Opinion
CV136040777S
04-15-2016
Jasmin Oyola v. Piolin Jr., LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' POST-TRIAL MOTIONS
Cesar A. Noble, J.
The defendants, Piolin Jr., LLC and Miguel Franco, Jr., have moved to set aside the verdict in favor of the plaintiff, Jasmin Oyola. The defendants assert the following grounds for their motion: (1) the verdict was contrary to the evidence; (2) the court erred in its charge to the jury; (3) the court erred in failing to charge the jury in accordance with the defendants' request to charge; (4) the court erred in refusing to charge and allow the jury to consider the issues of participation and assumption of the risk; (5) the court erred in refusing to give a curative charge in response to the plaintiff's argument during closing that there was no enforcement action taken by the police; and (6) the court erred in its refusal to allow the defendants' expert, Steven Bird, M.D., to testify regarding literature as it relates to blood alcohol level and signs of intoxication in connection with his testimony regarding the plaintiff's intoxication or lack thereof. The defendants also move for a collateral source reduction for amounts paid by Medicaid on behalf of the plaintiff and for sums which they assert, based on belief and information, may have been paid by the tortfeasor. For the following reasons, the court denies the motion to set aside the verdict and grants a collateral source reduction from economic damages.
I
FACTUAL BACKGROUND
This action was brought by complaint dated March 12, 2013, against Piolin Jr., LLC and Miguel Franco, Jr. The former is a dance club and bar (Piolin's) and the latter is its permittee. The plaintiff alleges the following facts. She and a friend, the alleged intoxicated person, Shandeline Gutierrez, were patrons at Piolin's on March 17, 2012. Gutierrez was served alcohol by the agents and employees of the defendants while she was intoxicated. As a consequence of such intoxication Gutierrez later caused a single-car accident that injured the plaintiff, who was a passenger in her car.
The original complaint contained four counts with the first two asserting dram shop liability, pursuant to General Statutes § 30-102, against Piolin's and Franco respectively, and the latter two claiming liability due to the reckless, willful, and/or wanton misconduct of the agents of the defendants in the service of alcohol to Gutierrez. The plaintiff claimed, in her complaint and at trial, that she suffered the following: severe facial lacerations; lacerations to her liver and right kidney; an intracranial hemorrhage; multiple rib fractures; foreign bodies embedded in her face; bilateral pneumothoraces; head, neck and back pain; as well as emotional pain and suffering. The plaintiff withdrew the third and fourth counts of the complaint on October 6, 2015, and proceeded to trial solely on claims of dram shop liability against the defendants. The trial was conducted from October 6 through October 9, 2015, and at the conclusion of trial, the jury rendered a verdict in favor of the plaintiff. The jury awarded the plaintiff $68,653.28 in economic damages and $130,000 in non-economic damages for a total verdict of $198,653.28.
The defendants filed post-verdict motions to set aside the verdict and for collateral source reductions on October 19, 2015. The plaintiff's objections to the post-verdict motions were filed on November 10, 2015 and December 18, 2016. The hearing on the post-verdict motions was held on November 30, 2015 and supplemental briefs on both motions were filed on December 21, 2015.
II
DISCUSSION
A. Motion to Set Aside the Verdict
1. Standard
The defendants claim that there was no evidence to support the jury's finding of liability under the Dram Shop Act, General Statutes § 30-102, and, therefore, the motion to set aside the verdict should be granted. A " trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb." (Internal quotation marks omitted.) Beeman v. Stratford, 157 Conn.App. 528, 542, 116 A.3d 855 (2015). In its consideration of setting aside a verdict, a trial court must view the evidence in its " most favorable construction in support of the verdict of which it is reasonably capable." (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044 (2013). " [L]litigants have a constitutional right to have issues of fact determined by the jury . . . And so the credibility of the witnesses and the weight to be accorded their testimony is a matter for the jury to decide. Further, we refrain from choosing among inferences as this is another jury function." (Internal quotation marks omitted.) Nelson v. Tradewind Aviation, LLC, 155 Conn.App. 519, 541, 111 A.3d 887, cert. denied, 316 Conn. 918, 113 A.3d 1016 (2015) citing Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976). This constitutional right to a 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.) Murray v. Taylor, 65 Conn.App. 300, 324, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).
