Opinion
No. CV99-01555607S
June 19, 2003
MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION
This case was tried to a jury which rendered a verdict for the plaintiff in the amount of $35,000.00. The defendant moved to set aside the verdict and for a new trial on the following grounds:
1. Plaintiff counsel's references to the defendant's appearance at trial during closing argument were contrary to General Statutes § 52-216c and the recent Appellate decision of Raybeck v. Danbury Orthopedic Associates, 72 Conn. App. 359 (2002);
2. Plaintiff counsel's references to the defendant's appearance at trial during closing argument were so prejudicial and improper that a new trial is mandated;
3. The Trial Court erred in its instruction that the jury must award nominal damages; and
4. The Trial Court erred in failing to charge in accordance with Card v. State, 57 Conn. App. 134 (2001).
After oral argument, the court denied the defendant's motion, and the defendant appealed. The defendant then moved for articulation of the court's decision.
FACTS
This case was tried to the jury as a hearing in damages. The plaintiff presented evidence that he sustained injuries in the accident, permanent partial impairment to the neck and back, and had a 45-year life expectancy.
Prior to trial, the plaintiff subpoenaed the defendant driver. In the interval between the issuance of the subpoena and the trial, however, the defendant admitted liability. When the defendant failed to appear for CT Page 8185-bz trial, the plaintiff attempted to introduce the subpoena into evidence. The court sustained the defendant's objection to the subpoena, and it did not come into evidence. In closing argument, the plaintiff's counsel stated:
I don't think a reasonable person can argue that there was a significant collision here. The defendant traveling, the defendant, by the way, who's not here, the defendant traveling in — or approximately 50 miles an hour, . . .
Because now this same defendant as you — as you have seen throughout this case has tried to interject confusion, has tried to shift the focus away from this collision to other things, to a car accident that happened in 1990 which caused injuries to parts of Mr. Bostic's body that are different from this one.
They're trying to shift the focus because you know why, they don't want to accept responsibility. We have a defendant who is doesn't care enough to even be present in this courtroom. He walks away scot-free. Mr. Bostic is left with these injuries.
It's part of the pattern of a defendant who doesn't care to be here, who won't admit fault for five years and then finally does at the last minute.
The defendant argued: "Don't be distracted by all the huffing and puffing about Lawrence not being here. He's admitted fault. There is nothing he could come and tell you that you haven't heard or seen in the pictures, in the police report, or from the plaintiff."
Based on evidence that the plaintiff was involved in a motor vehicle accident one year and four months prior to the accident which was the subject of this litigation, the defendant requested an instruction on apportionment. The court did not give the requested instruction.
The jury was instructed that they must award nominal damages if they found that the plaintiff did not satisfy his burden of proving that the defendant's negligence caused his injuries.
ARTICULATION
The court denied the defendant's motion to set aside and for a new trial for the following reasons.
1. Section 52-216c of the Connecticut General Statutes deals with an CT Page 8185-ba opponent's failure to call a witness. It provides, in relevant part: ". . . counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments . . . that the jury should draw an adverse inference from another party's failure to call a witness who has been proven to be available to testify." In the court's opinion the plaintiff's counsel's remarks did not invite the jury to draw an adverse inference from the defendant's failure to testify since, as defendant's counsel so aptly put it, the defendant would not have been a witness. Moreover, the Appellate Court's holding Raybeck v. Danbury, 72 Conn. App. 359 (2002), is inapplicable to the present case. In Raybeck, the defendant's attorney, referring to the plaintiff's expert physician's testimony argued in such a manner so as to suggest that an adverse inference be drawn from the failure of the plaintiff to call the expert's partner as a witness: "Maybe if he had been here . . . we would have found out how those patients really would have been treated." 72 Conn. at 367. The implication was that the partner would have provided testimony contradicting the expert's opinion. Although defense counsel did not specifically ask the jury to draw an adverse inference, the suggestion was clear.
In the present case, plaintiff's counsel did not suggest in argument that the defendant driver would have been a witness.
Defendant's counsel argued that the plaintiff's counsel should not have been permitted to point out the defendant's absence to the jury. In permitting counsel to so argue, the court took into consideration the fact that the defendant was served with a subpoena which suggests that he was available to come to court.
The defendant's counsel's affidavit indicates that counsel spoke to the defendant two days prior to trial. To the best of the court's recollection this information was brought to the court's attention prior to the commencement of proceedings.
2. A new trial is not warranted under the facts of this case. "Where a claim is made that remarks by opposing counsel jeopardized a party's right to a fair trial, [a] verdict should be set aside if there has been manifest injury to a litigant . . . If a counsel's remarks so prejudice the ability of a party to obtain a fair trial, a new trial is mandated . . . [I]n such exceptional cases, the verdict should be set aside and a new trial ordered . . ." (Internal quotation marks omitted; internal citations omitted.) Murray v. Taylor, 65 Conn. App. 300, 306 (2001). The remarks made by counsel in closing argument, while unnecessary in light of the fact that the jury could plainly see that the defendant was absent, were not, in the court's opinion, so prejudicial as to cause manifest injury to the defendant.
3. The court's instruction with respect to nominal damages was appropriate. The fact that a technical legal injury has been done to the plaintiff entitles him to at least nominal damages. See Macy v. Lucas, CT Page 8185-bb 72 Conn. App. 142, 154 (2002); Clay v. Teach, 37 Conn App. 556, 560 (1995).
4. Card v. State is inapplicable to the facts in this case. There was no evidence from which a jury could do more than speculate that a prior accident was responsible for the plaintiff's injuries. The plaintiff's physician testified that the injuries from which the plaintiff suffered were to a different side of the plaintiff's body than those in the previous accident. The physician testified that the injuries from which the plaintiff suffered were caused by the accident which was the subject of this lawsuit. The defendant failed to produce any evidence to the contrary. Moreover, this case was not consolidated with the case arising from the prior lawsuit. An apportionment charge under the circumstances would have been improper and erroneous.
For all of the above-stated reasons, the court denied the defendant's motion to set aside the verdict and for a new trial.
GALLAGHER, J.