Opinion
No. CV07-6000234 S
April 23, 2008
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT (#107.00)
Plaintiff has filed a motion to set aside the verdict following the March 28, 2008 jury verdict in the amount of $4,101.79 in favor of the plaintiff, Katherine Garufi, on her claim for personal injuries. The jury awarded economic damages of $4,101.79 and made no award for non-economic damages. Plaintiff has asked that the award be set aside pursuant to General Statutes § 52-228b in that it was (1) against the law, (2) against the evidence, and (3) manifestly inadequate. The plaintiff has further asked that if the award is set aside on the ground of inadequacy that the parties be given an opportunity to accept an additur to the verdict in an amount the court deems reasonable. Defendant has filed an objection to the motion arguing there is no basis for the requested relief. Oral argument was held before the court on April 21, 2008.
I FACTUAL AND PROCEDURAL BACKGROUND
On or about November 25, 2004, the plaintiff, Katherine Garufi, was operating her vehicle northbound on Interstate 95 in Waterloo, Maryland when an unknown vehicle in front of her came to a complete stop. Swerving to avoid the vehicle, the plaintiff struck another vehicle and then came to rest on an embankment. The plaintiff suffered personal injuries relative to her head, neck and shoulder, including lacerations, headaches and permanent scarring on her forehead and left shoulder. During the trial, uncontroverted evidence and testimony were presented that the plaintiff had medical expenses of $4,101.79. There was no claim for lost wages. Following the presentation of evidence, the jury returned a verdict in favor of the plaintiff for $4,101.79, the exact amount of the medical expenses. The jury made no award of non-economic damages.
Other facts will be recited as necessary.
II STATEMENT OF LAW
"Litigant[s have] a constitutional right to have issues of fact determined by a jury." Mahon v. Unitron Mfg., Inc., 284 Conn. 645, 672, 935 A.2d 1004 (2007). "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 381, 673 A.2d 77 (1996). Even though a court has the power to set aside a jury verdict if it finds that it is contrary to the law and/or evidence, it should not do so if it finds some evidence in support of the verdict. PAR Painting, Inc. v. Greenhorne O'Mara, Inc., 61 Conn.App. 317, 322, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001). However, "[i]n passing on a motion to set aside a jury verdict, a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context." Lombardi v. Cobb, Superior Court, judicial district of New London at Norwich, Docket No. 410041 (February 15, 2006, Leuba, J.T.R.) (40 Conn. L. Rptr. 761); see Schroeder v. Triangulum Associates, 259 Conn. 325, 329-30, 789 A.2d. 459 (2002). If the trial court "finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial." (Internal quotation marks omitted.) Id., 330. Generally speaking, "[a] court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence." (Internal quotation marks omitted.) Auster v. Norwalk United Methodist Church, 94 Conn.App. 617, 620, 894 A.2d 329 (2006), aff'd, 286 Conn. 152, 943 A.2d 391 (2008).
As to the issue of additur, in making a decision on whether the amount of damages awarded are inadequate, the court must begin its analysis "not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do." (Internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000). In this context, the court must recognize that "[t]he amount of damages awarded is a matter peculiarly within the province of the jury . . ." (Internal quotation marks omitted.) Lingenheld v. Desjardins Woodworking, Inc., 105 Conn.App. 163, 177, 936 A.2d 723 (2008). However, this does not excuse the court from conducting a review of the evidential underpinnings of the verdict to ensure that the award is reasonably supported by the evidence. Johnson v. Chaves, 78 Conn.App. 342, 346-47, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003); Wichers v. Hatch, supra, 189.
III DISCUSSION
In this case there was evidence presented by the plaintiff as to her injuries and treatment. She received treatment at The University of Maryland Medical Center emergency room and had an evaluation of the scarring which found the forehead scar to be well healed and extended six centimeters from the superior forehead into the frontal scalp area. The left shoulder scarring consisted of multiple irregular scars with the most significant scar to be 3 centimeters in length. The plaintiff did present evidence and/or testimony that she felt some pain and discomfort for a period of time following the accident and that she occasionally had itching in the area of the shoulder scarring. In addition to the testimony of the plaintiff, there were exhibits entered into evidence on the topic of medical treatment and expenses (Plaintiff's Exhibits 2, 3, 4 and 5). These included both medical records and a bill from The University of Maryland Medical Center, medical records from a Dr. Raymond Chang of Medical Faculty Associates at the George Washington University as well as his estimate of $1,125.00 for possible cosmetic surgery. In its verdict, the jury awarded the full amount of the medical expenses actually incurred as evidenced by the exhibits submitted on those issues (Plaintiff's Exhibits 2 and 3); but made no award of non-economic damages. There was no lost wage claim by the plaintiff.