2. Insufficient Evidence to Permit a Finding of Liability Pursuant to § 30-102
Section § 30-102 provides in relevant part: " If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured . . . or to persons injured in consequence of such intoxication . . ." The statute requires that a plaintiff prove " (1) the sale of the alcoholic liquor; (2) that the sale was to an intoxicated person; and (3) that the intoxicated person caused injury to another's person or property as a result of his or her intoxication." Craig v. Driscoll, 262 Conn. 312, 328, 813 A.2d 1003 (2003). Intoxication is defined as " a physiological state accompanied by visible or otherwise perceivable indicators." O'Dell v. Kozee, 307 Conn. 231, 259, 53 A.3d 178 (2012). Intoxication is reached when a person is " so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 350, 493 A.2d 184 (1985).
The jury heard the following testimony. Gutierrez picked up Oyola at her house and they then drove to a parking lot across the street from the defendants' establishment. Gutierrez had previously purchased a bottle of Pinnacle Vodka for their joint consumption prior to entering the bar. Oyola and Gutierrez sat in the latter's car for about a half hour and each consumed about three to four shots of the vodka. They then entered Piolin's at about 10:00 p.m. and stayed there until 1:30 a.m. Gutierrez testified that she only purchased and consumed two drinks when she was in Piolin's; she immediately purchased the first drink at the bar upon arrival and she had another drink some time later, approximately in the middle of the night. She also testified that she did not have any other shots of alcohol while in Piolin's and that she never felt herself to be intoxicated, visibly or otherwise.
Oyola testified at trial that she and Gutierrez consumed shots of vodka in the car prior to entering Piolin's. She also testified that Gutierrez consumed at least one more shot which Gutierrez provided. She last saw Gutierrez drink alcohol within the hour before their approximate 1:30 a.m. departure. Before this she observed Guiterrez slur her words a few times, she was not walking straight, stumbled a little bit and they held on to each other a lot of the night. At one point in the night Gutierrez stumbled over or into Oyola. The plaintiff testified that when leaving Piolin's, Gutierrez stumbled as they were walking to Gutierrez' car. Gutierrez " was kind of all over the place" and grabbed onto Oyola's arm. Thereafter, Gutierrez operated her vehicle at an excessive rate of speed, with the plaintiff as a passenger, before colliding with barriers on Interstate 84, causing a single-car accident.
Finally, the jury received testimony from Cynthia Delarose, an acquaintance of Oyola and Gutierrez, from which it could have concluded the following. When Delarose arrived at Piolin's, around 11:00 to 11:30 p.m. she saw Gutierrez and Oyola at the bar drinking. She observed that they were kind of " tipsy" and it appeared to her as if they were feeling the effects of alcohol. At some point later in the evening, Delarose bought them a shot while they were at the bar. The bartender put the shot glass down in front of Gutierrez and at that time Delarose's observations led her to believe that Gutierrez was feeling the effects of the alcohol.
This testimony provides a sufficient factual basis for a jury to have found that Gutierrez was served alcohol while in a state of intoxication and that her intoxication at the time she left the bar, immediately before the accident, as evidenced by her difficulty walking, was a cause of the accident. On this basis the court declines to set aside the verdict.
3. Error in Jury Charge
The defendants claim that the court erred in its charge to the jury in three respects. The court disagrees as the court charged the jury with the applicable law as set forth in O'Dell v. Kozee, supra, 307 Conn. 231, and its charge accordingly provides no basis to set aside the verdict.
4. Failure to Charge as Requested
The defendants claim that the court erred in failing to provide the exact instructions it requested in its Request to Charge I, II, III and IV. The court finds that its jury charge adequately covered the same subjects and issues requested in these requests.
5. Participation and Assumption of the Risk
The defendant claims that the court erred in refusing to allow the jury to consider the issues of participation and assumption of the risk and erred in its refusal to charge on these issues in accordance with the defendant's request to charge.
