Opinion
No. HHB CV 04-0526138S
January 9, 2006
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (#136.00)
Pursuant to Practice Book Section 16-35, the defendants have filed a Motion to Set Aside Verdict following a jury verdict in the amount of $3,200,000.00 in favor of the plaintiff Corey Hall on his claim for personal injuries. The jury awarded economic damages of $500,000.00 and non-economic damages of $2,700,000.00. Additionally, the jury entered a verdict in the amount of $300,000.00 in favor of the plaintiff Deborah Torres-Hall on her derivative loss of consortium claim. At trial, the defendants had moved for a directed verdict and the court reserved decision thereon. Defendants cite seven reasons as to why the verdict should be set aside.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about April 17, 2002, the plaintiff Corey Hall was employed by a temporary labor agency and assigned to work for Thorpe Trucking, LLC on a trash collection route in and around Wallingford, Connecticut. While attempting to load trash into the truck, which was operated by the defendant Miguel Corchado as an employee of Thorpe Trucking, LLC, the truck moved forward crushing the plaintiff's left foot, fracturing bones in his leg and foot, and disfiguring his left arm. He was left with a fifty percent (50%) permanent partial disability of the left lower extremity, significant scarring of the left arm, chronic back problems, and was left in constant pain. As a result of the accident, Mr. Hall's relationship with his wife and family were greatly affected. His demeanor and personality were also significantly altered for the worse. He has not been employed since the accident.
During the trial, evidence and testimony were presented that Mr. Hall had medical expenses of $35,294.00. Also, a significant amount of evidence was presented addressing the issue of the plaintiff's educational background, lost wages and lost earning capacity.
The defendants filed special defenses alleging in part that Mr. Hall's own negligence contributed to his injuries. Following the presentation of evidence, verdict forms were provided to the jury which called for an allocation of the percentage of negligence between the parties. The jury found no negligence on the part of the plaintiff in causing his injuries.
Other facts will be recited as necessary.
II. STATEMENT OF LAW
Litigants have a constitutional right to have factual issues resolved by a jury. Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). In considering a motion to set aside a verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). 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 13 (2001). However, "[i]f the trial court finds that the verdict is so clearly against the weight of the evidence in the case as to indicate 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 the verdict." (Internal quotation marks omitted.) Vickers v. Jessup, 32 Conn.App. 360, 370, 629 A.2d 457 (1993).
III. DISCUSSION
A. The defendants' first claim for the setting aside of the verdict is that it was excessive as a matter of law. In that the court has already addressed this argument in its ruling on the defendants' Motion of Remittitur (#137.00) it adopts the reasoning of that ruling for the purposes of this motion and incorporates it herein by reference. For the reasons set forth therein, the court finds that the verdict was not excessive as a matter of law.
B. The defendants' next claim is that the court failed to charge the jury that the plaintiff Corey Hall had a duty for his own safety.
At trial, the court charged the jury extensively on the both contributory negligence and comparative negligence. Both charges made clear that the jury was able to consider the issue of whether the plaintiff Corey Hall acted unreasonably in his own conduct and was therefore to some degree responsible for his own injuries. This necessarily included a determination by the jury whether the plaintiff had acted in a manner consistent to ensure his own safety under the circumstances. Evidence of this consideration is found in the completion of the jury verdict forms noted above wherein the jurors found no negligence on the part of the plaintiff.
Moreover, jury charges must be read as a whole and not reviewed for error in a microscopic examination. Ubysz v. DiPierto, 185 Conn. 47, 57, 440 A.2d 830 (1981). "Jury instructions need not be exhaustive, perfect or technically accurate so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983). The court finds that the charge provided to the jury was sufficient relevant to the issue raised by the defendants.
