IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

ELIJAH N. PERKINS, :

: C.A. No. K13C-05-020 WLW

Plaintiff, :

:

v. :

:

TOWNE DOLLAR AND TOBACCO,:

LLC, trading as “The Hot Spot”, :

and WAIL AYOUB, :

:

Defendants. :

Submitted: December 2, 2014

Decided: December 4, 2014

ORDER

Upon Defendants’ Motion in Limine to Exclude any

Reference to Defendant Ayoub’s Past Acts.

Denied.

R. Mark Taneyhill, Esquire of Schwartz and Schwartz, Dover, Delaware; attorney for

Plaintiff.

Nancy Chrissinger Cobb, Esquire of the Law Offices of Chrissinger & Baumberger,

Wilmington, Delaware; attorney for Defendants.

WITHAM, R.J.
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.

C.A. No. K13C-05-020 WLW

December 4, 2014

2

Upon Consideration of Defendants’ motion in limine to exclude reference to

Defendant’s past act, it appears that:

1. The case at bar involves Wail Ayoub (hereinafter “Defendant”) and Elijah N.

Perkins (hereinafter “Plaintiff”). Defendant was an employee of Defendant Towne

Dollar and Tobacco LLC (hereinafter “Defendant-Employer”), and accused Plaintiff

of attempting to pass a counterfeit bill at the register. The Defendant and Plaintiff

were allegedly involved in a physical altercation, and Plaintiff now raises personal

injury claims for any harm suffered from Defendant’s negligent, reckless, and

intentional acts.

2. On September 22, 2014, Defendant-Employer and Defendant filed a motion in

limine to exclude any reference to Defendant’s past acts. Defendant’s motion states

that in 2009 Defendant pled guilty to Disorderly Conduct arising from an incident

involving a patron that Defendant suspected was stealing from Defendant-Employer.

3. Defendant moves to prevent any reference to Defendant’s past acts under

DURE 609, so that it may only be used for impeachment purposes. Defendant also

believes Plaintiff will attempt to introduce the prior conviction in order to prove

Defendant’s alleged violent interaction with the Plaintiff. Defendant further moves

to exclude any reference to the disorderly conduct conviction based on DURE 401

and 403.

4. On October 13, 2014, Plaintiff filed a response opposing Defendant’s motion

to exclude past acts. On November 24, 2014, both parties submitted memorandum

pursuant to DURE 404(b) regarding the admissibility of the past acts. Plaintiff states
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.

C.A. No. K13C-05-020 WLW

December 4, 2014

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it will not be offering evidence under DURE 609, but rather, under DURE 401 and

403 to support direct negligence claims against the Defendant-Employer. Plaintiff

states that Defendant’s prior conviction stems from an incident that occurred while

Defendant was employed with Defendant-Employer, and occurred after Defendant

accused a customer of stealing from the store. Plaintiff explicitly stated it plans to use

the past act to show that Defendant-Employer was negligent for retaining Defendant

as an employee, not to prove that the Defendant acted in conformity with any prior

behavior. Further, the Plaintiff is seeking punitive damages from the DefendantEmployer only.

5. DURE 609 of the Delaware Uniform Rules of Evidence provides that evidence

that a witness has been convicted of a crime is admissible for purposes of impeaching

the witness' credibility if: (1) the conviction was for a felony, and the Court

“determines that the probative value of admitting this evidence outweighs its

prejudicial effect”; or (2) the crime involved dishonesty or a false statement. No

balancing test is required if the underlying crime involves dishonesty or a false

statement. Disorderly Conduct is not a crime of dishonesty nor is it a felony. For this

reason, the past acts would not be admissible under DURE 609.

6. Plaintiff contends that evidence of Defendant’s past acts should be introduced

to prove the Defendant-Employer’s negligent hiring of Defendant. The deciding

factor in whether an employer should have had knowledge of the necessity to exercise

control over its employee is whether the risk of harm from the employee was

reasonably foreseeable. (Matthews v. Booth, 2008 WL 2154391, at *3 (Del. Super.
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.

C.A. No. K13C-05-020 WLW

December 4, 2014

1

 Mercedes Benz of N. Am. Inc. v. Norman Gershman's Things to Wear, Inc., 596 A.2d

1358, 1365 (Del. 1991).

4

May 22, 2008). Plaintiff aims to prove the Defendant-Employer had knowledge of

Defendant’s dangerous behavior by introducing evidence of the Disorderly Conduct

conviction in 2009, while Defendant was working at Defendant-Employer’s business.

Plaintiff contendsthis conviction was sufficient for Defendant-Employer to have been

on notice as to Defendant’s capability of engaging in dangerous conduct with store

patrons.

