Opinion
HHDCV176074830S
07-03-2019
Melvin HARRELL v. 5 L, LLC
UNPUBLISHED OPINION
OPINION
MATTHEW DALLAS GORDON, J.
In this personal injury action, the defendant, 5 L, LLC, moves the court to set aside the $22,750 jury verdict in favor of the plaintiff, Melvin Harrell, on the grounds that the plaintiff offered no evidence of actual or constructive notice regarding the specific defect that he claims caused his fall. Alternatively, the defendant moves the court to order a remittitur of the verdict in the amount of $18,986 on the grounds that the plaintiff failed to offer sufficient evidence to support the jury’s award of future economic damages. For the reasons set forth below, the defendant’s motions are denied.
I
BACKGROUND
On January 10, 2017, the plaintiff commenced this action alleging that the defendant is liable for the injuries and damages the plaintiff suffered as a result of slipping and falling on an icy condition located on a walkway near the rear of an apartment building owned and maintained by the defendant. On February 7, 2017, the defendant filed an answer denying liability and alleging that the plaintiff was contributorily negligent. At trial, the plaintiff introduced photographs showing the icy condition upon which he allegedly fell, as well as numerous medical bills and reports from his medical providers, including Dr. Heather K. Woodbury of Shaw Chiropractic Group. In her final report dated September 30, 2015, Dr. Woodbury indicated that, "[g]iven the nature of the residual tissue damage it is likely that the patient will require episodic care for flareups of pain which cannot be managed at home. When these occur, he is welcome to present for flareups management which will be for pain control purposes, but not with the expectation of further recovery." The parties stipulated during the trial that the plaintiff has a life expectancy of twenty-eight years.
On February 21, 2019, the jury returned a verdict awarding the plaintiff $25,000 in economic damages, and $10,000 in noneconomic damages, for a total damage award of $35,000. The jury then reduced the verdict to $22,750 based on its determination that the plaintiff was 35 percent responsible for the accident.
The defendant asserts that the jury’s verdict must be set aside because the plaintiff failed to introduce sufficient evidence of actual or constructive notice of the specific defect that he claims caused him to fall, and instead only introduced evidence of the general conditions existing at the time of the accident, which the defendant asserts is insufficient to support the jury’s verdict.
Additionally, the defendant argues that even if the jury’s verdict should not be set aside, the jury’s award of $25,000 for economic damages must be reduced by $18,986 because the plaintiff’s past medical bills totaled only $6,014, and because there is no basis for the jury’s award of future economic damages. The defendant does not challenge the jury’s award of noneconomic damages, and the defendant acknowledged at oral argument that the plaintiff has met his burden of proving the need for future medical treatment. Instead, the defendant claims that the jury’s verdict must be set aside because the plaintiff failed to introduce sufficient evidence regarding the amount of his future economic damages.
Neither of the parties requested jury interrogatories on the issue of liability or damages, and the verdict form approved by both parties does not distinguish between past and future economic damages.
On March 5, 2019, the plaintiff filed an objection and memorandum of law in opposition to the defendant’s motion to set aside the verdict as well as the defendant’s motion for remittitur. The plaintiff contends that the jury’s verdict is supported by the evidence, and that the verdict is not excessive. On April 1, 2019, the court heard argument regarding the defendant’s motions and the plaintiff’s objection.
II
DISCUSSION
Applicable Legal Standard
A motion to set aside or open a civil judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. "[Litigants have a] constitutional right to have issues of fact determined by a jury ... The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." (Citation omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). "The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence ... [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ...." (Internal quotation marks omitted.) Kumah v. Brown, 160 Conn.App. 798, 803, 126 A.3d 598, cert. denied, 320 Conn. 908, 128 A.3d 953 (2015).
General Statutes § 52-212a provides, in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed."
"A party challenging the validity of the jury’s verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden. In reviewing the soundness of a jury’s verdict, [the court] construe[s] the evidence in the light most favorable to sustaining the verdict ... [The court] do[es] not ask whether [it] would have reached the same result. [R]ather, [the court] must determine ... whether the totality of the evidence, including reasonable inferences therefrom supports the jury’s verdict ... If the jury could reasonably have reached its conclusion, the verdict must stand." (Internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745, 754, 189 A.3d 587 (2018). "Directed verdicts are not favored ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ... Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation ... A directed verdict is justified if ... the evidence is so weak that it would he proper for the court to set aside a verdict rendered for the other party." (Internal quotation marks omitted.) Ventura v. East Haven, 330 Conn. 613, 628-29, 199 A.3d 1 (2019).
