CITE: 113 Wn.2d 154, 776 P.2d 676
ROBINSON v. SAFEWAY STORES
CAUSE NUMBER: 55806-0
FILE DATE: July 27, 1989
CASE TITLE: Marie N. Robinson, Petitioner, v. Safeway Stores,
 Appeal - Findings of Fact - Review - Substantial Evidence - What Constitutes. Findings of fact will be upheld on review if they are supported by substantial evidence. Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the matter.
 New Trial - Review - Discretion of Court - Factual Issues. A grant of a new trial pursuant to CR 59 based upon issues of fact is reviewed only for an abuse of discretion.
 Jury - Selection - Examination - False Answer - Remedy - New Trial. A juror's false answer on a material matter during voir dire examination constitutes an irregularity affecting the parties' substantial rights and prevents the intelligent exercise of a party's right to challenge a juror. The grant of a new trial is an appropriate remedy in such a case.
 Jury - Selection - Examination - False Answer - Proof - Juror Affidavit. An affidavit of a juror is admissible to prove that a different juror provided false information during voir dire examination.
 Damages - Review - Increase - Range of Evidence. Under RCW 4.76.030, a court has no discretion to order additur if the amount of damages awarded by the jury is within the range of the credible evidence.
NATURE OF ACTION: A customer injured in a grocery store sought damages for negligence.
Superior Court: After the jury returned a verdict in favor of the plaintiff, the Superior Court for King County, No. 84-2-14349 5, Anthony P. Wartnik, J., on May 14, 1987, ordered additur or, alternatively, a new trial limited to the issue of damages.
Court of Appeals: In an unpublished opinion noted at 52 Wn. App. 1051, the court REVERSED the trial court's order and REINSTATED the verdict.
Supreme Court: Holding that the verdict was within the range of the evidence but that juror misconduct and bias warranted a new trial, the court AFFIRMS the decision of the Court of Appeals insofar as it reversed the order of additur, REVERSES the decision of the Court of Appeals insofar as it reversed the order of a new trial, and REMANDS the case for a new trial on the issue of damages.
COUNSEL: LEVINSON, FRIEDMAN, VHUGEN, DUGGAN, BLAND & HOROWITZ, by DAVID W. SOUKUP and CHARLES R. JONES, for petitioner.
DAVID C. PEARSON (of MADDEN & CROCKETT), for respondent.
AUTHOR OF MAJORITY OPINION: Pearson, J.-
MAJORITY OPINION: Petitioner, Marie N. Robinson, brought this negligence action for injuries she sustained at a Safeway grocery store located in Seattle, Washington. The jury returned a verdict in her favor in the amount of $9,278.31. The trial court, finding juror misconduct, ordered additur or, in the alternative, a new trial on the issue of damages. The Court of Appeals reversed, remanding the case to the trial court with instructions to reinstate the jury's original verdict. This court granted review.
At issue is whether the trial court abused its discretion in ordering additur or, in the alternative, a new trial based on juror misconduct and bias. We hold the trial court did not abuse its discretion in ordering a new trial; thus, we reverse the Court of Appeals in part and remand, ordering the modified reinstatement of the trial court's order.
On May 28, 1983, Marie Robinson was a patron at a Seattle Safeway grocery store. While reaching into a refrigeration unit, she was struck in the head and back by a small, metal, product display rack that fell when she brushed against it.
Following a verdict in her favor in the amount of $9,278.31, Robinson brought a motion for additur or, in the alternative, a new trial as to damages, claiming juror misconduct had resulted in an inadequate award of damages. Upon review of both juror and counsel affidavits, the trial court entered its findings of fact on Robinson's motion, stating in part:
" 1. Plaintiff is a California resident. Because of
her concern over the possible bias that a Washington jury
might have with respect to a California resident each
member of the prospective jury panel was asked by her
counsel during voir dire examination whether or not the
fact that the plaintiff and her witnesses were California
residents would affect their ability to be fair. Specifically,
[the juror who ultimately became the foreman] was asked
whether there was anything about the fact that the plaintiff
and her witnesses were from California which would create
prejudice for him. He responded that there was not.
