Bunch v. King Co. Dep't of Youth Servs.
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 75103-0
Title of Case: Ralph Dwight Bunch v. King County Department
of Youth Services
File Date: 07/21/2005
Oral Argument Date: 03/17/2005
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Sharon Armstrong
JUSTICES
--------
Authored by Richard B. Sanders
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Susan Owens
Tom Chambers
Mary Fairhurst
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Regina Cahan
King Co Admin Bldg
500 4th Ave Ste 900
Seattle, WA 98104-2316
Howard Mark Goodfriend
Edwards Sieh Smith & Goodfriend PS
1109 1st Ave Ste 500
Seattle, WA 98101-2988
Susan Nathalie Slonecker
King Co Admin Bldg
500 4th Ave Ste 900
Seattle, WA 98104-2316
Catherine Wright Smith
Edwards Sieh Smith & Goodfriend PS
1109 1st Ave Ste 500
Seattle, WA 98101-2988
Counsel for Respondent(s)
Mary Ruth Mann
Mann & Kytle
615 2nd Ave Ste 760
Seattle, WA 98104-2200
Kenneth Wendell Masters
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Jerry Robert McNaul
Mcnaul Ebel Nawrot Et Al
600 University St Ste 2700
Seattle, WA 98101-3143
Charles Kenneth Wiggins
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Amicus Curiae on behalf of WASHINGTON DEFENSE TRIAL LAWYERS
Linda Blohm Clapham
Lane Powell PC
1420 5th Ave Ste 4100
Seattle, WA 98101-2338
Stewart Andrew Estes
Keating Bucklin & McCormack
800 5th Ave Ste 4141
Seattle, WA 98104-3175
Michael Barr King
Lane Powell PC
1420 5th Ave Ste 4100
Seattle, WA 98101-2338
John Benjamin Kerr Schochet
Lane Powell PC
1420 5th Ave Ste 4100
Seattle, WA 98101-2375
Amicus Curiae on behalf of WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION
Richard D Reed
Attorney at Law
1218 3rd Ave Ste 1500
Seattle, WA 98101-3021
Patricia Sue Rose
Attorney at Law
157 Yesler Way Ste 503
Seattle, WA 98104-3495
Amicus Curiae on behalf of WASHINGTON STATE TRIAL LAWYERS ASSOC FOUNDATION
Bryan Patrick Harnetiaux
Attorney at Law
517 E 17th Ave
Spokane, WA 99203-2210
Debra Leigh Williams Stephens
Attorney at Law
6210 E Lincoln Ln
Spokane, WA 99217-9332
In the Supreme Court of the State of Washington
RALPH DWIGHT BUNCH, )
)
Respondent and Cross- )
Petitioner, )
)
JEFFREY MORPHIS and DWIGHT )
PRESTON, ) No. 75103-0
)
Plaintiffs, ) En Banc
)
v. ) Filed July 21, 2005
)
KING COUNTY DEPARTMENT OF )
YOUTH SERVICES, )
)
Petitioner and )
Cross-Respondent. )
)
SANDERS, J.--Ralph Bunch sued King County Department of Youth Services for
racial employment discrimination, obtaining over $600,000 in a jury award.
The Court of Appeals affirmed but reduced the noneconomic portion of the
damages from $260,000 to $25,000, an award which Bunch could accept or opt
for a new trial on the damages issue alone. The county petitioned this
court for review of the limitation of a new trial to damages only, which we
denied. However, Bunch cross-petitioned, challenging the Court of Appeals'
remittitur. We granted review and now hold the Court of Appeals improperly
granted the remittitur.
FACTS AND PROCEDURAL HISTORY
Ralph Bunch is an African-American, who served in the Navy before working
as a prison guard at the Monroe reformatory from 1979-91. In 1991 he
switched to the Department of Youth Services in juvenile detention. His
supervisor, colleagues, and the director of the department all praised
Bunch's performance with the inmates.
Despite good reviews, one fellow detention officer testified that
management viewed Bunch as a problem: 'Mr. Bunch was thought of as a
problem because he spoke out against things that he felt were wrong.'
Report of Proceedings (RP) at 1396. In 1995 and again in 1998 Bunch
testified against the county in employment discrimination trials and later
noticed increased disciplinary action by the management.
