E. Kenneth James v. Terrence E. Shanley

Cross appeals from an amended order of the Supreme Court, entered December 27, 1978 in Rensselaer County, setting aside a verdict in favor of plaintiff rendered at a Trial Term, and granting a new trial on the issue of damages unless plaintiff stipulates to a reduced verdict. After a jury trial, a unanimous verdict was returned in favor of plaintiff in the sum of $65,000. The Trial Judge, upon motion, held the amount of the verdict to be excessive and directed a new trial on the issue of damages unless plaintiff stipulated to reduce the verdict to $40,000. Both parties appealed, the plaintiff to set aside the order and reinstate the original verdict and the defendant to further reduce the verdict due to excessiveness. We have held that "The fixation of damages in personal injury actions is peculiarly the function of the jury and should not be disturbed unless it can be said that it was grossly * * * excessive as to be unconscionable" (Hallenbeck v Caiazzo, 41 A.D.2d 784; accord Lesser v Brookside Hotel, 61 A.D.2d 878). Similarly, other courts have held that "Where a reasonable interpretation of the facts supports a jurys findings as to the extent of an injury, a court should not exercise its discretion to [alter] the verdict * * * unless the amount awarded is * * * unconscionable" (Duchesne v Loomis, 55 A.D.2d 819, 820, citing Mansfield v Graff, 47 A.D.2d 581, 582; see Andrek v Iowa Packers Express, 33 A.D.2d 700, affd 29 N.Y.2d 845). Furthermore, "The discretion of the court to affect damages by ordering conditional new trials should be exercised sparingly, particularly in cases where damages cannot be fixed with precision" (4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.10). Here, as a result of a head-on collision plaintiff suffered fractures to his fifth and sixth ribs, possible fractures to his seventh and eighth ribs, a deep laceration to his right knee, fractures to his heels, a contusion to his left hip and a fracture to the subtalar joint, the region slightly below the ankle. Plaintiff currently suffers from spurring in his knee and ankle areas, causing stiffness and a limitation in the use of the legs in certain activities. While the medical experts disagreed as to the permanency of the injuries, purely a jury issue of credibility, they concurred in the view that injuries to plaintiffs hip would require future surgery. Next, plaintiff was hospitalized on two separate occasions due to his injuries, the second confinement due to a serious thrombophlebitis requiring day and night injections and 24 hours surveillance for a period of nine days. Clearly, plaintiff sustained and suffered from substantial fractures and other injuries, as well as having to endure a nine-day period during which his life was at peril due to a serious thrombophlebitis directly attributed to his injuries. Further, future surgery is required. While a Trial Judge has the distinct advantage of assessing witnesses and jurors first hand, an advantage denied appellate panels (see Figliomeni v Board of Educ., 38 N.Y.2d 178, 183), such an opportunity has little input into discretionary reductions of jury verdicts where the court, as here, fails to articulate why such observations, when juxtaposed to the verdict, result in an unconscionable result. The trial courts reliance on our decision in Riddle v Memorial Hosp. (43 A.D.2d 750) is misplaced because it failed to cite to that portion of Riddle wherein we cautioned that (p 751) "To avoid usurping the function of the jury, the power should be used only if the [73 A.D.2d 752 Page 753]