Quade v. Hartfield Enterprises, Inc. , 120 Mich. App. 704 ( 1982 )

120 Mich. App. 704 (1982) 327 N.W.2d 343

QUADE
v.
HARTFIELD ENTERPRISES, INCORPORATED

Docket No. 58050.

Michigan Court of Appeals.

Decided September 15, 1982.

Zeff & Zeff (by Arnold M. Fink), for plaintiffs.

Fulkerson, Hudson, Moore, Bileti, Pierce & Tennent, P.C. (by Joseph J. Bileti and Jeffrey L. Hudson), for defendants.

Before: J.H. GILLIS, P.J., and WAHLS and R.H. BELL,^[*] JJ.

PER CURIAM.

In this slip and fall case, plaintiff, Lynda Quade, appeals an order granting remittitur after a jury awarded her $680,000 in damages.

Mrs. Quade slipped and fell while bowling at the Hartfield Lanes in Berkley, Michigan. She sued, alleging that defendant failed to maintain the premises in a safe and proper condition and that defendant's negligence caused her to fall to her knees, sustaining injury.

The jury returned a verdict for damages in the amount of $680,000, as requested by Mrs. Quade. The jury found Mrs. Quade 93% negligent, however, reducing defendant's liability to $47,600. Plaintiff Robert Quade's claim of $25,000 for loss of consortium was rejected by the jury.

Following the verdict, defendant moved for judgment notwithstanding the verdict or, in the alternative, an order of remittitur on the basis that the jury's damage award of $680,000 shocked the judicial conscience. The judge reduced the damage award to $250,000, thereby decreasing Mrs. Quade's actual recovery to $17,500.

Plaintiff Lynda Quade contends that the trial judge abused his discretion in granting defendant's motion for remittitur. We do not agree.

GCR 1963, 527.6 provides in pertinent part:

"When a finding is made that the only error in the trial is the inadequacy or excessiveness of the verdict, the court may deny a motion for new trial on condition that within 10 days the non-moving party consents in writing to the entry of judgment of an amount found by the judge to be the lowest or highest amount respectively which the evidence will support."

Remittitur can be properly awarded, absent other errors in the trial, only if the verdict is so excessive as to "shock the judicial conscience". Stevens v Edward C Levy Co, 376 Mich. 1, 5; 135 NW2d 414 (1965); Burnett v Mackworth G Rees, Inc, 109 Mich. App. 547, 552; 311 NW2d 417 (1981); Pippen v Denison Div of Abex Corp, 66 Mich. App. 664, 674; 239 NW2d 704 (1976), lv den 399 Mich. 823 (1977).

In Stevens, supra, p 5, the following "shock the conscience" test was adopted:

"As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside."

The Court further noted that the permanency of an injury has a bearing on whether an award is excessive.

In the instant case, while the record does indicate prolonged pain, the existence of a surgical scar, curtailment of sporting activities, and a less satisfying sex life for Mrs. Quade, we are not convinced that $680,000 is the figure that reasonable minds might deem just compensation for such damages. We find that the trial court's conscience was properly shocked at the jury's damage award. We agree that the court's figure of $250,000 represents just compensation for the damages, both present and future, incurred by Mrs. Quade in the instant case.

We point out in conclusion that the above analysis was carried out using the total amount of damages awarded by the jury before operation of the 93% plaintiff negligence finding. Because plaintiff is allowed under the doctrine of comparative negligence to recover damages less the percentage of fault attributed to her, the figure to be applied in reviewing an order of remittitur is the total damages awarded before subtraction of that amount attributable to plaintiff's negligence. To decide the question of remittitur based only on a defendant's portion of the damage award would unjustly ignore the plaintiff's negligence, a procedure which cannot be justified in a comparative negligence context.

We affirm the trial court's order granting remittitur.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.