Additur When The Compensation Is Shockingly Low

The trial court is afforded great discretion in deciding motions for additur. Such a decision will remain undisturbed absent an abuse of that discretion. Harris v. Zee, 87 Nev. 309, 486 P.2d 490 (1971) (abuse of discretion standard of review in remittitur).

Yet in spite of this discretion, we have granted additur on appeal. For example, in Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975), this court recognized additur as a viable form of post-judgment relief where a jury award was “clearly inadequate” and a new trial on damages was warranted. In Drummond, a jury award of $9,640.35 was clearly inadequate because it did not compensate the plaintiff for pain, suffering, and future disability associated with the loss of his arm. Id. at 712-13, 542 P.2d at 208. The evidence established that plaintiff had approximately $4,000 of past medical expenses and $4,000 of estimated future medical expenses. Id.

Although Drummond articulates two threshold determinants before additur is available (clearly inadequate and ripe for new trial), in practical application there is only one primary consideration. In essence, if damages are clearly inadequate or “shocking” to the court’s conscience, additur is a proper form of appellate relief. See, e.g., Arnold v. Mt. Wheeler Power, 101 Nev. 612, 614, 707 P.2d 1137, 1139 (1985) (granting additur on appeal where damages did not include pain and suffering or loss of earnings attributable to loss of limb); see also Truckee-Carson Irr. Dist. v. Baber, 80 Nev. 263, 268, 392 P.2d 46, 48 (1964); Shere v. Davis, 95 Nev. 491, 596 P.2d 499 (1979) (where damages are clearly inadequate, new trial is warranted under NRCP 59(a)(5) because jury failed to follow court instructions). Moreover, when damages are so qualified, denial of additur is an abuse of the district court’s discretion and merits reversal.

After examining the prior cases, it is apparent that such decisions rest upon facts where the movant suffered personal physical injury–loss of limbs in particular. There are no reported Nevada decisions examining additur in the context of wrongful death causes of action and associated damages.

Anderson tries to capitalize upon this fact, arguing that loss of a limb and granting additur simply does not translate into granting additur for loss of consortium. Anderson characterizes pain, suffering, and future complications accompanying the loss of an appendage as tangible and measurable with some certainty, whereas loss of consortium is not. This is a distinction without substance.

We conclude that the fundamental additur rubric in Drummond applies to wrongful death and loss of consortium. Pain and suffering attributable to the loss of a child is similar to damages for loss of an appendage. This position is consistent with several jurisdictions outside Nevada that have granted or upheld additur on appeal in the wrongful death context (citations omitted).

Applying fundamental additur considerations to the facts of the instant case, we conclude that zero damages for lost consortium resulting from [the son’s] death is shocking and clearly inadequate. It is a rare life that is monetarily worthless and does not trigger some type of measurable sorrow in a surviving parent. The evidence presented at trial leaves no doubt that Jeremy’s life was not such a rarity.

There is an abundance of uncontroverted evidence establishing that [the son] was an intelligent, supportive, humorous, and outgoing son to the Donaldsons. In addition, there is uncontroverted evidence that his death triggered great grief and suffering in both parents. Contrary to Anderson’s contentions on appeal, nothing in the record justifies the award of zero damages.

Therefore, we conclude that the district court abused its discretion by rejecting the [parents’] motion for additur and alternative motion for a new trial.

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