Burns v. McGraw-Hill Broadcasting Co., Inc.

• Decision Date: 22 February 1983
• Docket Number: GRAW-HILL,No. 81SC121,81SC121
• Citation: 659 P.2d 1351
• Parties: 9 Media L. Rep. 1257 Yvonne C. BURNS, individually and as parent and natural guardian of Kevin Burns and Renne Burns, Steven Burns, an individual, and Bryan Burns, an individual, Petitioners, v. McBROADCASTING COMPANY, INC., a New York corporation, Respondent.
• Court: Colorado Supreme Court

Page 1351

659 P.2d 1351

9 Media L. Rep. 1257

Yvonne C. BURNS, individually and as parent and natural

guardian of Kevin Burns and Renne Burns, Steven

Burns, an individual, and Bryan Burns, an individual, Petitioners, v. McGRAW-HILL BROADCASTING COMPANY, INC., a New York

corporation, Respondent.

No. 81SC121.

Supreme Court of Colorado,

En Banc.

Feb. 22, 1983.

David L. Kofoed, Roger T. Castle, Denver, for petitioners.

Sherman & Howard, Lee Dale, Denver, for respondent.

ERICKSON, Justice.

An appeal was taken from a jury verdict in favor of the plaintiffs in a defamation action. The court of appeals reversed, 632 P.2d 280 (Colo.App.1980), and we granted certiorari. We reverse the court of appeals and return this case to the court of appeals with directions to remand to the district court for proceedings in accordance with the views set forth in this opinion.

I. Facts

On July 4, 1972, Sergeant Jack Burns of the Denver Police Department Bomb Squad was severely injured when a bomb which he was attempting to disarm exploded. Sergeant Burns lost the major parts of both hands, suffered a loss of hearing and partial blindness.

Sergeant Burns and his wife, Yvonne Burns, had experienced marital difficulties, and Mrs. Burns filed for divorce several months prior to the explosion. The couple reconciled shortly before the accident and remained together for some time after the accident while Mrs. Burns cared for her injured husband. However, in 1974, two years after the accident, Mrs. Burns sought and was granted a divorce.

On April 7, 1976, the respondent, McGraw-Hill Broadcasting Co., aired a program entitled "dangerous occupations" on its local affiliate, KMGH-TV. The program was broadcasted as a part of the 5:00 P.M. news and contained a report on the misfortunes of Sergeant Burns. The reporter, Marion Brewer, broadcasted a story which contained the following language:

"[B]omb squad was called out to do its job, take care of an explosive device and keep it from harming any property or individuals. It seemed to be a routine bomb call; the explosive device was found wired to a car. But the bomb squad's experts were confident they could handle it. As the officers went to work, Sgt. Jack Burns was in charge. That was the last bomb he'll ever work on. It exploded ... taking all of his right hand, parts of his left hand, most of his eyesight and much of his hearing. In addition, his wife and five children have deserted him since the accident. He's not sure he and his family adequately assessed what might be the consequences of an accident on the job with the bomb squad and he advises those interested in a dangerous occupation to do so."

(Emphasis added.) The statement referring to Mrs. Burns and the five children was deleted from the station's 10:00 P.M. broadcast of the story.

Mrs. Burns filed a defamation and invasion of privacy action against McGraw-Hill, alleging that the use of the word "deserted" in the broadcast was defamatory and caused her and her children to suffer damages to their reputation and to be held up to hate, contempt, and ridicule in their community.

The jury returned a general verdict awarding the petitioners a total of $175,000--$75,000 for Mrs. Burns and $25,000 for each of the four children. After the verdict was announced, McGraw-Hill filed motions for a directed verdict, new trial, and judgment notwithstanding the verdict. The trial court denied the motions but ordered that the petitioners accept a remittitur reducing the award to $25,000 for Mrs. Burns and to $5,000 for each of the children or face a new trial. The petitioners accepted the remittitur "under protest" as a method for contesting the validity of the trial court's order. McGraw-Hill appealed the remitted judgments and petitioners cross-appealed the order of remittitur.

II.

Remittitur

A. Appealability

The petitioners accepted the trial court's remittitur "under protest" and argue that they should be able to cross-appeal a remittitur if the other party appeals the final judgment. The traditional rule is that a party who elects to accept a remittitur may not appeal the propriety of the trial court's order. Colorado City v. Liafe, 28 Colo. 468, 65 P. 630 (1901). The rationale is that a party who is satisfied with a judgment should not be allowed to perfect a no-risk appeal and that a party who in fact disputes the remittitur may seek a retrial and thereafter appeal. If the party receives a favorable verdict on retrial, the necessity of appeal is eliminated, and judicial time and resources are not wasted.

