When a court determines that a jury verdict must be set aside as excessive, the court can offer the prevailing party the option of agreeing to a reduction in the amount of the award to a sum designated by the court instead of a new trial. This option is called remittitur.80 The standard for the grant or denial of a request for remittitur is whether or not the award is so grossly excessive as to shock the conscience of the court, or to appear to be the product of passion, prejudice or sympathy.80.1
Faced with a motion for remittitur, the trial court must evaluate the evidence and decide whether the jury award falls within a supportable range. In doing so, the court still defers to the jury and reduces the jury’s award to the absolute maximum amount that the record can support.80.2
In determining the amount of the remittitur, the court must grant the prevailing party every reasonable factual inference from the record and determine what verdict the record justifies as an absolute maximum.81 Although it is not mandatory, when the court is ordering additur or remittitur, the better practice is to afford the parties some limited opportunity to present their views on the amount to be ordered.81.1 Although comparisons with judgments in other cases is of some help, each case must rest on its own facts.82 The court may fix the amount of the remittitur notwithstanding that the award includes non-quantifiable elements such as pain and suffering.83
Where a party has filed a motion for a new trial on the ground that the jury award was excessive, but has not requested remittitur as an alternative, the trial court may offer remittitur on its own initiative.83.1
As remittitur is a device used in connection with jury trials, if a judge, after a non-jury trial, subsequently amends the judgment by reducing his or her original award, this does not constitute remittitur, and so the judge is not required to give the plaintiff the option of a new trial.83.2
80. Moffett v. Carroll, 640 A.2d 169, 176 n.3 (Del. 1994); Stewart v. Storm’s Shoes, Inc., 426 A.2d 839, 841 (Del. 1981); Stewart v. Genesco, Inc., 406 A.2d 25, 26 (Del. 1979); Malcolm v. Little, 295 A.2d 711, 714 (Del. 1972); Rudnick v. Jacobs, 197 A. 381, 383 (Del. 1938); Coldiron v. Gaster, 278 A.2d 328, 330 (Del. Super. 1971), modified, 297 A.2d 384 (Del. 1972); Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255 (Del. Super. 1966); Lacey v. Beck, 161 A.2d 579, 582 (Del. Super. 1960); Campbell v. Brandenburger, 162 A. 354, 356 (Del. Super. 1932); Spahn v. People’s R. Co., 92 A. 727 (Del. Super. 1912). For a discussion of the constitutionality of remittitur, see Carney v. Preston, 683 A.2d 47 (Del. Super. 1996).
80.1. Moffett v. Carroll, 640 A.2d 169, 176 n.2 (Del. 1994). See also Middleton v. Wilmington Housing Authority, C.A. No. 91C-09-261, slip op. at 3, Silverman, J. (Del. Super. Feb. 28, 1995).
80.2. Reid v. Hindt, 976 A.2d 125, 131 (Del. 2009).
81. Reid v. Hindt, 976 A.2d 125, 131 (Del. 2009); Stewart v. Genesco, Inc., 406 A.2d 25, 27-28 (Del. 1979).
81.1. Reid v. Hindt, 976 A.2d 125, 132 (Del. 2009).
82. Burkholder v. Pettinaro, C.A.. No. 84C-OC-91, slip op. at 2, Martin, J. (Del. Super. Jan. 26, 1988).
83. Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255, 259 (Del. Super. 1966).
83.1. Kempel v. Alexander, No. 32, 1994, slip op. at 4, Moore, J. (Del. June 1, 1994) (ORDER), disposition reported at 647 A.2d 381 (Del. 1994) (TABLE).
83.2. Moffett v. Carroll, 640 A.2d 169, 176 & n.3 (Del. 1994).
© 2010 David L. Finger