ADOLPHUS HOLLAND v. NEW COMMUNITY CORPORATION, a corporation or business organization

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0627-06T50627-06T5

ADOLPHUS HOLLAND,

Plaintiff-Appellant,

v.

NEW COMMUNITY CORPORATION,

a corporation or business

organization,

Defendant-Respondent.

_________________________________________________________

 

Argued July 10, 2007 - Decided September 19, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4118-04.

Randall Bass argued the cause for appellant (Freeman & Bass, attorneys; Mr. Bass, on the brief).

Joseph A. Gallo argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Mr. Gallo, of counsel and on the brief; Gina Calabria, on the brief).

PER CURIAM

Plaintiff Adolphus Holland appeals from an order of the Law Division, dated August 18, 2006, that granted the motion of defendant New Community Corporation for remittitur. As a result of that order, the July 28, 2006 judgment in favor of plaintiff was reduced from $250,210, plus interest, to $7,500. Because the August 18, 2006 order appears to reduce the amount awarded by the jury, without giving plaintiff the option to choose between the remittitur and a new trial on damages, we affirm in part and reverse in part.

Plaintiff was a tenant in an apartment building owned by defendant. Over the course of several years, plaintiff lodged numerous complaints that the refrigerator in his apartment leaked badly, but that problem was never remedied. In the early morning hours of August 10, 2003, plaintiff awakened and, without turning on the light, went to get something from the refrigerator. When he was about a foot away, he slipped on the wet floor and fell, sustaining injuries to his head, neck and back. He pressed a call button on the wall, and an ambulance was summoned. The ambulance transported him to University Hospital, where he underwent X-rays, was given medication for pain and was released.

On or about August 13, 2003, plaintiff started treatment with Dr. I. Ahmad, a board certified orthopedic surgeon, for frequent headaches and injuries to his neck, back and left hip. Plaintiff also complained of pain on bending and lifting. He had difficulty going up and down stairs, and he complained of dizziness, blurred vision and headaches. According to plaintiff, he saw Dr. Ahmad eight to ten times; however, Dr. Ahmad testified that he saw plaintiff five times through September 9, 2003, for treatments consisting of physical therapy, diathermy and advisement on active range of movements of the injured areas. In any event, the bill for Dr. Ahmad's services was $210.

Dr. Ahmad testified the injuries for which he was treating plaintiff were caused by plaintiff's fall in his apartment, and his diagnosis was "sprain of the neck and the low back. Then sprain [of] the left hip[,] [a]nd cephalgia. That is headaches after this injury." Dr. Ahmad opined that plaintiff "had suffered from some residual effects and in all probability he would continue to have chronic pain and chronic stiffness with the restricted movements."

Although Dr. Ahmad reviewed plaintiff's medical records from the hospital, he testified that plaintiff did not inform him of any prior injuries. Plaintiff testified he was not asked about prior injuries, however, he acknowledged injuries to his head as a result of an accident in 1983 when he was driving a taxicab and injuries to his head and back in an accident he had when he worked at Waco Chemical Company. In addition, plaintiff testified that between 1988 and 2003, he experienced similar maladies to those he endured after the August 2003 accident: headaches, pain to his head, dizziness, disorientation and spasms in the lower back and pain in the left side of his head. He testified his complaints became more frequent after the August 2003 accident. In 1992, more than ten years before the accident that is the subject of this lawsuit, plaintiff had become disabled because of emphysema.

After the trial concluded, defendant filed a motion seeking a new trial or, alternatively, judgment notwithstanding the verdict or remittitur. On August 18, 2006, the return date for arguments on the motion, the judge observed that there was no permanency. Consequently, she found the jury's award of damages "was inconsistent with the injuries that the plaintiff sustained." The judge commented "quite honestly, when the jury gave a verdict of $250,000, it was shocking to me, . . . [and] counsel, you sat there stunned and defense counsel sat there with his eyes open. I think it shocked everybody."

Under the circumstances, the court determined it would not order a new trial, but it would instead grant a remittitur. Recognizing that plaintiff had suffered from some residual effects of the injuries he sustained in his fall, the judge concluded that the appropriate range for what she described as "soft tissue" injuries was between $2,500 and $7,500. Therefore, the judge ordered the higher amount, $7,500. That same day, she entered an order granting remittitur and denying the alternative forms of relief requested by defendant.

In deciding the post-trial motion, the judge concluded that the jury determination of liability was appropriate, but she found that the damages awarded were grossly disproportionate to the injuries sustained by plaintiff. On appeal, plaintiff contends that the trial judge's observation that the jury award was "given more to punish the defendant" should not have prompted the court to disturb the verdict. Plaintiff argues the award of punitive damages was within the jury's discretion. We disagree. First, "[t]he principal goal of damages in personal-injury actions is to compensate fairly the injured party." Caldwell v. Haynes, 136 N.J. 422, 433 (1994). "The purpose . . . of personal injury compensation is neither to reward the plaintiff, nor to punish the defendant, but to replace plaintiff's losses." Ibid. (quoting Domeracki v. Humble Oil & Ref. Co., 443 F.2d 1245, 1250 (3d Cir.) cert. denied, 404 U.S. 883, 92 S. Ct. 212, 30 L. Ed. 2d 165 (1971)).