2. [The foreman of the jury] had indicated on his
jury questionnaire that he had been a party to a lawsuit.
He was specifically asked on voir dire examination by
Mr. Charles Jones, "You were involved in a lawsuit - can
you tell us what that was." [The foreman] responded that
he [was] involved in a divorce case. [He also] stated
that he had not been involved in any other lawsuit and
specifically did not disclose that he had been the defendant
in a lawsuit brought by a California resident against
him for damages following an automobile accident in that
3. . . . During the course of the jury deliberation
[the foreman] stated, "These Californians sue anyone they
can get money from," that "Californians are sue happy,"
that Californians "Sue for anything" and "All these people
from California, they sue all the time."
4. Following the jury verdict . . . one of the jury
members had a conversation with [the jury foreman] in
which she asked him about the comments he had made in
the jury room regarding Californians suing. [The foreman]
advised [the juror] that:
They sue for anything down there. They go for the big
[The foreman] further stated that he believed it was Californians
The fast pace, I guess. I mean you don't see the suits
in Washington like California. People down there sue for
anything. Children sue their parents, parents sue their
children, etc. I was sued for $500,000 because of a car
[The foreman] further stated:
Well, the other person had the right-of-way and was speeding.
His wife even sued me for $250,000 for loss of companionship
while he was in the hospital. I was going to reenlist
in the Marine Corp because I couldn't pay off $250,000
with a $200 a month job. The guy settled before court
for $9,999 because he knew my insurance would pay for
5. [The foreman] was the defendant in a lawsuit brought
by a California resident and was in fact prejudiced against
California residents. [He] failed to disclose those facts
to the plaintiff on appropriate voir dire examination.
The plaintiff was thus denied a fair trial as to the issue
of damages in this case.
6. The trial court was shocked by the low amount of
damages awarded to the plaintiff in this case. The jury
believed and the evidence established that the plaintiff
was sufficiently disabled by the negligence of the defendant
that she was unable to work for at least the balance of
the year of 1983 and that she had wage loss and medical
bills in excess of at least $7,700. . . . the jury awarded
only $1,500 in general damages for pain and suffering
. . .
7. The amount of the damages awarded by the jury in
this case is so inadequate as to unmistakably indicate
that the verdict must have been the result of passion
8. Substantial justice has not been done with regard
to the amount of damages awarded to the plaintiff in this
9. Damages should be increased to the amount of $27,000
based on the evidence presented herein.
Thus, there are two grounds upon which the court based its order of new trial: the misconduct of a juror, as articulated in findings 1 through 5; and the inadequacy of the jury's verdict, as articulated in findings 6 through 9. Based on these findings, the trial court entered an order increasing the award of damages to $27,000 or, in the alternative, a new trial on the issue of damages.
The Court of Appeals reversed, holding the record does not establish the jury foreman dishonestly answered the questions posed during voir dire. On this issue we reverse.
 The trial court's findings of fact are subject to the substantial evidence test upon review by an appellate court:
" Where the trial court has weighed the evidence our
review is limited to determining whether the findings
are supported by substantial evidence and, if so, whether
the findings in turn support the trial court's conclusions
of law and judgment. Substantial evidence is evidence
in sufficient quantum to persuade a fair-minded person
of the truth of the declared premise. (Citations omitted.) HOLLAND v. BOEING CO., 90 Wn.2d 384, 390 91, 583 P.2d 621 (1978). We hold the trial court's finding that the foreman of the jury failed to disclose his prior involvement as a defendant in a suit brought by a California resident is supported by substantial evidence. The record further supports the court's finding that the foreman made numerous remarks regarding his perception of the "California litigation process", revealing the foreman's bias.
CR 59(a) provides:
" The verdict or other decision may be vacated and
a new trial granted . . . for any one of the following
causes materially affecting the substantial rights of
(1) Irregularity in the proceedings of the court,
jury or adverse party . . . by which such party was prevented
from having a fair trial.
