On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8350-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and LeWinn.
This matter is before us for the second time. It arises out of an automobile accident on December 18, 2002, when plaintiff Michael Smithson was a passenger in an automobile that was struck by a motor vehicle operated by defendant Carlos Garcia. Defendant conceded liability, and an expedited jury trial was held solely on the issue of damages. The jury rendered a verdict finding that plaintiff had sustained a permanent injury, N.J.S.A. 39:6A-8, but awarded only nominal damages of one dollar. Plaintiff filed a motion for a new trial, contending that the damages award was against the weight of the evidence; plaintiff requested oral argument on this motion. Defendant filed opposition and, on May 25, 2007, the trial judge denied plaintiff's motion on the papers.
Plaintiff appealed, and in a decision of July 22, 2008, we remanded to afford plaintiff the right to oral argument on his motion pursuant to Rule 1:6-2(d). Smithson v. Garcia, No. A-5623-06 (App. Div. July 22, 2008) (slip op. at 2).
Pursuant to our remand, the trial judge heard argument on plaintiff's motion on November 21, 2008, and at the conclusion, entered an order denying the motion. In her oral opinion from the bench, the judge noted that plaintiff was the only witness at trial; there was no medical testimony, but medical records were submitted to the jury. The judge summarized plaintiff's testimony as follows:
His only testimony as to his complaints of what he was unable to do was . . . I think he said, I can play basketball, but I don't play full court. . . . That he couldn't walk as far on the boardwalk. . . . Those were his only complaints of what his limitations from his daily activities were.
The judge disputed plaintiff's argument that the jury found that "he had . . . herniated discs[,]" stating: "[N]o, they did not. The . . . question was whether there was a permanent injury causally related. You keep saying that, and that's not what was on the verdict sheet." The judge further stated that plaintiff's "articulation in oral argument that the jury found . . . herniations [wa]s not part of the record."
The judge noted that there were "volumes of medical records . . . submitted," and the jury "had about an hour to review them." The judge concluded:
[U]nder the circumstances of [plaintiff's] own testimony, on the subject of his pain[,] suffering, discomforts and inability to pursue [his] normal pleasures, the only thing the jury heard is, I can't play full court basketball and I can't walk along the promenade. . . . Those were the only two things. And the jury saw [plaintiff], observed him and awarded $1 in damages.
Under those circumstances[,] the [c]court cannot find that the award was against the weight of the evidence as the jury heard and saw it.
On appeal, plaintiff contends that (1) the trial judge erred in finding that the jury's damages verdict was not against the weight of the evidence; and (2) the damages award of one dollar should have been set aside and a new trial held as to the issue of damages only. We agree and, therefore, reverse.
Our rules provide that a motion for a new trial shall be granted "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The jury's verdict is entitled to "very considerable respect" and will be overturned only in "clear cases." Baxter v. Fairmont Food Co., 74 N.J. 588, 596-97 (1977). Accordingly, a new trial on damages is warranted only where the amount awarded is so disproportionate to the injuries incurred that the award shocks the ...