Kelaghan v. Roberts, 79-64-A

• Decision Date: 05 August 1981
• Docket Number: No. 79-64-A,79-64-A
• Citation: 433 A.2d 226
• Parties: Richard P. KELAGHAN, Executor of the Estate of Ruth E. Coppage v. Perry G. ROBERTS et al. ppeal.
• Court: Rhode Island Supreme Court

Page 226

433 A.2d 226

Richard P. KELAGHAN, Executor of the Estate of Ruth E. Coppage v. Perry G. ROBERTS et al.

No. 79-64-Appeal.

Supreme Court of Rhode Island.

Aug. 5, 1981.

Saunders, Dumas & Krause, Harold E. Krause, Jr., East Greenwich, for plaintiff.

Anthony F. De Marco, Providence, for defendants.

OPINION

MURRAY, Justice.

This is a civil action instituted in the Superior Court by the plaintiff, Ruth E Coppage (Coppage), to recover for personal injuries and property damage sustained in a motor-vehicle collision. ¹ A Superior Court jury returned a verdict of $30,000 against the defendants, Perry G. Roberts (Roberts) and Demir Saydam (Saydam). Following that verdict, a Superior Court justice granted the plaintiff's motion for a new trial on the issue of damages unless the defendants consented to an additur of $60,000. This case is now before the court on an appeal by Saydam from the trial justice's conditional grant of the new trial.

The facts surrounding the motor-vehicle collision are not disputed by the parties and need only be briefly described. On March 27, 1975, a vehicle driven westward by Roberts on First Avenue in East Greenwich suddenly veered across the center line and struck the Coppage vehicle, ² which was eastbound on the same highway. Roberts, the stepson of Saydam, who was the registered owner of the vehicle, was driving the vehicle on the date of the accident. After having been struck by Roberts's vehicle, the Coppage vehicle spun around and was hit by a third vehicle driven by John Schwarzkopf, who was also traveling eastward on First Avenue. As a result of the collision, Coppage sustained severe injuries including a fractured right knee, a fractured hip and pelvis, multiple rib fractures, and head injuries. These injuries required plaintiff to undergo two operations and to be hospitalized for an extended period.

On November 20, 1975, Coppage filed the instant complaint in the Superior Court against the three defendants, ³ alleging that the collision and her injuries were caused by their negligence.

At a pretrial conference in this matter, a Superior Court justice entered an order that, in part, provided:

"Plaintiff sues for personal injury and property damage on allegations that she was an owner of an automobile which she was operating on First Avenue in the Town of East Greenwich, on March 27, 1975 in mid-afternoon, when her motor vehicle was in collision with a motor vehicle operated by Perry Roberts and being driven driven upon the public highway with the consent of the owner Demir Saydam."

Prior to the commencement of the trial, Saydam moved to amend his answer to plaintiff's complaint with the additional defense that he did not own the vehicle at the time of the accident; after hearing arguments of counsel, the trial justice denied Saydam's motion.

On appeal from the trial justice's order conditionally granting Coppage a new trial, Saydam raises four issues. The additional facts involved in this matter will be discussed as needed in the resolution of those issues.

I

Initially, Saydam contends that the trial justice erred in granting plaintiff's motion for a new trial unless defendants consented to an additur of $60,000. He argues that the trial justice, in granting the motion, did not properly exercise his independent judgment, nor did he discuss which evidence he accepted and which he rejected. The duty of a trial justice in passing upon a motion for a new trial on the grounds of inadequacy of damages is essentially the same as his duty in considering a motion for a new trial generally. Fontaine v. Devonis, 114 R.I. 541, 551, 336 A.2d 847, 854 (1975).

In ruling on such a motion for a new trial, the trial justice must, in the exercise of his independent judgment, weigh all of the material evidence on the question of damages and pass on the credibility of the witnesses. DiBattista v. Lincoln, 109 R.I. 412, 413, 286 A.2d 591, 592 (1972); Fitzgerald v. Rendene, 98 R.I. 239, 240, 201 A.2d 137, 138 (1964). After this evidence-sifting process is completed and liability is established, the trial justice should grant a new trial on the question of damages if there is a demonstrable disparity between the jury's award and the damages sustained by plaintiff such that the verdict is not truly responsive to the merits of the controversy and fails to do substantial justice between the parties. Roberts v. Kettelle, 116 R.I. 283, 301, 356 A.2d 207, 218 (1976); Grenier v. Royal Cab, Inc., 114 R.I. 11, 15, 327 A.2d 272, 274 (1974); Hamrick v. Yellow Cab Co., 111 R.I. 515, 524, 304 A.2d 666, 672 (1973). If the trial justice finds that a new trial is warranted on the question of damages, it is his duty, before ordering a new trial thereon, to give the plaintiff an opportunity to file a remittitur or the defendant an additur. 1 Kent, R.I. Civ.Prac. § 59.4 at 440 (1969). We will not disturb a trial justice's finding that an award is grossly excessive or inadequate unless he is clearly wrong. Roberts v. Kettelle, 116 R.I. at 302, 356 A.2d at 218; Hill v. A. L. A. Construction Co., 99 R.I. 228, 233, 206 A.2d 642, 645 (1965); Armes v. United Electric Railways Co., 74 R.I. 450, 451, 62 A.2d 131, 131 (1948).

