Non-economic Damages - The Province of the Jury

Posted Monday, July 03, 2017 by Ed Harper

The jury is given the constitutional role to determine questions of fact, such as the amount of damages. (James v. Robeck, 79 Wn.2d 864, at 869, 490 P.2d 878 [1971]). The trial court can grant a remittitur or additur as part of their inherent power. (Additur – when value is added or increase in the damages award. Remittitur – when court reduces the damages award in a jury verdict.) “An appellate court will not disturb an award of damages made by the jury unless it is outside the range of substantial evidence in the record, shocks the conscience of the court, or appears to been arrived at as a result of passion or prejudice.” (Bingaman v. Grays Harbor, 103 Wn.2d 831, 690 P.2d 1230 [1985]), Appellate remittitur was part of the common law in 1889 when the Washington Constitution was ratified. Appellate courts also have the authority to reduce jury damages awards.

The case of Bunch v. King County, 155 Wn.2d 165, 116 P.3d 381 (2005) sheds light on the power of the jury in granting noneconomic damages. The Washington Supreme Court upheld the trial court’s decision not to grant the defendants remitted her (reduction of the jury verdict). This reversed the Court of Appeal decision to grant remittitur of the jury’s verdict.

In Bunch, the jury verdict held that Ralph Bunch was discriminated against by King County Department of Youth Services. The jury rendered a verdict of over $600,000 of which noneconomic damages were granted for $260,000. The trial court upheld this decision. However the Court of Appeal reduced the non-economic damages from $260,002 downward to $25,000. Bunch was a King County Corrections Officer and the jury found King County actions were racially motivated in a discriminatory manner. He was originally awarded $340,000 in lost future wages, $3500 in lost past wages, and $260,000 in noneconomic damages.

The appellate court, in reducing the noneconomic damage award incorrectly, determined that Bunch had not presented enough evidence to convince an “unprejudiced, thinking mind of his anguish.” The Washington Supreme Court stated “that is enough to support an award of emotional distress” by proving that he suffered from anguish and emotional distress. Bunch, at 181. “The jury’s award of noneconomic damages is not so excessive as to be flagrantly outrageous and extravagant, particularly in light of the strong presumption we accord to jury verdicts before passion or prejudice can justify reduction of a jury verdict, it must be of such manifest clarity as to make it unmistakable.” Bingaman, at 836. “As to the other factors from which the idea of passion and prejudice may be derived, sometimes there may occur during the trial, untoward incidents of such extreme and inflammatory nature that the court’s admonitions and instructions could not cure or neutralize them.” Robeck, at 871. “As explained above, the size of the verdict is within the bounds of the evidence presented, and there is no indication of anything untoward in the proceedings that justify setting the verdict aside based on passion or prejudice. In sum, the Court of Appeals is not justified to reduce the noneconomic damages from $260,000-$25,000…The jury’s award of noneconomic damages is within the range of the evidence presented, is not flagrantly outrageous and extravagant, nor was it motivated by passion and prejudice.” Bunch, at 183.

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