(2) Misconduct of prevailing party or jury . . .
 To the extent it is based upon questions of fact, the trial court's order granting a new trial must stand, absent an abuse of discretion:
" An order granting or denying a new trial will not
be reversed except for an abuse of discretion; this principle
being subject to the limitation that, to the extent that
such an order is predicated upon rulings as to the law,
no element of discretion is involved; and a much stronger
showing of an abuse of discretion will ordinarily be required
to set aside an order granting a new trial than one denying
COLEMAN v. GEORGE, 62 Wn.2d 840, 841, 384 P.2d 871 (1963).
 As to the question of law, this court has held it is not an abuse of discretion to grant a new trial where a juror has provided false answers on voir dire:
"[W]hen there is strong evidence to the effect that a
juror was biased WHEN HE ENTERED UPON THE CASE and swore
falsely on VOIR DIRE, concealing his bias, the trial court
will not abuse its discretion in granting a motion for
new trial. The misconduct consists of his deception of
the court and counsel as to his incompetence as an impartial
NELSON v. PLACANICA, 33 Wn.2d 523, 528-29, 206 P.2d 296 (1949).
Robinson contends she was deprived of her right to a trial by an impartial jury when the foreman failed to disclose his bias toward California residents, particularly his perception of their role in the legal process. Robinson's argument is well taken. "The right to trial by jury includes the right to an unbiased and unprejudiced jury. A trial by a jury, one or more of whose members are biased or prejudiced, is not a constitutional trial." ALLISON v. DEPARTMENT OF LABOR & INDUS., 66 Wn.2d 263, 265, 401 P.2d 982 (1965).
A juror's misrepresentation or failure to speak when called upon during voir dire regarding a material fact constitutes an irregularity affecting substantial rights of the parties. When the failure to respond in voir dire relates to a material question, the appropriate remedy is to grant a new trial. GORDON v. DEER PARK SCH. DIST. 414, 71 Wn.2d 119, 122, 426 P.2d 824 (1967).
In SMITH v. KENT, 11 Wn. App. 439, 523 P.2d 446 (1974), the plaintiff was injured by a rock that was thrown from a dump truck traveling in front of the plaintiff's automobile. During voir dire, one juror failed to reveal his experience as a truck driver when asked about previous employment. The court found this misrepresentation warranted the granting of a new trial. We quote generously from the Court of Appeals decision in that case, as it is dispositive of the issue at hand:
"The controlling question presented is whether a new trial
should be granted because of a false answer given by [a]
juror . . . to a material question during his voir dire
examination. . . .
. . .
. . . The right of trial by jury means a trial by
an unbiased and unprejudiced jury, free of disqualifying
jury misconduct. That misconduct may consist of a prospective
juror's false answer to a material question that either
(1) conceals or misrepresents his bias or prejudice, or
(2) prevents the intelligent exercise by a litigant of
his right to exercise a peremptory challenge or his right
to challenge a juror for cause. These rights of challenge
are important, substantial rights which serve to protect
a litigant's constitutional right of trial by jury.
Voir dire examination enables a litigant to determine
whether or not to exercise his statutory right to challenge
a juror for cause or to exercise a peremptory challenge.
. . . Accordingly, a litigant has the right to rely upon
the sworn statements of the prospective juror made during
voir dire examination. . . .
. . .
It is jury misconduct warranting a new trial for
a juror to give a false answer on a material matter during
voir dire examination that conceals information properly
requested by a litigant to enable him to determine whether
or not to excuse the prospective juror by peremptory challenge
. . .
. . .
. . . [A] false answer on a material matter, whether
it relates to the prospective juror's bias and prejudice
or whether it relates to other material matters, lures
the litigant into a false sense of security, discourages
further inquiry, and deprives a litigant of a fair, intelligent
and adequate opportunity to challenge the juror . . .
The jury a litigant accepts on the basis of misleading
information on which he has a right to rely is not the
constitutional jury to which he is entitled. The only
remedy that will obviate the harm done to his right of
trial by jury is to grant a new trial.
