December 12, 2018

Standard of Review for Nonsuit

In a personal injury case, a motion for nonsuit, the defendant is asking the court to settle all issues presented in the plaintiff’s complaint. After the plaintiff has completed his or her opening statement, or the presentation of his or her evidence in a trial by jury, the defendant, without waiving right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.

A motion for nonsuit is the modern equivalent of a demurrer to the evidence; it concedes the truth of the facts proved, but denies that they, as a matter of law, sustain the plaintiff’s case. A motion for nonsuit attacks the sufficiency of the evidence, not the pleading.

A motion for nonsuit may properly be granted where, disregarding conflicting evidence on behalf of defendant and giving to plaintiff’s evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantaility to support a verdict in favor of plaintiff.

For example, plaintiff alleges that: defendant is vicariously liable for one of its employee’s tortious conduct under the theory of respondeat superior. Plaintiff specifically alleges that: (1) the employee operated a motor vehicle in the course of employment; (2) the employee operated the motor vehicle with defendant’s permission; (3) defendant entrusted the employee with the motor vehicle; (4) the employee and defendant had an agency relationship and the employee acted within the scope of that agency at the time of the incident. Yet, if plaintiff has not presented any evidence to prove the allegations and that the incident occurred in the course of a business transaction, the court would grant the motion for nonsuit. If the employee was not involved in the auto accident in the course and scope of employment, the defendant owes the plaintiff no duty. An employer is liable for acts of employees only when they are in the course of employment. This theory of respondeat superior exists because it is unjust to exonerate a business from responsibility for injuries occurring in the course of its activities. The relationship of “employer and employee” exists whenever the employer retains a right to exercise direct and complete control over how work shall be done, and how the result is to be accomplished.

When a plaintiff fails to present evidence of sufficient substantiality to support a verdict in his/her favor, the court should grant defendant’s motion for nonsuit.

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