did not remember hitting

Morabito’s vehicle. The only person who received a traffic citation as a result of

Detective Adkins’ investigation was Zigler, whom Detective Adkins cited for

following too closely. The jury also saw photographs of the damage that each of the

three vehicles sustained in the accident and heard extensive expert testimony about

the medical treatment Morabito received for a neck injury that was caused (or

aggravated) by the accident.

(4) At the close of the evidence, Morabito moved for a directed verdict “on

the issues of both liability and whether an injury was sustained during the accident

or caused by the accident.”2 The Superior Court denied the motion, finding that

there were disputed issues of material fact regarding liability and the severity of

Morabito’s injuries. Shortly after the jury began deliberating, it asked to see

Detective Adkins’ police report. Citing 21 Del. C. § 313(b), which prohibits the

introduction of an accident report as evidence in any trial arising out of an accident,

the Superior Court denied the jury’s request. After further deliberation, the jury

awarded Morabito $25,000 in damages and found that Morabito and Zigler were

each 50% at fault for the accident. In accordance with the jury’s findings, the

2
Id. at B-0516.

3
Superior Court entered a judgment in favor of Morabito in the amount of $12,500.

Morabito appealed.

(5) On appeal, Morabito’s overlapping and at times confusing arguments

may be fairly summarized as follows: (i) the trial court improperly hindered the

jury’s ability to hear Detective Adkins’ testimony and review his accident report; (ii)

Morabito should have been allowed to testify as an accident-reconstruction expert

witness; (iii) the jury verdict form was defective; (iv) the evidence did not support

Zigler’s version of events, and the trial court erred by denying Morabito’s motion

for a directed verdict; and (v) the jury instructions were deficient.3 After careful

review, we affirm the Superior Court’s judgment.

(6) As a preliminary matter, we note that Morabito did not provide the

Court with the trial transcript for the Court’s review. An appellant has the burden

of providing “such portions of the trial transcript as would be necessary to provide

this Court with a fair and accurate account of the context in which the claim[s] of

error occurred.”4 Ordinarily, an appellant’s failure to do so would preclude appellate

3
Morabito also asserts claims of professional misconduct against defense counsel and his own
attorney. These arguments are outside the scope of this appeal. Moreover, it is clear from
Morabito’s submissions that he has reported, or intends to report, the alleged misconduct to the
Office of Disciplinary Counsel, the entity responsible for investigating allegations of professional
misconduct.
4
Fultz v. State Farm Mut. Auto. Ins. Co., 966 A.2d 347, 2009 WL 189143, at *1 (Del. Jan. 16,
2009) (TABLE).

4
review of his claims.5 Here, however, the Court is able to review Morabito’s claims

because Zigler provided a copy of the trial transcript to the Court.

(7) The record reflects that toward the end of Morabito’s attorney’s re-

direct examination of Detective Adkins, the courthouse fire alarm sounded.

Morabito claims that Detective Adkins’ testimony was cut short by the need to

evacuate the courthouse. Morabito also argues that the jury should have been

permitted to review Detective Adkins’ police report and that the Superior Court

should have “read back” Detective Adkins’ testimony to the jury. The gist of

Morabito’s claims regarding Detective Adkins’ testimony and police report is that

the jury should have heard that Zigler was speeding at the time of the accident. We

review Morabito’s claims regarding this point for plain error because they were not

raised below.6

(8) Plain error is error that is “so clearly prejudicial to substantial rights as

to jeopardize the fairness and integrity of the trial process.”7 There is no such error

here. First, it is clear from the record that Morabito had ample opportunity to elicit

from Detective Adkins any evidence that Morabito deemed necessary to support his

negligence claim against Zigler, including the fact that Detective Adkins issued

5
Id.
6
Del. Supr. Ct. R. 8.
7
Baker v. State, 906 A.2d 139, 150 (Del. 2006) (internal quotation marks and citation omitted).

