Opinion
No. 12–P–1593.
2013-06-27
Cynthia TOLLEN v. Marjorie R. BERGER, executrix.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the denial of her motion for a new trial or additur. The jury found the plaintiff to have been forty percent negligent in the slip and fall accident on March 5, 2005, and awarded the plaintiff $20,000 in damages. The plaintiff argues that the verdict was against the weight of the evidence, unreasonably low, and requires a new trial or additur. Because the record discloses ample basis from which the jury could have concluded that the plaintiff was contributorily negligent, and that evidence of causation and damages was disputed, we discern no abuse of discretion in the denial of the motion for new trial or for additur.
Discussion. A trial judge may order a new trial where the jury's verdict is against the clear weight of the evidence. J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992). Such an order is only appropriate where the judge is convinced that “the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion.” Meyer v. Wagner, 57 Mass.App.Ct. 494, 504–505 (2003), quoting from W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 748 (1993). The denial of a motion for a new trial will not be disturbed absent an abuse of discretion. See Galvin v. Welsh Mfg. Co., 382 Mass. 340, 343 (1981); Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 775 (2006). 1. Amount of damages. The plaintiff contends that a new trial was required because, while she accumulated $55,000 in medical bills in the four years since the accident, the jury found her damages to be only $20,000. “[T]he allowance of a motion for a new trial based upon an inadequate or excessive award of damages, and the direction of an addition or remittitur, rests in the sound discretion of the judge.” Baudanza v. Comcast of Massachusetts I, Inc., 454 Mass. 622, 630 (2009), quoting from Blake v. Commissioner of Correction, 403 Mass. 764, 771 (1989). Only in extraordinary circumstances will a ruling on a motion for a new trial brought by a party dissatisfied with the amount of damages be reversed. Walsh v. Chestnut Hill Bank & Trust Co., 414 Mass. 283, 292 (1993).
Although the plaintiff also claimed other types of damages below, her focus on appeal is on the insufficiency of the damages in relation to her medical expenses.
The plaintiff introduced in evidence numerous medical bills accumulated during a four-year period without specific testimony as to each bill. Moreover, her medical records show that her complaints of knee pain, sciatica, and back pain started many years before her 2005 fall. It was the jury's prerogative to determine the credibility of witnesses and the weight to be given to their testimony. Given the contested nature of the plaintiff's injuries, the jury permissibly could have concluded that only $20,000 of the plaintiff's medical bills were related to the injuries incurred in the 2005 fall. See, e.g., J. Edmund & Co. v. Rosen, supra.
The medical records indicate that the plaintiff had trouble with her knees for many years prior to the 2005 fall as a result of a bicycle accident in which she fell over the handlebars and landed on her knees, injuring both knees with a more significant injury on the left side; that she was involved in two auto accidents in 1994; that she has a history of chronic low back pain since at least 1994 and complaints of sciatica since at least 1994. The plaintiff's medical records show that she was diagnosed with a knee condition known as chondromalacia patella in 1995. The surgeon who performed left knee surgery in March of 2005 wrote in August of 2005 that the plaintiff has been full weight bearing and that her range of motion has returned to normal.
2. Percentage of comparative negligence. Whether to grant a motion for a new trial “on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge.” Moose v. Massachusetts Inst. of Technology, 43 Mass.App.Ct. 420, 426 (1997), quoting from Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989). This is especially so when the motion judge was also the trial judge. Gath v. M/A–Com, Inc., 440 Mass. 482, 492 (2003).
As correctly noted by the judge, the plaintiff's deposition testimony that she missed a step was sufficient to raise the issue of comparative negligence. On appeal, the plaintiff argues that a new trial is required because the jury's finding that she was forty percent negligent was against the weight of the evidence. However, it was up to the jury “to determine the parties' relative percentages of fault.” Soederberg v. Concord Green Condominium Assn., 76 Mass.App.Ct. 333, 340 (2010). See Colter v. Barber–Greene Co., 403 Mass. 50, 64 (1988).
For example, the Basile brothers, who ran the estate sale, testified that the walkway was shoveled to the bare pavement and was not slippery and that there was no snow on the walkway or on the step. The plaintiff testified that the walkway was slippery and that there was snow and ice on the walkway and snow on the step. The defendant also pointed out the difference between the plaintiff's trial testimony and her deposition testimony regarding the cause of the fall. The plaintiff testified at trial that she fell when she slipped on ice and testified at her deposition that she missed a step.
A jury award may be disrupted only where “the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 825 (1997), quoting from Bartholomew v. Schweizer, 217 Conn. 671, 687 (1991). Such a conclusion is not compelled here. The damages award appears entirely consonant with the jury's determination that the defendant bore only sixty percent of legal responsibility for the plaintiff's injury.
The plaintiff's attempt to analogize to the facts in Thibault v. Mack, 19 Mass.App.Ct. 916 (1984), is unpersuasive. The defendants in Thibault were found 100 percent liable for the infant's injuries.
Conclusion. The trial judge “acted within [his] discretion in deciding that the central issues concerned credibility and weight which had been properly reserved for the jury.” J. Edmund & Co. v. Rosen, 412 Mass. at 576. The plaintiff, moreover, has not shown that the jurors were in any way “swept away by bias or prejudice” so as to warrant a new trial. Meyer v. Wagner, 57 Mass.App.Ct. at 504, quoting from W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. at 748.
Order denying motion for new trial or for additur affirmed.