C. The defendants' third claim is that the court unduly restricted their examination of certain witnesses. They had sought to cross examine Mr. Anthony Czepiga, an expert of the plaintiff, for the purpose of determining if the contents of the police report of the accident reflected the issuance of a citation to Mr. Corchado as the operator of the truck. The report itself, though marked for identification, was never admitted as a full exhibit for the jury's consideration. The court sustained the objection of the plaintiff to this line of questioning. In testifying as an expert on the issue of compliance with safety regulations and standards, the witness was entitled to offer an opinion based on the factual circumstances surrounding the accident. However, questions or testimony as to whether the police report reflected enforcement action against Mr. Corchado would have been irrelevant to the purpose of the opinion testimony offered by Mr. Czepiga.
As to the examination of the defendant's expert Mr. Joseph Pessalano regarding the plaintiff's employability and earning capacity, the defendants claim that the court improperly disallowed inquiries as to why he had not personally met with Mr. Hall in person in formulating his opinions. The defendants claim that the reason for not doing so was relevant to the weight the jury might give to his testimony. However, again, such questions or testimony would not be relevant to the purpose of the opinion testimony, nor would it produce any basis for the opinions given.
Accordingly, the reasons offered by the defendants in this regard are insufficient to support the setting aside of the jury's verdict.
D. The defendants next claim that the jury interrogatory form offered by them concerning mitigation of damages should have been submitted to the jury, or at the least allow for a notation thereof on the verdict form. The defendants recite several facts submitted into evidence showing that the plaintiff failed to mitigate his damages. The jury was free to give such evidence whatever weight it felt was appropriate on the issue. Smith v. Lefebre, 92 Conn.App. 417, 421 (2005); Weiss v. Bergen, 63 Conn.App. 810, 813, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 254 (2001). Other than reciting facts that were submitted to, and considered by the jury, there is nothing in the defendants' argument which indicates that they were prejudiced in any way by not submitting the jury interrogatories or the verdict form as requested. Moreover, at the charging conference held pursuant to Practice Book § 16-24, the court agreed to substantially adopt the charge on mitigation of damages as offered by the defendants. It is noteworthy that the charge was read to the jury and no exception was taken by the defendants under Practice Book § 16-20.
The court finds that there is no evidence of prejudice to the defendants in this regard and therefore, there is no cause to set aside the verdict on this basis.
E. Defendants next contend that the court erred in refusing to allow the admission into evidence of a signed statement of the defendant Miguel Corchado. The statement was offered to rebut testimony of the plaintiff Corey Hall as to the time the truck left the facility to make its run for garbage collection. Mr. Corchado did testify at length regarding the circumstances surrounding the accident including the time he and the plaintiff left the facility in the truck. Defendants note in their motion that the statement "was significant because it confirmed that the truck involved in the incident was in good working order and that the truck left Thorpe Trucking at four a.m. on the morning of the accident." Because Mr. Corchado had already testified to the time the truck left the facility and to the condition of the truck, the admission of the document would only have been a needless presentation of cumulative evidence. See Connecticut Code of Evidence § 4-3. Moreover, defendants' reliance on § 1-5 of the Connecticut Code of Evidence for admission of the statement is misplaced. The section applies to a statement that has been introduced into evidence and allows the other party to introduce any other part of the statement whether or not admissible so that it may be considered in context out of fairness to that party. It was not necessary to do so here as the document was not admitted into evidence, and, Mr. Corchado was available to provide live rebuttal testimony if desired.
Finally, the court notes that the decision not to admit the statement did not prejudice the defendants in any way as Mr. Corchado was able to provide live testimony as to the very information contained in the statement. Hence, their claim in this regard does not support a basis to set aside the verdict.
F. Defendants further argue that the decision of the court to not accept their proposed charge entitled "Mental Suffering" justifies the verdict being set aside. At the charging conference, the court provided to counsel the proposed text of its charge to the jury. It declined to adopt verbatim the proposed charge of the defendants. Instead, the following language was used. "Mental suffering is also a proper element of damages when it is accompanied by physical injuries, and when it is the natural and proximate consequence of physical injury. You are to consider that as an element of damages in determining fair and just compensation for the plaintiff(s)."
