Tara Brock v. Michael Steinbach et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR ADDITUR (# 120)

On February 12, 2007, some time between 1:00 and 2:00 a.m., the plaintiff Tara Brock (Brock) was leaving the bathroom in the apartment she rented from the defendants when a portion of the ceiling collapsed on her causing her to fall and hit her back, neck and left shoulder.   Later the same day, after going to her job, she sought treatment for her injuries at the Yale-New Haven Hospital's emergency department.   She subsequently brought this action alleging that her injuries were proximately caused by the defendants' negligence in maintaining the ceiling in the rental premises.   The matter came to trial before a jury on February 2, 2010 as a hearing in damages because the defendants had admitted negligence.   The nature, extent and cause of the injuries that Brock claim she sustained was not admitted.

On February 3, 2010, the jury returned a verdict in Brock's favor awarding her $4847.00 in economic damages, but no non-economic damages.   On February 11, 2010, Brock filed a “Motion for Additur” (# 120).   The defendants filed an objection to that motion on February 22, 2010 (# 122).   The court heard oral argument on June 1, 2010.

The standard for setting aside a verdict and ordering an additur, pursuant to the provisions of General Statutes § 52-216a,¹ is well established.   “The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury ․ The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict ․ Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury ․ The amount of damages to be awarded is a matter particularly within the province of the jury.”  (Citations omitted;  internal quotation marks omitted.)  Hunte v. Amica Mutual Insurance Co., 68 Conn.App. 534, 541-42, 792 A.2d 132 (2002).  “The right to a jury trial is fundamental in our judicial system, and ․ the 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 ․ passed upon by the jury and not by the court.”   (Citation omitted;  internal quotation marks omitted.)  Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000).  “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 this case, the jury did not award Brock all the economic damages that she submitted and awarded no non-economic damages.   The court is required to determine whether this verdict is adequate as a matter of law, in the light of the particular circumstances of this case.  Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002).   The court must “examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed” to prove that the defendants' negligence was the proximate cause of all the economic damages she claimed, as well as non-economic damages.  Wichers v. Hatch, supra, 252 Conn. 188.  “[A] jury may award a plaintiff less than the claimed special damages.”  Childs v. Bainer, 235 Conn. 107, 110, 663 A.2d 398 (1995).  “A fact finder is not required to award noneconomic damages simply because economic damages are awarded.”   Parasco v. Aetna Casualty & Surety Co., 48 Conn.App. 671, 676, 712 A.2d 433 (1998).

In this case, the defendants contested the nature, extent and cause of Brock's injuries and argued to the jury that it should not find her complaints of pain and suffering credible.   The jury had evidence before it that Brock sustained a work-related injury on August 30, 2006 to her cervical spine, left shoulder and lumbar spine for which she made a workers' compensation claim.   However, Brock failed to report this prior injury to the treaters at the emergency department although she presented with complaints of injury to the same body parts and left the emergency department with a diagnosis of a left shoulder contusion.   There was also evidence that Brock failed to report her August 2006 injury to Dr. Philip Micalizzi, who she saw in February 2008 for a neurological consultation and who diagnosed her with paracervical sprain/strain and opined that she had a 10% permanent partial disability to her cervical spine without knowing about the August event (ex. 8).

The jury also had before it records from Dr. Kenneth Kramer, who treated Brock for her August 2006 work injury from April 23, 2007 through July 31, 2007.   These records make no mention of the ceiling collapse in February 2007, although Brock testified that she had told Dr. Kramer about the February injury.   The jury, however, was free to disbelieve this testimony and conclude that the August 2006 work injury, for which Dr. Kramer awarded permanent partial disability ratings of 5% each for injury to her cervical and lumbar spines and concluded that she had persistent cervical, left shoulder and lumbar strains (ex.   H.), was the proximate cause of the left shoulder and back pain of which she complained at trial.   The jury also had before it evidence that Brock had a minor injury to her shoulders and arms at work in 2005 and also twisted her ankle and fell some time after the February 2007 injury, facts it could consider in choosing not to award non-economic damages.

Brock argues, however, that the jury also had favorable evidence from Dr. Stephen Piserchia, a chiropractor who treated her for both the August 2006 and February 2007 injuries.   In a letter dated August 29, 2007, Dr. Piserchia opined that Brock had a 6% permanent partial disability rating to her left trapezium and an additional 3% to her cervical spine for aggravation of the prior injury (ex.6).   However, “[t]he existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given.”  Schettino v. LaBarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004).  “Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged.”  (Citations omitted).   Smith v. LeFebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005).   The jury here was “not compelled to accept the plaintiff's claims as to the severity of her injuries ․” Parasco v. Aetna Casualty & Surety Co., supra, 48 Conn.App. 676.  “It is well settled that the amount of a damage award is a matter peculiarly within the province of the fact finder.”  Greci v. Parks, 117 Conn.App. 658, 679, 980 A.2d 948 (2009).

In light of the conflicting evidence discussed above, the court cannot conclude that the jury's award verdict was inadequate or that it shocks the conscience.   See Childs v. Bainer, supra, 235 Conn. 114.   The evidence was sufficient for the jury reasonably to find that Brock failed to meet fully her burden of proof with respect to both all the economic damages claimed and noneconomic damages.   Accordingly, the motion for additur is denied.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. General Statutes § 52-216a provides, in pertinent part:  “If 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.”.  FN1. General Statutes § 52-216a provides, in pertinent part:  “If 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.”

Lager, Linda K., J.