Bunch was disciplined for a variety of minor offenses. In May 1995 he was
suspended for five days for allegedly swearing at a youth during a heated
exchange between several inmates. Another staff member heard the exchange
and denied hearing Bunch swear. Bunch was also suspended for not reporting
the sexual abuse of an inmate. Bunch believed the incident had already been
reported. He was suspended for 10 days for driving away from the facility
during his lunch break, an action that Bunch routinely observed others
doing without punishment. Youth Services Director Bob Williams noted this
punishment was the severest he had observed, and he was unaware of any
white person being punished for leaving the facility. He reduced the total
days of Bunch's suspensions based on the progress he saw in Bunch.
Bunch was later reprimanded for using a wrist lock on an inmate, a move he
had used before and had never been told was forbidden. He was suspended for
five days for giving a letter of recommendation directly to an inmate.
Another staff member testified to writing and delivering similar letters
without any reprimand. Bunch was reprimanded for violating the 'level
system,'1 and for horseplay with an inmate, which was common. Bunch
believes he was the only person to be disciplined for violating the level
system, and other testimony confirms this suspicion. A number of other
employees also testified of racial discrimination at the department,
including disparate discipline for violations.
Bunch sued the department for employment discrimination in 1999 under
Washington's Law Against Discrimination, chapter 49.60 RCW.2 In April 2001
management decided to terminate Bunch's employment based on the testimony
of several inmates that Bunch showed them an R-rated video on January 1,
2001. The inmates took polygraph tests with varying results. Bunch denied
showing that or any other video.
Bunch now works elsewhere as a security guard, making less than he did at
the county. He described the effect on his family as a 'phenomenal . . .
crushing blow financially.' Report of Proceedings (RP) at 1182. He had to
explain the termination to his wife and three children. Bunch also
testified his time at the county was 'pretty horrendous. Uh, pretty, uh--
that type of harassment, it's, uh--it's bad. Overwhelming.' RP at 1180. 'It
definitely had an effect on my personal life at home. It, uhm, . . .
depression, you know, on my part. And, uh--but I'm a survivor.' Id. He was
concerned about getting another good job because of his record. RP at 1184.
When asked if he was angry about the incident, he said: 'Sure, I get angry,
but, you know, you have to be in control of yourself. I try to be in
control all the time of myself. Of course I'm angry.' Id.
A jury found the county discriminated and retaliated against Bunch, and
awarded him $3,500 in lost past wages and fringe benefits, $340,000 in lost
future wages, and $260,000 in noneconomic damages. The county moved for a
reduction in the noneconomic damages or a new trial. The trial court denied
the motion. The court also awarded Bunch attorney fees of $166,754.50 and
costs of $10,126. The county appealed.
The Court of Appeals affirmed in part and reversed in part. Bunch v. King
County Dep't of Youth Servs., noted at 119 Wn. App. 1034 (2003). The court
reversed the trial court's denial of remittitur and reduced the noneconomic
damages from $260,000 to $25,000. The court determined the evidence was
insufficient to support the award, it was motivated by passion and
prejudice, and it shocked the court's conscience. On Bunch's motion, the
court amended its opinion to allow Bunch the option of choosing a new trial
on damages alone.
The county petitioned this court for review of the Court of Appeals'
limitation of a new trial to damages alone, but we denied that petition.
Bunch cross-petitioned to challenge the Court of Appeal's remittitur. We
granted that petition by order dated January 4, 2005. We deferred Bunch's
request for attorney fees under RAP 18.1(j) pending the outcome of the
case.3
ISSUES
I. What is the appropriate level of deference an appellate court should
afford to the trial court when deciding remittitur issues?
II. Whether the Court of Appeals properly reduced the jury's award of
noneconomic damages from $260,000 to $25,000 because it thought the award
unsupported by evidence, the result of passion and prejudice, and shocking
to its conscience?
ANALYSIS
Appellate courts unquestionably have the authority to reduce jury damages
awards. Appellate remittitur was part of the common law in 1889 when the
Washington Constitution was ratified. In 1889 the United States Supreme
Court affirmed an appellate court's authority to grant remittiturs: '{The
appellate court is} at liberty, in disposing of the motion for a new trial
according to its view of the evidence, either to deny or to grant a new
trial generally, or to order judgment for a less sum than the amount of the
verdict, conditional upon a remittitur by the plaintiff.' Kennon v. Gilmer,
131 U.S. 22, 30, 9 S. Ct. 696, 33 L. Ed. 110 (1889); see also Ark. Valley
Land & Cattle Co. v. Mann, 130 U.S. 69, 73-74, 9 S. Ct. 458, 32 L. Ed.
