IN THE SUP ERIOR COURT OF THE STATE OF DE LAWARE IN AND FOR KENT COUNTY ELIJAH N. PERKINS, : : C.A. No. K13C-05-0 20 WLW Plaintiff, : : v. : : TOWNE DOLLAR AND TOBACCO,: LLC, trading as “ The Hot Spot”, : and WAIL AY OUB, : : Defenda nts. : Submi tted: Dec embe r 2, 2014 Decided : Decem

ber 4, 2014 ORDER Upon Def

endants’ Motion in Limine to Exclude

any Reference to De fendant A youb’ s Past Ac ts. Denied

.

R. Mark Ta

neyhil l, Esquir

e of Schw artz and S chwartz , Dover , Dela ware; a ttorney for Plaintiff. Nancy Chrissinger

Cobb, Esquire of the Law Offices of Chrissinger & Baum berger, Wilm ington, De laware ; attorney for Def endants.

WITH AM, R. J.Elijah N. P erkins v. Tow ne D ollar a nd T oba cco, L LC , et al.

C.A. No. K13 C-05- 020 WLW December 4, 2014

2 U pon Considera

tion of De fendants’ motion in limine to exclude reference t o Defenda nt’s pas t act, it

appears t hat: 1. The case at

bar invol ves Wail Ayoub (her einafter “Defendan t”) and Elijah N. Perkins ( hereinaf

ter “ Plaintiff

”). De fendant w as an em ployee of Defendant Tow

ne Dollar and Tobacco LLC (hereinafter “Defendant-Employ er”), and accused Plaintiff of attempting to pass a coun terfeit bil l at the regi ster. The D efendant and Plaintiff
were allegedly involved in a physical altercat ion , and Plaintiff now raises personal injury claim s for any

harm suffere d from

Defenda nt ’s negli gent, re ckless, a nd intentional

acts. 2. On Septem

ber 22, 201 4, Defenda

nt-Em ployer and Defendant file d a mot ion in limine to exclude any

reference to Defendant’s past acts. Defendant’ s motion states that in 2 009 Defe nda nt p led gui lty t o Dis ord erly C ond uct arisin g from an inciden

t involvinga patron th at Defendant suspected was stealing from Def endant-Employer

. 3. Defenda

ntmoves to prevent any ref erence to Defe n dant’s past acts under DURE 609, so tha

t it ma y only be used for

impeachme nt purposes. Defenda nt also believes Plaintif

f willattem

pt to introduc e the prior

conviction i

n order to p rove Defend ant’s alleged violent interaction with the Plaintiff. Def end ant further moves to exclude a

ny ref erence to the disorderly

co nduct convic tion based on DURE 401 and 403. 4. On October

13, 2014, Plaintiff filed

a response

opposing De fendant’ s motio n to exclude pa st acts. On Novem be r 24, 2014, both partie s submi tted m emorandum pursuant to DURE 404(b) re garding the

admis sibility

of the past acts. Plaintiff statesElijah N. P erkins v. Tow ne D ollar a nd T oba cco, L LC , et al.

C.A. No. K13 C-05- 020 WLW December 4, 2014

3 it will not be offering evidence under DURE 609, but rather, under D URE 401 and 403 to support direc t neglig ence claims against the Defendant-E mployer. Plaintiff states that Defendant’s prior conviction stems from an incident that occurredwhile Defenda ntwas em

ployed with D efe ndant-Em ployer , and occ urred af

ter Def endant accused a customer of stealing from the store. Plaintiff

explicitly stated it p lans to use the past act to show thatDefenda nt-Em ployer was negli gent for retaining D efendant
as an employee , not to prove that the Def endant act ed in confor

mity with any prior behavior. Further , the Pla intiff is s eek ing punitive d amag es from the DefendantEmplo yer on ly. 5. DURE 609 of the D elaware Unifor m Rule s of

Evidence provides that evidence that a witness has been c onvicted of a crime is adm

issible for purpos es of im

peaching t he witness' credibili ty if: (1) the c onviction w as for a f elony, and the Court

“ determines that the pr

obative val

ue of adm

itting this e vidence out

weighs i t s prejudicial effect”; or (2 ) the crime invol ved dish onesty or a fals e statement. No balancing test is r eq uired if t

he underly

ing crime involves di shonesty or a fals e statem ent. Disorder

ly Cond uct is not a crim e of dishone sty nor is it a felon

y. F or this reason, the past ac ts would not be admissible unde r DURE 609. 6. Plaintiff

contends tha

t evidence

of Defenda nt’s pas t acts shoul dbe introduced to prove the D efendant- Empl oyer’ s negligent hiring of D efendant. The deci din g factor in whether

an em ployer should have h ad knowled ge of the ne cessity

to exerci se controlover its emplo yee is wh ether the risk of harm from the employee was
reason ably

foreseeabl e. (Matthew

s v. Boot h , 2008 WL 2154 391, at *3 (Del. S uper .Elijah N. P erkins v. Tow ne D ollar a nd T oba cco, L LC , et al.

