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Bishop v. Harski

Decided: May 13, 1983.

MICHAEL BISHOP AND JOYCE BISHOP, HUSBAND AND WIFE, PLAINTIFFS,
v.
MARYANN HARSKI AND TADEUSZ HARSKI, DEFENDANTS



Rossetti, J.s.c.

Rossetti

[191 NJSuper Page 110] This case presents the novel question of whether the concept of additur/remittitur may be employed by a trial court on a motion for new trial following the liability verdict in a jurisdiction where liability and damages are routinely bifurcated.

Plaintiff stopped at a red light at a right angle intersection. When the light turned green, plaintiff proceeded for approximately 200 feet, at which time the vehicle in front of plaintiff signaled a left turn and stopped. Plaintiff stopped his automobile behind the left turning vehicle and within a matter of seconds was hit in the rear by the defendant's vehicle.

Defendant testified that she stopped for the red light at the intersection. When the light turned green, she paused for cars in front of her turning right onto the intersecting street. Thereafter, she proceeded five to six car lengths past the intersection and the accident occurred. Defendant indicated that she did not see the plaintiff's car until moments before the accident occurred. Defendant stated that she never saw plaintiff's brake lights. Moreover, defendant thought that plaintiff's car was still moving.

The jury returned a verdict finding both plaintiff and defendant equally negligent. (50/50).

Plaintiff has brought this motion for a new trial or in the alternative for a judgment notwithstanding the verdict. This court has concluded that the technique of additur should be applied to the jury's findings in this matter.

I

The concept of additur/remittitur has its roots in a decision in Fisch v. Manger, 24 N.J. 66 (1957). It was argued in the Fisch case, as it has been argued here, that the trial court had no ". . . legal power whatever to condition the grant of a new trial upon the defendant's failure to consent to a prescribed increase in the verdict." (Id. at 71). This argument was rejected by the Fisch Court. In Fisch, the court after a thorough historical review of the principles involved upheld the constitutionality of additur and remittitur. The court held that they serve ". . . the laudable purpose of avoiding a further trial where substantial justice may be attained on the basis of the original trial." (at 80). Furthermore, the court in Fisch indicated the wisdom of remittitur

and additur ". . . as enlightened aids in securing substantial justice between the parties without the burdensome costs, delays and harassments of new trials." (Id. at 72).

It is clear that the court has the authority to modify a damage verdict. (see Baxter v. Fairmont Food Co., 74 N.J. 588 (1977)). However,

". . . (A) trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust. (Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977).

See, also, Sweeney v. Pruyne, 67 N.J. 314, 315 (1975); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). But a court should not hesitate to modify a verdict which is unsupported by credible evidence, overlooks or underevaluates crucial evidence, see State v. Johnson, 42 N.J. 146, 162 (1964), or otherwise shocks the conscience. See Taweel v. Starn's Supermarket, 58 N.J. 227, 236 (1971); Trentacost v. Brussel, 164 N.J. Super. 9, 18 ...


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