Fisch v. Manger

Supreme Court of New Jersey · 1957 · Civil Procedure

130 A.2d 815 (1957)

Updated July 29, 2026

Civil Procedurenew trialadditurremittiturdamagesinadequate verdictdamages only retrialabuse of discretion

Facts

Plaintiff was stopped in traffic when defendants' truck struck his car from the rear, and liability was regarded as clearly established. The accident caused severe neck and back injuries, hospitalization, a myelogram, and a hemilaminectomy, with continuing pain and residual physical limitations. Plaintiff's out-of-pocket medical and related expenses exceeded $2,200 and his wage loss was about $620, yet the jury awarded only $3,000, effectively allowing little or nothing for pain, suffering, and permanent injury. The trial judge found the verdict inadequate but increased it only to $7,500, apparently influenced by a mistaken view that plaintiff had a preexisting back condition from a 1950 accident that materially affected the 1953 injuries.

Issue

May a New Jersey trial court, after finding a jury's damage award inadequate, deny a new trial on condition that the defendant consent to a specified increase in the verdict? If so, may the appellate court set aside the conditioned increase here as inadequate and order a new trial limited to damages?

Rule

In New Jersey, both remittitur and additur are constitutionally permissible procedural devices. A trial court may, in its discretion, deny a new trial because of excessive or inadequate damages on condition that the affected party consent to a specified reduction or increase, subject to appellate reversal when the ruling amounts to an abuse of discretion or a manifest denial of justice. A retrial may be limited to damages when liability has been clearly and properly determined and is separable from the damages issue.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a New Jersey negligence action arising from a collision in Newark, a jury awards Lena Ortiz $4,200. The trial judge concludes the award is plainly inadequate in light of undisputed proof of significant pain and permanent limitation, and orders that a new trial will be granted unless the defendant, Owen Pike, consents to an increase to $9,000.

Lena argues the judge lacked power to make any increase in the verdict because only a jury may set damages. How should a New Jersey appellate court rule?

Explanation. The majority held that in New Jersey additur, like remittitur, is constitutionally permissible as a procedural device. The judge may deny the plaintiff's motion for a new trial on condition that the defendant consent to a specified increase. The court emphasized that this is not an unconditional judicial rewriting of the verdict, but a condition attached to denial of a new trial.