Caroline Fitzgerald v. Carlos Sabatini (2010)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE TUE VERDICT AND FOR AN ADDITUR

The plaintiff instituted the present action seeking to recover monetary damages for personal injuries sustained in a motor vehicle accident occurring on March 16, 2006.   The jury returned a verdict in favor of the plaintiff awarding $10,527.00 for economic damages comprised of medical bills and for $0 non-economic damages.   The plaintiff has now moved to set that verdict aside as being inadequate and against the weight of the evidence and requests the court to award an additur for a fair, just and reasonable sum as compensation for noneconomic damages.

“A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by 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.)  Marchell v. Whelchel, 66 Conn.App. 574, 582 (2001).  “A 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 to support the verdict.   Only under the most compelling circumstances may the court set aside the jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have the issues of facts decided by a jury.   The amount of damages to be awarded is a matter particularly within the scope of the jury.”  Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541-41 (2002).  “A jury is not obligated to believe that every injury causes pain or the pain alleged ․ 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 the testimony is a matter for the jury to determine.”   (Citations and internal quotations marks omitted.)  Lindman v. Nugent, 59 Conn.App. 43, 46 (2000).

Our courts have determined that there is no per se rule that an award of some economic damages requires an award of economic damages.   Indeed the court has stated that such situations must be determined on a case by case analysis.   Schroeder v. Trianglum Associates, 259 Conn. 325, 230 (2002);  Wichers v. Hatch, 252 Conn. 174, 188 (2000);  see also Gambardella v. Feldman, 294 Conn. 482 (2010) (C.L.J. Jan. 19, 2010).  “Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his burden of proof of the issue.   That decision should be made, not on the assumption of the jury made a mistake, but rather, on the supposition that the jury did exactly what it intended to do.”   Wichers v. Hatch, supra, 188-89;  see also such cases as Silva v. Walgreen, 120 Conn.App. (2010);  (C.L.J. April 27, 2010);  Smith v. Lefebre, 92 Conn.App. 417 (2005);  Schettino v. Labarba, 82 Conn.App. 445 (2004).

Under the evidence, the jury could reasonably find that the motor vehicle accident involved a low impact accident with minor property damage.   The plaintiff's child was also in the car at the time but no claim was made for personal injuries as to the child.   The plaintiff denied being injured at the scene of the accident, but went to see a chiropractor, with whom she was previously treated, approximately six days after the accident.   The plaintiff went to work after the accident and there was no claim made for loss of wages although the plaintiff was employed at the time.   Primary injuries claimed by the plaintiff were to her neck and shoulder and the plaintiff had been in a prior accident in which neck and shoulder injuries were claimed.   There was evidence that there was an old fracture of the shoulder unrelated to the present accident.   The jury could reasonably have found that the limitations of the plaintiff's activities after the accident were the same limitations she had prior to the accident.   There was no claim made in the case for injuries such as lacerations, bruises or fractures.   The jury was also entitled to find that the plaintiff had prior injuries to her neck to which the chiropractor had attributed the disability and also noted that additional treatment could be expected to be requited after the prior accident.   The jury was not required to believe that the plaintiff experienced the pain and suffering to which she testified nor was the jury required to believe she sustained a personal injury even though such diagnosis was made by her treating chiropractor.   The jury was not required to believe that the plaintiff sustained pain and suffering after the accident even though she and her chiropractor claimed that such pain and suffering existed.   The existence, nature and severity of the injuries claimed to have been sustained by the plaintiff were vigorously contested by the defendant during the course of the trial.   The jury was at liberty to find that the medical treatment was justified as a precaution because of her prior neck and back injuries.

Accordingly under the evidence the jury was entitled to find that no personal injuries or no pain and suffering were sustained by the plaintiff as a result of the accident.   The credibility of the plaintiff with respect to the nature of the injuries was vigorously contested at the trial and the court is not at liberty to substitute its judgment for the judgment exercised by the jury.   The motion to set aside the verdict and for an additur is denied.

RUSH, J.T.R.

Rush, William B., J.T.R.