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Civil Procedure Fall 2014

Case Note: Hanna

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Conditional New Trial (Additur/Remittur)

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Hypo 13-1: Kramer is hurt when coffee spills on him as he is moving seats in a movie theater.  He sues Starbucks for negligently making coffee cups that are not spill proof and for failing to warn him of the problem, claiming they caused him to slightly hurt his right ankle when it spilled.  A jury returns a verdict for Kramer and grants him 15 million dollars in damages.  The judge thinks that liability was proper but damages were excessive.  What recourse does the judge have?

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  • She could grant a partial new trial, only on the issue of damages, if she thought it went beyond the great weight of the evidence.
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  • She could also give what is called a conditional grant of a new trial on damages (or on all issues if appropriate), that is unless the winning Pl agrees to her conditions she will order a new trial.  So she can say, Pl, unless you agree to accept $20,000 instead of $15 million I am going to grant a new trial.  In the federal system this is called “remittitur.”
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    Hypo 13-2: While playing in Sea World, Buster’s hand is bitten off by a seal.  He sues alleging that Sea World negligently allowed its seals to develop a taste for human flesh (employing Cherith Cutestory as his lawyer).  The jury finds for Buster, but awards damages of only $1,000 (apparently turned off by Buster’s shouting “I’m a Monster” on the witness stand).  The judge thinks that liability was properly found but damages were inappropriately low.  What recourse does the judge have?

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  • She could grant a partial new trial, only on the issue of damages, if she thought it went beyond the great weight of the evidence.
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  • She could also give what is called a conditional grant of a new trial on damages (or on all issues if appropriate) but in the other direction, she could say to the Def, unless he agrees to the judge’s condition she will order a new trial. So she can say, Def, unless you agree to pay $2 million instead of $1,000, I am going to grant a new trial.  This is called “additur.”

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    The Bottom Line

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    Remittur is allowed in both federal and most state courts.  You really do, however, always have to give the Pl the choice between new trial or accepting the lower amount, you can only give him the hard choice, not force him to choose one branch over another. 

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    Additur is disallowed in federal courts as a violation of the 7th Amendment, but permitted in some state courts (the 7th Amendment does not govern there). 

    For a good opinion by a state court discussing whether to allow both or follow the federal rule see Fisch v. Manger, from the Supreme Court of New Jersey (1975).