Opinion
No. CV96 33 55 72 S
August 25, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO SET ASIDE VERDICT
This is an action for monetary damages brought by the plaintiff Cheryl Petrino, against the defendants, Edward Galsband and Marilyn Galsband, for injuries and other damages and losses sustained by the plaintiff when her car was struck from behind by the defendants' vehicle on the Merritt Parkway on June 26, 1995.
The matter was tried to a jury and the jury returned a verdict for the plaintiff and against the defendants as follows: economic damages, $8,800.00; noneconomic damages, $40,000.00; total damages, $48,800.00. The jury further found the plaintiff to have been thirty (30%) per cent contributorily negligent for causing the accident and the defendants seventy (70%) contributorily negligent.
The defendants have moved the court to set aside the verdict for the following reasons: (1) the verdict was excessive and erroneous in that it contained an award of economic damages in the amount of $8,800.00; (2) the error by the court in charging the jury as to the plaintiff's loss of earning capacity; (3) the error by the court in charging the jury as to the plaintiff's fear of future injury; and (4) the error by the court in failing to charge as to "sudden emergency", as requested by the defendants.
Counsel appeared before the court and were heard regarding the motion to set aside that verdict and the court reserved decision.
Having considered the arguments of counsel and the applicable statutes, practice rules and case law, the court makes the following findings and orders.
(1) AS TO THE CLAIM THAT THE ECONOMIC DAMAGE AWARD WAS EXCESSIVE
Plaintiff's counsel has conceded in his brief that the award by the jury of economic damages in the amount of $8,800.00 exceeds the plaintiff's claimed economic damages of $4,000.00.
In their respective briefs, both counsel recall the amount of medical bills submitted to the jury to be approximately $2,800.00, and the claim of lost wages to be approximately $1,200.00, the total of which is $4,000.00.
Counsel for both the plaintiff and the defendants have each asked the court to consider remitting the sum of $4,800.00 from the award of $8,800.00 as a method of addressing the apparent inappropriate award of economic damages.
In lieu of setting aside the verdict as a result of the amount of economic damages awarded by the jury, the court hereby orders that said award be remitted and the appropriate amount of economic damages is found to be $4,000.00 or $2,800.00 after adjustment for 30% comparative negligence on the part of the plaintiff.
(2) AS TO THE CHARGE OF LOSS OF EARNING CAPACITY
The defendants argue that the court erred in referring to the plaintiff's claim of loss of earning capacity in its charge.
A review of the text of the court's charge indicates that, as part of its charge, the court read the pleadings to the jury, including the allegation contained in paragraph 6 wherein the plaintiff alleged that the plaintiff ". . . lost time from work and may continue to do so, thereby incurring a loss of earning capacity," The court went on to inform the jury that as to that allegation, the defendant had left the plaintiff to her proof.
At no other time did the court make any other comment on the allegation of loss of earning capacity. The court did instruct the jury that, if they found it to have been proven, they could consider, as proper economic damages, the income which the plaintiff testified she lost when she was out of work from the injury as well as the differential in her reduced income as a hostess, the court did not instruct the jury that loss of earning capacity was a proper basis for damages.
It is further noted that although the defendants argue that the court erred in commenting on loss of earning capacity, no exception was taken to the charge for that reason and the claim of error was not raised by the defendants until after the verdict was rendered. Counsel for the defendant may be correct as to what the understanding of counsel and the court was at the tine of the charge conference regarding loss of earning capacity, however, counsel did not make a timely objection or exception after the charge which might have permitted the court to correct the claimed misstatement. By not timely doing so until after the rendition of the verdict, the defendant is deemed to have effectively raised his right to later object.
(3) AS TO THE CHARGE REGARDING FEAR OF FUTURE INJURY
As part of the jury charge, the court instructed the jury that the plaintiff may recover damages for fear of an increased risk of disability proximately caused by the defendant's negligence. It was added that the fear must be rational in that the consequence feared has a reasonable basis in the evidence and that fear of a completely fictitious or imagined consequence, having no reasonable basis, is not a recoverable element.
