Opinion
No. CV03 040 65 48S
February 16, 2005
MEMORANDUM OF DECISION
The plaintiff in the above-entitled action has filed post-judgment motions to Set Aside the Verdict, Judgment Notwithstanding the Verdict on the Issue of Liability, Motion for a New Trial and a Motion for Judgment.
In viewing the evidence most favorably to the defendant, the jury could have reached the following conclusions:
On August 18, 2002, the defendant, John Rome, was operating his motor vehicle westbound on Bridgeport Avenue in Milford, Connecticut. Rome was traveling below the speed limit of 35 miles per hour. At the time he was wearing flip flops while driving his vehicle because of an infected toe. For an unknown reason, his flip flops became entangled in the accelerator pedal of the vehicle and the vehicle accelerated uncontrollably. Rome was aware that the vehicle was about to enter a busy intersection with pedestrian traffic as well. In order to avoid doing so, the defendant turned his vehicle at a 90 degree angle into a Getty gas station. It was his intention to bring his vehicle to a stop against a building which he recalled was located in a vacant portion of the property. However, upon entering the gas station he realized that there were vehicles located throughout the property. He then intended to bring his vehicle to a stop against a concrete column located between the gas pumps.
The plaintiff, Anita Mazas was seated inside her vehicle which was parked adjacent to the gas pump at the Getty station. The defendant's vehicle glanced by the column and between the gas pump striking the driver's side of the plaintiff's vehicle. The plaintiff claims that she suffered a spiral fracture in her left hand and resulting scaring and disfigurement. She also claimed that she will be required to spend money for future medical treatments and care. She sought monetary damages as a result of Rome's alleged negligence.
The plaintiff had filed a pre-trial motion in limine requesting that the court preclude any evidence that Rome had earlier that day served as an ecumenical minister in Stratford, that he had gone to buy candy in Milford for his grandchildren who were coming over for the day and that he was wearing the flip flops that got caught in the gas pedal. The court denied the motion.
At the trial, the counsel for the plaintiff initiated the evidentiary portion of the trial by introducing almost the entire deposition of the defendant, including the fact that Rome was wearing flip flops because of an infected toe and the circumstances of the flip flops getting caught in the gas pedal and causing the car to accelerate uncontrollably.
The case was tried before a jury at the Superior Court, judicial district of Fairfield at Bridgeport. The plaintiff moved for a directed verdict on the issue of liability at the close of her case. The court denied the motion. The plaintiff renewed her motion for a directed verdict on the issue of liability at the close of the defendant's case. The court again denied the motion and all issues were submitted to a jury.
The jury returned a defendant's verdict.
The plaintiff had filed a written request to charge, requesting that the court exclude from the charge "sudden emergency" and/or "unavoidable accident doctrine" and also remove the jammed flip flop as one of the circumstances the jury could consider when deciding if Rome met the standard of reasonable care in the operation of his vehicle. Mazas asked the court to advise the jury that this situation was not what was referred to as a "sudden emergency" as the instruction for the doctrine for sudden emergency requires the following elements: "(1) an emergency actually existed; (2) the perilous situation was not created by the defendant; and (3) the defendant confronted with the emergency, chose the course of action which would or might have been taken by a person of reasonable prudence in the same or similar situation." Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). The court initially indicated prior to the trial that it would not give this request to charge and an exception was made for the record.
It is significant that in her complaint, during the trial and in closing arguments the plaintiff did not allege, or claim, that the defendant was in any way negligent in either wearing the flip flops while driving or allowing them to become entangled with the gas pedal.
The defendant argued to the jury that the defendant was confronted with an unusual event with regard to the entanglement of the flip flop. He argued that the defendant had done all that he could do under the circumstances and referred to the fact that "accidents do happen."
After final arguments, Mazas reviewed her request for the court to specifically charge the jury that it could not apply to Rome's actions a lower standard of care than that of a reasonably prudent person under the circumstances. The plaintiff indicated she did not want the jury to apply the lower standard of one faced with a sudden emergency or unavoidable accident. Specifically, that the jury could not consider the circumstances under which the defendant while wearing the flip flops got them entangled into the gas pedal. The plaintiff claimed that the allegations of negligence were based on Rome's conduct after the car began to accelerate uncontrollably.
The defendant stated that he was not making a claim for the specific designation of sudden emergency and/or unavoidable accident, but that the entanglement of the flip flops was one of the surrounding circumstances to consider the degree that the defendant exercised and that the jury should be able to consider all the facts and the evidence as to whether or not his actions were reasonable.
The court reminded the plaintiff that she, in fact, had introduced the evidence concerning the circumstances of the flip flops getting entangled into the gas pedal.