A
Constructive Notice
"In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee ... A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them safe ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover." (Citations omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 320, 819 A.2d 844 (2003). "Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. Restatement (Second), 2 Torts § 322. A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land ... [T]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee ..." (Citation omitted; internal quotation marks omitted.) Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971).
"The relevant principles of premises liability are well established. A business owner owes its invitees a duty to keep its premises in a reasonably safe condition ... Nevertheless, [f]or or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it ... [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ... In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers ... Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012). To summarize, "[t]o hold the defendant[s] liable for her personal injuries ... the plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 628, 195 A.3d 707 (2018).
Furthermore, "[u]nder familiar principles of law, the defendant, as a property owner, is not an insurer of the safety of persons using ... the premises against the possibility of injury by reason of [a defective condition] thereon ... Mere proof of the presence of some [defective condition] does not necessarily show a breach of [a] defendant’s duty ... [T]he burden rests upon the plaintiff ... to offer evidence ... from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice[.]" (Internal quotations marks omitted.) Hellamns v. Yale-New Haven Hospital, Inc., 147 Conn.App. 405, 410-11, 82 A.3d 677 (2013), cert. granted, 311 Conn. 918, 85 A.3d 652 (2014) (appeal withdrawn, May 9, 2014).
"A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant’s employee; see Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 607, 419 A.2d 339 (1979); or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition. See Derby v. Connecticut Light & Power Co., 167 Conn. 136, 141-42, 355 A.2d 244 (1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1659, 44 L.Ed.2d 88 (1975)." Hellamns v. Yale-New Haven Hospital, Inc., supra, 147 Conn.App. 412. "The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition had existed for such a length of time that the defendants’ employees should, in the exercise of due care, have discovered it in time to have remedied it ... What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case. The nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree each case must be decided on its own circumstances." (Internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 629.
"Constructive notice is triggered by a general duty of inspection or, when the dangerous condition is not apparent to the human eye, some other factor that would alert a reasonable person to the hazard." DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 118. "[A] defect lasting under a minute has been held to be, as a matter of law, insufficient for a defendant to have discovered and remedied it, and thus fatal to a premises liability action." Bisson v. Wal-Mart Stores, Inc., supra, 184 Conn.App. 630. "There is no set period of time which is determinative. Compare, e.g., Kirby v. Zlotnick, 160 Conn. 341, 345, 278 A.2d 822 (1971) (defective porch railing existing for at least two weeks constitutes sufficient length of time to find constructive notice), and Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 286-87, 587 A.2d 1056 (1991) (jury reasonably could have concluded that failure to discover and remedy spilled aftershave lotion remaining on floor for fifteen minutes renders defendant chargeable with constructive notice), with White v. E&F Construction Co., 151 Conn. 110, 113-14, 193 A.2d 716 (1963) (defective condition existing for only two minutes prior to accident insufficient to charge defendant with constructive notice of defect) and Mason v. Wal-Mart Stores, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6013281-S (May 1, 2012, Stengel, J.T.R.) (53 Conn.L.Rptr. 882, 883) (after court trial, court found that water from mulch bag on ground for mere sixty seconds insufficient to charge defendant with constructive notice). It is settled, however, that what constitutes a reasonable length of time is usually a question of fact to be determined in light of the particular circumstances of a case." Lussier v. Sun Valley Camping Cooperative, Inc., Superior Court, judicial district of Tolland, Docket No. CV-136006595-S, 2014 WL 2255578, *3 (April 23, 2014, Mullins, J.).