854 (1889). Since we interpret the right to a jury trial in our
constitution 'as it existed at the time of the Constitution's adoption in
1889,' Nielson v. Spanaway General Medical Clinic, Inc., 135 Wn.2d 255,
266, 956 P.2d 312 (1998) (interpreting Const. art. I, sec. 21), it follows
that an appellate court's common law authority to remit jury awards is
consistent with the constitutional right to a jury trial. We have recently
upheld this power. See Wash. State Physicians Ins. Exch. & Ass'n v. Fisons
Corp., 122 Wn.2d 299, 330, 858 P.2d 1054 (1993). Since appellate courts
unquestionably have the authority to remit a jury award, the question then
becomes what level of deference they should grant to the trial court, who
first decides whether to grant or deny a motion for remittitur.4
I. Appellate Courts Review Trial Court Decisions to Deny Remittiturs for
Abuse of Discretion
Bunch argues our remittitur jurisprudence has evolved through three stages.
In the early pre-1933 stage, courts gave little deference to juries'
awards. No statute granted courts the authority to grant a remittitur, but
they exercised it as part of their inherent power. See Anderson v. Dalton,
40 Wn.2d 894, 898-99, 246 P.2d 853 (1952).5 Bunch cites Kohler v. Fairhaven
& New Whatcom Railway Co., 8 Wash. 452, 36 P. 253 (1894), to support his
contention that early appellate courts reviewed trial courts' decisions on
remittiturs for abuse of discretion. Kohler states the decision to grant a
new trial because a jury's damages award is excessive is within the
discretion of the trial judge. 8 Wash. at 453. Appellate courts then apply
an abuse of discretion standard. Id. Chief Justice Dunbar dissented:
I dissent. The plaintiff has a constitutional right to have the questions
of fact involved in his case submitted to the discretion of a jury. The
amount of damages which he sustained is as purely a question of fact as any
question in the case. I do not deny the right of the court to set aside a
verdict when it plainly appears that the verdict was the result of passion
or prejudice ; but I do most earnestly protest against the court
substituting its judgment for the judgment of the jury ; and basing its
conclusion that the jury was controlled by passion or prejudice on the
simple fact that the verdict rendered by the jury was a larger verdict than
the court would have rendered if the question had been originally submitted
to its discretion. Such an assumption by the courts virtually annuls the
right of trial by jury. Practically the question of damages may as well be
submitted to the court in the first instance.
Id. at 455 (Dunbar, C.J., dissenting).
Bunch then argues we turned away from the abuse of discretion standard and
freely remitted juries' awards of damages. Cases from the early twentieth
century show this court remitting damages awards without mentioning the
trial court's discretion. See, e.g., O'Brien v. Griffiths & Sprague
Stevedoring Co., 116 Wash. 302, 306, 199 P. 291 (1921); Guignon v.
Campbell, 80 Wash. 543, 546, 141 P. 1031 (1914); Thoresen v. St. Paul &
Tacoma Lumber Co., 73 Wash. 99, 108, 131 P. 645 (1913); Nelson v. Bromley,
55 Wash. 256, 258, 104 P. 251 (1909).
Bunch says the second stage began in 1933 when the legislature enacted a
statute allowing for remittiturs. Laws of 1933, ch. 138, sec. 2 (codified
at RCW 4.76.030). This statute grants trial courts the authority to grant a
new trial or a remittitur if the judge finds the award so excessive 'as
unmistakably to indicate that the amount thereof must have been the result
of passion or prejudice.' Id. On appeal, the appellate court reviews the
trial court's action de novo and applies a strong presumption in favor of
the jury's award. Id. The appellate court may uphold the remittitur if it
finds 'the damages awarded in such verdict by the jury were so excessive .
. . as unmistakably to indicate that the amount of the verdict must have
been the result of passion or prejudice.' Id. The same standard applies to
both trial and appellate courts, and the appellate court does not defer to
the trial court.
Bunch claims the statute curbed the number of remittiturs granted by
appellate courts. While this may be true, Bunch's tidy categories are
perhaps a little more fluid. In Zorich v. Billingsley, 55 Wn.2d 865, 869,
350 P.2d 1010 (1960), we remitted the jury's award of damages without
mentioning the trial court's discretion. Likewise, in Malstrom v. Kalland,
62 Wn.2d 732, 738-39, 384 P.2d 613 (1963), we remitted a trial judge's
award of damages because the facts did not support it.
The third phase, Bunch argues, is based on an understanding of the jury's
constitutional role in finding questions of fact. In 1967 we emphasized the
jury's role in determining damages: 'Regardless of the court's assessment
of the damages, it may not, after a fair trial, substitute its conclusions
for that of the jury on the amount of damages. When the evidence concerning
injuries is conflicting, the jury decides whether the injuries are
insignificant, minor, moderate, or serious, and it determines the amount of
damages.' Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 176, 422 P.2d
515 (1967) (citation omitted). Later cases have affirmed this principle.