In the court's charge the court did reference the definition of sudden emergency and further referenced that the doctrine required that the sudden emergency not be "created" by the plaintiff. However, it did not charge the jury that the circumstances under which the flip flop getting caught in the gas pedal could not be considered as one of the underlying circumstances during the course of the plaintiff's conduct and in fact, the jury should consider all of the circumstances in determining the reasonableness of the defendant's actions.
"When considering a motion to set aside the verdict, this court's function is to determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Lamark v. Ronan, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0100906 (October 27, 2004, Quinn, J.) ( 38 Conn. L. Rptr. 172). "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." (Internal quotation marks omitted.) Card v. State, 57 Conn.App. 134, 138, 747 A.2d 32 (2000). "Our Supreme Court has repeatedly stated that directed verdicts are not favored . . . Nevertheless, the trial court has the power to set aside a jury verdict that, in its opinion, is contrary to either the law or the evidence . . . 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." (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 337, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).
"Litigants have a constitutional right to have factual issues resolved by the jury . . . 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." (Citation omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988).
Mazas argues that the court should set aside the verdict because the only reasonable explanation for the jury's verdict in favor of Rome is that it mistakenly applied the rationale of the sudden emergency doctrine and held Rome to the standard of care of a reasonable person faced with a sudden emergency.
The plaintiff specifically claims that the jury verdict should be set aside because the court declined to charge them that they were not to consider the circumstances under which the defendant was wearing the flip flops and that it got entangled with the gas pedal as one of the factors in determining whether or not he conducted the operation of his vehicle as a reasonably prudent person. As was indicated the plaintiff did not allege, claim or argue that the defendant was negligent in wearing the flip flops or allowing them to become entangled in the gas pedal. In addition, as the plaintiff actually introduced the evidence concerning the circumstances of the flip flops, the court could not preclude the jury from considering that incident as one of the circumstances they were to consider and in evaluating the conduct of the defendant.
In fact, contrary to the claims of the plaintiff and defendant, the defendant, indeed could have requested and been entitled to argue and receive a charge that the circumstances of the evidence did allow for specific instructions under the theory of "sudden emergence and/or unavoidable accident." The confusion arises out of the more recent definitions of sudden emergency which require that the emergency "arise out of a situation, not of the defendant's own making" Vachon v. Ives, 150 Conn. 452, 455, 190 A.2d 601 (1963) or that the perilous situation was "not created" by the defendant. Mei v. Alterman Transport Lines, Inc., supra, 312. Those definitions would imply that the defendant is precluded from claiming the theory of "sudden emergency" if he or she creates the sudden emergency whether or not the conduct creating the sudden emergency was negligent. In fact, the initial cases involving sudden emergency indicate "in determining whether conduct is negligent towards another, the fact that the actor is confronted with a sudden emergency not caused by his tortious conduct, which requires rapid decision is a fact in determining the reasonable character of his choice of action. Restatement of the Law of Torts § 296," Adams v. New Haven, 131 Conn. 554. "In an emergency situation not due to his own negligence, one is not relieved of all of obligations to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency." Degman v. Olsen, 136 Conn. 171, Mei v. Alterman Transport Lines, Inc., supra, 312. In Pareles v. McCarthy, 149 Conn. 234 (1962) the appellate court confirmed as proper the charge "if an emergency arose through no fault of Mrs. Ford, you will consider this factor in determining whether or not she exercised proper care under the existing circumstances."
"An emergency is but one of the circumstances shown in evidence which are to be considered by the trier in determining whether an operator exercised due care." Mei v. Alterman Transport Lines, Inc., Id. "A person faced by such an emergency has some leeway when deciding rapidly between alternative courses of action." Oberempt v. Egri, supra, 176 Conn. 656. "In a negligence case, it is always competent to place before the trier evidence of the circumstances then and there existing . . . Even if an emergency existed, the plaintiff's cause of action survives, the ultimate question being whether the defendant acted as a reasonable person would have in that circumstance." (Citation omitted; internal quotation marks omitted.) Orifice v. Ducci Electrical, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 391326 (April 1, 2003, Levin, J.) ( 34 Conn. L. Rptr. 535).
