Boudreau v. Damas Food Market Corp.

• Decision Date: 16 March 1966
• Parties: Barbara BOUDREAU et al., Plaintiffs, v. DAMAS FOOD MARKET CORP., Defendant.
• Court: New York City Court

Page 840

268 N.Y.S.2d 840

49 Misc.2d 913

Barbara BOUDREAU et al., Plaintiffs, v. DAMAS FOOD MARKET CORP., Defendant.

Civil Court of City of New York, New York County, Trial Term, Part XVI.

March 16, 1966.

David B. Ampel, New York City, for plaintiff.

Allen M. Taylor, by Irwin F. Simon, New York City, for defendant.

PATRICK PICARIELLO, Judge.

This is an oral application made by plaintiff to set aside the jury's verdict of $400 for plaintiff-wife and $60 for plaintiff-husband on the ground of inadequacy.

The defendant's doctor's written report of his examination of the plaintiff-wife conducted on October 2, 1963 (approximately fourteen weeks after the occurrence of the incident), reflects the following-described injury:

'Local examination shows a fading pink and tan discoloration in the center of the anterior surface of her right thigh. This was more noticeable a month or so ago. It is fading. The scar itself is roughly 'L'-shaped. The vertical arm is about 1 wide and 4 long, and ends in a horizontal arm of about 2 1/2 long and 1 wide. The scars will blanch out with the passage of months and may even attain the color of the surrounding normal skin in about six to nine months. But on close inspection, a scar, particularly the vertical, will be noticeable.'

Color slides of the burn taken on October 2, 1963, were permitted by the court to be exhibited to the jury at trial as well as the actual physical residue of the burn and scar on plaintiff's right thigh.

This court is generally reluctant to meddle with a jury verdict on an award for personal injuries and is disinclined to substitute its evaluation of an injury for that of a jury. However, in this case, it is the court's opinion that the award of $400 as compensation for the nature and extent of the injury above described is so palpably inadequate as to agitate its conscience. Intervention is dictated. Vide, Kligman v. City of New York, 281 App.Div. 93, 117 N.Y.S.2d 436; Cohen v. City Canal Corp., 279 A.D. 897, 111 N.Y.S.2d 157.

The next consideration to be given to this application is the nature of the remedy to be accorded to the plaintiff.

The first and foremost consideration attended upon an application of this nature with respect to its appropriate remedy is whether or not the inadequate verdict was the result of a compromise by members of the jury who were convinced that there was no liability on the part of the defendant but who surrendered their convictions by an award less than commensurate with the injuries sustained. In such circumstances, it becomes incumbent upon the court to direct a new trial of all the issues involved.

The rationale in the light of the relief to be granted is that there must be a balance between a compromise verdict and an inadequate one. This balance must insist that a determination of inadequate verdict must not be throttled by a consciousness of possible compromise, necessitating a new trial of all the issues. On the other hand, a new trial of all the issues should not be impeded because of an inadequate verdict, should the facts in a particular case so dictate.

It is essential to a compromise that there be material concessions or yielding of opposing convictions. It is an arrangement arrived at by a jury in settling or adjudicating a dispute between litigants upon what appears to it to be equitable terms, having had regard to the uncertainty it may find itself in regarding the facts found by it, based on the evidence submitted.

Therefore, the test appears to be whether or not in the instant case there was a surrender of conscientious convictions on one material issue by some jurors in return for a relinquishment of matters in their like settled opinion on another issue. A brief recital of the uncontradicted testimony submitted to the jury for its consideration clearly forecloses this possibility.

It appears that plaintiff entered into defendant's place of business, as had been her wont for many years, to order a container of hot tea to take out. As she was standing in front of the counter, awaiting her tea, the container, which had been placed on the counter by one of defendant's employees, was brushed against by the elbow or arm of another of defendant's employees and was caused to topple over. The tea spilled over and onto the plaintiff's right thigh, resulting in second degree...