Supreme Court At-a-Glance Contributor Sam Harkinson, Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts.

No. 2019-0067

March 19, 2021



  • Whether the trial court erred in admitting certain exhibits, failing to take action in response to a party’s improper closing argument, giving jury instructions, giving the jury an incorrect special verdict form, and denying a party’s motions for a directed verdict and judgment notwithstanding the verdict.


During the course of the trial in the underlying matter, the trial court admitted an exhibit over the Defendant’s objections that the exhibit was irrelevant, improper hearsay, and highly prejudicial.  The trial court ruled that the exhibit was relevant, non-hearsay.  On review, the Court found that the trial court had not unsustainably exercised its discretion, finding that the trial court had an objective basis to make its determination.

The Defendant also argued that the Plaintiff’s closing was improper, in that it made an appeal to the passion, prejudice and sympathy of the jury.  The Defendant asserted that misstatements made during the closing warranted a new trial, however, the Court took note of the fact that the Defendant failed to make an objection during, or after the closing statement.  The Court further found that, “[a]lthough the alleged misstatements at issue here are not nonsensical, ‘they also were not so egregious as to impose upon the trial court an obligation to intervene.’”  The Court, on this issue, ultimately concluded that the trial court’s failure to interrupt the Plaintiff’s closing did not amount to plain error that affected the Defendant’s substantial rights.

In reviewing the Defendant’s challenges to the jury instructions, the Court took time to review each instruction that the Defendant challenged in turn. Ultimately, the Court concluded that the instructions used by the trial court performed the job of identifying the issues of material fact, and to explain to the jury in clear and intelligible language, the proper standards of law by which it is to resolve them.  In reviewing the Defendant’s further objection to the verdict forms used by the trial court, the Court found that when the forms were viewed with the jury instructions, the objection raised by the Defendant again failed to produce a reversible error.

Finally, the Defendant appealed the denial of its motion for directed verdict and judgment notwithstanding the verdict based on the sufficiency of the evidence.  Ultimately, after reviewing each issue in turn, the majority opinion of the Court found that the evidence offered by the Plaintiff was sufficient for the jury to have found the Defendant liable for the damages suffered.  A dissenting opinion disagreed, finding that the issue of causation had not been adequately proven by the Plaintiff.


Cronin, Bisson & Zalinsky, P.C. John G. Cronin, John F. Bisson, and Daniel D. Muller, Jr. on the brief, and John G. Cronin orally for the Plaintiff.  Upton & Hatfield, LLP, Russell F. Hilliard on the brief and orally, with Nathan C. Midolo on the brief for the Defendant.