Lacy v. District of Columbia, 12858.

• Docket Nº: No. 12858.
• Citation: 408 A.2d 985
• Case Date: November 23, 1979
• Court: Court of Appeals of Columbia District

408 A.2d 985 Esther LACY et al., Appellants,
v.
DISTRICT OF COLUMBIA et al., Appellees. No. 12858. District of Columbia Court of Appeals. Argued March 21, 1979. Decided November 23, 1979.

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Samuel M. Shapiro, Washington, D. C., for appellants.

Margaret L. Hines, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D. C., at the time the brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on brief, for appellees.

Before KELLY, KERN and MACK, Associate Judges.

KERN, Associate Judge:

Appellants are mother and daughter who brought action for damages they claim to have incurred when a janitor at the elementary school attended by the daughter in 1974 allegedly committed three sexual assaults on her. The jury returned a verdict in the amount of $640,000 against (1) the janitor,¹ on the theory of assault and battery, (2) the principal, a teacher, and a guidance counsellor of the school, on the theory that they were negligent in their care and supervision of the child, and (3) the District of Columbia, on the theory that it was responsible for this negligence of these particular appellees who had been in its employ at the time of the assaults.

Subsequent to this jury verdict in favor of appellants, the court entertained a motion by appellees seeking either a new trial or a judgment notwithstanding the verdict on the ground that the verdict was so excessive that it could only have been the result of sympathy or prejudice. Judge Belson, after a hearing, ruled as follows:

Review of the evidence adduced at trial and consideration of the points and authorities and oral arguments of counsel lead the Court to the conclusion that the moving defendants are entitled to a new trial on this ground.

In reaching this conclusion, the Court has considered all aspects of the evidence. Some deserve special mention. The expenditures in behalf of minor plaintiff to date are very modest and do not exceed $1500. The most generous possible projection of future expenses is slightly in excess of $80,000. This leaves for consideration the question whether the record justifies the additional award of some $560,000 to plaintiffs. In addressing this question, it must be borne in mind that the good judgment and common sense of the jury must normally be relied upon to arrive at a fair assessment of damages for such injuries as pain and suffering, mental anguish and distress, and psychological damage. Injuries to one's personality are especially difficult to evaluate. The Court is most reluctant to set aside a jury's evaluation of injuries such as those claimed here. Yet, a review of all the evidence leaves this Court convinced that the verdict for damages is not only against the weight of the evidence but is also so clearly excessive and unreasonable that is would be unconscionable to let it stand. Having heard the testimony and

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having also observed the demeanor of plaintiffs and the other witnesses who testified, the Court is convinced that the verdict of $640,000 is the result of emotion rather than a calm dispassionate weighing of the evidence. This determination leads in part to the Court's further conclusion that the jury's verdict as to liability should not stand. Accordingly, it would not be proper to sustain the verdict as to liability and order a new trial on the issues of damages only. [Record at 949-50.]

Appellants vigorously contend that the court's grant of a new trial on this basis was error. It is axiomatic that the granting of a new trial for excessiveness of verdict is a matter within the discretion of the trial judge, and therefore may only be reviewed for an abuse of that discretion. All Weather Storm Windows, Inc. v. Zahn, D.C. Mun.App., 112 A.2d 496, 497 (1955); Munsey v. Safeway Stores, Inc., D.C.Mun.App., 65 A.2d 598, 600 (1949). The test for determining what constitutes an abuse of discretion by the trial court has been stated as follows:

[b]ecause the views of the trial judge are, like those of a jury, entitled to considerable deference, "we will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within `the maximum limit of a reasonable range." [Hines v. Safeway Stores, Inc., D.C.App., 379 A.2d 1174, 1176 (1978) (emphasis in original).]

In prescribing this rather limited scope of review, the court in Hines repeated what the federal court of appeals here had set forth in Taylor v. Washington Terminal Company, 133 U.S.App.D.C. 110, 114, 409 F.2d 145, 149, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969).

We note, however, that in both Hines and Taylor the appellate court found an abuse of discretion by the trial court's grant of a new trial for excessive verdict.² These decisions demonstrate that, despite the language quoted above, an appellate court's role in such cases is not merely to rubberstamp the trial court's decision. We note, moreover, that the Taylor court expressly followed the Third Circuit's en banc decision in Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960), explaining that

[i]n Lind . . . that court reversed a trial court's grant of a new trial because the verdict was against the weight of the evidence. The court distinguished between cases where a new trial is granted because of some legal error and cases in which the trial judge simply reweighed evidence already submitted to a jury. In cases of the latter sort (in which grants of new trials for excessive general damages must be included), "the [trial] judge takes over, if he does not usurp, the prime function of the jury as the trier of the facts. It then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision than is the case where a new trial is granted because of some undesirable or pernicious influence obtruding into the trial. Such a close scrutiny is required in order to protect the litigants' right to jury trial." [Id., 133 U.S.App.D.C. at 113 n. 13, 409 F.2d at 148 n. 13, quoting from Lind, supra at 90.]

It appears, then, that the test for appellate review of a trial court's grant of a new trial for excessive verdict is whether after close scrutiny there is firm support in the record for a finding by the trial judge that the verdict is "so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate," given the respect accorded the judge's "unique opportunity to

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consider the evidence in the living courtroom context." Taylor, supra at 113, 409 F.2d at 148. See generally, Wingfield v. Peoples Drug Store, Inc., D.C.App., 379 A.2d 685, 687 (1977); Vander Zee v. Karabases, 191 U.S.App.D.C. 200, 589 F.2d 723 (1978); Williams v. Steuart Motor Company, 161 U.S.App.D.C. 155, 167, 494 F.2d 1074, 1085 (1974); Airlie Foundation, Inc. v. Evening Star Newspaper...