The power of the trial court to assess damages or increase the amount of an inadequate award made by jury verdict, as a condition of a denial of a motion for a new trial, with the consent of the defendant whether or not the plaintiff consents to such action. This is not allowed in the federal system.
Damages assessed by a jury may be set aside when the amount is shocking to the judicial conscience—so grossly inadequate that it constitutes a miscarriage of justice—or when it appears that the jury was influenced by prejudice, corruption, passion, or mistake.
For example, a sixty-one-year-old woman was mugged in a hallway of her apartment building after the landlord failed to replace a broken lock on the back service entrance. She sustained a broken shoulder, a broken arm, and numerous cuts and bruises. Her medical bills amounted to more than $2,500. She sued the landlord for his negligent maintenance of the building, and the jury returned a verdict in her favor but awarded damages of only $2,500. Her attorney immediately moved for a new trial on the ground that the verdict was shockingly inadequate. The trial judge ruled that the jury could not possibly have calculated compensation for the woman's pain and suffering, an item that should have been included under state law. The trial judge, therefore, awarded an additur of $15,000. The effect of this order was to put the defendant on notice that he must either pay the $15,000 in addition to the verdict of $2,500 or a new trial would be held. The defendant weighed the disadvantages of investing time and money in a new trial and the risk of an even higher award of monetary damages by a sympathetic jury. He consented to the additur.
An additur is not justified solely because the amount of damages is low. For example, damages of $10,000 certainly will not compensate the family of a forty-four-year-old man who had been steadily employed as a plumber until he was permanently disabled in an auto accident. In such a case, however, the jury could have found that the plaintiff's negligence contributed to the cause of the accident and reduced the damages proportionately, as is permitted in most states.
An award of additur is not permitted in every state, nor is it allowed in the federal courts. Under the rules that govern procedure in the federal courts, a trial judge has the power to set aside a verdict for a plaintiff on the ground that the damages awarded are clearly inadequate, but then the judge's only recourse is to grant a new trial.