Opinion
No. CV06-5001387 S
February 9, 2009
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE VERDICT
I FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Practice Book § 16-35, the plaintiff has filed a motion to set aside the jury's December 10, 2008 verdict in the amount of $3,206 in favor of the plaintiff, Marybeth D'Amico on her claim for personal injuries. The jury awarded economic damages of $3,206 but made no award for non-economic damages. Plaintiff has asked that the award be set aside pursuant to General Statutes § 52-228b claiming that it was 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. The plaintiff has also asked that if the additur is granted but not accepted by the parties, that a new trial on the issue of damages be held pursuant to General Statutes § 52-216a. Oral argument was held before the court on February 3, 2009.
This case stems from a March 1, 2005 automobile accident on Route 58 in Bethel, Connecticut. While traveling during a snowfall, the plaintiff hit a slippery spot in the roadway and then pulled her motor vehicle to the right side of the road and stopped it there. Shortly thereafter the defendant's motor vehicle approached from behind and attempted to go around the plaintiff's vehicle. However, she spun on the slippery road and struck the plaintiff's vehicle. As a result of this accident, the plaintiff was taken to the emergency room where she was treated and then released. The plaintiff suffered from, among other things, headaches, knee pain, neck pain, back pain, and a permanent partial disability of the neck and back. There was no evidence presented that the plaintiff had any history of neck pain or other related injury prior to the accident.
The case was tried to a jury and during trial, both the plaintiff and the defendant testified as to their recollection of the events. The jury received evidence, including the police report, medical reports, and medical bills related to plaintiff's injuries and treatment. There was uncontradicted evidence of the plaintiff suffering some level of pain and discomfort in the neck and upper back areas for four months after the accident. The jury returned a verdict in favor of the plaintiff, finding the defendant to be 51% negligent and awarded the plaintiff $3,206.00 in economic damages and zero non-economic damages.
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 (2007). 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, 252 Conn. 189.
III DISCUSSION
In this case there was evidence presented by the plaintiff as to her injuries and treatment. In its verdict, the jury only awarded a portion of the $6,796 in medical expenses claimed to have been incurred by the plaintiff and 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 noneconomic 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 noneconomic 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 noneconomic damages. Her claim of discomfort resulting from the accident was consistent with her injuries. Even with the jury's conclusion that the defendant was only 51% negligent in causing the accident, there was evidence sufficient to support the claim in plaintiff's complaint that she suffered 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.
Even where there is a pre-existing injury and there is an award of economic damages but no non-economic damages, it is still within the court's discretion to grant an additur. While Wichers v. Hatch "overruled the requirement that as a matter of law, economic damages must be accompanied by non-economic damages . . . The court [ . . .] declined to fix a benchmark for when noneconomic damages are required . . . Instead, the court mandated review on a case-by-case basis. The trial court must use all of its knowledge and consider whether the verdict is 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 . . ." (Internal quotation marks omitted; citations omitted.) Bendetto v. Zaku, 112 Conn.App. 467, 472-73 (2009). 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).
CT Page 2963
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 $3,000.00 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 $3,000.00 in non-economic damages. This additur shall be added to the original award of $3,206 for a total award of $6,206. 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.