Opinion
C.A. No. 99C-07-044 WLW
Submitted: November 6, 2001
Decided: February 27, 2002
Upon Defendant's Motion for New Trial or, in the Alternative, Remittitur. Denied in Part; Granted in Part.
Upon Plaintiffs' Motion for Costs. Denied.
Craig A. Karsnitz, Esquire of Young, Conaway, Stargatt Taylor, LLP, Georgetown, Delaware, for Plaintiffs.
Donald M. Ransom, Esquire of Casarino, Christman Shalk, Wilmington, Delaware for Defendant.
ORDER
After reviewing the submissions of the parties, as well as the record in this case, it appears to the Court that Wal-Mart Stores, Inc. ("defendant") has submitted a motion for new trial or remittitur under Delaware Superior Court Civil Rule 59. This motion is opposed by Cyril E. and Comfort T. Broderick ("plaintiffs"). Plaintiffs have submitted their own motion for costs under Superior Court Civil Rule 54, which motion is opposed by defendant.
I find that the amount of compensatory damages awarded by the jury to Cyril Broderick does not shock the conscience of the Court, and will not remit the award nor grant a new trial in any respect as to this plaintiff. Regarding the jury award to Comfort Broderick, I find that the verdict should be reduced from $75,000 to $20,000. Because this adjusted verdict adequately compensates the plaintiffs, their motion for costs is denied.
Background
This case arises out of a fall that occurred on May 10, 1998, in defendant's store in Dover, Delaware. The jury found defendant and plaintiff equally negligent (i.e. both parties fifty-percent negligent) in a manner proximately causing plaintiffs' injuries. The jury awarded $325,000 in damages. $250,000 were compensatory damages to Cyril Broderick. Comfort Broderick was awarded $75,000 for loss of consortium. After reduction by 50% for comparative negligence, the judgment equaled $162,500 ($125,000 and $37,500 respectively for Cyril and Comfort).
In support of its motion for new trial or remittitur, defendant submits that this jury verdict should shock the Court's conscience, due to its excess. Defendant's motion does not address the jury's findings of fault or liability; therefore, the Court will not discuss the factual details of the accident, nor review liability.
New Trial or Remittitur
A motion for new trial or remittitur is directed to the sound discretion of the trial court. Under Superior Court Civil Rule 59, "[t]he Superior Court has ample power to grant a new trial to prevent injustice." On the other hand,
Clough v. Wal-Mart, 1997 WL 528313 at *1 (Del.Super.Ct.); aff'd 712 A.2d 476 (Del. 1998).
McCloskey v. McKelvey, 174 A.2d 691, 693 (Del.Super.Ct. 1961).
a trial judge is only permitted to set aside a jury verdict when in [the Court's] judgment it is at least against the great weight of the evidence. In other words, barring exceptional circumstances, a trial judge should not set aside a jury verdict on such ground unless, on a review of all the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
"On a motion to grant a new trial the verdict must be manifestly and palpably against the weight of the evidence or for some reason, or combination of reasons, justice would miscarry if it were allowed to stand." Moreover, "[t]he evidence must be viewed in the light most favorable to [the plaintiffs] at this stage since the verdict was in [their] favor."
McCloskey, 174 A.2d at 693.
Clough, 1997 WL 528313 at *1.
Compensatory Damages
In the case sub judice, the evidence showed that plaintiff Cyril Broderick experienced permanent injuries to his right leg and low back. He had never injured these areas prior to the fall. He will most likely continue to suffer the result of these disabilities for at least 22.5 more years. His ability to walk has been impaired and he requires the use of a cane. He will continue to experience pain and inconvenience in the future, and will need future medical treatment including injections for pain management. Moreover, in arriving at his current state of health, plaintiff had to undergo a painful surgery and recovery, as well as physical therapy. Mr. Broderick still continues to use pain medications.The plaintiff experiences, and will continue to experience, real limitations in his quality of life at work and at home. He testified that the physical tasks he is required to do for work take much longer; therefore, whenever he wants to go somewhere, or perform a task, everything takes more time and preparation. Since he cannot always protect himself from falling now, he also has to take extra safety precautions when performing any physical task. His restrictions are also significant with respect to his family and home life. He can no longer engage in sports activities the way he once did with his children.