See, e.g., James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971) ('To the
jury is consigned under the constitution the ultimate power to weigh the
evidence and determine the facts--and the amount of damages in a particular
case is an ultimate fact.').
Based on this view of our jurisprudence, Bunch argues for a bifurcated
standard of review. If the damages award is remitted under RCW 4.76.030,
the appellate court reviews the remittitur de novo as the statute
explicitly provides. But if the trial court exercises its inherent power to
remit the damages, then an appellate court reviews for abuse of discretion.
Recent case law supports this type of analysis:
The appellate court does not engage in exactly the same review as the trial
court because deference and weight are also given to the trial court's
discretion in denying a new trial on a claim of excessive damages. The
verdict is strengthened by denial of a new trial by the trial court. While
either the trial court or an appellate court has the power to reduce an
award or order a new trial based on excessive damages, 'appellate review is
most narrow and restrained' and the appellate court 'rarely exercises this
power.'
Fisons Corp., 122 Wn.2d at 330 (footnotes omitted) (quoting Washburn v.
Beatt Equip. Co., 120 Wn.2d 246, 269, 840 P.2d 860 (1992)); see also
Bingaman v. Grays Harbor Cmty. Hosp., 103 Wn.2d 831, 835-36, 699 P.2d 1230
(1985).
Bingaman clearly stated the rule for appellate remittiturs: 'An appellate
court will not disturb an award of damages made by a jury unless it is
outside the range of substantial evidence in the record, or shocks the
conscience of the court, or appears to have been arrived at as the result
of passion or prejudice.' 103 Wn.2d at 835. This rule has not changed. See,
e.g., Stevens v. Gordon, 118 Wn. App. 43, 54, 74 P.3d 653 (2003). This
specific language does not mention any deference to the trial court and may
suggest de novo review. However, in Bingaman, Washburn, and Fisons Corp.,
we placed the rule within the broader discussion of the trial court's
discretion and noted appellate courts should rarely exercise the power
since the constitution gives to the jury the duty to find the facts. Thus,
abuse of discretion is the appropriate standard of review.
The above discussion demonstrates the need for further refinement. The
statute mandates de novo review; our case law requires abuse of discretion
review. Bunch reconciles these approaches historically and with a
distinction between remittiturs granted under the statute and those granted
under the court's inherent power. The historical approach of three distinct
stages is not entirely convincing since this court has not hesitated to
remit damages when it thought the award excessive. See Billingsley, 55
Wn.2d 865. Further, the 1933 statute recognized a strong presumption in
favor of the jury's verdict, presumably based on the jury's constitutional
role. Likewise, the distinction between statutory and court-based
remittiturs is not satisfactory because the standards overlap and courts do
not always indicate which standard they are applying. Further, there does
not seem to be a solid reason for Bunch's suggested distinction. Under that
rule trial courts would probably choose to exercise their inherent power
with its greater deference to avoid reversals, rendering the statute
superfluous. This makes little sense.
A more satisfying approach is to draw the line between situations in which
the trial court remits the award and situations in which the trial court
does not. The statutory standard of review (de novo) applies only when the
trial court actually remits an award. RCW 4.76.030; see also Ma v. Russell,
71 Wn.2d 657, 430 P.2d 518 (1967) (applying the statute's de novo
standard). When the trial court remits an award it invades the
constitutional province of the jury, making the less deferential standard
of review appropriate. When the trial court refuses to remit the award,
then our case law says the verdict is strengthened and the discretion of
the trial court should be respected. An appellate court should review the
verdict using the usual rule set forth in Bingaman, while respecting the
trial court's discretion in denying a remittitur.
Thus, we hold that a trial court order remitting a jury's award of damages
is reviewed de novo since it substitutes the court's finding on a question
of fact. Trial court orders denying a remittitur are reviewed for abuse of
discretion using the substantial evidence, shocks the conscience, and
passion and prejudice standard articulated in precedent. This rule
harmonizes the statute, our case law, and the jury's constitutional role.6
An older Court of Appeals opinion notes the confusion swirling around the
standard of review analysis, but it persuasively concludes with the same
rule outlined above. See Hendrickson v. Konopaski, 14 Wn. App. 390, 541
P.2d 1001 (1975). The case merits a lengthy quote:
We find it impossible to reconcile all the decisions and statements of the
Supreme Court pertaining to an abuse of discretion standard of review on
the one hand and de novo review on the other. It appears to us, however,
that where a trial court has proceeded under RCW 4.76.030, and has either
reduced or increased a verdict, de novo review of the evidence becomes the
standard of appellate review and the trial court has no discretion where
the verdict is 'within the range' of the credible evidence. But, where the
trial court has simply granted a new trial under the authority of CR
59(a)(5) on grounds of an excessive or inadequate verdict, an abuse of
discretion standard of appellate review is used in recognition of some
discretion in the trial court.