Connecticut courts have held that photographic evidence may support a finding of constructive notice of an alleged defective condition. See Cagianello v. Hartford, 135 Conn. 473, 474-77, 66 A.2d 83 (1948); Rockhill v. Danbury Hospital, 176 Conn.App. 39, 45-52, 168 A.3d 630 (2017) (holding that there was adequate evidence in the record, including photographic evidence depicting the defective condition in the walkway, to reasonably support the trial court’s factual findings and conclusion that defendant had constructive notice of the defective condition); Diaz v. Manchester Memorial Hospital, 161 Conn.App. 787, 795, 130 A.3d 868 (2015) ("It was well within the province of the court to rely on the evidence presented by both parties and to draw inferences from it, including testimonial and photographic evidence, as well as weather reports"); Santana v. Yingying Hu, Superior Court, judicial district of New Haven, Docket No. CV-15-6056927-S, 2018 WL 1475866, *4-8 (February 21, 2018, Wilson, J.) (finding sufficient evidence submitted that defendant had constructive notice of defective condition based upon appearance of the defective condition in photographs of the porch and top step as rotten, worn, cracked and broken); Mallory v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV- 14-6048223-S, 2016 WL 2729334, *1-5 (April 21, 2016, Wilson, J.) (finding sufficient evidence submitted that defendant had constructive notice of defective roadway based upon physical condition of the hole as shown by photographic evidence depicting a one-foot-wide, twenty-one-inch-deep hole that was weathered, worn, cracked, poorly patched, with old leaves and debris); Rodrigues v. Bridgeport, Superior Court, judicial district of Bridgeport, Docket No. CV- 95-0324353-S, 2001 WL 893823, *1-3 (July 11, 2001, Gormley, J.) (finding sufficient evidence submitted that defendant knew or should have known of defective condition’s existence based upon photographic evidence that "the sidewalk was in a deplorable state- cracked, depressed, uneven and widespread ... It is obvious from reviewing the photo that the deterioration was caused over time, [and] had existed for a long time before the fall and the defendant knew or should have known of its existence. It was in plain sight").
In Cagianello v. Hartford, supra, 135 Conn. 474, the plaintiff brought an action to recover for injuries suffered when she tripped over an elevated flag in a sidewalk of the defendant city. At trial, photographs were introduced as evidence depicting the general location of the accident and the specific defective condition. Id. Following a jury verdict in the plaintiff’s favor, the trial court set the verdict aside for lack of sufficient evidence that the defect had existed for a sufficient amount of time prior to the accident to charge the defendant with constructive notice. Id., 474. On appeal, the Supreme Court reversed, and in doing so concluded that the photographs constituted sufficient evidence for the trier of fact to determine that the defendant had constructive notice of the defective condition. Id. In reaching this conclusion, the court stated that "a photograph is the pictorial representation of the testimony of the witness through whom it is offered in evidence. Ordinarily it should be substantiated by testimony that it is a correct representation of the conditions it depicts, and in so far as it is properly so authenticated it becomes evidence of those conditions ... While the verification of a photograph is a preliminary question of fact to be decided by the trial judge, its weight as evidence is for the jury ... In Falkowski v. MacDonald, [ 116 Conn. 241, 245, 164 A. 650 (1933)], where the trial was to the court, we said ... [i]f the trial court had concluded that the depression thus depicted [by photographs] could not have been of recent origin, but must have existed for a considerable time, we are not prepared to say to say it would have been an unreasonable inference ..." (Citations omitted; internal quotation marks omitted.) Cagianello v. Hartford, supra, 135 Conn. 475.
Regarding the specific photographs submitted to the jury, the court held that, "the jury could consider them as presenting a fair picture of the locus and draw reasonable inferences as to their bearing on the issues of the case. That there existed such a defect at the time of the accident was established by other evidence. The two photographs put in evidence by the plaintiff were taken the day after the fall, the two adduced by the defendant were taken about two weeks [later]. All four indicate a walk with grass growing in the interstices between flags in such a way as to indicate that there had been no recent change in their relative positions. None shows any indication of a recent application of such force such as the trial court suggest might have caused the defect. The defendant offered evidence of an inspection of the walk on three occasions ... before the date of the accident ... [Therefore, ] [t]he jury might reasonably have found from this evidence that the defendant had notice of the defect if it existed at that time." Id., 476.
The facts of Cagianello v. Hartford must be distinguished from those in Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 161, 914 A.2d 529 (2007), where the Supreme Court upheld the trial court’s granting of the defendant’s motion for a directed verdict in a case involving a slip and fall on ice while on condominium property. In Riccio, the plaintiff testified that after she exited her condominium unit and was walking toward a garbage bin, she slipped on a patch of black ice and hit her head and back on the pavement. Id., 162. In support of her claim, the plaintiff introduced photographs depicting snow on the ground near the garbage bin. Id., 164. On appeal, the plaintiff claimed that the photographs provided a sufficient basis upon which the jury could have inferred that the black ice was caused by the snow melting onto the pavement and then refreezing, and that the defendant’s knowledge of the general conditions in the area (the nearby snow) provided sufficient notice to the defendant of the alleged specific condition of ice. Id.