Second, circumstances of aggravation and outrage, beyond simple commission of a tort, are required for an award of punitive damages. Pavlova v. Mint Management Corp., 375 N.J. Super. 397, 404 (App. Div.) certif. denied, 184 N.J. 211 (2005). Such circumstances were not demonstrated in this case. Third, but more importantly, "[a]n award of punitive damages must be specifically prayed for in the complaint." N.J.S.A. 2A:15-5.11. Plaintiff's complaint never requested punitive damages. Hence, the jury was not authorized to award punitive damages.

Plaintiff next contends the judge improperly made observations about the demeanor of people who were not witnesses at trial. This obviously refers to the trial judge's remark to the effect that "[w]hen the jury gave a verdict of $250,000, it shocked me, as I saw on counsel, you sit there stunned and defense counsel sat there with eyes open." The judge was merely describing the immediate, seemingly involuntary reactions of those in the courtroom to the disclosure of the jury's verdict. We see nothing improper in the judge's articulation of her perception of the impact of the award on those who heard it.

It is well established "that a trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his 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) (citing Sweeney v. Pruyne, 67 N.J. 314-15 (1975)). A trial court may, however, grant a motion for a new trial when, "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. Once the trial court determines that a miscarriage of justice occurred, a new trial is warranted. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001). The scope of the new trial is dependent upon the nature of the miscarriage. Ibid. "Where the quantum of damages is the sole source of the court's determination that a denial of justice has taken place, other remedies are available including remittitur and additur." Id. at 491.

The Court explained the remedy of remittitur as follows:

Remittitur "describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." In other words, remittitur denies a defendant a new trial if a plaintiff consents to a specified reduction in the jury award.

Ibid. (citations omitted) (quoting S.T. Rayburn, Comment, Statutory Authorization of Additur and Remittitur, 43 Miss. L.J. 107, 107 (1972)) (citing Henker v. Preybylowski, 216 N.J. Super. 513, 516 (App. Div. 1987)).

The purpose of remittitur is to avoid the necessity of a new trial by bringing the damages within an acceptable, judicially-determined range. Ibid. Consequently, when faced with excessive verdicts "New Jersey courts should, if possible, resort to an order of remittitur." Id. at 492 (citing Caldwell, supra, 136 N.J. at 443). We heartily agree with the trial court's determination that the damages awarded in this case were so disproportionate that intervention was warranted to avoid manifest injustice. In making such a determination, "a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Caldwell, supra, 136 N.J. at 432.

The court reasoned that plaintiff was already suffering from some type of symptoms to the same parts of his body prior to his accident and his treating physician testified that the fall had caused soft tissue injuries that were not permanent. Therefore, the quantum of damages awarded by the jury far outweighed plaintiff's actual damages. The judge further made the determination that the damages awarded by the jury were far wide of the acceptable range for injuries described by plaintiff and his physicians. We are satisfied that the trial court's determination is supported by sufficient, credible evidence in the record and we will not disturb it. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

In determining whether a grant or denial of remittitur is proper, we are bound by the same strictures as the trial court. McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002). Having already determined that the amount was excessive, we need now only address the amount of the remittitur. Assessing the amount of remittitur "involves the conclusion that the damages award cannot stand because it constitutes a manifest denial of justice but also a determination that the remitted amount is what a reasonable jury, properly instructed, would have awarded." Fertile, supra, 169 N.J. at 500; Boryszewski v. Burke, 380 N.J. Super. 361, 394 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Because the purpose of remittitur is "not to substitute the court's weighing and balancing for that of the jury, remitting the award to the highest figure that could be supported by the evidence is the most analytically solid approach." Fertile, supra, 169 N.J. at 500.

In granting the remittitur, the judge recognized a range of monetary damages for residuals from soft tissue injuries of between $2,500 and $7,500. She ultimately decided upon the amount at the top of that range. As stated earlier, plaintiff was not admitted to the hospital and was seen by his treating physician between five and eight times during the month following the accident. The testimony from plaintiff's treating physician was that plaintiff's symptoms after the accident were essentially the same as those about which plaintiff complained prior to the accident. Plaintiff's medical costs were $210. Based on this evidence, the range utilized by the judge is, we believe, reasonable and supported by sufficient, credible evidence. We perceive no misapplication of discretion in the amount remitted.

Our analysis does not end there. On the form of order submitted by defendant's attorney and entered by the court on August 18, 2006, the court crossed out the paragraphs relating to the alternative forms of relief sought by the motion - entry of judgment in favor of defendant and a new trial - but indicated a remittitur of the jury award from $250,210 to $7,500. Implicit, but unstated, in the court's remittitur is the determination that the denial of a new trial is conditioned on plaintiff's acceptance of the remittitur.

Plaintiff is not required to accept the reduced judgment. Fertile, supra, 169 N.J. at 491; see Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 62 (App. Div. 1997) (finding that plaintiff may submit to a new trial on damages if he opposes remittitur); see also Henker, supra, 216 N.J. Super. at 516 (holding that where plaintiff consents to remittitur the defendant is not entitled to a new trial). If he does not accept it, then the condition for the denial of defendant's motion for a new trial is not met. In such event, since defendant did not cross-appeal and since the liability determination is not intrinsically flawed nor inextricably tied to the amount of damages, the issue of damages alone must be retried. Thus, we affirm the trial court's conditional decision to deny defendant's motion for a new trial, and we remand the matter so that plaintiff may decide whether to accept the $7,500 ordered by the judge or to pursue a new trial solely on damages.

 
Affirmed in part, remanded in part.

(continued)

(continued)

11

A-0627-06T5

September 19, 2007