Umphrey v. Sprinkel ( 1983 )

BAKES, Justice,

concurring in part:

I concur in that portion of the Court’s opinion which affirms the liability of the defendants, but reverses the award of damages. However, both the action of the trial court and of this Court in reworking the jury’s verdict in order to correct the obvious error which occurred in the damages portion of this trial points out the necessity for an unconditional new trial on the issue of damages. The problems which the trial court and this Court are struggling with in order to try to make sense out of this jury’s verdict actually stem from inadequate and erroneous instructions to the jury on the issue of damages. No amount of restructuring by either the trial court or this Court can compensate for the error in the jury instructions on the issue of damages. To do so not only compounds the error, but deprives both parties of their constitutional right to a trial by jury on the damages issue.

I join the Court's reversal, but would remand the matter for an entire new trial on the issue of damages.