This distinction is perhaps proper because both a remittitur and additur
involve a greater invasion of the jury realm than does the simple grant of
a new trial. We also suggest that RCW 4.76.030 creates a presumption
favoring a jury verdict and mentions de novo review by the appellate court
under certain circumstances. In contradistinction, CR 59 speaks more in
language of discretion than does the statute. Whatever the real merit of
this distinction, it is clear the function of the appellate court has been
similar whether the statute or the court rule has been used as the basis of
the trial court's decision. In both types of cases the appellate courts
have reviewed the evidence to determine whether sufficient credible
evidence existed, whether or not conflicting or disputed, which would
factually support a verdict of the size rendered.
Id. at 394-95 (citations omitted). The court is right to note that much of
the haggling over the proper standard of review when the trial court grants
a new trial or a remittitur is semantics. See supra note 5. The substance
of the review for substantial evidence remains the same. This case does not
require us to sort out the conflicting authority, however, since the trial
court denied the remittitur and the standard for that situation is much
clearer. An abuse of discretion standard is appropriate where, as here, the
trial court refused remittitur.7
II. Under an Abuse of Discretion Standard, the Court of Appeals Improperly
Remitted Bunch's Damages
'An appellate court will not disturb an award of damages made by a jury
unless it is outside the range of substantial evidence in the record, or
shocks the conscience of the court, or appears to have been arrived at as
the result of passion or prejudice.' Bingaman, 103 Wn.2d at 835. 'The
requirement of substantial evidence necessitates that the evidence be such
that it would convince 'an unprejudiced, thinking mind.'' Indus. Indem. Co.
of N.W., Inc. v. Kallevig, 114 Wn.2d 907, 916, 792 P.2d 520 (1990) (quoting
Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). The 'shocks the
conscience' test asks if the award is 'flagrantly outrageous and
extravagant.' Bingaman, 103 Wn.2d at 836-37. Passion and prejudice must be
'unmistakable' before they affect the jury's award. RCW 4.76.030; Bingaman,
103 Wn.2d at 836. We once stated the rule this way:
'The damages, therefore, must be so excessive as to strike mankind, at
first blush, as being, beyond all measure, unreasonable and outrageous, and
such as manifestly show the jury to have been actuated by passion,
partiality, prejudice, or corruption. In short, the damages must be
flagrantly outrageous and extravagant, or the court cannot undertake to
draw the line; for they have no standard by which to ascertain the excess.'
Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 395, 261 P.2d
692 (1953) (quoting Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253 (N.Y.
Sup. 1812) (Kent, Ch. J.)).
The jury is given the constitutional role to determine questions of fact,
and the amount of damages is a question of fact. Robeck, 79 Wn.2d at 869.
We strongly presume the jury's verdict is correct. Sofie v. Fibreboard
Corp., 112 Wn.2d 636, 654, 771 P.2d 711, 780 P.2d 260 (1989). 'The jury's
role in determining noneconomic damages is perhaps even more essential.'
Id. at 646. A trial court's denial of a remittitur strengthens the verdict,
Fisons Corp., 122 Wn.2d at 330, and, as determined above, we review for
abuse of discretion.
Bunch argues the 'range of substantial evidence' standard is meaningless in
the context of noneconomic damages. While noneconomic damages especially
are within a properly instructed jury's discretion, Bingaman, 103 Wn.2d at
835,8 there must be evidence upon which the award is based: 'The plaintiff,
once having proved discrimination, is only required to offer proof of
actual anguish or emotional distress in order to have those damages
included in recoverable costs pursuant to RCW 49.60.' Dean v. Municipality
of Metro. Seattle-Metro, 104 Wn.2d 627, 641, 708 P.2d 393 (1985). The
distress need not be severe. Nord v. Shoreline Sav. Ass'n, 116 Wn.2d 477,
485, 805 P.2d 800 (1991). The Court of Appeals has applied this standard in
the context of employment discrimination. See Herring v. Dep't of Soc. &
Health Servs., 81 Wn. App. 1, 25, 914 P.2d 67 (1996).
