filed as amended september 3 1987.: July 17, 1987.
Appeal from the District Court for the Virgin Islands (St. Thomas), Civil No. 83-0095.
BEFORE SEITZ, HIGGINBOTHAM, and ROSENN, Circuit Judges.
This appeal presents the unfortunately increasingly familiar scenario in the Virgin Islands of an enormous jury award apparently far in excess of the injuries suffered by the plaintiff. In this action for damages for injuries suffered by the plaintiff when she slipped on spilled oil in the defendant's supermarket, the district court denied the defendant's motion for judgment notwithstanding the verdict, but, finding the jury's award shocking to the judicial conscience, ordered a remittitur. The defendant now appeals from the judgment both with respect to liability, based on the district court's failure to give a requested jury instruction and on an asserted impropriety in the plaintiffs' counsel's closing argument, and with respect to the amount of the reduced award. Because we find no reversible error respecting the determination of liability, we will affirm that portion of the district court's opinion. As we find the award even as remitted far beyond the outermost limits of a reasonable verdict, however, we will return the case to the district court for a new trial on the amount of damages unless the plaintiff elects to file a remittitur as herein directed.
A bottle of cooking oil broke in a checkout lane at a supermarket owned by defendant Pueblo International, Inc. (Pueblo). A janitor spread cornmeal over the oil, but no one blocked off the lane. Within ten minutes, Celia Gumbs, a shopper, slipped on the oil and fell, spreadeagled, to the floor, and fell again repeatedly trying to get up.
Gumbs felt immediate pain, which has continued to be present, and which will bother her intermittently for the rest of her life. She incurred medical expenses, but proved no future expenses, although surgery may some day be necessary. Gumbs was not hospitalized nor did she miss even a day of work. Despite her injury, she climbed twenty-five steps to her office twice every working day.
Gumbs testified that after the fall, she found sexual relations too painful for her, and she had difficulty performing household chores, which then had to be assumed by her husband, James Gumbs. Both Mr. and Mrs. Gumbs testified their eventual separation was caused by these disruptions in a previously happy marriage, that she is no longer able to engage in the outdoor activities and dancing she once enjoyed, and she has difficulty playing with her children and taking them places.
At trial, Doctor Sylvia Payne, who had treated Gumbs on several occasions testified that as a result of the accident she had sprained her coccyx, experienced abdominal and vaginal pain, had a back spasm, and may require surgery at some point. She also testified that medication prescribed for the back pain had caused Gumbs to develop an ulcerated stomach. Other expert testimony revealed preexisting or unrelated conditions of scoliosis, osteoarthritis, obesity, and an elevated uric acid level, but no evidence that these had caused any discomfort before the accident. There was conflicting evidence of two herniated discs.
The jury awarded Gumbs $900,000 for past and future pain and suffering, mental anguish, and loss of enjoyment of life. Her medical expenses were also included, but represented only an insignificant part of the award. No award was permitted for economic losses or future medical expenses. The jury also awarded James Gumbs $10,000 for loss of consortium.
Pueblo immediately moved for judgment notwithstanding the verdict or alternatively for a new trial. The district court summarily rejected Pueblo's arguments regarding liability as meritless, but agreed that the jury's award was so unreasonable as to require remittitur. The court stated:
[T]he injuries to Mrs. Gumbs . . . are not to be denigrated. They . . . were worthy of a sizable jury award. However, the amount of $900,000 is shocking to the conscience of this Court. It can rightly be said that ultimately a judge's decision on whether he or she is "shocked" by the size of an award depends on personal predilection, and one judge's "shock" level may be substantially higher than another's. Be that as it may, we cannot let this verdict stand.
But we cannot reduce it by remittitur to what we would have given, because that is not the applicable law governing such a situation. Rather, we can only require reduction to a level that is no longer shocking, which will still be substantial in size. That level is $575,000. Gumbs v. Pueblo Int'l, Inc., No. 1983-95, mem. op. at 5 (D.V.I. Dec. 12, 1985). The court ordered Gumbs to remit that portion of the award over $575,000 or to face a new trial. She agreed to the remittitur. The court permitted James Gumbs' award to stand.