Opinion
No. CV 940142148S
November 15, 1995
MEMORANDUM OF DECISION RE: MOTION FOR ADDITUR, AND MOTION TO SET ASIDE VERDICT AND FOR NEW TRIAL
This case arose out of a collision between the plaintiff's bicycle and the defendant's motor vehicle, in which the plaintiff claims injuries, consisting of a broken fibula, caused by the negligent operation of the motor vehicle by the defendant, Lucy Somma.
In the trial to a jury, the plaintiff claimed medical expenses of $1,648.79, and the cost of bicycle repair in the amount of $111.25, for total economic damages of $1,760.04. The jury rendered a verdict for the plaintiff, and in its verdict form found economic damages of $1,787.04, zero non-economic damages, and comparative negligence of 50%, for a verdict of $893.52.
The jury awarded a sum for economic damages which is $27 more than the plaintiff claimed. The court treats this inconsistency as an error in calculation, and not as any attempt by the jury to award non-economic damages which it found specifically to be zero. Also there was no evidence that the claimed medical expenses were not related to the injury. This situation is to be distinguished from that in Creem v. Cicero, 12 Conn. App. 607, 533 A.2d 234 (1987) where the jury verdict was $.04 more than the medical expenses. In that case there was no breakdown between economic and noneconomic damages, and no interrogatories to suggest that the award did not include pain and suffering.
Initially, the court had submitted an improper verdict form to the jury, which form did not contain a breakdown between economic damages and non-economic damages. The jury returned this form, purporting to award damages of $1,787.04. Before accepting the verdict, the court returned the jury to the jury deliberation room with the proper verdict form, containing spaces for both economic and non-economic damages. The jury returned this correct form, indicating $1,787.04 in economic damages, and $0 non economic damages. The court accepted this verdict.
The plaintiff has filed motions for additur, to set aside the verdict, and for a new trial. He assigns the same reasons in each of the motions, that (1) the verdict is contrary to law; (2) the award of non-economic damages is against the evidence; and (3) the verdict is inadequate.
The facts relevant for the disposition of these motions can be summarized as follows.
On July 5, 1994 the plaintiff, an eleven year old boy, was injured while riding his bicycle when it collided with a motor vehicle operated by the defendant Lucy Somma. At the time of the accident, both parties were travelling in a northerly direction on East Rocks Road in Norwalk. The evidence was conflicting as to how the collision occurred. It is uncontested, however, that as a result of the accident the boy fell from his bicycle and suffered a broken fibula, incurring medical expenses of $1,648.79 as a result. The defendant also did not contest the cost of repairing the bicycle, in the amount of $111.25.
The plaintiff spent some minutes lying in the road in a "nervous and anxious" state, awaiting the ambulance and was comforted by his father and others. At the hospital a cast was applied and he was discharged. At home he was relatively immobile for about a week, after which his condition progressively improved, and a walking cast was applied. He was able to resume bicycle riding after approximately a month, and in the fall of that year he returned to athletics, including soccer.
The general rule, laid down in Johnson v. Franklin, 112 Conn. 228, 229 (1930) remains that it is manifestly unjust for a jury to fail to award damages for pain and suffering when it awards special damages. See also Creem v. Cicero, 12 Conn. App. 607, 611, 533 A.2d 234 (1987).
In Childs v. Bainer, 235 Conn. 107 (1995) the court upheld a jury verdict of economic damages with an award of zero non-economic damages, distinguishing it from Johnson. InChilds, the jury had awarded less than all of the economic damages (19%) and the evidence of physical injury "was neither substantial nor uncontested". In this case, the jury awarded all of the medical expenses as special damages, and the evidence of the plaintiff's broken leg was substantial and uncontested. What was contested was the duration of the plaintiff's disability and inability to enjoy life's activities, and the permanency of the injury, all of which issues the court assumes were resolved by the jury in favor of the defendant, which was reasonable for the jury to do. With regard to the issue of pain and suffering, however, the general rule of Johnson v. Franklin, supra, 112 Conn. 229, governs. The court holds that in this case, where the fault of a defendant caused the plaintiff to suffer a substantial injury in the form of a broken fibula, without any question of proximate cause, and the jury awarded the plaintiff all of his medical expenses (in this case reduced by the percentage of comparative negligence found) a verdict which fails to award damages for pain and suffering is manifestly unjust and inadequate as a matter of law. There is no basis in reason or logic for the proposition that a broken fibula will not be accompanied by some pain and suffering, and the plaintiff was entitled to recover therefor.
The defendant presented testimony from a police officer that the officer considered the injury minor, because the plaintiff's leg bone was not protruding through the skin.
I am therefore obliged to determine a reasonable additur. The court finds that fair, just and reasonable compensation for the plaintiff's pain and suffering is $6,500. The jury having found 50% comparative negligence, the court orders an additur of $3,250. If the parties shall not accept said addition to the verdict, the court orders that the verdict be set aside and a new trial ordered.