The proposed charge read as follows: "VIII. MENTAL SUFFERING: A plaintiff injured by the wrong-doing of another is just as much entitled to be compensated for mental suffering caused thereby, and for the results which proximately follow from it, as for physical suffering. (Included within this principle is fear that death will result from the injury, if the plaintiff honestly has that fear.) From the nature of the evidence in support of a claim for such suffering, however, it is difficult to prove or disprove its existence or extent with certainty, and there is always the possibility that there is no real basis for the claim or that the suffering is to a greater or lesser extent exaggerated. For that reason, you should scrutinize with care the evidence offered in support of the claim and approach the matter with caution. But if you are satisfied that a fair preponderance of the evidence supports the claim, the plaintiff is entitled to be compensated for his mental distress and suffering (including his fear that death will result)."
Defendants have cited Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941) for the proposition that the failure to give the charge offered by them was erroneous and harmful. The language in the defendants' proposed charge is virtually identical to that cited by the court in Orlo as being applicable in addressing the jury on the issue of compensation for mental suffering. However, in Buckley v. Lovallo, 2 Conn.App. 579, 588, 481 A.2d 1286 (1984), the Appellate Court disagreed that such language was the current state of the law. "We see no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints." Id. Hence, the defendants' reliance on Orlo is misplaced.
For the reasons set forth above and in Section IIIB, the court finds that the charge as given was sufficient to guide the jury on the issue of mental suffering as an element of damages. Therefore, the court declines to set aside the verdict on the basis claimed.
G. Lastly, the defendants claim that the verdict should be set aside as the exclusivity provision of the Workers' Compensation Act ("Act"), General Statutes § 31-284 prohibits an action for damages on account of personal injury being brought against the defendants. This argument is without merit for two reasons. First, defendants failed to raise such a claim or defense in the pleadings. Practice Book § 10-3(a). The issue was not raised until their post-trial motion. Hence, their claim is untimely and cannot be sustained.
Second, at the time of the accident, the plaintiff Corey Hall was not an employee of the defendant Thorpe Trucking, LLC, and thereby not a fellow employee of Mr. Corchado. The Act is applicable only to relationships between employer and employee. From the evidence at trial it was clear that at the time of his involvement with Thorpe Trucking, LLC and Mr. Corchado, Mr. Hall was employed by a temporary employment agency, The Agentry Group, Inc. As a result, there was no employee-employer relationship between the parties that would invoke the exclusivity provisions of the Act.
Finally, as plaintiff has argued in its response to the motion, even if one were to acknowledge that the plaintiff was an employee of the company, the Act would still not be applicable to any claim against Mr. Corchado. While the Act provides for immunity from suit by fellow employees, there is an exception that allows an action where it "is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1." General Statutes § 31-293a.
Accordingly, the reasons offered by the defendants in this regard are insufficient to support the setting aside of the jury's verdict.
IV. CONCLUSION CT Page 747
Each of the claims of the defendants for the setting aside of the verdict of the jury fails to establish legitimate grounds for doing so. The jury's verdict cannot be said to have been contrary to the law and/or evidence as there was sufficient evidence in support of the verdict. PAR Painting, Inc. v. Greenhorne and O'Mara, Inc., 61 Conn.App. 317, 322, 763 A.2d 1078 cert. denied, 255 Conn. 951, 770 A.2d 13 (2001). There was nothing to indicate the jury did not correctly apply the law to the facts in evidence in the case, or that it was governed or influenced by ignorance, prejudice, corruption or partiality in reaching a verdict. Vickers v. Jessup, 32 Conn.App. 360, 370, 629 A.2d 457 (1993). The verdict does not so shock the sense of justice as to compel such a conclusion. Margolin v. Kleban Samor, P.C., 275 Conn. 765, 783-84, 882 A.2d 653 (2005). For these reasons, the Motion to Set Aside Verdict is denied.