The doctrine of sudden emergency and/or unavoidable accident conditions the exercise of such claims on the fact that the defendant, through no negligence on his part or through no fault of his own, was in a situation involving sudden emergency. Puchalsky v. Rappahahn, 63 Conn.App. 72, 774 A.2d 1029, cert. denied, 256 Conn. 931,776 A.2d 1147 (2001); Pareles v. McCarthy, 149 Conn. 238, 178 A.2d 155 (1962); Giambartolomei v. Rocky DeCarlo Sons, Inc., 143 Conn. 468, 123 A.2d 760 (1956). Although Rome referred to this as an "unusual event," the jury obviously considered the circumstances under which Rome acted. The jury considered that he was confronted with a situation where his vehicle accelerated uncontrollably through no negligence or fault of his own, and determined that his course of action under those circumstances was not negligent. "It is the role of the jury to determine witness credibility and weigh the evidence of the testimony therefrom." Jacobsen v. Baker, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 93 0132647 (September 29, 1998, Hickey, J.) ( 22 Conn. L. Rptr. 613). "The trier [of fact] is free to accept or to reject, in whole or in part, the evidence offered by either party . . . The weight to be accorded to testimony is a matter for the jury to determine . . . and the assessment of damages is peculiarly within its province." (Citations omitted, internal quotation marks omitted.) Lidman v. Nugent 59 Conn.App. 43, 46, 755 A.2d 378 (2000).
In actuality, if there were any improper advantage or disadvantage as a result of the court's instructions limiting the application of the doctrine of sudden emergency, it was an advantage to the plaintiff, Mazas, and a disadvantage to the defendant, Rome.
Mazas also argues that the jurors were either mistaken about the relevant legal principles to be applied when applying the law to the facts or were influenced by prejudice or partiality.
In view of the standards regarding a motion to set aside the verdict, the court should not interfere with the verdict rendered by the jury. Given the evidence presented by the parties, the jury could have reasonably applied the jury instructions regarding negligence and found Rome was not negligent. The jury could have reasonably found that Mazas failed to prove by a preponderance of the evidence that Rome breached a duty of care. Rome testified as to the decisions he made and the course of conduct he performed in order to avoid a more serious accident by maneuvering his vehicle into the gas station. The decision is not contrary to law or to the evidence. Morever, it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.
"In reaching a conclusion of no negligence on the part of the defendant, the court must presume that the jury necessarily applied the legal principles given to them in the charge. This application clearly involves a question of fact and will not be disturbed by the court unless a fair and reasonable person could not have reached the same conclusion." Perkins v. Stop Shop Cos., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 970568241 (July 15, 1998, Teller, J.).
As noted previously, the jury returned a general verdict for Rome. "Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside." Marchetti v. Ramirez, 40 Conn.App. 740, 746, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997). "The rendering of a general verdict, coupled with the absence of interrogatories, [makes] it impossible for the trial court . . . to determine what factors the jury considered in making it's award . . . [The court] cannot speculate as to how the jury reached its figure." (Citation omitted, internal quotation marks omitted.) Ranfone v. Lamberti, Superior Court, judicial district of New Haven, Docket No. CV 00 0445278 (March 29, 2004, Skolnick, J.).
The general verdict, finding that Rome was not negligent, is not manifestly unjust because Rome presented adequate evidence to support such a finding. The decision of the jury was reasonable and should not be disturbed.
Mazas alternatively requests the court to enter judgment against Rome on the issue of liability and proximate cause and order an additur in an amount which the court deems reasonable. "When determining whether to order an additur, the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." Weiss v. Bergen, 63 Conn.App. 810, 814, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001). In the present case, it was reasonable for the jury to believe, on the basis of the evidence presented, that Rome was not negligent. "Additurs are rarely permitted, but are authorized in situations where the jury award shocks the conscience or where a plaintiff has proven substantial injuries, but is awarded inadequate damages." Perkins v. Stop Shop Cos., supra, Superior Court, Docket No. CV 97 0568241.
The jury returned a verdict for Rome and therefore Mazas was not awarded any amount of damages. "The plaintiff cannot prevail on his claim because the jury returned a verdict for the [defendant.] . . . A court may not order an additur to a defendant's verdict." Powers v. Farricelli, 43 Conn.App. 475,480,683 A.2d 740, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). "General Statutes § 52-216a provides that a court shall order an additur if the court concludes that the verdict is inadequate as a matter of law. This, of course, presupposes a plaintiff's verdict of some dollar amount of damages in the first place, which is claimed to be inadequate." Perkins v. Stop Shop Cos., supra, Superior Court, Docket No. CV 97 0568241.
General Statutes § 52-216a provides in relevant part "[i]f 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."
The court is unable to grant the motion for additur because a court cannot order an additur to a defendant's verdict. Therefore, Mazas' motion for an additur is without merit and is denied.
Finally, there are no factors or events present in this trial or from the record that could have possibly improperly influenced the jury. There is absolutely no evidence that the jury verdict was affected by prejudice, partiality, corruption, or mistake. The motion to set aside the verdict, motion for judgment notwithstanding the verdict and motion for judgment on the issue of liability are denied.
GILARDI, J.