The evidence of emotional distress is limited, but it is sufficient to
support an award of noneconomic damages. Bunch testified that he was
overwhelmed by the discrimination, and that he was depressed and angry. The
county discriminated against him over a six year period, which is
substantial. The record contains the numerous instances in which he was
disciplined for petty offenses that others committed with impunity. He now
works for significantly less pay with minimal benefits. He had to explain
to his family why he was fired. All of these facts provide a basis from
which the jury could infer emotional distress.
The county argues that Bunch never consulted a healthcare professional, and
no one close to him testified about his anxiety. That is true, but such
evidence is not strictly required; our cases require evidence of anguish
and distress, and this can be provided by the plaintiff's own testimony.
See Nord, 116 Wn.2d at 487 (each plaintiff testified about his anger and
shock at the defendant's actions, and this testimony in conjunction with
the other facts of the case supported an award for emotional distress).
Corroborative evidence is certainly helpful, but it is for the jury to
weigh the credibility of the witness and determine if he in fact suffered
mental anguish. Bunch presented sufficient evidence to convince an
'unprejudiced, thinking mind' of his anguish, and that is enough to support
an award for emotional distress.
The Court of Appeals found the award of $260,000 in noneconomic damages
shocked its conscience. The court cited Hill v. GTE Directories Sales
Corp., 71 Wn. App. 132, 856 P.2d 746 (1993). In Hill, the plaintiff sued
for sex discrimination, testifying that she consulted a doctor, who
prescribed Xanax to calm her, and a psychologist. The jury awarded her $198
in stipulated medical expenses, $40,000 in lost income, and $410,000 in
noneconomic damages for emotional distress. 71 Wn. App. at 134. The trial
judge reduced the economic damages to $19,000 and the noneconomic damages
to $125,000. The Court of Appeals affirmed, noting the jury's economic
award was not supported by the evidence, and the award for emotional
distress was the result of passion and prejudice.
As a Court of Appeals decision, Hill is not binding. Moreover, Hill is
distinguishable from this case in several ways. First, the noneconomic
damages in Hill were 10 times the amount of the economic damages, which
certainly indicates prejudice. Here the noneconomic damages are roughly
three quarters of the economic damages ($260,000 compared to $340,000).
Second, the jury's excessive award of economic damages in Hill cast
suspicion on the award of noneconomic damages. Here the award of economic
damages is uncontested. Third, the discrimination in Hill occurred over
about 13 months, whereas the county discriminated against Bunch for six
years. Finally, in Hill the trial court remitted the damages, and the Court
of Appeals noted the lower court's 'better position to make that
determination' and accorded it 'room for the exercise of its sound
discretion.' Id. at 140. Here the trial judge denied the remittitur,
strengthening the verdict, and the Court of Appeals did not mention the
trial court's discretion at all. In short, comparisons of the present case
to Hill are misguided.
Additionally, the jury's award of noneconomic damages is not so excessive
as to be 'flagrantly outrageous and extravagant,' particularly in light of
the strong presumption we accord to jury verdicts. The trial court's
refusal to remit the damages likewise confirms the award. We cannot say it
was an abuse of discretion to deny the remittitur. Our conscience is
apparently more resilient than the Court of Appeals to shocks.
Finally, the Court of Appeals concluded 'the award indicates passion or
prejudice, and a reaction to the litany of negative testimony about
discriminatory practices by the County.' Bunch v. King County Dep't of
Youth Servs., No. 49655-7-I, slip op. at 10 (Wash. Ct. App. Dec. 1, 2003).
The County argues all of the testimony from other witnesses, while
necessary to prove discriminatory intent, tainted the jury's verdict. It
notes that Washington's Law Against Discrimination allows recovery only for
'actual damages,' RCW 49.60.030(2), and that punitive damages are
forbidden, see Dailey v. N. Coast Life Ins. Co., 129 Wn.2d 572, 575, 919
P.2d 589 (1996). It cites federal cases interpreting federal law, which
require emotional distress damages to be based on harm to the plaintiff
alone, not to so-called 'me-too' witnesses: '{C}ase law reveals that courts
scrupulously analyze an award of compensatory damages for a claim of
emotional distress predicated exclusively on the plaintiff's testimony.'
Price v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996).9 This
statement is true, but it does not automatically lead to the conclusion
that passion and prejudice influenced the jury's award.
