WATT

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 1¶ 0 Angela Schreiner drowned in May of 1999 after driving into twelve feet of flood water covering a roadway in Pawnee County. The plaintiff/appellee, Charles West (West/father), filed a wrongful death action as the personal representative of Schreiner's estate against the defendant/appellant, Board of County Commissioners of Pawnee County (Commissioners/County). After a trial spanning two days, the jury returned a verdict in the estate's favor for $13,663.00. West moved for a new trial alleging the damages awarded were grossly inadequate. The trial court heard argument, granting a new trial based on a determination that the jury's monetary award for the loss of a human life was unconscionable and shocked the conscience. The Court of Civil Appeals reversed and remanded finding that the trial court applied the wrong standard in granting the new trial motion and that the jury's verdict was supported by the evidence. The evidence established that: the mother was an exemplary parent working to better herself to increase the economic support of her five minor children; the children lost not only the companionship of the mother but of each other as well; the mother's death was tragic and traumatic; and $5,800.00 was expended for funeral expenses. The award of only $13,663.00, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. Under these facts, we hold that the trial court was justified in ordering a new trial to address the damages issue.CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED AND CAUSE REMANDED. Derek S.A. Lawrence, Derek S.A. Lawrence, PLLC, Tulsa, Oklahoma, for plaintiff/appellee. Eric D. Cotton, Collins, Zorn, & Wagner, P.C., Oklahoma City, Oklahoma, for defendant/appellant.

WATT, J.:

¶ 1 We granted certiorari for the sole purpose of determining whether the trial court erred in granting a motion for new trial where the jury awarded damages of $13,663.00 in a wrongful death action to the estate of a mother leaving behind five minor children. In so doing, we emphasize that Clark v. Bearden, 1995 OK 71, 903 P.2d 309 supports the granting of a new trial where the inadequacy or excessiveness of an award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous.

¶ 2 The jury heard evidence that at thirty-one (31) Schreiner was an exemplary mother to her five minor children and was working while pursuing a college degree in chemical engineering to better her children's lives when she suffered a horrific death by drowning. The panel was appraised not only of the children's loss of companionship with their mother but with each other through placement with different family members, some of the living arrangements being less desirable than others. Evidence was presented that $5,800.00 was expended for funeral expenses. Despite this largely uncontested evidence, the jury returned a verdict in the estate's favor of only $13,663.00. The meager award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. Under these facts, we determine that the trial court did not err in ordering a new trial to address the issue of damages.

FACTS AND PROCEDURAL HISTORY

¶ 3 On the evening of May 7, 1999, Schreiner said “good night” to her five (5) children and left to visit a friend in rural Pawnee County. She was thirty-one (31) at the time. Schreiner took Cemetery Road, a portion of which floods on a regular basis. On the day of the accident, there were signs in place warning of high water and indicating the road was closed to through traffic. Arguably, Schreiner ignored the signs and drove over a hill into approximately twelve (12) feet of water.

¶ 4 The forensic pathologist who examined Schreiner's body and conducted the autopsy testified that the external and internal examinations indicated death by drowning. He also noted the manner of bruising and the large number of contusions on her legs along with superficial injuries to her hands, including a broken nail and other abrasions, and significant bruising to the left hand. He ordered a complete toxicology screen which returned negative for drugs or alcohol. In addition, the pathologist opined that: nothing was revealed in the autopsy to indicate that Schreiner was not conscious when the car hit the water and began to sink; she likely struggled to escape the vehicle and that the contusions and injuries to the body occurred during the fight to survive; and for some period, while the vehicle was sinking and the driver was conscious, the mother experienced pain and suffering.

¶ 5 At the time of her death, Schreiner had custody of all five of her children to whom she was an excellent mother. She was working to support her children and was attending Tulsa University to further her education in an attempt to provide them with more economic stability.

¶ 6 Despite Schreiner's ability to provide for her five children, there simply was no one at her death who could accommodate all of the siblings. A family that had previously been a unit was broken up and parceled out to different homes. Three children went to live with their natural father. However, he was overwhelmed with the situation and one of the three moved in with her maternal grandfather. The two youngest children were placed with a great-aunt and uncle. Eventually, one of the children who had previously been living with his father was forced to move in with a grandmother because of allergies to cats in the father's home. The child who originally lived in the father's home and moved in with the maternal grandfather described her father's home as “dysfunctional” and not well kept. The separate households kept the children from developing normal sibling relationships.

¶ 7 West filed the wrongful death action on January 18, 2007 naming the Commissioners as defendants. The father alleged that his daughter's death arose as the direct result of the County's negligence in not closing the roadway when it became inundated with flood waters and/or failing to erect appropriate warning signs. After hearing evidence over a three (3) day period, the jury returned a verdict finding that: Schreiner was forty-three (43) percent negligent and that the County was fifty-seven (57) percent negligent. The jury awarded West $13,663.00 to be reduced by the trial judge by Schreiner's percentage of negligence making the actual cash award to the estate $7,787.91. When the $5,800.00 for burial expenses is subtracted from the monies actually received for Schreiner's wrongful death, less than $2,000.00 remained for the support of five minor children.

