Taweel v. Starn's Shoprite Supermarket

• Decision Date: 10 May 1971
• Citation: 276 A.2d 861,58 N.J. 227
• Parties: Angeline TAWEEL et al., Plaintiffs-Appellants, v. STARN'S SHOPRITE SUPERMARKET, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 227

58 N.J. 227

276 A.2d 861

Angeline TAWEEL et al., Plaintiffs-Appellants, v. STARN'S SHOPRITE SUPERMARKET, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 28, 1970.

Reargued March 23, 1971.

Decided May 10, 1971.

Gerald R. Stockman, Trenton, for appellants (Dietrich & Stockman, Trenton, attorneys).

Kenneth J. Dawes, Jr., Trenton, for respondent (Aaron Dines, Morristown, on the brief; McLaughlin, Dawes & Abbotts, Trenton, attorneys).

The opinion of the Court was delivered by

FRANCIS, J.

In late July 1965 plaintiff Angeline Taweel entered defendant Starn's Shoprite Supermarket in Absecon, N.J. to do some shopping. While pushing a grocery cart down one of the aisles in the area of the frozen foods section, she slipped on a quantity of what appeared to be melted ice cream on the floor. She fell against a food case but her son who was nearby caught her and prevented her from falling to the ground. She was immediately aware that she had hurt her back and reported the accident to an employee in a special booth to which she was directed for the purpose. It is clear from the record that she did make the report and that her description of the accident at that time substantially coincided with her testimony at the trial which took place almost four years later. Subsequently Mrs. Taweel instituted this suit against defendant Supermarket seeking damages for her injuries; her husband, George Taweel, joined in the action to recover for medical and hospital expenses and for his loss of consortium. After a six day trial in the Superior Court, Law Division, a unanimous jury awarded $32,400 to Mrs. Taweel for her injuries and $15,916.50 to her husband for his losses.

Later defendant moved for a new trial alleging certain trial errors and that the verdicts were excessive as well as contrary to the weight of the evidence as to liability. After argument, the court made an oral pronouncement which apparently was not clear as to the consequences intended because thereafter an order drawn by defense counsel was entered providing that unless Mrs. Taweel consented to a reduction of her verdict to $20,000 and unless her husband would accept a reduction to $3,300, a new trial as to damages only would be ordered. When plaintiffs refused to accept the reductions, defendant sought a correction of the order claiming its from was an inadvertent error. At argument the trial judge indicated that his original intention had been to order a new trial on all issues, liability as well as damages, if the wife would not remit the portion of her verdict in excess of $20,000, and if the husband would not remit the portion of his verdict above $3,300. (That motion is, of course, a misconception of the remittitur practice.) However, since plaintiffs had declined the suggested reductions the judge revised the order, set aside the verdicts and directed a new trial as to both liability and damages. Plaintiffs sought to appeal therefrom but the Appellate Division denied such leave. We then granted plaintiffs' petition for certification. 55 N.J. 592, 264 A.2d 65 (1970).

The trial court's views necessitate a restatement of the true function of a remittitur. When there is adequate support for the jury's finding on liability and it appears only that the damages awarded were excessive, the remittitur device may be used and its use is encouraged to avoid a new trial. Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330--331, 261 A.2d 657 (1970). The term is used to described an order denying defendant's application for a new trial on condition that the plaintiff consent to a specified reduction in the jury's award. Fisch v. Manger, 24 N.J. 66, 72, 130 A.2d 815 (1957). It may be employed only in cases where, if the plaintiff declines the reduction, the separate issue of liability having been clearly and properly decided, he must submit to a new trial as to damages. If, however, the award of damages is so grossly excessive as to demonstrate prejudice, partiality or passion and thus to generate the feeling that the entire verdict was tainted, a remittitur is improper. The correct procedure in such a case is an order for a new trial on all issues. So in the present matter, if the trial court concluded that the plaintiffs' verdicts were so grossly excessive as to infect the entire result and to visit a manifest injustice upon the defendant if allowed to stand, the remedy was an entire new trial.

This brings us to a consideration of the result that should have been ordered under the circumstances of this case. When the matter was argued originally, neither party furnished a transcript of the evidence. An evaluation of the trial court's action being impossible on such a limited record, we directed that the testimony be added. This having been done and reargument having taken place, we are satisfied that the issue of liability was fully and fairly decided by the jury and should not be disturbed.

Defendant produced no affirmative evidence as to the happening of Mrs. Taweel's accident. Its case consisted of a denial of all knowledge of the incident by the store manager and by his wife who operated the courtesy booth. But the circumstances strongly refute their disclaimer. Mrs. Taweel testified that the woman to whom she reported the mishap filled in a printed form with information about the accident and Mrs. Taweel's address. Later, she received from defendant a letter acknowledging that it had such a form and directing her to forward medical bills. In our view the evidence was ample to require the submission of the question of negligence to the jury for determination. See Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966). If the jurors believed the plaintiff and her son as obviously they all did, we see no rational basis on which a court should adjudge the verdict contrary to the weight of the evidence.

Turning to the plaintiffs' injury and damage claims as the jury could reasonably find them under the evidence, in our judgment the trial court erred in declaring that the verdicts were so disproportionate that to sustain them would constitute a manifest denial of justice under the Law. Fritsche v. Westinghouse Electric Corp., Supra, 55 N.J. at 330, 261 A.2d 657.

Mrs. Taweel was 46 years of age in July 1965. She was on the way to the seashore with her family when the accident happened. She realized immediately that her back had been hurt but continued on to the shore. However, the pain became so severe she had to return home in a few days and on July 23 visited her family physician, Dr. Andrew Ogden. Thereafter the doctor treated her frequently for pains in the lower back which radiated down her right leg, accompanied by numbness of the leg. He diagnosed her injury as a strain of the lower back with a suspicion of intervertebral disc injury. He administered heat treatments and prescribed oral analgesics. After 14 unproductive treatments, Dr. Ogden called in Dr. Walter Scheuerman, an orthopedic specialist, who examined her on September 29, 1965. On October 6 he hospitalized her for several days in order to perform a myelogram, which, although it did not reveal a disc injury, resulted in headaches and nausea for several weeks. Then on October 18, Dr. Ogden, who did not regard the myelogram as conclusive, resumed heat treatments which injections. After 23 heat treatments which were temporarily palliative, on January 26, 1966 Mrs. Taweel began to see Dr. Theodore Podkul.

In July 1966 her back pain was so severe she 'couldn't lie, stand, sit or anything,' and on July 14 Dr. Podkul admitted her to Helene Fuld Hospital where she remained in traction until July 25. On her release Dr. Podkul referred her to another specialist, Dr. Michael Scott at Temple University Hospital. Fearful that Dr. Scott might order another myelogram, she refrained from seeing him until December 12, 1966. After examination, Dr. Scott recommended a back brace and a bed board.

On March 10, 1967 she began seeing Dr. Henry Hrbaniak, an orthopedic surgeon, who gave her heat treatments, pain pills and injections. The pills and injections produced an adverse reaction and had to be discontinued. Following eight unproductive treatments, on July 17, 1967 Dr. Urbaniak again hospitalized her...