Opinion
No. 05-4002371
February 13, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS TO SET ASIDE VERDICT REMITTITUR AND COLLATERAL SOURCE HEARING
This action results from a collision between the plaintiff's bicycle and the defendant's motor vehicle on October 25, 2004 in East Lyme, Connecticut. The plaintiff brought an action for damages which was tried before a jury over a period of several days, after which, the jury returned its verdict in favor of the plaintiff. The jury awarded economic damages to the plaintiff in the amount of $200,000 and non-economic damages in the amount of $400,000 for a total of $600,000. The final award was reduced by the jury to $306,000 following its finding that the plaintiff was 49% comparatively negligent.
The defendant has filed motions to set aside the jury verdict, for remittitur and a collateral source hearing. The grounds for the defendant's motion to set aside the verdict is that there was no evidence presented to support the plaintiff's claims of negligence and that the lack of evidence compels the suspicion that the jury must have been influenced by prejudice, sympathy, corruption or partiality. The defendant's motion for remittitur is based on her claim that the plaintiff failed to present sufficient proof of his past and future economic losses and the plaintiff failed to present medical testimony to support his claim of permanent injuries and disability which resulted in the award of non economic damages from the jury. The plaintiff has filed objections to the motions arguing that the verdict and the amount of the damages awarded were proper. Both parties filed memoranda in support of their claims.
I. THE MOTION TO SET ASIDE THE JURY VERDICT
"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 . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion. The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict." (Internal quotation marks omitted.) Phelps v. Lankes, 74 Conn.App. 597, 600 (2003). "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." Card v. State, 57 Conn.App. 134, 138 (2000).
"[The trial court] must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . The verdict will be set aside and judgment directed only if [the court finds] that the jury could not reasonably and legally have reached their conclusion." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 50, 873 A.2d 929 (2005), citing Presidential Capital Corp. v. Reale, 231 Conn. 500, 506, 652 A.2d 489 (1994). "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will." Wichers v. Hatch, 252 Conn. 174, 189 (2000).
"The setting aside of a verdict can occur for two general reasons. First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." (Citation omitted.) Novak v. Scalesse, 43 Conn.App. 94, 97-98, 681 A.2d 968, cert. granted on other grounds, 239 Conn. 925, 682 A.2d 1004 (1996) (appeal withdrawn, May 13, 1997).
"Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion." (Internal quotation marks omitted.) PAR Painting, Inc. v. Greenhorne O'Mara, Inc., CT Page 3518 61 Conn.App. 317, 322-23, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001). "[I]f there is a reasonable basis in the evidence for the jury's verdict . . . the trial court should let the jury work their will." Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 720, 731 (2005).
The Plaintiff's Allegations
The plaintiff alleged in his complaint that the defendant was negligent under common-law principles in that she failed to apply her brakes in time to avoid the collision and that she failed to keep a proper lookout for the defendant so as to avoid the collision. The plaintiff did not allege any statutory negligence. Although the plaintiff filed a motion to amend his complaint on the final day of trial, he withdrew the motion to amend before the court charged the jury. Accordingly, the court charged the jury on the plaintiff's two common-law allegations.
The Defendant's Special Defenses
The defendant asserted common-law and statutory special defenses. The defendant claimed that the plaintiff was negligent under common-law principles in that he failed to keep a proper lookout. The defendant also asserted that the plaintiff violated § 14-286b(a) by failing to ride his bicycle as near to the right side of the road as practicable and § 14-286a(a) and § 14-230 by failing to operate his bicycle on the right side of the road.
A. The Defendant's Failure To Apply Her Brakes In Time To Avoid The Collision.
The plaintiff alleged that the defendant breached a duty at common law to apply her brakes in time to avoid the collision. The court charged the jury that at common law, the operator of a motor vehicle on a highway should maintain control at all times so that when reasonable care requires it, the vehicle he or she is operating can be stopped by application of its brakes in order to avoid colliding with another person, if the collision could have been anticipated or was actually seen by the driver. The court charged the jury on the defendant's common-law duty to apply her brake in a timely manner as follows:
The plaintiff claims that the defendant failed to apply her brakes in time to avoid the accident. The question is whether the plaintiff has proven that a reasonably prudent person would have applied his or her brakes at an earlier time than the defendant did in this case.
At common law, the operator of a motor vehicle on a highway should maintain control at all times so that when reasonable care requires it, the vehicle he or she is operating can be stopped by application of its brakes in order to avoid colliding with another person, if the collision could have been anticipated or was actually seen coming by the driver.
