James Cronin v. Griff's Old Mug N Munch (2011)

Caption Date:

DECISION RE MOTION FOR ADDITUR

Preliminary Statement

This is a premises liability claim in which the plaintiff alleged that the railing along the back deck of the defendant's premises was of insufficient height, which defective condition caused him to fall over the railing and to suffer serious and permanent injuries.   Following a jury trial and verdict in favor of the plaintiff, the plaintiff filed a motion for additur.   He argues that the jury's mistake as to the amount of economic damages to be awarded is manifest.   The defendant objects to any additur of the economic damages.

Evidence at Trial

With the evidence introduced at trial, the jury could have found the following facts.

The defendant runs a pub in Brookfield, Connecticut called Griff's Olde Mug–n–Munch.   The plaintiff was a very frequent patron of the pub.

When the pub owner took over the operation of the pub, she began enforcing the “no smoking” requirements under Connecticut law.   As a result, the patrons of the pub were directed to the back deck of the premises if they wanted to smoke.   The back deck was also the rear entrance to the pub.   It was approximately 3 1/2 feet wide and 10 feet long.   It had stairs that led down to the parking lot.   The back deck was also the means of ingress and egress for an adjoining business.

The railing on the back deck was approximately 32–33 inches high.   The current Building Code, though not applicable because the building was built prior to its enactment, requires that such deck railings be 42 inches high.   A railing that is 42 inches high is at or above the average center of gravity for a man.   This reduces the likelihood that a person will fall over the railing.

On June 10, 2007, the plaintiff was a patron at the pub.   He was driven to the pub by the pub manager (and husband of the owner), who was a friend.   He drank approximately one and a half beers, and a shot of liquor.   He went outside on the deck to smoke a cigarette.   There were other people present.   He positioned himself with his back to the railing, facing the building.   One of the other patrons present was, like the defendant, a very big man.   While the testimony is conflicting, the jury could have found that when the other patron's cell phone rang, he brushed past the plaintiff.   Immediately after the cell phone rang, the plaintiff toppled over backwards to the parking lot below.   He fell approximately 7–8 feet and sustained extraordinary injuries.   He was transported to Danbury Hospital where he remained in a coma for many days.

The toxicology report from Danbury Hospital indicates that the defendant had a very elevated Blood Alcohol Concentration.   The defendant pursued a comparative negligence special defense based upon the plaintiff's intoxication.

The defendant remained in Danbury Hospital until July 12, 2007.   The bill submitted from Danbury Hospital for the time period June 10, 2007 through July 12, 2007 was for $252,019.00.   At that time, he was discharged to the inpatient rehabilitation wing, where he remained until July 18, 2007, at which point he had made enough progress to go home.   The bill submitted from Danbury Hospital for this time period was for $13,844.00.   In addition to the bills from Danbury Hospital, the plaintiff introduced various bills from treatment providers who provided treatment to the plaintiff while he was at the Hospital, but who bill separately for their services.   For example, Danbury Radiological Associates billed $11,213.00 for various diagnostic tests conducted on the plaintiff during his hospitalization.   The total of the medical bills submitted is approximately $340,000.00.

The jury returned a verdict in favor of the plaintiff.   It apportioned a percentage of negligence to the plaintiff in the amount of 50%.   It awarded economic damages of $211,000.00.   It awarded non-economic damages in the amount of $100,000.00.

Discussion

This court is guided by Wichers v. Hatch, 252 Conn. 174 (2000) and its progeny.   Faced with a motion for additur, the trial court should test the jury's verdict “in light of the circumstances of the particular case before it” and “should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue.   That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.”  Id. 188–89.

The plaintiff seeks an additur only to the extent of the two bills from Danbury Hospital, the first for $252,019.00 and the second for $13,844.00.   These bills total $299,966.40.   He therefore seeks an additur of $88,966.40.   In so seeking, he argues that the jury award essentially cuts off the award of economic damages while the plaintiff was still in a coma.   He argues that it is clear from the jury verdict that they jury intended to award damages for the plaintiff's treatment at Danbury Hospital.   Thus, he argues, the jury made a mistake and at the very least, the charges submitted by Danbury Hospital should have been awarded.   He acknowledges that there was a mitigation of damages claim pursued by the defendant.   However, such failure to mitigate was not alleged to have occurred prior to his release from the hospital and certainly could not have occurred before he came out of the coma.

The plaintiff further argues that because the jury did not have an itemization of the charges incurred, there was no evidence from which the value of any particular medical procedure might be gleaned.   The bill broke down the charges by category, i.e. “room, EEG, Laboratory” but did not specify dates of service, specific procedures or otherwise connect the bills to the treatment records.   The plaintiff's expert opined that the course of treatment at Danbury Hospital was reasonable, necessary and causally connected to the plaintiff's fall from the back deck of the pub.   No argument was advanced to the jury that the treatment was not reasonable, necessary or not caused by the fall from the back deck of the pub.   Nor was there evidence or argument that the amount of the medical bills was unreasonable.

The defendant counters that there was evidence submitted in the treatment records which reflect treatment that was necessitated by the plaintiff's alcoholism, not the fall.   The defendant relies upon the prescription of Ativan to address the plaintiff's detox upon admission.   He points to the treatment for renal failure which, according to the treatment notes, may have been caused by events preceding admission, to include intoxication.   He points to multiple notes throughout the treatment that the plaintiff was counseled regarding alcohol use and abuse but that he was in denial over same.   From these treatment notes, the defendant argues the jury could reasonably have concluded that portions of the treatment received at Danbury Hospital were not causally related to the defendant's negligence, but were instead necessitated by the plaintiff's alcoholism.

A jury is free to conclude that the treatment received was not causally related to the accident;  may reject an expert's opinion on the issue and may award only those economic damages the jury finds to be the result of the accident.¹  In light of the evidence that the plaintiff received at least some treatment related solely to his alcohol consumption, the jury's award cannot be found to be outside the “necessarily uncertain limits of just damages [such that it] shocks the sense of justice as to compel the conclusion that the jury were influenced by ․ mistake ․” Birgel v. Heintz, 163 Conn. 23, 27–28 (1972).   It was for the jury to evaluate the evidence as to the nature of the accident and the causally related treatment and injuries.   See, Vetre v. Keene, 181 Conn. 136 (1980).

The motion for additur is denied.

K. DOOLEY, J.

FOOTNOTES

FN1. In the absence of any itemization of the charges incurred, there was no basis upon which to value individual treatments which the jury may have culled out of the records.   Thus, there would also be no mechanism by which to value the treatment deemed causally related to the defendant's negligence.   On this issue however, the plaintiff had the burden of proof..  FN1. In the absence of any itemization of the charges incurred, there was no basis upon which to value individual treatments which the jury may have culled out of the records.   Thus, there would also be no mechanism by which to value the treatment deemed causally related to the defendant's negligence.   On this issue however, the plaintiff had the burden of proof.

Dooley, Kari A., J.