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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, t/a “The Hot Spot,” and Wail Ayoub, Del. Super., C.A. No. K13C-05-020, Witham, J. (Dec. 4, 2014) (Order)

Superior Court Denies Employee and Employer’s Motion to Exclude Criminal Conviction as a Prior Bad Act

Defendant, Wail Ayoub (“Ayoub”), was an employee of Defendant, Towne Dollar and Tobacco, LLC (“Towne Dollar”). Ayoub accused Plaintiff Elijah N. Perkins (“Plaintiff”) of attempting to pass a counterfeit bill at the register. Ayoub and Plaintiff were allegedly involved in a physical altercation, and Plaintiff brought this personal injury claim for harms suffered as a result of Ayoub’s negligent, reckless, and intentional acts.

The Defendants filed a motion in limine to exclude any reference to Ayoub’s past acts, including a Disorderly Conduct conviction that arose from an incident at Towne Dollar involving a patron whom Ayoub suspected of stealing. If admissible, Defendants sought to have the evidence only admitted for impeachment purposes, as Defendants believed the Plaintiff would seek to introduce the evidence to prove an alleged violent interaction with the Plaintiff.

The Plaintiff opposed the motion, indicating that the evidence of the prior act was directly relevant and admissible pursuant to Rules 403 and 404 of the Delaware Uniform Rules of Evidence. The Plaintiff contended that the evidence would be used to show that Towne Dollar was negligent in retaining Ayoub as an employee. Further, Plaintiff was only seeking punitive damages from Towne Dollar.

Although the Court held that the evidence was not admissible to impeach the witness pursuant to Rule 609, the Court denied the motion to exclude any reference to Ayoub’s prior bad acts. In denying the motion, the Court stated that the deciding factor in whether an employer is negligent in hiring is whether the risk of harm from the employee was reasonably foreseeable. In light of this, the Court found that Ayoub’s prior conviction arising in a similar scenario was highly probative and relevant to proving that Ayoub’s behavior in regards to the Plaintiff was reasonably foreseeable to Towne Dollar.

The Court also conducted a Getz analysis and found that: (1) the evidence was material to the issue of whether Towne Dollar knew or should have known of Ayoub’s prior conviction; (2) the conviction addressed whether Towne Dollar was negligent in retaining Ayoub as an employee; (3) the evidence was plain, clear, and conclusive; and (4) was not too remote in time from the proposition sought to be proved; (5) the probative value was high; and (6) the Court would allow the jury to hear a limiting instruction prior to trial.

Therefore, the Court ordered that evidence involving a conviction in a similar scenario was admissible against the Defendants.

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