If the plaintiff has proved by a preponderance of the evidence that the defendant failed to reasonably utilize her brakes when an ordinarily prudent person would have done so under all the circumstances, you may find her negligent. If, however, the plaintiff has not proved this allegation by the legal burden imposed upon him, you may not find the defendant negligent as here claimed.
Neither party objected to the charge on the defendant's common-law duty to apply her brakes in a timely manner.
The defendant testified that prior to the accident, her focus was on the road ahead. She testified that she did not see the defendant at any time prior to her air bag deploying upon impact and therefore, she had no reason to apply her brakes.
The plaintiff submitted no evidence in support of his allegation that the defendant failed to apply her brakes in a timely manner. The court finds that the jury was not presented with any facts or evidence that the defendant failed to apply her brakes in time to avoid the collision. As to this allegation, the court agrees with the defendant that there was nothing for the jury to consider which could form the basis for a finding that the defendant failed to apply her brakes in a timely manner without the jury resorting to speculation or conjecture.
B. The Defendant's Failure To Keep A Proper Lookout
The plaintiff also alleged that the defendant was negligent at common law by her failure to keep a proper lookout so as to avoid the collision.
A driver's duty to keep a proper lookout is governed by the standard of reasonable care required of a reasonably prudent person considering the circumstances prevailing at the time and place of the accident. The court charged the jury that, at common law, the driver of an automobile has a duty to use reasonable care to discover dangers or conditions to which he or she may be exposed as well as to avoid those dangers and conditions that are actually known to him or her.
Specifically, the court charged the jury as follows:
The plaintiff claims that the defendant failed to keep a proper lookout when driving at the time and place in question. At common law, the driver of an automobile has a duty to use reasonable care to discover dangers or conditions to which he or she may be exposed as well as to avoid those dangers and conditions that are actually known to him or her. A driver is required to keep a reasonable lookout for any persons and traffic he or she is likely to encounter. A driver is chargeable with notice of dangers or conditions of which he or she could become aware through a reasonable exercise of his or her faculties.
If the plaintiff has proved by a preponderance of the evidence that the defendant failed to maintain the proper lookout that an ordinarily prudent person would have maintained under all the circumstances, you may find the defendant negligent. If, however, the plaintiff has not proved this allegation by the legal burden imposed upon him, you may not find the defendant negligent as here claimed.
The defendant claims that there was insufficient evidence that the defendant failed to keep a proper lookout.
The court also instructed the jury that, in weighing the evidence, it was permissible for them to resort to circumstantial evidence where direct evidence, such as the testimony of an eyewitness, was not available. The jury was instructed however that to be justified in drawing and inference the inference must be a logical and reasonable one, based on facts which have had been proven by the evidence presented during the trial. The court's instructions were as follows:
There are, generally speaking, two types of evidence from which a jury can properly find the truth as to the facts of the case. One is direct evidence, such as the testimony of an eye witness. There may be situations where direct evidence is not available. In such situations it is permissible to resort to the other type of evidence, known as circumstantial evidence, that is, the inferences which may be logically and reasonably drawn from facts that have been proven by the evidence.
Now what is meant by an "inference"? An inference is a deduction of fact that may be logically and reasonably drawn from another fact or group of facts that have been established as having been proven by the evidence. The inference that you draw, however, must not be from a guess or surmise. To be justified in drawing an inference, the inference must be a logical and reasonable one, based on facts which have been proven during the trial by the evidence. Unless a fact is so established, the inference would be drawn upon a false basis and would not be legitimate.
As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with a preponderance of all the evidence in the case, both direct and circumstantial. Thus, both direct and circumstantial evidence are permissible evidence, and each type should be treated equally.
C. The Defendant's Special Defenses.
The defendant asserted a common-law special defense that the plaintiff was negligent by his failure to maintain a proper lookout so as to avoid the collision. The court gave the same instructions to the jury with respect to the plaintiff's duty to keep a proper lookout as the court gave the jury concerning the defendant's duty to keep a proper lookout.
The defendant also asserted as special defenses that the plaintiff was statutorily negligent. In this regard, the court charged the jury as follows:
In this case, the defendant has also alleged in her special defense that the plaintiff has violated a number of statutory duties. The defendant claims that the plaintiff was negligent in that:
-He violated § 14-286b(a) by failing to ride his bicycle as near to the right side of the roadway as practicable;
-He violated § 14-286a(a) and 14-230 by failing to operate his bicycle on the right side of the road;
I will now explain each of these statutory duties to you.
The defendant has alleged in her special defense that the plaintiff has committed a violation of C.G.S. § 14-286b(a) in failing to ride his bicycle as near to the right side of the road as practicable. The statute reads, "Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable." If you find that the plaintiff has violated this statute, then he is negligent as a matter of law.