7. DURE 403 requires a court to assess the probative value of the proffered

evidence and to weigh that value against the negative consequences of admitting the

evidence, including the risk of unfair prejudice and jury confusion. In order for the

Plaintiff to prove that the Defendant’s behavior was reasonably foreseeable by the

Defendant-Employer, Defendant’s prior conviction of physical conduct with a patron

at the same business establishment involved in this litigation is highly probative.

Further, the Defendant’s past act is relevant under Rule 401, because it tends to make

the fact that the Defendant-Employer had notice of Defendant’s dangerous behavior

more likely than not.

8. This Court feels it is necessary to complete a thorough analysis under Getz v.

State, 538 A.2d 726 (Del. 1988) in order to adequately resolve the issue. DURE

404(b) may be applied to civil cases.

1

 Under DURE 404(b) evidence of crimes,

wrongs, or bad acts may be admissible to show intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. The following six (6) factors must be
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.

C.A. No. K13C-05-020 WLW

December 4, 2014

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 Getz v. State, 538 A.2d 726, 734 (Del. 1988).

5

considered2:

(A) The evidence must be material to the issue or ultimate fact in dispute;

(B) The “evidence must be introduced for a purpose sanctioned by 404(b)” or

some other non-propensity purpose;

(C) The evidence providing the prior bad act must be [plain], clear, and

conclusive;

(D) The bad act must not be too remote in time from the charged offense;

(E) The probative value of the evidence must not be outweighed by the danger

of unfair prejudice;

(F) The Court must give the jury a limiting instruction.

(1) The Evidence Must be Material to the Issue or Ultimate Fact in Dispute

The evidence that Plaintiff seeks to introduce to the Court is material to the issue of

whether Defendant-Employer knew or should have known of Defendant’s prior

conviction in order to support the direct negligence claims against the DefendantEmployer. This prong of the analysis favors the Plaintiff.

(2) The Evidence Must be Introduced for a Purpose Sanctioned by 404(b) or Some

Other Non–Propensity Purpose.

Defendant’s prior bad act, a conviction of disorderly conduct from 2009, occurred in
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.

C.A. No. K13C-05-020 WLW

December 4, 2014

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 Lloyd v. State, Del. Supr. No. 239, 1990 (citing N.L.R.B. v. Ed Chandler Ford, Inc. 718 F.2d

892, 893 (1083))

4

 Kendall v. State, 726 A.2d 1191, 1196 (Del. 1999) (quoting Trowbridge v. State, 647 A.2d

1076, 1077 (Del. 1994).

6

the same business establishment as the case at bar, while Defendant was employed

by Defendant-Employee. Introducing this conviction addresses whether DefendantEmployer had knowledge of Defendant’s past conviction, which speaks to whether

Defendant-Employer was negligent in the retaining of Defendant as an employee.

This prong of analysis favors the Plaintiff.

(3) The Evidence of the Prior Bad Act Must be Plain, Clear and Conclusive.

The evidence of the bad act consists in a 2009 conviction, so the evidence is plain,

clear, and conclusive. This prong of the analysis favors the Plaintiff.

(4) The Bad Act Must Not be Too Remote in Time.

Defendant’s bad acts occurred five (5) years ago in 2009. Evidence is too remote in

time “only where there is no visible, plain, or necessary connection between it and the

proposition eventually to be proved.”3 In the past, the Supreme Court of Delaware has

defined a bad act to be “too remote” in time if it occurs more than ten (10) years

earlier from the litigation based on the time limit contained in Delaware Rule of

Evidence 609(b).4 This prong of the analysis favors the Plaintiff.

(5) The Probative Value of the Evidence Must Not Be Outweighed by the Danger of

Unfair Prejudice.

The probative value of the Defendant’s prior conviction is high. “Probative value is
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.

C.A. No. K13C-05-020 WLW

December 4, 2014

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 Getz v. State, 538 A.2d 726, 734 (Del. 1988).

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concerned with the tendency of the evidence to establish the proposition that it is

offered to prove.”5 Defendant’s prior conviction speaks directly to the Defendant

Employer’s liability in this case. The Plaintiff seeks to prove that the employer had

or should have had knowledge of the necessity to exercise control over its own

employee, or put another way, it aids in determining if the actions of the Defendant

were foreseeable by the Defendant-Employer. This prong of the analysis favors the

Plaintiff.

(6) The Court Must Give the Jury a Limiting Instruction.

The Court will allow the parties to agree upon a jury instruction prior to trial.

Therefore, the Court will not ban the introduction of Defendant’s prior bad act.

The Motion in Limine to Exclude Any Reference to Defendant Ayoub’s Past Acts is

denied.

IT IS SO ORDERED.

/s/ William L. Witham, Jr. 

Resident Judge

WLW/dmh