For example, plaintiff testified that in order to hang a curtain or to plant a flower he has to "make scaffolding" around himself, or do something else to make sure he is safe and doesn't fall.
The legal standard to be applied in the instant case is undisputed. This Court may set aside a jury verdict only if it "is so grossly out of proportion as to shock the Court's conscience." Although the award here is very high, it is not "manifestly and palpably against the weight of the evidence." Nor would justice miscarry if this verdict were allowed to stand. The jury had before it evidence that would allow it to conclude that the fall at Wal-Mart was the cause of the serious temporary and permanent disabilities experienced by plaintiff Cyril Broderick. Thus, after reviewing the evidence in the light most favorable to the plaintiff, I find that the amount of the jury's verdict does not shock the conscience of the Court and will not remit the award, nor grant a new trial as to this plaintiff.
Kiana v. K-Mart Corp., 1997 WL 537174 at *1 (Del.) (citing Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975)).
McCloskey, 174 A.2d at 693.
Id.
Loss of Consortium
As for Mrs. Broderick, she testified that the first week after the accident the family had to make adjustments because her husband could not climb the stairs to the bedroom on the third floor. For this reason, he had to remain in the family room the first week of injury. Similarly, after the corrective surgery he could not move on his own, and the family had to move him around the house, take him to the bathroom, as well as assisting in other personal duties. Her husband used to help her around the house. Now he cannot assist her as much because he falls. He has fallen on several occasions and broken things in the house. She now has to take the initiative and do more things around the house. For these reasons, an award for loss of consortium was appropriate; however, an award of $75,000 was grossly disproportionate to the amount of loss. In the Court's view, the factual evidence presented cannot support such a finding by the jury. Accordingly, the Court is going to reduce the amount of the loss of consortium award from $75,000 to $20,000. After the reduction is made for comparative negligence, the award becomes $10,000. This more-closely approximates the actual loss that Mrs. Broderick suffered. Although her husband has not been as productive as before, he still remains a participant in household functions. For these reasons, remittitur is appropriate for the loss of consortium claim.
Motion for Costs
Before the Court is plaintiffs' motion for costs pursuant to Delaware Superior Court Civil Rule 54. Rule 54 allows the prevailing party to make an application to the Court within ten days of the entry of a final judgment to assess costs upon the adverse party. The decision of whether to grant costs to the prevailing party is left to the sole discretion of the Court.
Rule 54. Judgment; costs.
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(d) Costs. Except when express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs.
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Donovan v. Delaware Water Air Resources Comm'n, 358 A.2d 717 (Del. 1976).
In the proper case, this Court has, and will, impose costs in favor of the prevailing party. This is not the proper case to do so. Here, the plaintiffs received a substantial award for their injuries, even after a slight reduction by the Court. Furthermore, the jury also found plaintiffs to be fifty-percent liable for their injuries. In light of these facts, the Court does not need to consider whether the amount of the costs are reasonable in this case. The Court in its discretion will not impose the costs of litigation upon the Defendant. For this reason, the plaintiffs' motion for costs will be denied.
WHEREFORE, regarding the jury's award to plaintiff Cyril E. Broderick, defendant's motion for new trial or remittitur is DENIED. As to the award made for the loss of consortium to plaintiff Comfort T. Broderick, defendant's motion for new trial or remittitur is GRANTED. If Comfort Broderick does not accept a reduction of the judgment to $10,000 within 20 days, a new trial limited to the issue of damages will be entered respecting the consortium claim. In all other respects, defendant's motion for a new trial is DENIED. Finally, plaintiffs' motion for costs is DENIED. IT IS SO ORDERED.