The defendant has alleged though her special defense that the plaintiff has committed a violation of C.G.S. § 14-286a(a) and § 14-230 by failing to operate his bicycle on the right side of the road.
General Statutes § 14-286a(a), states that "Every person riding a bicycle . . . upon the traveled portion of a highway shall be granted and shall be subject to all of the duties applicable to the driver of any vehicle subject to the requirements of the statutes relating to motor vehicles." General Statutes § 14-230 also requires that vehicles be driven in the right hand lane.
This means that a bicycle rider on a public highway is subject to and must obey, just like a motor vehicle driver, all of the rules, regulations and statutes applicable to a motor vehicle driver.
You heard testimony during this trial, and it has been admitted by the plaintiff that he was illegally on the wrong side of the road. If you find that the plaintiff has violated either of these statutes, then he is negligent as a matter of law.
The court also charged the jury on the law of comparative negligence.
Following the presentation of evidence and the court's charge, verdict forms were provided to the jury. The plaintiff's verdict form contained a line for an entry of any economic damages found, a line for non economic damages found and a line for the total of any such damages awarded. The plaintiff's verdict form also had lines for the jury to list the percentage of negligence, if any, attributable to the plaintiff and the defendant, and a line for a total of 100% of all negligence found.
The parties consented to the use of the court's verdict forms. Neither party submitted interrogatories to the jury.
D. Evidence.
The following evidence was presented at trial.
The plaintiff was traveling southbound against traffic on Flanders Road in East Lyme, Connecticut when his bicycle and the defendant's northbound motor vehicle collided. The plaintiff sustained serious injuries as a result of the collision. There were no witnesses to the collision.
The plaintiff testified, with the assistance of an interpreter, that he was riding his bicycle against traffic and did not see the defendant's vehicle except for a "ghost-like" image just prior to impact. The defendant testified that prior to the accident her focus was on the road and she did not see plaintiff prior to her air bag deploying upon impact.
The jury heard testimony from the plaintiff's witness, Officer Levandosky of the East Lyme Police Department. Officer Levandosky testified that although he arrived at the scene in his capacity as a volunteer fireman in response to an emergency call he commenced an accident investigation shortly after the emergency medical attention to the plaintiff and other conditions permitted. On cross examination, Officer Levandosky acknowledged that the accident investigation was his first involving the collision of a bicycle and a motor vehicle.
Officer Levandosky took measurements and photographs at the scene on the day of the accident. Levandosky was not able to determine the path of the defendant's vehicle before impact, and was only able to report his findings of the path of the defendant's vehicle after the point of impact to the jury. Although he admitted on cross examination that the photographs offered to prove the point of impact did not clearly show any bicycle scuff marks and were almost non-existent, he stood by his opinion that the collision occurred off the travel portion of the road, somewhere between the fog line and the edge of the paved surface.
Officer Levandosky testified that the portion of the road that the defendant traveled before encountering the plaintiff was straight for at least three hundred feet and free of obstructions . He also testified that the time of the accident was mid-afternoon and that the weather was clear. Officer Levandosky, however, acknowledged that there was no evidence that the defendant's line of vision was not obstructed by vehicles in front of her vehicle.
As noted above, the defendant testified that prior to the accident, her focus was on the road and that she did not see the plaintiff at any time prior to her air bag deploying upon impact. She also testified that prior to impact, she never deviated from her course of travel.
From the testimony of the defendant that she did not see the plaintiff prior to impact and the inferences that flow from that testimony, the trier of fact could reasonably have found it to be more probable than not that the collision could have been avoided if the defendant had maintained a proper lookout.
E. Conclusion.
"Generally speaking, [a] court is empowered to set aside a jury verdict when, in the courts 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).
"In determining whether to set aside the verdict, the trial court walks a thin line." Labbe v. Hartford Pension Commission, 239 Conn. 168, 192 (1996). Since there were no eye-witnesses to the accident, there was scant evidence for the jury to consider. The plaintiff's counsel observed at oral argument on the motion to set aside the verdict that the outcome of the trial was "a close call." The fact that the jury found the defendant fifty-one percent negligent and the plaintiff forty-nine percent negligent confirms that observation.
"[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did." (Citation omitted, internal quotation marks omitted.) Hall v. Bergman, 106 Conn.App. 660, 680, 943 A.2d 515, appeal dismissed, 288 Conn. 903, 952 A.2d 810 (2008).
