 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Uhlmansiek v. Salvation Army2/18/2005
ire $6,829.64 as economic damages, the consequence of which was that he was left with zero damages for his pain and suffering. The result, he contends, was a legally inadequate verdict necessitating a new trial.
{ } We agree that the trial court should have ordered a new trial. After admitting that it could only speculate how the jury had apportioned damages, the trial court nonetheless treated the entire award as economic damages subject to reduction by the stipulated amount. Even if we were to overlook this inconsistency, the Civil Rules simply do not provide for the unilateral reduction ordered by the trial court. When we asked counsel for the parties during oral argument whether they were aware of any precedent for a trial court, reducing a damage award outside of the procedure for remittitur, they agreed that they were not.
{ } Counsel for the Salvation Army and Jones argues, however, that the reduction ordered by the trial court was properly the result of the stipulation entered into by the parties prior to trial. But this argument overstates the nature of the stipulation. The discussion leading to the stipulation was transcribed and is part of the record before us. As we interpret what counsel said, the parties agreed only to the amount of the medical bills, nothing more. Indeed, counsel for Uhlmansiek stated that he would provide his position on the Salvation Army's entitlement to a credit after the trial. Counsel for the Salvation Army and Jones appeared to accept this arrangement, stating, "I understand what you're saying is maybe the jury comes back and says we award $5,000 to plaintiff, then you're going to dispute whether it should go to that." This is exactly what happened.
{ } "In Ohio, it has long been held that the assessment of damages is so thoroughly within the province of the jury that a reviewing court is not at liberty to disturb the jury's assessment absent an affirmative finding of passion and prejudice or a finding that the award is manifestly excessive." Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331, citing Toledo, Columbus & Ohio River RR. Co. v. Miller (1923), 108 Ohio St. 388, 402-403, 140 N.E. 617. When the court deems the award excessive, the proper course is to offer the plaintiff a remittitur and, if the remittitur is refused, to set aside the verdict and grant a new trial. Furthermore, when the amount of the excess is not readily ascertainable and can be reached only by speculation, in other words by substituting the judgment of the court for that of the jury, even a remittitur is not proper. See Powell v. Montgomery (1971), 27 Ohio App.2d 112, 124, 272 N.E.2d 906.
{ } In sum, in a case for unliquidated damages, the only way in Ohio for a trial court to reduce the damage award of the jury is either (1) to get the plaintiff to agree to a remittitur or (2) to set aside the verdict and order a new trial. Since Uhlmansiek never agreed to the reduction, Uhlmansiek was entitled to a new trial automatically once the trial court unilaterally invaded the province of the jury and reduced its award. Since his motion for a new trial asked only for that to which he was entitled, the trial court erred in denying it.
{ } Accordingly, Uhlmansiek's second assignment of error has merit. Given the necessity of a new trial, the third assignment of error is moot. The judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
DOAN P.J., and HILDEBRANDT, J., concur.
|