dissenting.
I agree with the holding of the principal opinion that the defendant was entitled to accept the jury verdict for the plaintiff for one dollar, and that it did not waive or lose its right to assert points of trial error by failing to file a motion for new trial following the return of the initial verdict. The procedure suggested in the principal opinion, in which the defendant would abide the result of the retrial on damages and then assert trial error in a motion for a new trial, appealing if dissatisfied with the result, is cumbersome and duplicative. It is not required by controlling precedent. The issue, by contrast, is one of first impression. I would consider the points raised by the defendant relating to submission of issues of liability. Having done so, I conclude that the trial court erred in failing to submit the issue of the plaintiffs comparative fault to the jury. I would therefore remand for new trial on liability as well as on damages.
I do not question the trial court’s conclusion that, given the verdict for the plaintiff, the award of damages was so inadequate as to justify the granting of a new trial on the ground that the verdict was against the weight of the evidence. The decision on that question is committed to the discretion of the trial court and is seldom questioned by an appellate court.
The grant of a new trial on damages alone is appropriate if the verdict on liability is free from error. Such a grant, indeed, assumes that the issue of liability has been determined in accordance with the law. An order granting a new trial, however, is expressly made appealable by statute. § 512.020 RSMo 1994.
I believe that the grant of a new trial on damages alone is erroneous if there has been error in the submission of liability. It has often been held that the grant of a new trial to a plaintiff is erroneous if the plaintiff has not made a submissible case, Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 107 (Mo.1973), and that the defendant may challenge the grant of the new trial on appeal even though no motion for directed verdict was made during trial and no motion for judgment notwithstanding the verdict was filed. If the appellate court finds that no submissible claim has been made, the judgment granting the new trial is an abuse of discretion and will be reversed. Gilomen v. Southwest Missouri Truck Center, Inc., 737 S.W.2d 499, 501 (Mo.App.1987).
By reasonable extension, it follows that a defendant may challenge the granting of a new trial on damages alone on appeal, on the ground of infirmities in the submission of liability. An order granting a new trial imposes a substantial burden on the parties, and that is why the legislature has made such orders appealable. The grant of a new trial on damages alone connotes a proper submission of issues of liability. To require the defending party to abide the result1 of the new trial on damages, and only then to have recourse on appeal on claims of error in the original submission of liability, imposes an unreasonable burden and may be wasteful. I would hold that the grant of a new trial on damages alone is an abuse of discretion if the *239submission of liability is tainted by error. By the solution adopted in the principal opinion, three trials might be required rather than two.
I therefore reach the points of error briefed by the defendant/appellant, and conclude that the first point has merit. The plaintiff stepped into a hole in a parking lot at night while carrying her two year old daughter on her hip. Her other children testified that the hole could not be seen because of the darkness, but the jury did not have to accept their testimony in full. The plaintiff testified that she assumed that there would be no hole, and the jury might question whether she looked carefully.
Prior to Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983) a plaintiff in a “slip and fall” case was obliged to establish that he or she could not have known of the condition by the exercise of ordinary care. Gustafson changed this requirement and authorized the submission of comparative fault. Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28, 30 (Mo. banc 1987). The court should ordinarily submit questions of comparative fault to the jury. Powell v. Norman Lines, Inc., 674 S.W.2d 191, 197 (Mo.App.1984). The plaintiff, indeed, does not argue that the submission of comparative fault was not required, but simply asserts that the defendant waived the claim by failing to file a motion for new trial.
I would reject the defendant’s other claim, in which it challenges the trial court’s determinations about the award of damages. The court was not bound by the jury’s findings on damages. Nor do we perceive any connection between liability and damages in this case.
For the error in failing to give the requested instructions on comparative fault, however, the order granting a new trial on damages alone should be reversed and the ease remanded for new trial on all issues.