Granting of Remittitur

Fla. Stat. 768.74 was enacted by the Legislature purportedly to permit a trial court to grant a remittitur or an additur considering specified criteria. Sec. (5) lists the criteria as follows:

(a) Whether the amount awarded is indicative of

prejudice, passion, or corruption on the part of the

trier of fact;

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(b) Whether it appears that the trier of fact

ignored the evidence in reaching a verdict or

misconceived the merits of the case relating to

the amounts of damages recoverable;

(c) Whether the trier of fact took improper

elements of damages into account or arrived

at the amount of damages by speculation and


(d) Whether the amount awarded bears a

reasonable relation to the amount of damages

proved and the injury suffered; and

(e) Whether the amount awarded is supported

by the evidence and is such that it could be

adduced in a logical manner by reasonable


None of these factors are actually new. The trial court’s ability to grant a remittitur or an additur was always based on essentially the same criteria. The Legislature added a Sec. (6) apparently to honor long-standing Florida law that a Court should not substitute its opinion on damages for that of the jury.

(6) It is the intent of the Legislature to vest the trial

courts of this state with the discretionary authority

to review the amounts of damages awarded by a

trier of fact in light of a standard of excessiveness

or inadequacy. The Legislature recognizes that

the reasonable actions of a jury are a fundamental

precept of American jurisprudence and that such

actions should be disturbed or modified with

caution and discretion. However, it is further

recognized that a review by the courts in

accordance with the standards set forth in

this section provides an additional element of

soundness and logic to our judicial system and is

in the best interests of the citizens of this state.

Azoulay v. Condominium Association of La Mer Estates, Inc., 37 Fla. L. Weekly D1955 (4th DCA, Aug. 15, 2012) was a case in which the trial court determined that a remittitur was necessary. The facts were that an 82 year old plaintiff fell in her condominium parking lot fracturing her wrist and receiving facial lacerations. The case was tried largely on liability and the only testimony regarding pain and suffering was offered by the plaintiff herself. She testified that she had surgery to her wrist and then went to physical therapy for two years. Her testimony indicated that her wrist continued to bother her and she could not do some tasks like cutting vegetables. The jury awarded the amount of the medical expenses and $300,000.00 in past and future pain and suffering and the trial court remitted the noneconomic damages down to $150,000.00. It is certainly not obvious from the facts that a remittitur was justified. An 82 year old woman who can no longer do tasks such as cutting vegetables, who had to go to physical therapy for two years, suffered a fractured wrist and other injuries who testified that the wrist continued to bother her two years later, seemed to be adequate justification for a $300,000.00 award spy cell phone tracking online for pain and suffering. Nevertheless the trial judge was obviously in the best position to judge the quality of the testimony as it relates to the amount of the award. On appeal, the Fourth District affirmed the trial court. While at first blush it would appear that an arbitrary reduction in the value of pain and suffering under these facts is difficult to understand other than as a Judge replacing the trier of facts conclusion, it is important to understand that the appellate court was required to give an enormous amount of deference to the trial court’s finding. The standard by which an appellate court reviews a trial court’s determination of the necessity for a remittitur is under a clear abuse of discretion. The plaintiff relied upon Adams v. Saavedra, 65 So. 3d 1185 (Fla. 4th DCA 2011) for reversal. That case was decided by the Fourth District only a year prior to this decision. In that case, under starkly different facts, the Fourth District reversed an award of a remittitur and stated at Page 1189:

“In tort cases damages are to be measured by the

jury’s discretion. The court should never declare

a verdict excessive merely because it is above the

amount which the court cell phone spy reviews 2014 itself considers the jury

should have allowed.” Ashcroft v. Calder Race

Course, Inc., 492 So. 2d 1309, 1314 (Fla. 1986).

“A jury is accorded wide latitude in determining

the amount of non-economic damages.”

Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla.

3d DCA 2003). The verdict should not be

disputed “unless the record affirmatively shows

the impropriety of the verdict or there is an

independent determination by the trial judge

that the jury was influenced by considerations

outside the record.” Kaine v. Gov’t Emps. Ins.

Co., 735 So. 2d 599, 600-01 (Fla. 3d DCA 1999).

The appellate court put weight on the fact that only the plaintiff’s own testimony was offered regarding noneconomic damages. The Court did consider that these kinds of damages affect a person at age 82 considerably differently than a younger individual but the appellate court simply could not reach the conclusion that the trial court’s determination to grant a remittitur was not supported by competent substantial evidence or that there was a clear abuse of discretion. Under that standard, the fact that there were less than two pages of testimony concerning injuries in the case, there was no medical testimony offered and no testimony at all other than the plaintiff herself, the Court found that there was enough to permit the remittitur to stand. Originally published in November 2012

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