SMITH v. KENT, 11 Wn. App. at 441, 443-45.
 Nevertheless, Safeway contends it is an invasion of the deliberative process to rely upon the affidavits of the jurors to subsequently challenge the verdict. However, such an argument fails to distinguish between relying upon a juror's affidavit for the purpose of establishing juror misconduct and relying upon a juror's affidavit to subsequently contest the thought processes involved in reaching a verdict. Only the former is permissible. HENDRICKSON v. KONOPASKI, 14 Wn. App. 390, 393, 541 P.2d 1001 (1975).
In ALLISON v. DEPARTMENT OF LABOR & INDUS., SUPRA, this court held it was proper to rely upon the affidavit of a juror to establish that another juror had provided false information on voir dire. Reliance upon the juror's affidavit is not violative of the deliberative process, as the information does not inhere in the jury's verdict. ACCORD, GARDNER v. MALONE, 60 Wn.2d 836, 841, 376 P.2d 651, 379 P.2d 918 (1962); BYERLY v. MADSEN, 41 Wn. App. 495, 499-500, 704 P.2d 1236, REVIEW DENIED, 104 Wn.2d 1021 (1985).
Thus, we reverse the Court of Appeals on this issue and affirm the trial court's ruling that Robinson was denied a fair trial as to damages as the result of juror bias and misconduct.
II INADEQUACY OF THE VERDICT
In a de novo review of the record, the Court of Appeals reversed the trial court's order granting additur, holding the jury verdict was not so inadequate as to indicate passion or prejudice.
The trial court's authority for an award of additur is legislatively prescribed:
" If the trial court shall, upon a motion for new
trial, find the damages awarded by a jury to be so excessive
or inadequate as unmistakably to indicate that the amount
thereof must have been the result of passion or prejudice,
the trial court may order a new trial or may enter an
order providing for a new trial unless the party adversely
affected shall consent to a reduction or increase of such
verdict . . .
RCW 4.76.030. Upon review by an appellate court of an award of additur, the Legislature has additionally provided that
"there shall be a presumption that the amount of damages
awarded by the verdict of the jury was correct and such
amount shall prevail, unless the court of appeals or the
supreme court shall find from the record that the damages
awarded in such verdict by the jury were so excessive
or so inadequate as unmistakably to indicate that the
amount of the verdict must have been the result of passion
 It is apparent from this provision the determinative factor in awarding additur is not merely the existence of jury passion or prejudice. For, if that were the case, the existence of juror misconduct and bias, as discussed above, would leave the trial court free to fashion its remedy according to its own sense of justice regardless of whether that misconduct affected the verdict. Such a practice would ignore our reverence for the verdict of the jury. Under the statutory scheme, to justify an award of additur, as distinguished from an award of a new trial under CR 59, the verdict ON ITS FACE must be so inadequate as to unmistakably indicate the amount was the result of passion or prejudice.
In an instance where the jury verdict is within the range of credible evidence, the trial court has no discretion to find passion or prejudice affected the verdict FOR THE PURPOSE OF ORDERING ADDITUR. JAMES v. ROBECK, 79 Wn.2d 864, 490 P.2d 878 (1971); HENDRICKSON v. KONOPASKI, SUPRA.
In considering the extent of Robinson's injuries, the jury's award is within the range of credible evidence. The expert medical testimony of Dr. McDermott, if believed, established that Robinson's current symptoms and many of her medical bills were not related to the accident at issue. Thus, it cannot be said the jury's verdict is "so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of . . . prejudice." Therefore, the Court of Appeals did not err in reversing the trial court's order of additur.
Accordingly, the unpublished opinion of the Court of Appeals is reversed in part, and affirmed in part, and this case is remanded for a new trial as to damages.
CONCURRING JUDGES: Callow, C.J., and Utter, Brachtenbach, Dolliver, Dore, Andersen, Durham, and Smith, JJ., concur.
POST-OPINION INFORMATION: Reconsideration denied October 4, 1989.