¶ 8 West filed a motion for new trial on April 16, 2008 alleging that the egregiously low value attributed to Schreiner's loss of life was inconsistent and contrary to the undisputed evidence and clearly in violation of 12 O.S.2001 § 651(4) providing that a new trial is warranted if the damages awarded are so excessive or inadequate as to appear to have been given under the influence of passion or prejudice.

¶ 9 On October 28, 2010, a hearing was held on the motion for new trial. The trial court granted a new trial based on a determination that the jury's monetary award for the loss of a human life was unconscionable and shocked the conscience. The Court of Civil Appeals reversed and remanded finding that the trial court applied the wrong standard in granting the new trial motion and that the jury's verdict was supported by the evidence. West filed a petition for certiorari on August 11, 2011. Having reviewed the petition and answer thereto, we granted certiorari on October 31, 2011.

Standard of Review

¶ 10 It has long been recognized that the granting of a new trial is within the wide discretion of the trial court. We will not reverse an order granting a new trial unless error is clearly established in respect to some pure, simple, and unmixed question of law. The judge who presides at the trial: hears the testimony; observes the witnesses; and has full knowledge of the proceedings during the trial process. It is that adjudicator who is in the best position to know whether substantial justice has been done. Where such a judge sustains a motion for new trial, a clear showing of manifest error and an abuse of discretion must be made before this Court is justified in reversing the ruling. The threshold for upholding the grant of a new trial is much lower than where the motion is overruled. Furthermore, when, as here, the new trial is granted by the same judge who tried the case, a much stronger showing of error or abuse of discretion is required for this Court to reverse than if a party appeals from a refusal to grant a new trial.

¶ 11 The only issue upon which new trial was requested was for the determination of an adequate monetary award for Schneider's wrongful death. By sustaining the motion, the parties are placed in a position to have the damages issue again submitted to a jury or court.

¶ 12 Under the facts presented, the trial court was justified in ordering a new trial to address damages. The award of only $13,663.00 in damages for the death of a thirty-one year old woman with the responsibility to support five minor children, in an of itself, evidences that the passion and partiality inhering in the award are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous.

¶ 13 West argues that the jury essentially ignored testimony key to determining the appropriate damages award for his daughter's wrongful death, i.e. general damages such as pain and suffering, loss of companionship and love and affection suffered by the father and the children, and monetary support Schreiner would have contributed to her children. He asserts that the size of the award is demonstrative, in and of itself, of the jury's bias.

¶ 14 The County contends that Oklahoma jurisprudence prohibits sustaining the new trial motion based on a determination that the jury's monetary award for the loss of a human life was unconscionable and shocked the conscience. Generally, we might be in accord with the argument. Nevertheless, under the facts presented, we disagree as a matter of law.

¶ 15 The County finds support in Clark v. Bearden, 1995 OK 71, 903 P.2d 309. Clark concerned a medical malpractice claim associated with a colonoscopy performed on Clark at the age of seventy-five (75). Clark's colon was perforated during the procedure and a second surgery was required. At trial, the Clarks presented medical and hospital bills totaling $74,404.00. The charges related to the perforated colon amounted to approximately $33,500.00. Clark suffered a number of medical conditions following the initial surgery. Nevertheless, a medical expert testified that none of the subsequent conditions involving her sigmoid colon, treatment for respiratory problems, or a liver abscess had been caused by the perforated colon. The jury returned a verdict for $41,083.33, approximately $180.00 more than the difference between the damages claimed for both surgeries and the amount expended for the original surgery alone.

¶ 16 The Clarks moved for new trial on grounds of the inadequacy of the verdict. The trial court sustained the motion on grounds that “the inadequacy of the verdict is unreasonable and outrageous.” We reversed, stating that: “[a] clear showing of prejudice is required before we will allow a trial court to set aside a jury verdict, or set it aside ourselves, for excessiveness or inadequacy of damages.” We also overruled an early case, Shreve v. Cornell, 1938 OK 144, 77 P.2d 1 to the extent that it could be interpreted to allow a trial court to substitute its own judgment for that of a jury as a matter of conscience where there is evidence in the record to support the jury's verdict, and there is no clear showing that the jury's verdict was unreasonable and outrageous beyond all reason. However, in so doing, we did not “throw the baby out with the bath water.” Even under Clark, the inadequacy or excessiveness of an award may justify a new trial where the passion and partiality inhering in it is so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous.

¶ 17 Today's cause is distinguishable both from Clark, and from the two cases it relied upon: Aldridge v. Patterson, 1954 OK 264, 276 P.2d 202 and Dodson v. Henderson Properties, Inc., 1985 OK 71, 708 P.2d 1064. In Aldridge, the parents of a ten-year-old boy brought suit for wrongful death. Although the parents sought $16,955.65 in damages, the jury returned a verdict for only $750.00. We reversed the trial court's grant of a new trial, in part, because there was evidence to support the verdict.