There is no definitive appellate guidance on whether the defenses of assumption of the risk or participation may be raised as a defense to an action brought under the Dram Shop Act and a split of authority exists on this question among the judges of the Superior Court. This court concurs with those decisions which have found that both are incompatible with the public policy underlying the act of protecting the public at large and inconsistent with The Dram Shop Act's language. See Goddu v. Flanagan, Superior Court, judicial district of Fairfield, Docket No. CV-13-6038828, (September 2, 2015, Arnold, J.); Petrolito v. Cucullo, Superior Court, judicial district of Hartford, Docket No. CV-10-601539-S (December 30, 2011, Woods, J.) (53 Conn. L. Rptr. 269); Passini v. Decker, 39 Conn.Supp. 20, 23, 467 A.2d 442 (1983). The motion to set aside is therefore denied on this basis.
6. No Curative Instruction as to Plaintiff's Argument in Closing
The defendants argue that they were prejudiced by argument of counsel that no enforcement action was taken by the investigating state police officer, Trooper Blalock, relative to Gutierrez and the court failed to provide a curative instruction, although requested to do so. This is so, in the view of the defendants, because the argument undermined the credibility of Trooper Blalock on the basis that he took no enforcement action when in fact he issued Gutierrez a ticket for failure to drive in a single lane in violation of General Statutes § 14-236. The defendants specifically claim prejudice because " [w]ithout such [a curative] instruction at the time when the prejudicial comments had just been made, Trooper Blalock's credibility was attacked by inappropriate and unsupported evidence and the defendant could not counter that attack by pointing out that Trooper Blalock actually did issue a ticket."
The court agrees that the argument was improper and a curative instruction would have been appropriate. Nevertheless, the court cannot find that the remarks so prejudiced the ability of the defendants to obtain a fair trial that a new trial is warranted. " [C]urative instructions are not a cure-all for every improper event that may transpire during a trial . . . The likely effectiveness of such a remedy is dependent on the magnitude of the impropriety to which it is directed." (Internal quotation marks omitted.) Modaffari v. Greenwich Hospital, 157 Conn.App. 777, 787, 117 A.3d 508, cert. denied, 319 Conn. 904, 122 A.3d 1279 (2015), citing Camacho v. Commissioner of Correction, 148 Conn.App. 488, 502, 84 A.3d 1246, cert. denied, 311 Conn. 937, 88 A.3d 1227 (2014). Here, the comment was brief and isolated. As previously discussed the jury had sufficient evidence to find that Gutierrez was intoxicated. Blalock had already testified that, to his observations, when Gutierrez was interviewed after the accident there were no visible signs of intoxication. In light of the foregoing, the court finds that the defendants did not suffer manifest injury and declines to set aside the verdict. See Sturgeon v. Sturgeon, 114 Conn.App. 682, 690, 971 A.2d 691, cert. denied, 293 Conn. 903, 975 A.2d 1278 (2009) (stating that " in civil cases the harmed person must show 'manifest injury' . . . or that remarks were 'unreasonable' " [citation omitted]).
7. Refusal to Permit Dr. Bird to Testify Regarding BAC Literature
The defendants claim that the court erred in its refusal to allow the defendants' expert, Steven Bird, M.D., to testify regarding literature that stood for the proposition that blood alcohol content (BAC) levels need to reach a level of .15 before signs of intoxication become apparent. This testimony, the defendants claim, was critical to its claim that the plaintiff, who testified she was intoxicated when she entered the Gutierrez' vehicle, was in fact not intoxicated. This in turn was important, in the view of the defendants, because it would serve to impeach her credibility as to her impaired ability to recognize that Gutierrez was intoxicated. The court disagrees. Testimony regarding what blood alcohol level is required before signs of intoxication are demonstrated in the general population is not relevant to whether or not the plaintiff herself was intoxicated or feeling the influence of alcohol such that her judgment was impaired.
