Opinion
No. CV97 034 68 73
June 24, 2003
MEMORANDUM OF DECISION PLAINTIFF'S MOTION TO SET ASIDE VERDICT
This lawsuit arose out of a motor vehicle accident that occurred on June 2, 1997. The case was tried to a jury in December of 2001 before Judge Melville. A verdict was returned on December 14, 2001, in the amount of $40,000.00 in economic damages and $50,000.00 in non-economic damages; reduced by 50% comparative negligence.
On December 17, 2001, the plaintiff filed a Motion to Set Aside the Verdict. Prior to deciding the motion the trial judge recused himself from the matter due to a conflict which arose with the plaintiff's law firm. On September 13, 2002, the plaintiff filed a Motion for Mistrial, claiming that Judge Melville was in the only position to decide the Motion to Set Aside; therefore, a mistrial was in order. Defense counsel argued that a successor judge could decide this motion.
At a status conference the parties and the court agreed that this court should proceed under the direction of Stevens v. Hartford Accident Indemnity Co., Inc., 29 Conn. App. 378 (1992), to determine whether or not this proceeding could be completed by a successor judge, without prejudice to either side. In the event it could not, a mistrial would be declared. Counsel provided a copy of the trial transcript, which the court has reviewed in its entirety, along with the exhibits presented at trial. Upon completing this review the court concluded that it could consider the plaintiff's Motion to Set Aside without prejudice to either party. Accordingly, the defendant's Motion to Appoint a Successor Judge was granted; the plaintiff's Motion for a Mistrial was denied. The parties presented to this court for oral argument on the plaintiff's Motion to Set Aside on June 3, 2003.
STANDARD
"When considering a motion to set aside the verdict, this court's function is to `determine whether the evidence, viewed in the light most CT Page 7389-aq favorable to the prevailing party, reasonably supports the jury's verdict.' (Internal quotation marks omitted.) Skrypiec v. Noonan, 228 Conn. 1, 10, 633 A.2d 716 (1993)." Preston v. Wellspeak, 62 Conn. App. 77, 81, 767 A.2d 1259 (2001). "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." Card v. State, 57 Conn. App. 134, 138, 747 A.2d 32 (2000).
"Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion . . . This discretion vested in the trial court is not an arbitrary or capricious discretion, but rather, it is legal discretion to be exercised within the boundaries of settled law . . . This limitation on a trial court's discretion results from the constitutional right of litigants to have issues of fact determined by a jury . . . The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict." (Citations omitted; internal quotation marks omitted.) Suarez v. Sordo, 43 Conn. App. 756, 759-60, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997).
"[T]he 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." (Internal quotation marks omitted.) Rejouis v. Greenwich Taxi Inc., 57 Conn. App. 778, 783, 750 A.2d 501, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000). "[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 their will." (Internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).
DISCUSSION
The plaintiff moves for a mistrial on two general grounds: first, the court erred in failing to give the requested charge on "taking the plaintiff as you find her;" and second, that there was insufficient evidence of the plaintiff's speed to submit that special defense to the jury. The court will address each issue, with the relevant facts, in CT Page 7389-ar turn.
I. Taking the Plaintiff as You Find Her
The court has reviewed the trial exhibits, as well as read the entire trial transcript. The jury could have found the following facts concerning this issue: The plaintiff, Jacqueline Sheftz, was born on February 27, 1975. Throughout high school and into college she was an avid and very talented athlete. The plaintiff initially attended Western Connecticut State University; however, in the spring of 1997 she was accepted as a transfer student, to Teiyko Post University where she was offered scholarship money to play basketball and softball.
In February of 1996, the plaintiff hurt her right knee during indoor softball practice. She was seen by an orthopedist who ordered an MRI, which ruled out a medial meniscal tear. Due to continued pain and swelling she underwent arthroscopic surgery on March 29, 1997. The post-operative diagnosis was enlarged medial plica which was resected, along with scar tissue. As of June 1996, the plaintiff continued to experience medial knee pain and her treating physician recommended intensive physical therapy. During the summer of 1996, the plaintiff resumed her softball playing, competing in the Nutmeg Games in July, as well as the National Softball Championships.