"Instead of indulging its own subjective notions as to what the verdict should have been, the court must indulge every reasonable presumption in favor of sustaining the verdict as the jury returned it. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666, 733 A.2d 197 (1988)." Id. "[I]f the jury could reasonably have reached its conclusion, the verdict must stand." Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
"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).
"Upon issues regarding which, on the evidence there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonable, must stand, even though the opinion of the trial court . . . be that a different result should have been reached." Jacobs v. Goodspeed, 180 Conn 415, 417 (1980) (internal citations omitted).
Under the circumstances, the court cannot substitute its own judgment for that of the jury. The Defendant's motion to set aside the verdict is denied. The plaintiff's objection is sustained.
II. THE MOTION FOR REMITTITUR.
The defendant has moved that a remittitur be ordered on the grounds that the jury award of $200,000 of economic damages and $400,000 of non-economic damages is excessive and contrary to the evidence.
With respect to the jury's award of economic damages, the plaintiff submitted claims for economic damages consisting of medical bills totaling approximately $102,000 and a claim for lost wages of $17,000. The court granted the defendant's pre-trial motion in limine to limit the medical bills to the time period from October 25, 2004 through February 14, 2005 as a result of the plaintiff's failure to provide the defendant with medical records and bill incurred after February 14, 2005 prior to trial. With respect to the plaintiff's claim for lost wages, the defendant argues that the evidence did not adequately support the claim for past wage losses and no evidence was presented to support the plaintiff's future lost wage claim.
In particular, the defendant argues that since the plaintiff submitted medical bills totaling approximately $102,000 and was unable to provide any documentary proof that he was employed as a dishwasher earning $10 per hour, the award of $200,000 for economic damages was excessive. The plaintiff testified at trial that he earned $10 per hour as a dishwasher and worked 62 hours per week at Frank's Gourmet Grille. The plaintiff submitted no documentation of his employment at Frank's Gourmet Grille however evidence of the plaintiff's employment by Burger King for the years 1999 and 2000 and Skipper's Dock for 2005 was submitted.
"When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citations omitted; internal quotation marks omitted.) Gilliard v. Van-Court, Property Management Services Ltd., 63 Conn.App. 637, 644 (2001).
The plaintiff offered no medical testimony that his injuries were permanent and would reduce his future earning capacity beyond his present earning capacity. To the extent that the award of economic damages exceeded that medical bills of $102,000 and past lost wages of $17,000, the court finds that the $200,000 award of economic damages was excessive by the sum of $81,000. Applying the plaintiff's comparative negligence of 49% as found by the jury, the verdict for economic damages was excessive by the sum of $39,690.
The defendant also moves that a remittitur of the jury's award of $400,000 non-economic damages be ordered.
"Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded." Murray v. Taylor, 65 Conn.App. 300, 324 (2001).
The twenty-six year old plaintiff was in a coma for weeks and suffered very serious injuries including a fractured skull, a traumatic brain injury, the loss of sight in one eye, facial fractures and scarring, a broken pelvis, injuries to his genitals and sexual dysfunction. With respect to the $400,000 non-economic damages found by the jury, the court finds that the jury's award does not shock or offend the court's sense of justice.
III. MOTION FOR COLLATERAL SOURCE HEARING. CT Page 3527
The defendant has moved for a collateral source hearing seeking to reduce the amount of the economic damages awarded by the jury by any amounts for which the plaintiff may have received a collateral source benefit.Practice Book § 16-18 allows the court, upon the request of either party to submit interrogatories to the jury.
In Jones v. Kramer, 267 Conn. 336, 349-50, 838 A.2d 170 (2004), our Supreme Court held "We conclude that the defendant, as the party seeking to reduce the amount of economic damages awarded by the fact finder, bears the burden of proving that the verdict includes items of damages for which the plaintiff has received a collateral source benefit. Specifically, the defendant who is seeking a collateral source reduction must, at the conclusion of the evidence, submit interrogatories to the jury concerning the specific items of damages included within the verdict."
Neither party submitted proposed interrogatories for submission to the jury. The motion for collateral source hearing is denied.
Conclusion and Order
Pursuant to the above findings the court issues the following orders.
Not later than twenty (20) days from the filing of this memorandum of decision, the plaintiff is to file an appropriate motion of his acceptance or rejection of the remittitur of $39,690.00. If the plaintiff accepts the remittitur, the court will enter judgment for the plaintiff in the amount of $266,310.00. If the plaintiff rejects the remittitur, the court will set aside the verdict and order a new trial, as required by General Statutes § 52-216a. Alternatively, the plaintiff may appeal the remittitur as provided by law.
So ordered.