C.A. No. K13 C-05- 020 WLW December 4, 2014

1 Merced es Benz o f N. Am. Inc. v. Norman Gershman's Things to Wear, Inc ., 596 A.2d 1358, 1365 (Del. 1991). 4 May 22, 2008). Plaintif

f aim s to prove th e Defe nd ant -Em ployer had knowle dge of Defend ant’s dangerous b ehavior by intr oducing evide

nce of theDisorderly Conduct
co nviction

in 20 09 , wh il e De fen dan t wa s wo rki ng at D efe nd ant -Emp loyer’s business

. Plaintiff contends this c onviction was sufficient for Defendant-Employer to have bee n on notice a s to Defendant’s c apability of engaging

in dangerous conduct with store patrons. 7. DURE 403 requires a court to assess th e probative

value of t he proffered evidence and to weigh tha t value aga

inst the neg ative conse quences of admit ting the evidence, including the risk of unfair prejudice and jury confusion. In order fo r the Plaintiff to prove tha

t the Def endant’ s behavior was rea sonably foresee able by

the Defendant-Employer, Defenda nt’s pri or convicti on of phy sical condu ct with a patron atthe same business e stablishme nt involved in this litigation is high ly probative. Further, the Def

endant’ s past

act is relevant

under Rule

401, beca use it tends to ma

ke the fact that

the Defendant-Employer had notice of D efendant’ s dangerous behavior
more likely than not. 8. This Court fee ls it is necessary to com plete a thorough analysis under Getz v. State , 538 A.2d 726 (Del. 1988) in order to adequately resolve the issue. DU RE 404(b) may

be appl ied to c ivil cases

. 1 Under D URE 404( b) evidenc e of crim

es, wrongs, or bad acts may

be admissible to sh ow intent, preparation, plan, knowledge, ide nti ty, or absence

of mi stake or a ccident. The foll owing six ( 6) factor s must b eElijah N. P erkins v. Tow ne D ollar a nd T oba cco, L LC , et al.

C.A. No. K13 C-05- 020 WLW December 4, 2014

2 Getz v. S

tate , 538 A.2d 726, 734 (Del. 1988).

5 considered 2 : (A) The evidence m

ust be material to the issue or ultimate f act in dispute; (B) The “ evidence must be introduced

for a purpose s anctioned b y 404(b )” or some other non-propensity purpose; (C) The evide nce providing the prior bad act m

ust be [plain], c lear, a

nd conclusive; (D) The bad act m

ust not be too remote in time from the charged offense; (E) The proba

tive valueof the evid ence m ust not be outw eighed by

the danger of unfair prejudice; (F) The Court m ust give thejury

a limiting instru ction. (1) The Evi

dence Mus t be Mater

ial to the I

ssue or Ult

imate F act in Disp ute The evidence that Plaintiff seeks to int

roduce to the Court i s mat erial to t he issue of whether Defenda nt-Em ployer knew or sh ould have know n of Def endant’ s p rior conviction

in order t o support the

direct negligenc e claim s against th e Defe ndantEmployer. This prong of the analysis favors the Plaintiff. (2) The Evi

dence Mus t be Introduc ed for a Pur pose Sanctio ned by 404( b) or Some Other Non–

Propensity

Purpose

. Defend ant’s prior bad a ct, a conviction o f disorder ly cond uct from 2009, occu

rred inElijah N. P erkins v. Tow ne D ollar a nd T oba cco, L LC , et al.

C.A. No. K13 C-05- 020 WLW December 4, 2014

3 Lloyd v. S

tate , Del. Supr. No. 23 9, 199 0 (cit ing N.L.R.B. v. Ed Chandler Ford, Inc . 718 F.2d 892, 893 (1083))

4 Kendall v. State , 726 A .2d 11 91, 11 96 (Del . 1999 ) (quo ting Trowbridge v. State , 647 A.2d 1076, 1077 (Del. 1994). 6 t he same bus iness establishment as the case at bar, while De fendant was employ ed by Defendant-Employee. Introducing this conviction addresses whether DefendantEmpl oyer h ad knowled

ge of Defendant’s p ast convict ion, whic h speaks to whether Defendant-Employer

was negligent in the r etaining of Defendant as an employ ee. 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 convicti on, so the evidence is plain, clear, and conclusive. This prong of the analysis favors the Plaintiff. (4) The Bad Act Must Not be Too Remo te in Time

. Defend ant’s bad acts oc curred f ive (5) y ears ago i

n 2009. Evidence

is too rem

ote in ti me “only

where t here is no v isible, pl ain, or ne cessary connection

between it and the proposition

eventual ly to be proved .” 3 In the past, the Supreme Court of Delaw are has defineda bad act to be “ too remote” in t ime if it occurs more than ten (10) y ears earlier from the litigat

ion based on t

he tim e lim it cont ained i n Delaw are Rule of Evidence 609(b). 4 This prong of the analysis favors the Plaintiff. (5) The Probative Value of t he Evidenc e Must Not

Be Outw eighed by t

he Danger o

f Unfair Prejudice

. The probative value of

the Def endant’ s prior con

viction is hi gh. “ Probative value isElijah N. P erkins v. Tow ne D ollar a nd T oba cco, L LC , et al.

C.A. No. K13 C-05- 020 WLW December 4, 2014

5 Getz v. S

tate , 538 A.2d 726, 734 (Del. 1988). 7 concerned

wi th t he tendenc y of th e evidenc e to establ ish the propo sition that i t is offered to prove.” 5 Defendan t’s prio r convicti on speaks dir ectly to the De fendant Empl oyer’ s liability

in this case . The Plaintif f seeks to p rove that t

he employer had
or should have had knowledge of the neces s ity to exercise control o ver its own employee, or put anoth er way , it aids in determ ining if the

actions of

the Defenda

nt
were foresee able by the Defenda nt-Em ployer . This pr

ong of the a

nalysi s favors th e Plaintiff. (6) The Court M

ust Give t he Jury a L imiting Instruction

. The Cour t will all ow the par

ties to agree upon a j ury ins truction pr ior to trial. Therefore, the Courtwill not ba n the introducti on of Def

endant’ s prior bad

act. The Motion in Limine

to Exclude

Any R eferenc e to Defenda

nt Ayo ub’s Pa stActs is denied. IT IS SO ORDERED.

/s/ William L. Witham, Jr. Resident J

udge WLW/ dmh