On June 2, 1997, the plaintiff was involved in the motor vehicle collision at issue in this case. During impact, the plaintiff hit both knees on the dashboard. She was transferred by ambulance to Norwalk Hospital where she underwent examination and x-rays. She was discharged home that day; however, continued to experience pain and swelling in her right knee. She saw an orthopedic surgeon, Dr. Carver, on June 6, 1997. The plaintiff reported the 1996 injury to her right knee to the doctor, and stated that she was 100% prior to the 1997 accident. Dr. Garver opined that after the 1996 arthroscopy, the plaintiff was fully recovered and active in all her sporting activities. During her treatment with Dr. Carver, the plaintiff underwent a second MRI, which was "essentially normal."
Because of continued pain and swelling in her right knee, Dr. Garver performed arthroscopic evaluation and treatment of her knee on October 7, 1997. The plaintiff's post-operative diagnosis was "chondromalacia patella; plica; adhesions from a previous surgery, and partial tear medial meniscus. Subsequent to the surgery the plaintiff continued to experience pain and swelling in her right knee, and was unable to resume her sporting activities. It was Dr. Carver's opinion that the plaintiff suffered a 10% permanent partial disability to her right knee solely as a result of the CT Page 7389-as 1997 motor vehicle accident.
At trial, on cross examination, defense counsel explored the plaintiff's 1996 knee injury with Dr. Carver. This testimony evidenced that some of the treatment rendered to the plaintiff by Dr. Carver intra-operatively related to her initial knee injury. Moreover, symptoms that she experienced after the 1997 motor vehicle accident were the same or similar to those experienced after her 1996 injury. Dr. Carver was not aware as to whether or not the plaintiff experienced certain symptoms following her 1996 surgery.
Prior to evidence the plaintiff moved by a Motion in Limine to have evidence of the plaintiff's 1996 injury precluded, because there was no connection between the 1996 and 1997 injuries. The motion was denied. The plaintiff then submitted a Request to Charge on "take the plaintiff as you find her." During the charging conference the trial judge indicated that he would not be giving that charge; the plaintiff excepted on the record following the judge's charge to the jury. The plaintiff never amended her complaint to allege an aggravation of her previous injury. Nonetheless, the plaintiff asserts that the defendant "opened the door" both in the cross examination of Dr. Carver and defense counsel's closing argument, thus, it was error not to charge aggravation. (Request to Charge #XVIII.)
Request to Charge #XVIII (Type).
The plaintiff relies heavily on Rubano v. Koenen, 152 Conn. 134, 204 A.2d 407 (1964). In that case, the plaintiff had not alleged an aggravation of a preexisting injury; nor, had she sought to amend her complaint to conform to the proof of her adversary. Nonetheless, the Supreme Court found that it was reversible error for the trial court not to have charged on aggravation of a preexisting injury. In Rubano however, the defendant called an orthopedic surgeon to the stand who testified that the plaintiff suffered "muscular ligamentous strain of the low back with probable aggravation of a preexisting disc pathology at the lumbosacral level." Rubano v. Koenen, supra at 136. In this case, there was no evidence to suggest that the injury suffered by the plaintiff in 1996 was aggravated by the 1997 injury. Dr. Carver was very clear that the injuries were distinct and that the permanent partial disability was related to the motor vehicle accident. The plaintiff, herself, related that she was 100% after the 1996 injury and back to her full athletic activities.
In Olkowski v. Dew, 48 Conn. App. 864, 713 A.2d 264 (1998), the Appellate Court upheld the trial court when it declined to give a charge on "take the plaintiff as you find her." The Appellate Court determined that the evidence of preexisting injury presented at trial concerned only CT Page 7389-at the existence of the preexisting injuries, "and related primarily to his [plaintiff] credibility . . ." Olkowski v. Dew, supra, at 869. Further, the Appellate Court found that the trial court did not abuse its discretion "in determining that there was no evidence offered that reasonably would support a finding that a preexisting condition was in fact aggravated by the automobile accident . . ." Olkowski v. Dew, supra at 870.
The doctor and plaintiff maintained throughout the trial that the plaintiff had recovered completely from the 1996 injury. The defense attorney's cross examination of the expert physician explored the existence and nature of the previous injury, and Dr. Carver's knowledge of it. Like in Olkowski, such questioning was directed to the credibility of the doctor and plaintiff, ie. was their testimony that the plaintiff was 100% after the 1996 injury believable. The cross examination of Dr. Carver did not establish that the prior injury of the plaintiff was "aggravated" by the 1997 accident. While in closing argument, the defense attorney noted that the plaintiff had not claimed "aggravation," this was merely argument; not evidence that aggravation of a preexisting injury was suffered. Lastly, the charge on damages provided instruction to the jury to award full and fair compensation for all injuries proven to be related to the negligence of the defendant in this accident. The Motion to Set Aside is denied as to this claim.
