Opinion
C.A. No. 99C-06-320 WCC
Submitted: November 30, 2001
Decided: March 28, 2002
On Plaintiff's Motion for New Trial on Damages — Additur or Granted.
Roger D. Landon, Esquire, Murphy, Spadaro Landon, Wilmington, DE.
John P. Daniello, Esquire, Maron Marvel, P.A., Wilmington, DE.
Dear Counsel:
The Court has before it the plaintiff's "Motion for New Trial on Damages or in Alternative Additur" to the November 15, 2001 jury verdict. The parties have set forth their positions, as well as the facts which they contend support this request, and the Court will not restate those position s in detail. For the reasons set forth below, the plaintiff's Motion for New Trial will be denied if the defendant accepts the additur amount set forth in this opinion.
This is a case where one's willingness to perform a good deed has lead to a disaster. The defendant, Mr. McNabb, is the golf professional at Cavalier's Country Club and had ordered a new display case for his pro shop. Unfortunately, the display case arrived on a day when most of the golf related employees had gone home because of rainy conditions. Needing help to unload the display case, Mr. McNabb solicited volunteers from m embers who happened to be at the club that day. The plaintiff, Darryl Cohen, was one of those volunteers.
The display case was lifted by hand from the truck and carried into the pro shop. Unfortunately, as the display case was placed down on the ground it fell on Mr. Cohen's finger resulting in the crushing of the distal tip of his left middle finger. Mr. Cohen was taken to the hospital, and while the injury has healed, he has suffered permanent damage to the finger. The finger is now slightly smaller, there is a disfigurement to the plaintiff's hand that is an embarrassment to him, and there is a sensitivity to cold that is reflective of nerve damage to the area.
In spite of these injuries, Mr. Cohen has had a remarkable recovery. He continues to routinely play golf, he has improved his handicap, and generally is able to perform his normal and routine daily functions with a slight compensation for the injury. While initially a frightening and horrible accident, the long term consequences of this accident have been minimized.
The Court views the jury's liability verdict as simply a finding that the plaintiff also had an obligation to act carefully in handling the display case as there was evidence presented to suggest that the macho spirit of the volunteers may have overcome what would have been good common sense in the handling of a very heavy piece of furniture. The function of the Court in deciding a motion for a new trial is not to challenge the jury's verdict, or substitute its judgment for that of the jury's, simply because the Court may have reached a different conclusion. The Court's obligation is to review the jury's verdict, and determine whether it is against the great weight of the evidence. After again carefully reviewing the parties's submissions, and the Court's recollection of the evidence presented, the Court cannot find that the jury's verdict as to liability was against the great weight of the evidence, which would require a reversal.
James v. Glazer, 570 A.2d 1150, 1156 (Del.Supr. 1990); Lacy v. Beck, 161 A.2d 579, 580 (1960) (holding that when the Court is considering a motion for a new trial, the jury's verdict is presumed to be correct."); Storey v. Camper, 401 A.2d 458, 465 (Del.Supr. 1979) (holding that a jury's verdict should not be disturbed unless it is manifest that it was the result of passion, prejudice, partiality or corruption, or that it was clearly in disregard of the evidence or applicable rules of law.).
However, a motion for additur may be granted when the jury's award is so out of proportion to the evidence regarding damages, that it shocks the Court's conscience and sense of justice. Mr. Cohen's injury is not one that has disappeared, nor is it one that with medication and physical therapy no longer is an impediment. Mr. Cohen's finger was crushed and was incapable of being returned to its pre-accident condition. While his finger has "healed," it is permanently shorter and continues to be a daily embarrassment to Mr. Cohen in social settings. There appears to be some related nerve damage, and there is some nominal interference with his ability to perform routine daily functions. The Court finds that an award of $5,000 is simply unjust under these circumstances. As a result, the Court believes an additional amount of $15,000 to the verdict is appropriate. When modified by the jury's liability distribution, the verdict for the Plaintiff would be $10,000.00.
Mills v. Telenczak, 345 A.2d 424, 426 (Del.Supr. 1975) (reversing and remanding after a jury's verdict and award of damages in a personal injury action shocked the Court's conscience.).
Accordingly, if the defendant agrees, by written filing within 10 days from the date of this Order, to the additur resulting in a judgment for the plaintiff in the amount of $10,000, the Motion for New Trial will be denied and judgment will be entered without further order of the Court. If the defendant fails to agree to said additur within 10 days from the date of this Order, a second trial, only on damages, will be granted without further Court order.
IT IS SO ORDERED.