DAUM BY HENDERSON v. Lorick Enterprises, Inc.

413 S.E.2d 559 (1992)

105 N.C. App. 428

Shaunna DAUM, A Minor, by Gary D. HENDERSON, Her Guardian Ad Litem v. LORICK ENTERPRISES, INC.

No. 9121SC356.

Court of Appeals of North Carolina.

February 18, 1992.

*561 Kennedy, Kennedy, Kennedy & Kennedy by Harold L. Kennedy, III, and Harvey L. Kennedy, Winston-Salem, for plaintiff, appellant.

David F. Tamer, Winston-Salem, for defendant, appellee.

HEDRICK, Chief Judge.

Plaintiff's sole argument on appeal is that the trial court erred in denying her motion for a new trial on the issue of damages.

Rule 59 of the North Carolina Rules of Civil Procedure provides in pertinent part:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: ... (5) Manifest disregard by the jury of the instructions of the court; (6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;....

Accordingly, the court may award a new trial in the situation where the damages awarded by the jury are inadequate as a matter of law. Hinton v. Cline, 238 N.C. 136, 76 S.E.2d 162 (1953).

In Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974), plaintiff and his father brought suit to recover damages for injuries sustained when plaintiff was struck by an automobile. The jury found plaintiff and his father were damaged by the negligence of the defendant, and that neither was contributorily negligent. The jury awarded damages to the father for medical expenses incurred. However, despite plaintiff's uncontroverted evidence of permanent scarring and pain and suffering, the jury awarded plaintiff nothing on his claim for these damages. Pursuant to N.C.R.Civ.P. 59, plaintiff moved for a new trial. The trial court denied the motion and entered judgment on the verdict from which plaintiff appealed. On appeal, the Supreme Court stated:

Under such circumstances, with the evidence of pain and suffering clear, convincing and uncontradicted, it is quite apparent that the verdict is not only inconsistent but also that it was not rendered in accordance with the law. Such verdict indicates that the jury arbitrarily ignored plaintiff's proof of pain and suffering. If the minor plaintiff was entitled to a verdict against defendant by reason of personal injuries suffered as a result of defendant's negligence, then he was entitled to all damages that the law provides in such case.

Id. at 566, 206 S.E.2d at 193-94.

As in Robertson plaintiff, in the present case, proffered uncontradicted evidence that she suffered severe mental distress as a result of the intentional sexual harassment and molestation by defendant's manager, Holderman, and that she suffered from the permanent condition of Post-Traumatic Stress Disorder. The jury found Holderman inflicted severe emotional distress upon plaintiff and that defendant was negligent in hiring and/or retaining Holderman as an employee. The jury awarded plaintiff $1,300.00 for medical expenses incurred as of the date of trial, but awarded nothing for future medical expenses, or severe emotional distress, the very essence of the claim.

We hold the jury arbitrarily ignored the evidence of plaintiff's pain and suffering and entered an inconsistent verdict not in accordance with the law. Furthermore, we find the error in assessing damages did not affect the entire verdict, and therefore it is proper to order a partial new trial on the issue of damages alone. See Fortune v. *562 First Union National Bank, 323 N.C. 146, 371 S.E.2d 483 (1988).

Therefore, the judgment is vacated, and the cause is remanded for a partial new trial solely on the issue of damages.

Vacated and remanded.

WELLS and JOHNSON, JJ., concur.