Tuesday, October 18, 2011

Juries have to Award General Damages Exceeding $1.00 once they find Liability and Special Damages

Kanahele v. Han (HSC October 12, 2011)

Background. Gregory Kanahele, Sr., his son, Kanahele, and his daughter, Trishalynn Kanahele, sued James Han. Kanahele was crossing the street while pushing his motor scooter in a crosswalk. James Han drove through the crosswalk and hit him. At trial, Han testified that his side mirror hit Kanahele. Trishalynn and Gregory, Sr. saw the accident. The Kanaheles all sued Han alleging negligence and sought damages for pain, suffering, emotional distress, and loss of enjoyment of life. At trial, Kanahele's doctor testified that the handlebar of the motor scooter went through Kanahele's cheek and it had to be repaired with surgery. It was unclear if he suffered disfigurement. There was evidence, however, that Kanahele was in distress and pain after the accident and prior to the surgery. The total cost of Kanahele's treatment came to around $12,000.

The jury found that Kanehele was injured, but the other plaintiffs were not. The jury also found Han negligent and that his negligence was a legal cause to Kanahele's injuries. However, they also found Kanehele and his father negligent and legal causes to Kanahele's injuries. They found Han 45% negligent, Gregory Sr. 45% negligent, and Kanehele 10% negligent. As for the award, they found the $12,000 in special damages and awarded zero in general damages.

The parties held a bench conference. Both agreed that the verdict was defective. Han wanted the court to resubmit the verdict for further deliberation on damages. Kanahele wanted a new trial. The court decided to order the jury back into deliberation with a special instruction that its damages award was inconsistent with the law because there must be some general damages after a finding of negligence and special damages. The court also submitted a special verdict form listing the $12,000 in special damages, but leaving the general damages blank. During deliberation, the jury asked what the minimum award could be. The parties agreed that they would not provide that answer and tell the jury to look to its instructions. Five minutes later, the jury awarded $1.00 in general damages.

The Kanaheles moved for a new trial on the grounds that the $1.00 in damages was still inconsistent. The motion was denied and the court deducted the fault percentages leaving Kanahele with $6,754.77. Han appealed and the Kanaheles cross-appealed. The ICA affirmed and the Kanaheles applied for a writ of certiorari.

Procedural Matters on a Cert. Petition. Although the HSC accepted certiorari over the objections of Han, the HSC took the time to reject Han's arguments against accepting cert. This is rare. Most of the time, an application is rejected or accepted without explanation.

HRAP Rule 28 applies to Briefs, not Applications for Cert. Han argued that the application for cert. should have been rejected because under the Kanaheles' "Statement of Facts" section, there were four paragraphs describing the accident that did not cite back to the record on appeal. Han relied on Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(3), which requires that an opening brief to contain "a concise statement of the case" with references to the record and transcripts. The HSC rejected this argument because the facts without reference to the record described matters that were not in dispute: Kanahele was crossing the street when Han hit him and Kanahele was hurt. The HSC also noted that Han pointed to no cases that dismissed an appeal based on non-compliance with HRAP Rule 28(b)(3). Moreover, the HSC noted that it has the discretion to accept appeals pursuant to HRAP Rule 2, which gives appellate courts the power to suspend the procedural rules upon good cause shown or in the interest of expediting the decision. Moreover, the HSC noted that it has a "policy of affording litigants the opportunity to have their cases heard on the mertis[.]" Schefke v. Reliable Collection Agency, Ltd., 96 Hawai'i 408, 420, 32 P.3d 52, 64 (2001).

HRAP Rule 28 v. HRAP Rule 40.1. The HSC, in rejecting Han's procedural argument, did not cite HRAP Rule 40.1. Rule 28 regulates briefs. And that requires references to the record on appeal. HRAP Rule 40.1, however, regulates applications for writs of certiorari. It requires "a short statement of the case containing the facts material to the consideration of the questions presented[.]" The rule does not expressly require references to the record on appeal or even transcripts. That said, it's always a good idea to let the court know where in the record your factual assertions are.

Okay, so Once a jury Awards Specials, it has to Award Generals . . . but what's the Remedy? A "verdict which awards the plaintiff special damages but no general damages for pain and suffering is generally regarded as improper[.]" Dunbar v. Thompson, 79 Hawai'i 306, 314-15, 901 p.2d 1285, 1293-94 (App. 1995). The remedy for this impropriety may be a new trial to determine general damages. See Powers v. Johnson, 562 So. 2d 367, 370 (Fla. Dist. Ct. App. 1990); Smith v. Uhrich, 704 P.2d 698, 699-700 (Wyo. 1985).

However, if the jury is still available, the trial court has the discretion to resubmit the verdict and determine general damages. Duk v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1058 (9th Cir. 2003). Allowing the jury to "correct its own mistakes conserves judicial resources and the time and convenience of citizen jurors, as well as those of the parties[.]" Id. Here, the HSC held that the court did not abuse its discretion by having the jury re-deliberate the issue of general damages.

Nominal Damages are not General Damages. The HSC agreed that the $1.00 award was "the symbolic equivalent" to no award and was thus still improper. "Nominal damages means no damages at all[.]" Hall v. Cornett, 240 P.2d 231, 235 (Or. 1952). It is a "trifling sum awarded when no legal injury is suffered but there is no substantial loss or injury to be compensated[.]" Black's Law Dictionary 447 (9th ed. 2009). According to the HSC, when a jury awards special damages, but nominal general damages, if there is "sufficient evidence to support an award for pain and suffering[,]" the verdict is still inconsistent as if there were no damages. Walsh, 80 Hawai'i at 194, 907 P.2d at 780. Here, the HSC held that there was sufficient evidence showing pain and suffering and that there should be an award for actual general damages. Kanahele's doctor and Han's testimony provided sufficient evidence along with the medical invoices showed enough that Kanahele experienced pain and suffering.

Three Exceptions. There are exceptions to the no-generals-even-though-the-jury-awarded-specials rule. A zero general damages award may stand even when there are special damages when (1) the evidence showed "a dispute over the amount of the claimed special damages" so that the zero-general-damages award is "evidence of the jury's intent to include in the special damages award an amount for pain and suffering"; (2) there is "no probative evidence that the plaintiff incurred pain or suffering"; or (3) the only evidence of the pain and suffering comes from the subjective testimony of the plaintiff, "which the jury could reasonably have concluded was exaggerated or lacking in credibility." Dunbar, 79 Hawai'i at 361, 901 P.2d at 1295. According to the HSC, none of these exceptions applied here. Han even conceded that the verdict was inconsistent. And so, the HSC remanded the case for a new trial on damages.

"Symbolic Equivalent" or a Slippery Slope? After being instructed that the jury had to award something to the plaintiff, it came up with $1.00. The HSC held that this award was a nominal general damages award because "nominal damages may not exceed $1.00." Minatoya v. Mousel, 2 Haw. App. 1, 6, 625 P.2d 378, 382 (1981). Thus, the nominal damages are the "symbolic equivalent" of no damages and a new trial is needed. But was it nominal? What if that was what the jury believed was ample compensation for pain and suffering? What if the jury comes up with $2.00? It may be more than nominal damages, but is it still the "symbolic equivalent" of no award? Where do we draw the line?

1 comment:

wally j said...

The Jury Wanted to "send a message" that one dollar was enough to show that these types of cases should not be sent to court. The Supreme Court didn't want the Jury to take matters into their "own hands" and decided to overturn such a verdict. maybe $20 is needed to "send a message" or maybe $200 from now on.
To teach people, Milking "the system" cases, because of the supreme court's decision should now be made more than $1.00