II. Speed
The plaintiff also seeks a new trial on the basis that the court allowed speculative evidence concerning the plaintiff's speed to be presented to the jury and that the court should not have charged the jury concerning the plaintiff's speed. After denying the allegations of negligence raised in the plaintiff's complaint, the defendant pled by way of special defense that the plaintiff, herself was negligent. One of the five specifications of negligence articulated by the defendant was that she: e) operated the subject vehicle at an unreasonable rate of speed for the time, place and conditions then and there existing in violation of Connecticut General Statute § 14-218a. The jury returned a verdict finding that the plaintiff was 50% comparatively negligent.
Sec. 14-218a. Traveling unreasonably fast. Establishment of speed limits.
(a) No person shall operate a motor vehicle upon any public highway of the state . . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions . . . The traffic authority of any town, city or borough may establish speed limits on streets, highways and bridges . . . Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
The jury could have found the following facts concerning the speed of the plaintiff. The defendant pulled to the edge of her driveway and looked left before pulling out to make a left turn onto Kettle Road, and did not see any traffic. She did not see the plaintiff's car when she looked to the left. There was nothing to obstruct her vision. It was drizzly, the road was a little wet (Tr. p. 125, December 12, 2001), and it was light outside. The defendant had a clear view of the road for CT Page 7389-au approximately one-quarter mile as she looked to the left. The defendant did see the plaintiff's vehicle "just as the vehicle was going to hit me." (Tr. p. 60, December 6, 2001.) The left front portion of the plaintiff's vehicle collided with the rear driver side of the defendant's car.
The defendant pulled out of her driveway to make a left turn onto Kettle Road. The front of her car had already crossed the yellow line, when the left rear of her car was struck by the plaintiff. When the defendant saw the plaintiff's car just prior to impact, the defendant had the "sense" that the plaintiff was traveling in excess of 25 mph., which was the speed limit. While the defendant could only "guess" as to the plaintiff's speed, her approximation was that the plaintiff was going faster than the speed limit. The plaintiff slammed on her brakes and sounded her horn, however, could not avoid the collision. The plaintiff testified that she was traveling 20-25 mph. Photographs submitted into evidence demonstrated damage to the front driver side of the plaintiff's car.
This testimony was objected to by plaintiff's counsel; the objection was overruled. Prior to trial, the plaintiff had filed a Motion in Limine concerning the defendant's testimony on the subject of the plaintiff's speed; the motion was denied.
While the defendant's testimony on the plaintiff's speed was speculative, the court finds that there was sufficient other evidence of speed to submit the charge to the jury. "A [party] is required to remove the issues of negligence and proximate cause from the field of conjecture and speculation; however, may sustain his burden of proof by circumstantial evidence. A jury must often rely on circumstantial evidence and draw inferences from it. The drawing of inferences is peculiarly a jury function." (Internal citations omitted.) Terminal Taxi Co. v. Flynn, 156 Conn. 313, 316, 240 A.2d 881 (1968).
In this case, the day was drizzly and the roadway was wet. Despite slamming on her brakes, the plaintiff was unable to stop her car in time to avoid the collision. The plaintiff testified that she was traveling 20-25 mph. The rear portion of the defendant's car was struck by the front left side of the plaintiff's vehicle, suggesting that the defendant was almost across the plaintiff's lane of traffic when struck. The inference could be drawn that the plaintiff had some time to react and was not in control, failed to keep a proper lookout or was proceeding too quickly, thus, was unable to stop in time to avoid the collision. Viewing the evidence in the light most favorable to sustaining the jury's verdict, the jury could find that the plaintiff was traveling unreasonably fast for the conditions existing at the time. Moreover, the jury had sufficient basis to conclude that the plaintiff failed to keep a proper lookout and/or keep her car under control, which were other specifications asserted by the defendant. CT Page 7389-av
Interrogatories were not submitted to the jury on the specifications of negligence.
For the above reasons, the Plaintiff's Motion to Set Aside is denied.
WOLVEN, J.