B. Motion for Collateral Source Reduction
The defendants move, pursuant to General Statutes § 52-225a et seq., for a collateral source reduction from the economic damages award of $68,653.28. Section 52-225a(a) provides in relevant part: " In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death . . . wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages . . . by an amount equal to the total of amounts determined to have been paid under subsection (b) [collateral source payments] of this section less the total of amounts determined to have been paid, contributed or forfeited under subsection (c) of this section, except that there shall be no reduction for (A) a collateral source for which a right of subrogation exists . . ." Collateral sources are defined by General Statutes § 52-225b as " any payments made on behalf [of a claimant] . . . by any contract or agreement of any group, organization . . . to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services." The amounts paid by the State of Connecticut's Medicaid Program are collateral source payments for purposes of § 52-225b. See Ventura v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV-08-5024235-S, (March 13, 2015, Wilson, J.). General Statutes § 52-225c provides that unless otherwise provided by law no person providing collateral source benefits shall be entitled to recover the amount of such benefits from a tortfeasor. General Statutes § 17b-93 creates, in the State of Connecticut, a right to reimbursement for any medical assistance payments paid on behalf of Medicaid beneficiaries from any recovery by the beneficiary from a third-party tortfeasor.
At trial the plaintiff claimed her injuries necessitated medical treatment from Hartford Hospital and Hartford Hospital Rehabilitation Network. The jury's economic damages award was for the full amount of the bills from both. The plaintiff does not dispute that all her medical bills were covered by Medicaid. She argues, however, that the defendants are entitled to a reduction of $54,620.51 rather than the full amount of the medical bills because the only lien asserted by the Department of Administrative Services (DAS) is for $14,042.77. The court received evidence from the plaintiff relative to collateral sources paid for her benefit in the form of a lien letter, offered without objection from the defendants, from the DAS. The DAS letter asserted a lien for " Accident Related Medicals" in the amount of $14,042.77 for the period from November 26, 2010 through August 20, 2012. Attached to the letter was a document entitled a " SOMA Report" which itemized payments made to health care providers on behalf of the plaintiff during the period which comprised the lien amount. Significantly, only $10,041.61 of the medical bills paid by Medicaid, and for which a lien is asserted, were for the treatment claimed by the plaintiff at Hartford Hospital and Hartford Hospital Rehabilitation Network. The $10,041.61, thus, represents the only collateral source payment for which a right of subrogation exists. The economic damages may, therefore, not be reduced by this amount.
The plaintiff's figure of $54,620.51 as the total reduction appears to be in error because the full amount of the economic damages awarded by the jury, $68,653.28, minus the $14,042.77 asserted accident-related medicals claimed by DAS equals $54,610.51.
The defendants argue that the remainder of the medical bills, $58,611.67, were written off by the plaintiff's health care providers pursuant to contract with the State of Connecticut to provide Medicaid benefits and, therefore, constitute a collateral source payment which may reduce the plaintiff's economic recovery. See Ventura v. East Haven, supra, Superior Court, Docket No. CV-08-5024235-S; McInnis v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV-03-0480767 (August 15, 2008, Skolnick, J.T.R.) (46 Conn. L. Rptr. 176). The plaintiff did not argue to the contrary and the court agrees with the plaintiff.
The defendants finally move for an additional reduction of $25,000. This is the amount, which upon information and belief, the defendants believe was paid by Gutierrez' insurer in settlement of the plaintiff's claims. The defendants have offered no evidence of such payment and the request is, therefore, denied.
Accordingly, the court denies the defendants' motion to set aside the verdict and grants their motion for a collateral source reduction. Pursuant to § 52-225a(a) the economic award is reduced by $58,611.67. Judgment is, therefore, entered in favor of the plaintiff in the amount of $10,041.61 in economic damages and $130,000 in noneconomic damages for a total judgment of $140,041.61. The court also awards the plaintiff costs in the amount of $907.84.
This amount represents the costs of $1,180.84 requested by the plaintiff in her Bill of Costs minus items numbered 4 and 10 pursuant to General Statues § § 52-257(a)(3) and 52-257(b)(7).