In rejecting the plaintiff’s theory, the Supreme Court noted that "Under our current law, [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant’s duty. In such a case as this, the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed; and secondly, to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice." (Internal quotation marks omitted.) Id., 164. The court went on to note that, "It is a matter of common knowledge that whether snow melts and refreezes is entirely dependent on the ambient air temperature. In the present case, the plaintiff failed to produce any evidence regarding the air temperature in Branford on the days and hours preceding her fall. The plaintiff therefore failed to produce any evidential basis from which a fact finder could determine that the black ice that caused the plaintiff’s fall in fact had been caused by the melting and refreezing of snow and not by another intervening factor, such as, for example, an accidental spill of fluid on the ground near the garbage bin where the plaintiff fell. Consequently, even if we were to conclude that knowledge of general conditions is sufficient to establish notice in the present case, the plaintiff nevertheless would not prevail because of the evidentiary insufficiency in the record." (Internal quotation marks omitted.) Id., 165.
Following the Supreme Court’s ruling in Riccio, the court in Wright v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV- 09-5030841-S, 2011 WL 5925084, *1-3 (November 9, 2011, Robinson, J.), found that photographic evidence depicting a specific defective and icy condition may be sufficient for the trier of fact to find that the defendants had constructive notice of the condition to support a finding of negligence. In Wright v. New Haven, the plaintiff brought an action for negligence against the city of New Haven for injuries she sustained when she slipped and fell on ice on a public street. Id., *1. As part of the court-side trial, the court determined that as the plaintiff was exiting her vehicle, she slipped on ice on the roadway between the driver side door and the curb. Id., *2. On the day in question, the weather was cold with icy conditions, and it had snowed earlier that day. Id.
The court noted that, "[t]he condition of the ice, as depicted in the photographs submitted by the plaintiff, indicate that it was a solid patch [of ice], consisting of an area of more than 1 foot by 1 foot ... The ice contained no evidence of sand or any other ice melt material ... The presence of the ice on Court Street caused the plaintiff to fall ... The ice had been on the road for a sufficient period of time for the defendant to have had constructive notice of it." id. The court also noted that "From the facts, the court concludes that the physical condition of the ice suggests that it had been present for a sufficiently long period to provide the defendant with constructive notice of it. Therefore, the City had a duty to remedy the defect, by removing the ice or placing something on the road to melt the ice, which it failed to do. Accordingly, the court concludes that [the] defendant was negligent. The court further finds that the negligence of the defendant was a proximate cause of the plaintiff’s fall." (Emphasis added.) Id.
In the present case, the plaintiff testified that as he was exiting the building to dispose of some garbage, he slipped on ice. The plaintiff submitted photographs taken the day after the incident depicting the specific patch of ice on which he allegedly fell. The plaintiff circled and identified the ice depicted in the photograph as the specific defective condition that caused him to fall, and he testified that the ice depicted in the photograph was in the same condition as on the day he fell. The plaintiff also testified that the ice was approximately one inch thick, and that there was no salt or sand on or near the ice. The plaintiff had no recollection of when it had last snowed, or the specific air temperature, other than it was "very cold."
After reviewing the photographs submitted by the plaintiff of the specific defective condition that he alleges caused him to fall, the court finds that there was sufficient evidence from which the jury could have reasonably found that the condition had existed for a sufficient period of time before the accident for the defendant to have constructive notice of the condition, and the need to address it. Unlike Riccio, where the photographs depicted only the general condition of snow on the ground in the area where the plaintiff fell, the photographs introduced by the plaintiff depicted the specific defective condition that he claims caused him to slip and fall. The photograph shows a large, continuous piece of ice on the ground that spans from one wooden step to the next, and the ice appears to be dense based upon certain areas being non-translucent and white in color, as opposed to a clear, thin layer. The photographs also depict a distinct, defined border between the ice and the ground surrounding it, as well as small cracks and holes near the edges of the ice. The court concludes that the photographs and testimony introduced by the plaintiff provided the jury with sufficient evidence to support a finding that the defendant had constructive notice of the specific icy condition identified by the plaintiff.
