On appeal from the Superior Court, Law Division, Somerset County.
Antell and R. S. Cohen. The opinion of the court was delivered by Cohen, R.s., J.s.c.
Plaintiff Robert Tronolone was a passenger in a vehicle driven by defendant Peter Palmer, and was injured when it collided with a utility pole. He started this action for damages against Palmer and Bridgewater Township, on whose snowy road the accident occurred. After the complaint against the Township was dismissed, Palmer was found by the jury to have negligently caused the accident. For plaintiff's injuries, the jury awarded a verdict of $750. Plaintiff moved for a new trial on damages. The trial court denied the motion on condition that defendant accept an additur of $2750 for a total judgment of $3500. Defendant accepted; judgment was entered in that amount; plaintiff appealed, and we now reverse.
Plaintiff's physical injuries were uncontroverted. He had two deep lacerations above and to the side of his right eye. One of them was about one and one-half inches in length, extending diagonally through the eyebrow and interrupting its growth. The other was some two and one-quarter inches in length, extending from the eyelid, curving toward the top of the nose and then upward into the forehead. The plastic surgeon who repaired them described them both as "deep lacerations, shelving into the muscles." Both required three layers of sutures, one in the muscle layers, one in subcutaneous tissue, and one to close the skin. The resulting prominence of the
right brow near the larger scar, according to the surgeon, might be revised by further surgery or injection of artificial material, but the procedures could well be unsuccessful.
In addition, on the right ear, "there was a through and through laceration almost totally amputating the ear lobe and the lower edge of the helix. * * * The piece, the flap was a little over an inch long and was attached . . . to the cheek by a two millimeter pedicle." It was reattached with "skin stitches front and back." In all, there were 71 sutures used on plaintiff's face and ear.
Plaintiff additionally sought damages for emotional reaction to the accident and to the cosmetic effects of the scars. A psychologist he consulted testified on his behalf. Defendant offered no evidence at all on the issue of damages.
After the $750 verdict, plaintiff moved for a new trial. The trial judge rendered an oral opinion in which he recited that plaintiff's face went through the windshield on impact; that the surgeon testified as to the permanency of the scars; that plaintiff, a 24 year old salesman, said he was self-conscious about the scars; he occasionally experienced numbness, and cold aggravated the condition. The judge then pointed out that, even though not refuted by witnesses, plaintiff's claim for psychological injuries contained damaging inconsistencies. The hint was that the jury could well have found the claim unconvincing.
The judge ruled that the $750 verdict was so disproportionate to the injuries as to shock the conscience of the court, and that to sustain the verdict would be manifestly unjust. He added:
the permanent nature of the scar on the plaintiff's face which results in a condition in which he appears to be always frowning was clearly under-evaluated by the jury.
Accordingly, the court ordered an additur of $2750, and denied plaintiff's application for a new trial on condition that defendant agree to entry of a judgment for $3500. The court did not explain how it arrived at the amount of the additur.
A motion for a new trial on damages should not be granted unless the damage verdict is so disproportionate to the injury and resulting disability as to shock the court's conscience and convince it that to sustain the award would be manifestly unjust, Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977), that is, unless it clearly and convincingly appears that there was a miscarriage of justice under the law. R. 4:49-1(a). The trial court's determination was plainly sound that the damage verdict was insufficient and could not stand.
Additur is an order denying plaintiff's application for a new trial on condition that defendant consent to an increase in the damage verdict as specified by the trial judge. Fisch v. Manger, 24 N.J. 66, 72 (1957).*fn1 The option to consent to an additur or risk the outcome of a new trial is defendant's. Plaintiff's choice is to accept the increased award or to appeal. Bitting v. Willett, 47 N.J. 6, 9 (1966). Remittitur is the opposite. It is an order denying defendant's application for a new trial on condition that ...