¶ 18 The Aldridge Court noted that the $750.00 award was a paltry sum. Nevertheless, it upheld the award where it exceeded the liquidated damages by some $300.00. Nevertheless, today's cause differs materially from the one presented in Aldridge. There the issue was what contributions the “dead child might have made to his parents' support”—a situation where no legal duty exists. Here, the question is what would have been the mother's support of her five children—a legal duty from which the mother would not have been relieved until all her children reached majority and in which the law implies substantial damages to the minor children by reason of the mother's death. In such a case, the law will imply a substantial loss to the minor child of a deceased regardless of whether the deceased had supported or intended to support the minor child. Here, there was evidence not only that Schreiner was supporting her children but also that she was doing her best to increase her income to a level which would have improved the children's economic position.

¶ 19 Dodson v. Henderson Properties, Inc., 1985 OK 71, 708 P.2d 1064 was a swimmer's suit to recover for damages sustained upon diving into an apartment complex swimming pool. Dodson presented evidence of economic damages of $3,409,120.77 and requested another $1,401,600.00 for pain and suffering. After an award of $3,000,000.00 in the swimmer's favor, the trial court granted the apartment complex owner's motion for new trial by reason of the swimmer's refusal to agree to remittitur. This Court reversed noting that “[i]f the damages were unsupported by the evidence, then there might be some basis for concluding that in some manner or another, the jury was prejudiced against the defendant.”

¶ 20 Expert testimony is not necessary if the element of damage lies within the common knowledge of lay persons. No expert testimony was submitted regarding the mother's potential earning power. Nevertheless, West did testify that he expected his daughter would have earned a degree in chemical engineering within a matter of months had her life not ended so tragically. In closing, West's counsel presented the jury with a scenario in which it was explained that earning a minimum of $10.00 per hour once the mother completed her education in chemical engineering she could have expected an approximate income of $192,000.00 over ten years. In 1999, when the mother was killed, the minimum wage was $5.15. If that rate had stayed in effect, the mother could have expected to earn approximately $107,120.00 over the same period without a college degree. On the date of trial, the minimum wage was $7.25. Were the jury to have taken that amount into consideration and applied it over a ten year period, the total would have been approximately $150,800.00. There simply is no rational basis upon which the jury's award of only $13,663.00 can be sustained. The size of the award itself clearly demonstrates the panel's passion and prejudice.

¶ 21 Clark does not prohibit granting a new trial where the inadequacy or excessiveness of an award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. The jury awarded West $13,663.00, approximately $5,800.00 of which were for funeral expenses. No individual, trial judge, or member of this Court looking at an award limiting a mother's ability to support five children to approximately $8,000.00 over a period of ten years can say that the award was not “beyond all measure unreasonable and outrageous.” The verdict, being so grossly inadequate, makes it clear that the jury was guided by considerations other than the evidence, i.e. passion or impartiality. Therefore, we determine that the trial court did not err in ordering a new trial to address the damages issue.

CONCLUSION

¶ 22 The trial judge was present during the trial, observed the witnesses, and heard their testimony. There was largely undisputed evidence of Schreiner's pain and suffering prior to drowning, the loss of companionship and love suffered both by her father and her children, and of her attempts to meet a legal and moral duty to support her children to majority had she lived. After hearing argument from the parties' counsel, the trial court determined that the jury's award of $13,663.00 for the loss of Schreiner's young life was unconscionable and shocked the conscience. On the record presented, there has been no clear showing of manifest error and an abuse of discretion. The County simply has not met the difficult standard which must be demonstrated to show that the trial court erred in granting a new trial. Therefore, the trial court's new trial order must be upheld. The order of trial court is affirmed and the matter is remanded for a new trial as ordered below.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED AND CAUSE REMANDED.

COLBERT, V.C.J., WATT, EDMONDSON, REIF, COMBS, GURICH, JJ., concur.

KAUGER, J., concurs in part, dissents in part.

TAYLOR, C.J. and WINCHESTER, J., dissent.

TAYLOR, C.J., dissenting

The uncontested facts are clear. This roadway was flooded. The Pawnee County Commissioners closedthis road and placed 8 foot barricades with two signs warning that the road was closed due to high water. The Decedent ignored all this and proceeded 40 around the large barricade and warning signs and drove into 12 foot deep water and unfortunately died as a result of her own negligence. The highly-charged emotional evidence presented by the Plaintiff somehow moved the jury to assess some liability and damages upon the County. The Plaintiff now wants more money by way of a new trial on damages only. There is absolutely no legal basis upon which a new trial should have been granted. This jury was very generous under the evidence of this case. I agree with the analysis of the Court of Civil Appeals. There should be no new trial.