B
Remittitur
A trial court has discretion, under limited circumstances, to order a remittitur of the jury verdict, or to set the verdict aside entirely. See Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280, 32 A.3d 318 (2011); General Statutes § 52-216a; Practice Book § 16-35; see also Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 98, 74 A.3d 1242 (2013). General Statutes § 52-216a provides in relevant part: "If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial."
"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 ... 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 ... This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury ... An appellate court ... in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence ... 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 reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached ... [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 [its] will." (Internal quotation marks omitted.) Madigan v. Housing Authority, 156 Conn.App. 339, 348-49, 113 A.3d 1018 (2015). "[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 ... A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury." (Internal quotation marks omitted.) Weihing v. Preto-Rodas, 170 Conn.App. 880, 884, 155 A.3d 1278 (2017).
"In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict ... Upon completing that review, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant ... The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ... The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions." (Internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn. 540, 575-76, 165 A.3d 1167 (2017), aff’d, 724 Fed.Appx. 25 (2d Cir. 2018). "This court has upheld a remittitur order only when we "have laid before us a very clear and striking case of indubitable wrong, so clear and striking as to indicate the influence of undue sympathy, prejudice or corruption on the verdict." (Internal quotation marks omitted.) Id. See § 52-216a; Practice Book § 16-35.
"[T]he ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness ... Likewise, in ordering a remittitur, a fair appraisal of compensatory damages, and not the limit of legitimate generosity, is the rule ..." (Internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 33-34, 60 A.3d 222 (2013). "The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury ... The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict ... Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant’s constitutional right in appropriate cases to have issues of fact decided by a jury ... The amount of damages to be awarded is a matter particularly within the province of the jury." (Citations omitted; internal quotation marks omitted.) Shea v. Paczowski, 11 Conn.App. 232, 233-34, 526 A.2d 558 (1987).
"It is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities ... [A]s to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities ... The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses ... it is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date ... when there is also a degree of medical certainty that future medical expenses will be necessary." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Marchetti v. Ramirez, 240 Conn. 49, 54-55, 688 A.2d 1325 (1997).
"Damages for the future consequences of an injury can never be forecast with certainty. With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is likely to sustain from the future effects of an injury ... Moreover, [t]he cost and frequency of past medical treatment ... may be used as a yardstick for future expenses if it can be inferred that the plaintiff will continue to seek the same form of treatment in the future." (Citations omitted; internal quotation marks omitted.) Id., 56. "[W]e are not persuaded that testimony by a medical expert that the plaintiff might need future treatment, coupled with the plaintiff’s assertion that he still suffers pain, necessarily removes the issue of future medical expenses from the realm of conjecture. In such circumstances, the jury still must speculate as to the likelihood that future medical expenses will be incurred." (Emphasis omitted.) Id., 55. Evidence that a plaintiff may or might undergo future medical treatment is insufficient to establish a reasonable probability that a plaintiff would incur future medical expenses to support an award for such expenses. See Madsen v. Gates, 85 Conn.App. 383, 396-97, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004); see also Calvi v. Agro, 59 Conn.App. 732, 736-37, 757 A.2d 1260 (2000). "Accordingly, [t]he evidence at trial must be sufficient to support a reasonable likelihood that future medical expenses will be necessary." (Internal quotation marks omitted.) Lingenheld v. Desjardins Woodworking, Inc., 105 Conn.App. 163, 174, 936 A.2d 723 (2008).
Connecticut courts have ordered remittitur or granted motions to set aside verdicts when the evidence presented at trial, viewed in the light most favorable to the plaintiff, could not support an award of future medical expenses. See Smallridge v. Tramantozzi, Goldblatt & Fabry Surgical Associates, Superior Court, judicial district of Middlesex, Docket No. X04-CV-034001300-S, 2006 WL 3290398, *5-9 (October 25, 2006, Beach, J.) (finding jury speculated in awarding future medical expenses due to lack of evidence concerning cost of plaintiff’s future medical procedure and treatment); See Veloccia v. Cruz, Superior Court, judicial district of New Britain, Docket No. CV-02-0518141-S, 2004 WL 2898167, *1-2 (November 5, 2004, Burke, J.) (finding insufficient evidence to support award of future medical expenses when medical reports fail to discuss plaintiff’s need for future medical treatment); Babbitt v. Winkle Bus Co, Inc., Superior Court, judicial district of New Haven, Docket No. CV-00-0446938-S, 2002 WL 31015518, *1 (August 2, 2002, Zoarski, J.T.R) (finding insufficient evidence to support award of future medical expenses when there was no evidence based upon a degree of medical certainty that future medical expenses would be incurred).
