Jack Millette v. Connecticut Post Limited Partnership et al. (2011)

MOTION TO SET ASIDE VERDICT

In addition to the Renewed Motion for Directed Verdict the defendant has also filed a Motion to Set Aside the Verdict and also a Motion for Remittitur.

The Motion to Set Aside the jury's verdict claims it is contrary to the law, contrary to the evidence, and exercise.   This motion is addressed to the discretion of the trial judge to gauge the tenor of the trial, and to detect factors that could improperly influence the jury.  Palomba v. Gray, 208 Conn. 21, 23–24 (1988).

At the trial the plaintiff's evidence did not prove that defendants had control of the area of the construction site where plaintiff sustained his injuries.   The evidence only established defendants had an interest in the legal title, but no evidence of their activities to establish they had control of the construction area.   Plaintiff has not proven defendant's liability on this issue.   The evidence also failed to prove the existence of a specific defect that caused plaintiff to fall, and further that defendants had notice of the specific defect or that the alleged defect existed for a sufficient time to establish defendants should have been aware of the condition.

The motion to set aside the verdict is generally based upon one or more of the following grounds (1) contrary to the evidence (2) contrary to the law and (3) excessive Practice Book 16–35.   In Palomba v. Gray, 208 Conn. 21 the court stated as follows:

“The supervision which a judge has over the verdict is an essential part of the jury system ․ [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 their 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, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality.”  Burr v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902).   The court has a duty to set aside the verdict where the jury's action is so unreasonable as to suggest that it was the product of such improper influences.  State v. Avcollie, 178 Conn. 450, 457, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980), aff'd, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983);  Roma v. Thames River Specialties Co., 90 Conn. 18, 19–20, 96 A.169 (1915).   A verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.  Roma v. Thames River Specialties Co., supra, 20.

In this case the court finds inadequate evidence to establish by a fair preponderance of the evidence of control, a specific defect and notice of any alleged defect by the defendants.

On the issue of damages the plaintiff introduced many medical records and bills for treatment of numerous medical conditions and treatment for unrelated pre-existing medical problems which were not alleged as caused by this incident.   The amounts found on the plaintiff's verdict form did not accurately state the medical treatment related to this accident.   The defense contends the amounts awarded were excessive and include improper elements based upon speculation.   The economic damage award of $122,897.00 and non-economic damages of $381,000.00 for a total of $503,897.00 are claimed by the defendant to be excessive based upon the evidence in this case.

Defendants also claim that plaintiff's counsel conduct and flagrant arguments were improper and prejudicial in arguing the corporate defendants were more interested in “profits then people”.   And plaintiff's counsel produced items to display to the jury which were not evidence to support his argument regarding precautions that could have been taken to avoid the accident.

The defendant also argues the verdict was excessive, and it includes elements that have not been proven, and are based upon speculation.   The evidence presented to this jury included in addition to the injuries claim in plaintiff's complaint, but also physical and psychiatric conditions related to prior injuries and conditions, and no claims of aggravation.   The economic damages awarded exceeded the amount related to this incident.   The award of $58,000.00 in lost wages was not based upon any evidence other than plaintiff's estimate of life expectancy, and no other evidence to support the finding of that sum as lost wages.   Also the non-economic of $381,000.00 for future medical care and interference with enjoyment of life's activities were not supported by any evidence presented by the plaintiff to establish the amount found by the jury, and it was based upon pure speculation or because of improper motive or mistake by the jury.

The issues before this court requires this court to first determine if no evidence was presented to establish liability by the defendant.   Such finding would then acquire a finding for the defendants notwithstanding the verdict for the plaintiff.  Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195.

Practice Book 321 seemingly gives the court discretion to order a new trial or to direct the entry of judgment for the defendants, in the event the verdict should be set aside.   Which of the alternate remedies is appropriate, however, depends upon the reason the verdict was set aside.   If the verdict is without support in the evidence, judgment should be rendered notwithstanding the verdict for the opposing party unless a new trial would, with reasonable probability, supply the evidence necessary to support a verdict.  Masterson v. Atherton, 149 Conn. 302, 316, 179 A.2d 592 (1962).   If the verdict was set aside because of prejudicial remarks of counsel, a new trial is the remedy.   Edwards v. Sears, Roebuck & Co., supra, 283;  Cavallaro v. Offen, supra, 22.

The plaintiff in opposition alleges Metroguard was hired by the defendants.   The evidence did not establish who contracted for the services of the plaintiff's employer.   The plaintiff also contends defendants owed a duty to the plaintiff as a business invitee because of defendant's title ownership of the property, and that defendants created a condition in which notice may be inferred.   The plaintiff did not present evidence to prove the alleged acts of negligence.   The defendant in response to these claims that no negligent act of the defendant was proven by a fair preponderance of the evidence, or that they had notice of any general conditions in the area as required by Riccio v. Harbour Village Condominium Assoc., Inc., 281 Conn. 160 (2007).

This court having granted the Motion for Judgment Notwithstanding the Verdict therefore decides this court reserves decision on the Motion to Set Aside the Verdict, and the Motion for Remittitur.

Howard F. Zoarski

Judge Trial Referee

Zoarski, Howard F., J.T.R.