## Facts

- Sears, Roebuck and Co. sold a tent that was set up in the Rush family’s backyard.
- While the tent was in use, it caught fire and severely burned sisters Bobbie Jo Rush and Donna Rush.
- Bobbie Jo suffered third-degree burns over approximately 95% of her body and died 15 days after the fire.
- Donna suffered second- and third-degree burns over approximately 42% of her body and underwent hospitalization and treatment associated with extended periods of pain and lasting harm.
- Lloyd T. Rush sued Sears individually and as administrator of Bobbie Jo’s estate, and as parent and natural guardian of Donna (then an infant), alleging that Sears failed to treat the tent with any fire-retardant material despite knowing it would be used and occupied for living and recreational purposes.
- A jury returned verdicts awarding $300,000 to Bobbie Jo’s estate, $4,000,000 to Donna, and $12,265 in medical expenses for both sisters.
- Sears appealed, challenging only the $300,000 and $4,000,000 awards as excessive; it did not appeal the medical-expense award.

## Issues

1. Whether the $300,000 award to Bobbie Jo Rush’s estate for damages tied to her injuries and death was so excessive that it required reduction or a new trial on damages.
2. Whether the $4,000,000 award to Donna Rush for her burn injuries was so excessive that it required reduction or a new trial on damages.

## Decision

- The Appellate Division modified the judgment by reducing the verdict in favor of Donna Rush from $4,000,000 to $2,000,000.
- The court also reduced the verdict in favor of the estate of Bobbie Jo Rush from $300,000 to $150,000.
- As modified, the judgment was affirmed (and the medical-expense award was left undisturbed).
- The reductions were conditioned on plaintiffs’ stipulation; if plaintiffs did not stipulate, a new trial would be ordered limited to the issue of damages.

## Legal Principles

- An appellate court in New York may set aside or reduce a jury’s damages award when the amount is so excessive that it cannot stand under the governing excessiveness standard (commonly stated as whether the award “shocks the conscience” of the court).
- When an award is excessive but liability is not in dispute on appeal, the appellate court may order remittitur by fixing a reduced amount and directing a new trial on damages unless the plaintiff stipulates to the reduction.
- In reviewing noneconomic damages for catastrophic injuries and death, the court weighs the seriousness of the harm, the duration and intensity of pain, and the lasting effects, and it may compare the result to amounts approved in other cases.

## Conclusion

The Appellate Division held that the jury’s non-medical damage awards in this tent-fire burn case were excessive and ordered remittitur, reducing Donna Rush’s recovery to $2,000,000 and Bobbie Jo Rush’s estate’s recovery to $150,000, with a new trial on damages if plaintiffs declined to accept the reduced sums.


Rush v. Sears, Roebuck and Co., 92 A.D.2d 1072 (1983)