'Before passion or prejudice can justify reduction of a jury verdict, it
must be of such manifest clarity as to make it unmistakable.' Bingaman, 103
Wn.2d at 836. 'The verdict of a jury does not carry its own death warrant
solely by reason of its size.' Id. at 838. 'As to the other factors from
which the idea of passion and prejudice may be derived, sometimes there may
occur during the trial untoward incidents of such extreme and inflammatory
nature that the court's admonitions and instructions could not cure or
neutralize them.' Robeck, 79 Wn.2d at 871. As explained above, the size of
this verdict is within the bounds of the evidence presented, and there is
no indication of anything untoward in the proceedings that justifies
setting the verdict aside based on passion and prejudice.
In sum, the Court of Appeals was not justified to reduce the noneconomic
damages from $260,000 to $25,000--less than a tenth of the original amount.
The court failed even to mention the trial court's discretion, and
misanalogized to Hill. The jury's award of noneconomic damages is within
the range of the evidence presented, is not 'flagrantly outrageous and
extravagant,' nor was it motivated by passion and prejudice. The award of
the jury should stand unmodified.
CONCLUSION
We reverse the Court of Appeals insofar as it remitted the jury's award,
and we reinstate the jury's award of noneconomic damages. We also award
Bunch reasonable attorney fees and costs.10
It is so ordered.
WE CONCUR:
1 The 'level system' is a points system that awards good behavior and
punishes bad behavior. A higher points rating earned the youths perks like
candy or the ability to stay out longer. The points also determined the
level of discipline for bad behavior. The system was administered with a
degree of discretion afforded to the detention officers.
2 The statute reads in relevant part:
Any person deeming himself or herself injured by any act in violation of
this chapter shall have a civil action in a court of competent jurisdiction
to enjoin further violations, or to recover the actual damages sustained by
the person, or both, together with the cost of suit including reasonable
attorneys' fees or any other appropriate remedy authorized by this chapter
or the United States Civil Rights Act of 1964 as amended, or the Federal
Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
RCW 49.60.030(2).
3 The parties filed supplemental briefs on February 4, 2005. Bunch moved on
February 9, 2005 to strike portions of King County's supplemental brief.
The motion was passed to the merits. Bunch argues the county is improperly
trying to raise an issue from its petition for review that has been denied,
namely, whether a new trial should be limited to damages alone. The county
argues it addressed the issue as defined by this court's webpage. The
webpage states the issue as follows:
Whether the Court of Appeals properly reversed the judgment in this
employment discrimination action, either for remittitur of the plaintiff's
noneconomic damages from $260,000 to $25,000 or for retrial on the issue of
general damages only, at the plaintiff's election, based on the conclusion
that the jury award was unsupported by the evidence.
http://www.courts.wa.gov/appellate trial courts/supreme/issues/?fa=atc supr
eme issues.display&fileID=2005jan#P360 20121 (last visited July 20, 2005).
The commissioner's office prepares these issue statements, but the website
contains this disclaimer: 'Please note that the Justices have not reviewed
or approved the issues or classifications, and there can be no guarantee
that the court's opinions will address these precise questions'
(http://www.courts.wa.gov/appellate trial courts/supreme/ issues/ (last
visited July 20, 2005)). In light of the briefing filed with this court,
the website's issue statement is accurate only if the new trial language is
read descriptively as what the Court of Appeals ordered. It does not
represent the issues we accepted for review. When this court narrows issues
to be reviewed it does so in the order granting review. Here our order did
not frame the issues with particularity.
The county's petition for review raised the issue of a new trial's
limitation to the question of general damages. We denied the petition.
Bunch's cross-petition did not address that issue except insofar as it
responded to the county's petition; the issue was not one raised by the
cross-petition. It is improper for the county to argue an issue that is not
before the court. The scope of our review is limited to issues raised in
the cross-petition. RAP 13.7(b). While we have the authority to address the
issue, we already chose not to do so. We therefore grant Bunch's motion to
strike.
4 The county argues that Bunch invited error by asking the Court of Appeals
to modify its opinion to include the remittitur language. Initially, the
court simply reduced the damages. The motion for reconsideration asked the
court to allow a new trial in the alternative. This was a clarifying move
on Bunch's part and was not inviting any kind of error that bars further
review.
5 Before 1933 a statute authorized courts to grant a new trial if the award
was excessive by reason of passion or prejudice, but it did not authorize a
remittitur. See Anderson, 40 Wn.2d at 898-99 (citing Laws of 1854, ch. XX,
sec. 216).
6 Amicus Washington State Trial Lawyers Association (WSTLA) Foundation has
a slightly different approach. WSTLA Foundation suggests substantial
evidence review tests for legal sufficiency of the evidence, whereas the
'shocks the conscience and passion and prejudice' review looks at the
weight of the evidence. As the former is a legal inquiry, it should be
reviewed de novo; the latter rests largely in the discretion of the trial
judge and hence is reviewed for abuse of discretion. WSTLA Foundation
compares RCW 4.76.030 with CR 59(a) and CR 50(a), the rules governing
motions for a new trial and for judgment as a matter of law, respectively.