Applying these principles to the case at hand, the court concludes that the defendants’ motion should be denied because the jury’s determination of liability and damages is supported by the evidence and is not so excessive as to shock the conscience, or the court’s sense of justice. The jury could have reasonably concluded, and the defendant does not contest, that that the plaintiff will require future medical treatment in the form of episodic care for flare ups of pain related to his condition. At issue is whether the plaintiff presented evidence regarding the costs associated with his future medical treatment sufficient to support the jury’s award of future medical expenses.
In Stevens v. McGrath, Superior Court, judicial district of Fairfield, Docket No. CV-05-5000888-S, 2008 WL 643062, *1-2 (February 27, 2008, Gilardi, J.), a factually similar case, the plaintiff incurred $8,420.04 in past medical expenses stemming from treatments administered by a chiropractor, a physical therapist and an orthopedic surgeon, Dr. Eric Katz. The jury returned a verdict for the plaintiff and awarded $35,026.04 in economic damages for both past and future medical treatment, $22,164 of which represented the cost of future medical treatment. The jury also awarded non-economic damages of $65,000, for a total verdict of $100,026.04. Id., *2. At trial, the plaintiff submitted evidence indicating that he would require future treatment in the form of physical therapy, the estimated cost of which treatment was only $1,500. Id., *1-2.
In rejecting the defendant’s position that the jury could not have reasonably awarded more than $1,500 in future medical expenses as expressed in the plaintiff’s expert’s medical report, the court noted that the total cost of the plaintiff’s medical treatment prior to trial was $8,420.04, and that "the jury could have reasonably assimilated that amount with her life expectancy of 42 years in arriving at an award of future medical expenses." Id., *3. "The jury was also aware that the plaintiff had expended $985 in medical expenses in the year preceding trial. They could have assimilated that amount as well with her life expectancy of 42 years in arriving at their verdict." Id., *3.
In the present matter, the plaintiff testified that the accident aggravated a preexisting neck and lower back condition causing him continuing pain that prevents him from engaging in any prolonged physical activity. The plaintiff also submitted evidence that his past medical bills total $6,014, and the parties stipulated that the plaintiff’s anticipated life expectancy is twenty-eight years. The final report from the plaintiff’s treating physician, Dr. Woodbury, also indicated that the plaintiff’s neck injuries are permanent, and that the plaintiff will likely require episodic care for future flare ups of pain that cannot be managed at home given the nature of the residual tissue damage. Lastly, Dr. Woodbury’s report states that the plaintiff is welcome to return for flare up management for pain control purposes, however, there is no expectation of further recovery. Therefore, based on this evidence, the jury could have reasonably concluded that the plaintiff will require future medical treatment in the form of flare up pain management for the rest of his stipulated life expectancy of twenty-eight years, and the jury could have reasonably used the evidence regarding the plaintiff’s past medical expenses, and the plaintiff’s stipulated life expectancy of twenty-eight years, to arrive at a reasonable calculation of the plaintiff’s future medical expenses. See Betkoski v. Albini, Superior Court, judicial district of Waterbury, Docket No. CV-09-5012058-S, 2010 WL 4352722, *7 (October 8, 2010, Sheedy, J.).
CONCLUSION
Having carefully considered the defendant’s motions for remittitur, to reduce verdict, and to set aside the verdict, and having carefully considered the plaintiff’s objections to the defendant’s motions, and having entertained oral argument regarding the motions and objections, the court concludes that the plaintiff submitted sufficient evidence to support a finding by the jury that the defendant had constructive notice of the allegedly defective condition that caused the plaintiff’s fall, and the jury’s award of future medical expenses. The defendant’s motions are therefore denied and judgment may enter in favor of the plaintiff in the amount of $22,750 in accordance with the verdict.