Opinion
No. CV04-4002087S
October 16, 2006
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND MOTION FOR ADDITUR
This action was brought by the plaintiff against the defendants who were the operator and the owner of a motor vehicle which collided with the plaintiff's vehicle. The plaintiff claimed that she sustained injuries in the collision as a result of the defendant operator's negligence. The defendants denied the allegations of negligence and asserted a special defense of contributory negligence against the plaintiff. The case was tried to a jury which rendered a verdict for the plaintiff and found her to have been 50% responsible for the collision.
Before the court is the plaintiff's motion to set aside the jury verdict awarding her $2,192 in economic damages and nothing for non-economic damages. The plaintiff has additionally moved for additur. The plaintiff's motions are based on her claim that the economic damages were inadequate as a matter of law, the jury's failure to award non-economic damages was against the law and the evidence, the court incorrectly and erroneously charged the jury on the issue of mitigation of damages, and the jury's assessment of comparative negligence as to the plaintiff was against the law and the evidence.
Discussion
"In ruling on a motion to set aside a jury verdict, the court [is] required to view the evidence at trial in the light most favorable to sustaining the verdict." Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999). "In passing on a motion to set aside a jury verdict, a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context . . . If the court finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or [was] governed by ignorance, prejudice, corruption or partiality, then it is [the trial court's] duty to set aside that verdict and to grant a new trial . . ." (Internal quotation marks omitted; internal citations omitted.) Fileccia v. Nationwide Property Casualty Ins., 92 Conn.App. 481, 486, 886 A.2d 461 (2005).
Comparative Negligence
The plaintiff claims that the jury's determination of 50% comparative negligence as to the plaintiff was clearly against the evidence and the law. She argues that no witness testified that she was traveling unreasonably fast. She contends that the evidence showed that the sole cause of the accident was the defendant operator's negligence. As the defendants point out, however, the jury had evidence from which it could reasonably infer that the plaintiff was driving at an excessive speed. The defendant testified that he never saw the plaintiff's car until he had made his left turn. He testified that the plaintiff approached him fast from behind and, according to his observation, seemed to be traveling at a greater rate of speed than the posted speed limit. The plaintiff's contention that this evidence is not credible is irrelevant since it is the jury's function to assess credibility. Based on the evidence before it, the jury could have reasonably concluded that the plaintiff was 50% responsible for the collision.
Charge on Mitigation of Damages
The plaintiff contends that the court erred in giving a mitigation of damages instruction to the jury. She argues that the defendants failed to offer any evidence that any failure on her part to pursue additional medical treatment was a proximate cause of the worsening of her injuries or her failure to improve. The plaintiff's position is that the charge was not warranted. Specifically, she points out that the medical records in evidence were silent as to whether her condition worsened as a result of her failure to obtain further physical therapy or any other medical treatment. The plaintiff's medical expert, Dr. Kaplan, did not suggest in any way that the failure of the plaintiff to pursue physical therapy or to pursue other treatment options made a difference in her long-term outcome or affected her treatment in any way. The evidence established that the plaintiff did not attend all or even most of the physical therapy sessions which were recommended and scheduled. In addition, the physical therapy notes indicate that not all of the goals of therapy were reached when the plaintiff stopped attending. Moreover, she did not perform all the exercises recommended by Dr. Kaplan.
Our Supreme Court has held that "[i]t is axiomatic that a charge on mitigation of damages must provide some indication to a jury that it should apply this doctrine only if a plaintiff's alleged failure to mitigate is found to have caused the aggravation of the injury." Preston v. Keith, 217 Conn. 12, 19, 584 A.2d 439 (1991). In Herrera v. Madrak, 58 Conn.App. 320, 752 A.2d 116 (2000), the plaintiff had missed more than twelve physical therapy appointments over a seven-month period. As in this case, the plaintiff objected to the trial court's giving a mitigation of damages instruction. The Appellate Court held that the evidence was sufficient to warrant the charge. Based on a review of these decisions, the court finds that the evidence in this case was sufficient to support a charge on mitigation of damages.
