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Borstel v. Campan

Decided: March 18, 1992.


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

Michels, Havey and Conley. The opinion of the court was delivered by Michels, P.J.A.D.



We granted leave to defendants Roger D. Campan (Campan) and New Jersey Transit Rail Operations, Inc. (New Jersey Transit) to appeal from an order of the Law Division that granted plaintiff David Von Borstel a new trial as to damages only in this assault and battery action.

This action arises from an incident wherein a New Jersey Transit employee allegedly struck plaintiff in the head with a metal flashlight. Plaintiff sustained multiple contusions and a depressed skull fracture which required two neurological procedures to repair. Plaintiff also suffers from a post-traumatic seizure disorder and is required to take anti-convulsant medication to control his seizures. Plaintiff instituted suit against defendant New Jersey Transit and its employees Campan and John T. Miklencic (Miklencic), Amtrak Commuter Services, Corp. (Amtrak), National Railroad Passenger Corp. and the State of New Jersey. The complaint sought both compensatory and punitive damages.

Following trial, the jury, in answer to special interrogatories, (1) found that Campan committed an assault and battery upon plaintiff, which was a proximate cause of his injuries and damages; (2) awarded plaintiff $50,000 in compensatory damages and $750 in punitive damages, and (3) found that Miklencic was neither negligent nor committed an assault and battery upon plaintiff which was the proximate cause of his injuries.

The trial court molded the verdict accordingly, awarding plaintiff $50,000 in compensatory damages against Campan and New Jersey Transit and $750 in punitive damages against Campan.*fn1

Thereafter, plaintiff moved for an additur or, alternatively, a new trial on damages only. Campan moved for a judgment n.o.v. with respect to the punitive damage award. Following argument, the trial court found the $50,000 compensatory damage award to be "shockingly low" in that plaintiff was awarded only about $17,000 over his medical expenses, which were $32,967. The trial court also found that the low damage award resulted from prejudice and bias against plaintiff who was a convicted felon and an alcohol and drug abuser. The trial court concluded that the jury's verdict constituted a miscarriage of Justice which should not be allowed to stand and ordered a new trial as to damages only. The trial court also stated that it had rejected using the technique of additur because the jury had found that Campan's conduct warranted punitive damages but had awarded only $750 in punitive damages. This award, according to the trial court "goes hand in hand with the, I think, shockingly low verdict on the compensatory damages." The trial court stated that it would not attempt to give an additur on punitive damages because that portion of the damage award is dependent upon the jury's evaluation of the nature of defendant's conduct. We granted Campan and New Jersey Transit leave to appeal.

Defendants contend on appeal that the trial court erred in ordering a new trial as to damages on the ground that the jury's verdict represented a miscarriage of Justice. Alternatively, they argue that if the verdict was inadequate, the trial court

should have granted a new trial on all issues.*fn2

A trial court may grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witness, it clearly and convincingly appears that there was a miscarriage of Justice under the law." R. 4:49-1(a). However, in making this decision, the trial Judge must not act as a "thirteenth and decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706 (1969). The trial courts should "resist the natural temptation to substitute their judgment for that of the jury." Baxter v. Fairmont Food Co., 74 N.J. 588, 597, 379 A.2d 225 (1977). Therefore, a jury's verdict "is entitled to very considerable respect. It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of Justice." Id. at 597-98, 379 A.2d 225. A trial Judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and the resulting disability as to shock his conscience and to convince him that to sustain the award would be manifestly unjust. Id. at 596, 379 A.2d 225; Taweel v. Starn's ...

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