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Henker v. Preybylowski

Decided: April 7, 1987.

KENNETH HENKER AND KATHRYN HENKER, PLAINTIFFS-RESPONDENTS,
v.
JOHN PREYBYLOWSKI, III, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Antell, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D. D'Annunzio, J.s.c. temporarily assigned (concurring).

Brody

This appeal requires us to consider the circumstances in which it is proper to use remittitur to avoid a new trial after a jury has returned an excessive verdict in a personal injury action. The case differs from reported cases in that liability was not at issue.

Plaintiff Kenneth Henker was operating an automobile when it collided with a vehicle operated by defendant. Kenneth's wife, plaintiff Kathryn Henker, was a passenger in his car and sues per quod. A jury in an earlier trial had found that the accident was the result of defendant's sole negligence. At the

damages trial, plaintiffs contended that the accident caused permanent soft tissue injury to Kenneth's back. Defendant offered no evidence, relying on the jury's evaluation of plaintiffs' evidence. The jury awarded Kenneth $250,000 and Kathryn $45,000. The trial judge granted a new trial of the damages issues unless Kenneth agreed to accept $33,000 plus interest and Kathryn agreed to accept $2,000 plus interest. Plaintiffs accepted the lower sums and defendant appeals, contending that the judge should have granted a new trial unconditioned by a remittitur. We agree and reverse.

Remittitur and its converse additur have been a settled part of our jurisprudence at least since additur withstood constitutional attack in Fisch v. Manger, 24 N.J. 66, 80 (1957). "The term remittitur is used to describe an order denying the defendant's application for new trial on condition that the plaintiff consent to a specified reduction in the jury's award. . . ." Id. at 72. The practice is consistent with the defendant's constitutional right to a jury trial because after the reduction, what remains had been "included in the verdict along with the unlawful excess, -- in the sense that it ha[d] been found by the jury, -- and . . . the remittitur has the effect of merely lopping off an excrescence. . . ." Id. at 85 (Heher, J. concurring) (quoting from Dimick v. Schiedt, 293 U.S. 474, 486, 55 S. Ct. 296, 301, 79 L. Ed. 603, 611 (1935)). Ordinarily remittitur may and should be used to reduce an excessive jury verdict. Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330-331 (1970).

An "excessive" verdict in this context is one which "is so disproportionate to the injury and resulting disability shown as to shock [the trial judge's] 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). Plaintiffs concede that the verdict was excessive and argue that a remittitur was proper.

Remittitur may not be used, however, to save any part of a verdict rendered entirely defective by the taint of prejudice, partiality or passion. Defendant contends that the verdict here was so grossly excessive that it should count for nothing and therefore only a new trial will satisfy his constitutional right to a jury trial. In a case where a jury had returned allegedly excessive awards following trial of both liability and damages issues, the Supreme Court stated that a verdict may be so grossly excessive as to demonstrate prejudice, partiality or passion by its excessiveness alone:

[Remittitur] may be employed only in cases where, if the plaintiff declines the reduction, the separate issue of liability having been clearly and properly decided, he must submit to a new trial as to damages. If, however, the award of damages is so grossly excessive as to demonstrate prejudice, partiality or passion and thus to generate the feeling that the entire verdict was tainted, a remittitur is improper. The correct procedure in such a case is an order for a new trial on all issues. So in the present matter, if the trial court concluded that the plaintiffs' verdicts were so grossly excessive as to infect the entire result and to visit a manifest injustice upon the defendant if allowed to stand, the remedy was an entire new trial. [ Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 231 (1971) (emphasis added).]

Thus where a jury award is not only shockingly excessive but also "so grossly excessive as to demonstrate prejudice, partiality or passion," no part of the verdict is salvageable and remittitur is improper even if damages had been the only issue tried.

The award here was so grossly excessive as to demonstrate prejudice, partiality or passion thereby tainting the verdict entirely. A new trial is clearly called for.

Where a verdict is shockingly high but is not by itself so grossly excessive as to demonstrate prejudice, other factors tending to infect the verdict with prejudice, partiality or passion must be carefully considered to determine whether remittitur is proper. Had there been a closer question here as to whether the verdict was grossly excessive, remittitur would nevertheless have been improper ...


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