Counsel for the defendant did take a timely exception to that portion of the charge and asked the court to re-charge the jury and advise them that the plaintiff's fear of future injury was not expressly claimed by the plaintiff as part of her damages and was not the subject of evidence or testimony at trial and that they should not award the plaintiff any damages for her fear of future injury.
A review of the text of the court's charge regarding the plaintiff's complaint, as read to the jury, indicates that the jury was advised that the plaintiff, in her complaint, claimed that as a result of the acts of the defendant, "the plaintiff suffered injuries of a serious, painful and permanent nature in that she sustained . . . a general shock to the nervous system, emotional upset . . . all of which prevents her from enjoyment of life as she was entitled."
There was testimony by Dr. Staub at trial that the injuries were permanent in nature and that the plaintiff had to suspend her duties as a waitress because of those injuries. Additionally, he testified that waitressing could aggravate the plaintiff's condition. The plaintiff testified that she had work as a hostess instead of as a waitress because of the fact that waitressing could cause her further injury. When taken as a whole, the charge incorporated the plaintiff's claims of diminution of activities as a result of injuries which were permanent and were susceptible to further aggravation unless she intentionally avoided certain strenuous activities such as working as a waitress. The jury was instructed that those were the plaintiff's claims. The plaintiff offered competent evidence and testimony which, if found to have been proven, would permit an award for damages arising from the plaintiff's fear of sustaining future injury.
For those reasons, the court found that, despite the exception raised to that portion of the charge, it was not error to deny the defendant's request to recharge the jury as to that issue.
(4) AS TO THE COURT'S FAILURE TO CHARGE ON "SUDDEN EMERGENCY"
In her request to charge, the defendant requested that the court charge the jury on the defense of "sudden emergency." The court declined to so charge and the defendant took a timely exception.
"Whether a charge on the doctrine of sudden emergency was applicable is determined by the claims of proof advanced by the parties." Miller v. Porter, 156 Conn. 466, 468, 242 A.2d 744 (1968). "Evidence was required which would be sufficient to support a finding (1) that an emergency actually existed, (2) that the perilous situation was not created by the defendant, and (3) that the defendant, confronted with the emergency, chose a course of action which would or might have been taken by a person of reasonable prudence in the same or a similar situation." Id., 469. Puchalsky v. Rappahahn, 63 Conn. App. 72, 80 (2001), and Vachon v. Ives, 150 Conn. 452, 455.
To justify the giving of the instruction on the doctrine of sudden emergency, there had to be an adequate basis in the claims of proof to satisfy each element thereof See Pareles v. McCarthy, 149 Conn. 238, 244, as cited in Miller v. Porter, 156 Conn. 466, 469.
The claims of proof in the instant case were that the plaintiff's vehicle and the defendants' vehicle were traveling northbound on the parkway in heavy traffic and encountered heavy, slower moving traffic at the approach to the "steel bridge" over the Housatonic River, a notoriously congested point on the highway. The plaintiff's vehicle slowed, was overtaken and then struck by the defendant's vehicle.
The collision was caused either by the negligence of the defendant operator or the plaintiff operator, or of both, acting concurrently. No other cause was claimed or suggested (e.g. black ice, falling rocks, etc.) for the accident. See Dinda v. Sirois, 166 Conn. 68 (1971). The defendant was not entitled to a charge of "sudden emergency" under the claims of proof presented by the evidence and testimony. Failure to give such a charge was not error by the court.
For the foregoing reasons, the defendants' motion to set aside the verdict is denied.
The alternative motion for remittitur is hereby granted as follows: a remittitur is granted in the amount by which the economic damages are found to have exceed the amount warranted by the evidence introduced during the case.
The economic damages, as remitted, are found to be $6,160 (70% of $8,800.00) minus $3,360.00 (70% of $4,800.00) or $2,800.00.
In view of the modification of the verdict, counsel are requested to submit amended postverdict motions which reflect the above orders. All outstanding postverdict motions will then be heard together.
By the Court,
Joseph W. Doherty, Judge