5
Zigler a traffic citation for following too closely. Moreover, the trial transcript

reflects that the Superior Court asked counsel if he had any additional questions for

Detective Adkins before evacuating the courtroom, and it is clear that counsel

indicated to the court that he had completed his re-direct examination.8 Second, the

trial court properly refused to let the jury review Detective Adkins’ police report.9

Third, it was not plain error for the Superior Court to fail to, sua sponte, read back

Detective Adkins’ testimony to the jury—indeed, it would have been improper for

the Superior Court to have done so.

(9) Morabito next argues that the trial court should have permitted him to

testify as an accident-reconstruction expert witness. Consistent with the trial

scheduling order in this case, the trial court gave the parties a deadline by which they

were to identify any expert witnesses and produce expert reports. Absent good

cause, the parties are bound by the deadlines contained in the scheduling order.10 At

no time during the pretrial proceedings (either before or after the deadline set by the

8
“THE COURT: …. That is not the alarm for the day. How many more questions do you have?
That is pretty much it? So this is a fire alarm. We do not need to come back. …” App. to
Answering Br. at B-0270.
9
21 Del. C. § 313(b) (“[A]ccident reports and any data or statistics derived from an accident report
… are solely for the information of the Department of Safety and Homeland Security and the
Department of Transportation…. The fact that an accident report has been made is admissible in
evidence solely to prove compliance with this section but no accident report or any part or
statement contained in a report is admissible in evidence for any other purpose in any trial, civil
or criminal, arising out of an accident.”).
10
See App. to Answering Br. at B0015-B0017 (trial scheduling order).

6
court) did Morabito identify (or attempt to identify) himself as an expert witness in

accident reconstruction. Absent plain error, which we do not find, Morabito’s failure

to raise this issue below bars its review on appeal.

(10) Morabito makes several arguments about the jury-verdict form. The

record reflects that the verdict form was incorrectly captioned and listed “Adam

Yorston” as the defendant instead of Zigler. Morabito first claims that this error

requires reversal, presumably because he believes that the jury was confused by it.

Morabito also posits that the verdict form improperly listed his name as a potential

contributor to the accident when there was “no evidence” that he was negligent.

Third, Morabito argues that Johnson was improperly omitted from the form as a

possible contributor to the accident. We review these claims for plain error because

they were not raised below.

(11) Again, there is no plain error here. First, the jury itself noticed that the

verdict sheet was incorrectly captioned and pointed the error out to the court11—clear

evidence that it was not confused by the error. Second, despite Morabito’s

protestation to the contrary, evidence had been introduced to support a finding that

his negligence contributed to the accident, and the jury, as the trier of fact, was free

to credit Zigler’s testimony over Morabito’s or to reconcile any inconsistencies in

testimony as it saw fit. Third, Morabito never claimed that Johnson was negligent

11
Id. at B-0636.

7
(nor was any evidence introduced to support such a finding). It follows that there

was no reason for her name to be included on the verdict form.

(12) Morabito next argues that the Superior Court erred by denying his

motion for a directed verdict. We review the Superior Court’s decision on a motion

for a directed verdict to determine “whether the evidence and all reasonable

inferences that can be drawn therefrom, taken in a light most favorable to the

nonmoving party, raise an issue of material fact for consideration by the jury.”12

Having reviewed the trial transcript and trial exhibits, we agree with the Superior

Court that the evidence did not support the entry of a directed verdict in Morabito’s

favor. Morabito’s belief that there was “no evidence” to support Zigler’s version of

events is simply incorrect.

(13) Finally, Morabito argues that the jury instructions were somehow

deficient. His claims regarding the jury instructions overlap with several of the

claims addressed and rejected above. To the extent that Morabito raises a separate

argument, it is meritless: the jury instructions gave a “correct statement of the

substance of the law and [were] reasonably informative and not misleading when

read as a whole.”13

12
Estate of Eller v. Bartron, 31 A.3d 895, 897 (Del. 2011) (internal quotation marks and citations
omitted).
13
Express Scripts, Inc. v. Bracket Holdings Corp., 248 A.3d 824, 829 (Del. 2021) (internal
quotation marks and citation omitted).

8
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

9