We agree that direct appeals of a remittitur by a party who accepts the trial court's offer are not appealable. However, we conclude that a party who accepts a remittitur under protest may cross-appeal the order when the party who benefits from it appeals for different reasons.

The federal courts have on occasion permitted direct appeals of an order granting a remittitur. See, e.g., Bonn v. Puerto Rico International Airlines, Inc., 518 F.2d 89 (1st Cir.1975); United States v. 1160.96 Acres of Land, 432 F.2d 910 (5th Cir.1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir.1970); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266 (5th Cir.1966); Delta Engineering Corp. v. Scott, 322 F.2d 11 (5th Cir.1963). The rationale of the federal courts is that the remittitur is sufficiently adverse to the appellant to warrant appeal and that judicial resources would be more efficiently utilized by allowing appellate review of the order at the earliest possible time. See Note, Appealability of Judgments Entered Pursuant to Remittitur in Federal Courts, 1975 Duke L.J. 1150. However, the United States Supreme Court held in Donovan v. Penn Shipping Co., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977) (per curiam), that a party may not appeal a remittitur order he has accepted in federal courts.

Some states allow appeal of remittiturs by statute or by rule. See, e.g., Neb.Rev.Stat. § 25-1929 (1979); Tenn.Code Ann. § 20-10-102 (1980 Repl.Vol. 4); Tex.R.Civ.P. 328. In Mulkerin v. Somerset Tire Service, Inc., 110 N.J.Super. 173, 264 A.2d 748 (1970), the New Jersey Supreme Court adopted the rule that a plaintiff may cross-appeal a remittitur which has been accepted. The court reasoned that if the traditional rule was to conserve judicial resources and to encourage finality of judgments, these policy arguments would be frustrated if the case were appealed by the other party. The Wisconsin Supreme Court declared that it would be unfair to allow a defendant who receives the benefit of remittitur to also have the sole opportunity to appeal all issues without the risk that the original verdict might be reinstated. Plesko v. Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (1963). See generally Note, Remitting Parties' Right to Cross-Appeal, 49 N.C.L.Rev. 141 (1970).

In our view, cross-appeals of remittiturs should be permitted when the party for whom the remittitur was granted appeals on other grounds. The reasons supporting the traditional rule are not present when the plaintiff is forced into the position of responding to an appeal by the defendant. Judicial economy is best achieved by reviewing the remittitur judgment at the same time other issues in the case are resolved. A new trial may be completely avoided if the trial court's order is found erroneous and the original verdict is reinstated. Moreover, such a rule encourages the defendant to pursue only meritorious appeals because of the chance that the appellate court may reinstate the original verdict while ruling against the appellant on all other issues.

B. Amount of Verdict

The rule in Colorado is that a "verdict in a personal injury case is not to be set aside unless the damages awarded are grossly and manifestly excessive, or, on the other hand, are grossly and manifestly inadequate." Gibbons v. Choury, 169 Colo. 267, 269, 455 P.2d 649, 650 (1969); Odell v. Public Service Co., 158 Colo. 404, 407 P.2d 330 (1965); C.R.C.P. 59(a)(5). Likewise, in a defamation case, we will not set aside the jury's determination of damages unless the damages are "so outrageous as to strike everyone with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted with prejudice, partiality or corruption." Riss & Co. v. Anderson, 108 Colo. 78, 85, 114 P.2d 278, 281 (1941); Tunnel Mining and Leasing Co. v. Cooper, 50 Colo. 390, 115 P. 901 (1911).

In a case where general damages are granted, a new trial and not remittitur is the proper remedy if passion and prejudice have affected the verdict. Tunnel Mining and Leasing Co. v. Cooper, supra; Davis Iron Works Co. v. White, 31 Colo. 82, 71 P.2d 384 (1903); Hartford Fire Insurance Co. v. Kolar, 30 Colo.App. 1, 488 P.2d 1114 (1971). The jury's award can be reduced only if it is found to be excessive and unjust. Mayer v. Sampson 157 Colo. 278, 402 P.2d 185 (1965); Riss & Co. v. Anderson, supra. As we said in Marks v. District Court, 643 P.2d 741, 744 (Colo.1982), "where the trial judge has made a finding that the excessive jury verdict resulted from bias, prejudice, and passion, firmly established precedent requires that a new trial on all issues be granted." That rule is premised on the notion that the entire fact-finding process may have been tainted by the same extraneous factors which led to the excessive verdict.

It is also well-recognized in Colorado that a trial court has the "power to grant a new trial under C.R.C.P. 59 or in the alternative, to deny the new trial on the condition that the plaintiff will agree to a remittitur of the amount of the damages found by the court to be excessive." Id. The option of remittitur or new trial is permissible in cases where the trial court considers the damages manifestly excessive, C.R.C.P. 59(a)(5), but cannot conclude that the damages were a product of bias, prejudice, or passion. See Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, ...