Our Supreme Court has held that a jury award of virtually all of a plaintiff's economic damages, but no non-economic damages, is an inconsistent verdict. Schroeder v. Triangulum Associates, supra. But, it is to be noted that "[i]n Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), we [the Supreme Court] held that trial courts, when confronted with jury verdicts awarding economic damages and zero non-economic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law." Id., 330.
In applying this standard of review the court is mindful that it must do so "not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do." Wichers v. Hatch, supra, 252 Conn. 189. In considering the evidence presented along with the jury's award, this court concludes that the award is incongruous and therefore is inadequate. There was sufficient evidence of the nature of the injuries and their impact upon the plaintiff to justify an award of non-economic damages. Her claim of discomfort resulting from the accident was consistent with her injuries. This conclusion is borne out in part by Plaintiff's Exhibit 5, the University of Maryland Medical system records dated November 25, 2004 which references the plaintiff's history of injury as having been involved in a motor vehicle accident collision and having a "loss of consciousness on arrival" and that she had "mild neck pain." It also states that she had lacerations which needed to be sutured and that she needed to follow-up within five days to have the sutures removed. She was also directed to rest for 24 hours. Clearly there was evidence sufficient to support the claim in her pleading that she suffered discomfort and pain as a result of the accident.
The court notes that there have been several cases where there were little or no economic damages awarded despite the award of substantial economic damages. E.g., Wichers v. Hatch, supra, 252 Conn. 177; Turner v. Pascarelli, 88 Conn.App. 720, 729-30, 871 A.2d 1044 (2005); Schettino v. Labarba, 82 Conn.App. 445, 447, 844 A.2d 923 (2004), Daigle v. Metropolitan Property Casualty Ins. Co., 60 Conn.App. 465, 478-79, 760 A.2d 117 (2000), aff'd 257 Conn. 359, 777 A.2d 681 (2001). Those cases are distinguishable from the present case in that they all involved plaintiffs who had had a pre-existing injury. In such situations a jury could reasonably conclude that any pain and suffering endured by a plaintiff was related to the preexisting injury and not as a result of the tort alleged to have been committed by the defendant. Wichers v. Hatch, supra, 189-90. In the instant case, there was no allegation or evidence that the plaintiff had suffered a pre-existing injury. Therefore, the court is of the opinion that the facts of this case require the court to conclude that the plaintiff must have suffered some pain as a result of her injuries.
In situations where there is no pre-existing injury and there is an award of economic damages, but no non-economic damages, it is improper for the court not to grant an additur. Fileccia v. Nationwide Property Casualty Ins. Co., 92 Conn.App. 481, 485-86, 886 A.2d 461 (2005), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006); see also, Elliot v. Larson, 81 Conn.App. 468, 840 A.2d 59 (2004). In that there was in this case no evidence suggesting that the plaintiff had any preexisting conditions, the jury could not have reasonably attributed the plaintiff's condition to a cause other than the accident. Fileccia, supra, 92 Conn.App. 486. See also, Lombardi v. Cobb, Superior Court, judicial district of New London at Norwich, Docket No. 410041 (February 15, 2006, Leuba, J.T.R.) (40 Conn. L. Rptr. 761).
IV CONCLUSION
In this instance the jury's verdict is inadequate. Its failure to award non-economic damages for the plaintiff's pain and suffering could only have come about through mistake, ignorance, corruption or partiality. Such a verdict does shock the sense of justice of the court. Margolin v. Kleban Samor, P.C., 275 Conn. 765, 783-84, 882 A.2d 653 (2005). Accordingly, the court grants the plea for an additur and awards an additional $5,000.00 in non-economic damages. The verdict shall be set aside unless within thirty (30) days from the filing of this decision the defendant shall file with the clerk an additur in the amount of $5,000.00 in non-economic damages. This additur shall be added to the original award of $4,101.79 for a total award of $9,101.79. If the additur is not filed within said time, or filed and not accepted by the plaintiff, the verdict is hereby set aside and a new trial is ordered limited to the issue of damages.
So ordered.