Sullivan, Carton and Halpern. Halpern, J.A.D.
Plaintiff Veronica Mulkerin fell in the driveway of defendant's service station and sustained serious injuries. In this suit against defendant the jury awarded her damages of $48,000, and her husband $5,500 on his per quod claim.
Defendant's motion for a new trial was denied but the court remitted $10,000 of Mrs. Mulkerin's verdict and directed that unless she accepted the reduced verdict a new trial on damages would be ordered. No change was made in Mr. Mulkerin's verdict. Mrs. Mulkerin agreed to the remittitur and judgments were entered for Mrs. Mulkerin for $38,000, and Mr. Mulkerin for $5,500.*fn* Defendant appeals from these judgments, and Mrs. Mulkerin cross-appeals from the court's action in remitting $10,000 of her verdict.
In seeking a reversal defendant contends it breached no duty owing plaintiffs hence the jury's verdict was against the weight of evidence. We disagree. The jury could reasonably conclude from the evidence that Mrs. Mulkerin was a business invitee on defendant's premises, who fell and was injured because of its negligent installation and maintenance of underground lines which resulted in a depression two to three feet wide, 66 feet long, and depressed about one to two inches, extending across the driveway of its property.
Although the incident occurred during a heavy snow storm, and despite defendant's uncontradicted proof that it frequently caused its driveway to be plowed during the storm, the jury could find that ice and snow accumulated
in the depression causing Mrs. Mulkerin to fall. The testimony of Mrs. Mulkerin as to where and what she fell on, coupled with the expert's opinion of faulty construction and maintenance, created a classic jury question as to whether defendant exercised ordinary care to render its premises reasonably safe for use by its patrons. The record fails to disclose a miscarriage of justice as defined in Dolson v. Anastasia , 55 N.J. 2 (1969). On the contrary, the record amply supports the jury's conclusions on liability and the court's denial of a new trial on that issue.
Defendant also contends that the opinion testimony of plaintiffs' expert was based on speculation and contrary to the weight of evidence, and that the instructions to the jury were incomplete and went beyond fair comment. We have carefully examined these contentions and find them without substance.
Finally, we turn to plaintiffs' cross-appeal. Before discussing the merits, we will dispose of defendant's contention that since Mrs. Mulkerin accepted the court's remittitur she is now precluded from raising it by cross-appeal. This narrow issue, to our knowledge, has never been squarely decided in New Jersey. We have concluded that she is not barred from raising the issue.
Remittitur is the action taken by a court to reduce a jury's verdict because it determined the verdict is excessive. It gives plaintiff the choices of accepting the reduced verdict or suffering a new trial on damages. The philosophy is to encourage the use of remittitur whenever applicable. Fritsche v. Westinghouse Electric Corp. , 55 N.J. 322 (1970). As expressed by Justice Proctor, "We think it deserving of mention that in the future both trial and appellate courts that are confronted with excessive verdicts should, if possible, resort to an order of remittitur. * * * Utilization of this device avoids the unnecessary expense and delay of a new trial." (at 330-331)
When a plaintiff accepts a remittitur he generally does so because it avoids delay, expense, the risk of a new
trial on damages or an appeal. However, if defendant appeals, the objectives of the court and plaintiff have been frustrated. Since plaintiff, because of defendant's appeal, must go through an appeal after he has accepted the remittitur , why should he, in all fairness, be deprived of the right to review the court's action? Why should defendant get the benefit of the reduced verdict and be able to appeal on all issues without risking a restoration of the jury's verdict? No sound reason for such benefits to defendant exist. On the contrary, defendants may hesitate to appeal and more readily agree to pay the remittitur. We realize there are contrary views. See the majority and dissenting opinions in Corabi v. Curtis Publishing Company , 262 A.2d 665 (Pa. Sup. Ct. 1970), dealing with a conditional acceptance of a remittitur by a plaintiff. See also the annotation in 16 A.L.R. 3d 1327, wherein cases from other jurisdictions on the problem are discussed. ...