Motion for Additur Economic Damages
The plaintiff contends that the jury's award of $2,192 in economic damages is against the evidence. The court agrees. The medical bills totaled $4,385.35. The evidence established that the bills were related to the treatment, and the defendants made no claim that the treatment was unnecessary or excessive. They argued rather that the plaintiff failed to avail herself of the prescribed treatment. The court is persuaded that the jury was confused and awarded one-half the medical bills because they found the plaintiff's negligence to be fifty percent.
Non-economic Damages
"Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . This 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." Gladu v. Sousa, 52 Conn.App. 796, 799-800, 727 A.2d 1286 (1999).
"Our Supreme Court has established the parameters of a trial court's discretion in ruling on a motion for additur. They are: whether (1) the jury award "shocks the conscience," (2) the plaintiff, who has proved substantial injuries, is awarded inadequate damages and (3) the verdict is inherently ambiguous." Thames River Recycling v. Gallo, 50 Conn.App. 767, 804, 720 A.2d 242 (1998).
The plaintiff contends that the jury's award of non-economic damages is manifestly unjust and contrary to the evidence presented.
The standard for the review of verdicts where the jury has awarded economic damages but zero non-economic damages has been articulated by our Supreme Court. "Rather than decide that an award of only economic damages is inadequate as a matter of law, the jury's decision to award economic damages and zero non-economic damages is best tested in light of the circumstances of the particular case before it . . . Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do . . . The evidential underpinnings of the verdict itself must be examined . . . 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 their will." (Internal quotation marks omitted; internal citations omitted.) Wichers v. Hatch, 252 Conn. 174, 188-89, 745 A.2d 789 (2000).
The undisputed evidence in this case was that the plaintiff suffered soft tissue injuries in the accident, a chondral fracture and impact patella femoral syndrome of the right knee. Dr. Kaplan, her treating physician, diagnosed the plaintiff as suffering from chondralmalacia as well as a hip/groin strain. He testified that the plaintiff sustained a 5% permanent impairment of the right knee and right hip due to the injuries she sustained in this accident. There was no evidence of any prior knee or hip problems. The evidence also reveals, however, that the plaintiff had significant improvement with treatment and that she intentionally stopped treatment, stating that she was young and wanted to hang out with her friends and did not want to sit in a doctor's office all day. After the accident, she attended hairdressing school in order to pursue a career which would keep her on her feet constantly. She also had a post-accident job in which she wore three-inch heels.
Based on the totality of the evidence, the jury could reasonably have believed that the plaintiff suffered no permanent impairment; thus, no award of future non-economic damages is reasonable. What is not reasonable, however, is the jury's failure to award any damages for pain and suffering given the evidence of the injury and the jury's finding that the defendant's negligence was equal to that of the. plaintiff. Having applied those standards set out in Wichers v. Hatch, supra, and especially considering the fact that there was no evidence of any pre-existing injuries to the knee, the court has come to the conclusion that the jury could not have reached the result that it did in failing to award non-economic damages for the plaintiff's temporary pain and suffering without having been governed by mistake, ignorance, prejudice, corruption or partiality. By virtue of the lack of any award for non-economic damages, the verdict in this case does, in fact, both shock the conscience of the court and suggest that the plaintiff was awarded inadequate damages. Based on the evidence presented, including the evidence of the plaintiff's failure to mitigate her damages, the court believes that a total of $3,000.00 for non-economic damages is adequate to compensate the plaintiff for pain and suffering and temporary loss of her ability to pursue her usual activities.
Accordingly, it is ORDERED that the verdict be set aside unless within thirty days from the filing of this decision the defendant shall file with the clerk an additur in the amount of $1,500.68 which, when added to the $2,192.00 awarded, amounts to $3,362.68. That amount is 50% of the plaintiff's total economic and non-economic damages of $7,385.35.