The trial justice, in deciding a motion for a new trial, need not exhaustively analyze the evidence or state all of his conclusions regarding its weight or the witnesses' credibility, but he or she should, at the very least, refer sufficiently to what prompts his or her action in order to enable this court to determine whether the trial justice's interference with the jury's verdict was based on a misconception of material evidence or was otherwise clearly wrong. E. g., Wood v. Paolino, 112 R.I. 753, 755-56, 315 A.2d 744, 745 (1974); McVeigh v. McCullough, 96 R.I. 412, 428, 192 A.2d 437, 446-47 (1963); see Yammerino v. Cranston Tennis Club, Inc., R.I., 416 A.2d 698, 700 (1980). If a trial justice complies with these new trial obligations, his or her decision is entitled to great weight. However, if the trial justice does not perform his duties, his or her decision is deprived of the persuasive force to which it would otherwise be entitled. Wood v. Paolino, 112 R.I. at 757, 315 A.2d at 746.

The record in the instant case discloses that the trial justice, after hearing arguments of counsel, granted plaintiff's motion, stating:

"THE COURT. The Court felt that the verdict at that time was very inadequate and I will give the defendant five days within which to grant an additur of $50,000 for a total verdict of $70,000. This takes into consideration the total of $80,000, $10,000 being reduced having received payment from a third party. So that if the defendant will grant an additur of $50,000 within five days, the motion for new trial is denied; otherwise, the motion for a new trial on damages is granted.

"MR. TORRES. Just a point of clarification. The amount received was $20,000 from the third party.

"THE COURT. Eighty thousand total minus $10,000

"MR. TORRES. It should be minus $20,000 I think, your Honor.

"THE COURT. The jury brought in a verdict of $30,000?

"MR. TORRES. Correct.

"THE COURT. I will add $50,000 to make it $80,000; from that deduct $10,000 and that will give a total of $70,000.

"MR. DeMARCO. The deduction should be $20,000, your Honor. That is the amount paid by the co-defendant to Mr. Torres' client.

"THE COURT. I see.

"MR. DeMARCO. Thirty minus $20,000, your Honor.

"THE COURT. Under the circumstances the Court will make it $90,000 minus $20,000. In other words, it is academic, isn't it?

"MR. DeMARCO. I believe it is academic, yes, your Honor.

"THE COURT. All right.

"MR. DeMARCO. Thank you, your Honor."

It is obvious that the trial justice failed to perform his duties in ruling on plaintiff's motion for a new trial. The trial justice's decision is devoid of any reference whatever to the evidence that he was accepting or rejecting, or to what testimony he believed and what he disbelieved. The trial justice's failure to indicate reasonably the basis for his conclusion that the jury's award of $30,000 was "very inadequate" thus deprives his decision of the persuasive force to which it would normally be entitled.

In such circumstances, we disregard the trial justice's decision and apply the appellate rule. Wood v. Paolino, 112 R.I. at 757, 315 A.2d at 746; accord, Bruno v. Caianiello, R.I., 404 A.2d 62, 64-65 (1979). In Wood v. Paolino, we stated that the appellate rule

"as it relates to the question of damages for pain and suffering, raises somewhat different problems from those encountered when the issues are liability or damages for out-of-pocket expenses. Cartier v. Liberty Laundry, Inc., 49 R.I. 12, 139 A. 473 (1927). In the latter instances we look to the record to ascertain for ourselves whether there is any competent evidence which, if accepted as truthful, will sustain the verdict. Bookbinder v. Rotondo, 109 R.I. 346, 359-60, 285 A.2d 387, 394 (1972); Gilbert v. Girard, 109 R.I. 68, 74, 279 A.2d 919, 923 (1971). The adequacy of damages for pain and suffering, however, is determined by an exercise of our judgment and an application of our experience in the affairs of life and our own knowledge of social and economic matters. Quince v. State, 94 R.I. 200, 204-05, 179 A.2d 485, 487 (1962); Cartier v. Liberty Laundry, Inc., supra at 14, 139 A. at 474." 112 R.I. at 757-58, 315 A.2d at 746.

The jury here returned a verdict against defendants in the amount of $30,000. There was, as defendant points out, no indication in the jury's verdict of what amount the jury awarded plaintiff for out-of-pocket expenses and what amount the jury awarded her for pain and suffering. Our examination of the record reveals, however, that there is competent evidence therein to support an award of approximately $26,788 for plaintiff's medical expenses. ⁴ If we consider this figure as the amount in fact awarded by the jury for plaintiff's out-of-pocket expenses, it would follow...