Under CR 59(a)(7) the trial court determines if 'there is no evidence or
reasonable inference from the evidence to justify the verdict or the
decision, or {if} it is contrary to law.' CR 50(a) employs a similar
standard. CR 50(a) ('If, during a trial by jury, a party has been fully
heard with respect to an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find or have found for that
party with respect to that issue, the court may grant a motion for judgment
as a matter of law . . . .'). It is important to note the civil rules do
not say what standard of review an appellate court should employ, whereas
the remittitur statute does.
Professor Trautman, writing in 1967, showed the two civil rules employ the
same standard. Philip A. Trautman, Motions Testing the Sufficiency of
Evidence, 42 Wash. L. Rev. 787, 809-15 (1967); see also Haft v. N. Pac. Ry.
Co., 64 Wn.2d 957, 960, 395 P.2d 482 (1964) ('In considering the question
of whether the trial court correctly granted defendant's motion for
judgment notwithstanding the verdict or in the alternative for a new trial,
we are mindful of the oft stated rule that in passing upon such motions the
evidence, and all reasonable inferences therefrom, must be viewed in a
light most favorable to the nonmoving party, and if there is substantial
evidence supporting the verdict of the jury, the verdict must stand.'
(emphasis added)).
Trial court decisions granting or denying motions for unconditional new
trials are reviewed for abuse of discretion. Palmer v. Jensen, 132 Wn.2d
193, 197, 937 P.2d 597 (1997). 'Where sufficient evidence exists to support
the verdict, it is an abuse of discretion to grant a new trial.' Id. at
198. 'Conversely, it is an abuse of discretion to deny a motion for a new
trial where the verdict is contrary to the evidence.' Id. Since trial
courts are required to specify why they are ordering a new trial, including
reasons outside the record, CR 59(f), appellate courts are in as good a
position to determine sufficiency of the evidence. This sounds a lot like
de novo review, yet it is called abuse of discretion. In any event, an
unconditional grant for a new trial differs from a remittitur, especially
since a statute mandating de novo review governs the latter. See Robeck, 79
Wn.2d at 870 (discussing 'questions of excessive or inadequate verdict as
distinguished from the question of granting or denying a new trial
outright').
7 Bunch also cites Gasperini v. Center for Humanities, Inc., 518 U.S. 415,
116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996), which held that appellate courts
review a trial court's denial of a remittitur for abuse of discretion. The
opinion was based on the reexamination clause in the Seventh Amendment: 'no
fact tried by a jury, shall be otherwise reexamined in any court of the
United States, than according to the rules of the common law.' Because
appellate review of a trial court's denial of a remittitur was a more
recent development, the Court reasoned that abuse of discretion was
necessary to protect the jury's constitutional role. Id. at 434.
However, the federal analogy is inappropriate because the Washington
Constitution does not have a reexamination clause, see Const. art. I, sec.
21 ('The right of trial by jury shall remain inviolate . . . .'), but this
conclusion does not change the above analysis.
8 The jury instruction on damages stated in relevant part:
Your award must be based upon evidence and not upon speculation, guess, or
conjecture. The law has not furnished us with any fixed standards by which
to measure emotional distress, loss of enjoyment of life, humiliation, pain
and suffering, personal indignity, embarrassment, fear, anxiety, and/or
anguish. With reference to these matters, you must be governed by your own
judgment, by the evidence in the case, and by these instructions.
Clerk's Papers at 1096.
9 The county also cites federal law for the quantum of evidence required.
See Xieng v. Peoples Nat'l Bank of Wash., 120 Wn.2d 512, 531, 844 P.2d
389 (1993) (this court considers federal law when interpreting RCW 49.60 in
the absence of state precedent). However, it appears the circuits are split
on that question. Compare Vadie v. Miss. State Univ., 218 F.3d 365,
377 (5th Cir. 2000) (requiring demonstrable emotional distress that is
sufficiently articulated with more than conclusory statements) with Zhang
v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 2003) (rejecting
that rule).
10 RCW 49.60.030(2) grants attorney fees and costs to the prevailing party
in employment discrimination cases. See Wheeler v. Catholic Archdiocese of
Seattle, 124 Wn.2d 634, 643, 880 P.2d 29 (1994); RAP 18.1. The trial court
awarded attorney fees, the Court of Appeals awarded them for the appeal,
and it is proper that we do so as well.