Barrese v. DeFillippo

• Decision Date: 06 May 1997
• Docket Number: No. AC,AC
• Court: Connecticut Court of Appeals
• Parties: Sherri BARRESE v. Louis DeFILLIPPO. 14242.

Page 797

694 A.2d 797

45 Conn.App. 102

Sherri BARRESE v. Louis DeFILLIPPO.

No. AC 14242.

Appellate Court of Connecticut.

Argued Jan. 14. 1997.

Decided May 6, 1997.

Holly K. Dustin, Stamford, for appellant (defendant).

Nicholas E. Wocl, with whom was Brenden P. Leydon, Stamford, for appellee (plaintiff).

Before FOTI, HEIMAN and SCHALLER, JJ.

OPINION

SCHALLER, Judge.

The defendant, Louis DeFillippo, appeals from the trial court's denial of his motion to set aside the verdict following a jury trial. On appeal, the defendant claims that the trial court improperly (1) failed to set aside the jury verdict because (a) the verdict was inconsistent since the jury found in favor of the plaintiff on both her negligence claim and her intentional assault and battery claim, (b) the verdict was against the weight of the evidence (c) the verdict was excessive as a matter of law; (2) allowed a medical expert to testify despite the fact that the plaintiff had failed to disclose him as an expert witness pursuant to Practice Book § 220; (3) refused to take judicial notice of General Statutes § 14-227a; (4) limited his medical expert's testimony; (5) refused to instruct the jury on the law of unavoidable accident; and (6) instructed the jury on the count of intentional battery. We affirm the judgment of the trial court.

The relevant facts are as follows. The defendant and the plaintiff resided together in a condominium for approximately seven months. On January 7, 1989, the defendant told the plaintiff that in five or six months, when the lease to the condominium expired, he intended to return home to his wife and children. Both parties became emotional. At some point during the conversation, the defendant moved behind the plaintiff and wrapped his arms around her. When the plaintiff pulled away from the defendant, the two lost their balance and fell to the floor. The defendant landed on top of the plaintiff causing her injuries.

In August, 1990, the plaintiff instituted an action against the defendant alleging that his negligence caused her injuries. During the course of litigation, the plaintiff amended her complaint to include the allegation that the defendant intentionally caused her injuries. In May, 1994, a jury trial was held. At the completion of the trial, the jury found for the plaintiff on both the negligence count and the intentional assault and battery count. After the trial court denied the defendant's motion to set the aside the jury verdict, this appeal followed.

I

A

The defendant claims first that the trial court improperly refused to set aside the jury verdict because it was internally inconsistent. He claims that, on the basis of the evidence presented, a jury could not reasonably find that his conduct was both negligent and intentional.

Before we can review the defendant's claim, we must first determine whether the defendant properly preserved this claim on appeal. "It is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict." Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986). Our review of the record reveals that the defendant first raised the claim of inconsistency in his motion to set aside the verdict. The defendant never undertook to require the plaintiff to choose between negligence and intentional battery and assault, did not except to the jury charge, ¹ and, in fact, submitted jury verdict forms and interrogatories based on the plaintiff's allegations of both negligence and intentional tort. Because the defendant's claim was not properly preserved, we decline to review it. See Peters v. Carra, 10 Conn.App. 410, 412, 523 A.2d 922 (1987). The defendant claims alternatively that, even if this issue was not properly preserved, we should review it under the plain error doctrine. See Practice Book § 4061. "Plain error is reserved for extraordinary circumstances and situations in which the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Snead, 41 Conn.App. 584, 591, 677 A.2d 446 (1996). This is not the case here. Accordingly, we decline to review the claim under the plain error doctrine.

B

The defendant claims next that the trial court improperly refused to set aside the jury verdict because it was against the weight of the evidence. We disagree.

"A trial court's decision to set aside a jury verdict raises serious issues because of a litigant's constitutional right to have issues of fact and the assessment of damages determined by a jury.... [A verdict] should not [be] set aside ... where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion.... It is rudimentary jurisprudence that where a verdict is challenged because of insufficient evidence, the question is whether the jury could reasonably have concluded upon the facts established and inferences reasonably drawn therefrom that the plaintiff had sustained his [or her] burden of proof.... On appeal, the evidence will be construed in the light most favorable to supporting the jury's verdict.... The decision to set aside the verdict, however, involves the exercise of the trial court's broad discretion, which in the absence of a clear abuse will not be disturbed. In reviewing that decision, we accord it great weight and indulge every reasonable presumption in favor of its correctness." (Citations omitted; internal quotation marks omitted.) Gold v. University of Bridgeport Law School, 19 Conn.App. 379, 380-81, 562 A.2d 570 (1989). We conclude that the trial court did not abuse its discretion in refusing to set aside the jury verdict as against the weight of the evidence.

C

The defendant claims next that the jury verdict should be set aside because it was excessive as a matter of law. We disagree.

"[T]he proper review of a trial court's decision to ... deny a motion to set aside the verdict as excessive as a matter of law is that of abuse of discretion...." (Citations omitted; internal quotation marks omitted.) Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996); see also Mulligan v. Rioux, 229 Conn. 716, 753, 643 A.2d 1226 (1994). "On appeal, the test to be applied is whether the verdict 'so shocks the conscience as to compel a reviewing court's conclusion that it was due to partiality, prejudice or mistake.' Martin v. Samulis, 24 Conn.App. 85, 89, 585 A.2d 1255 (1991)." Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 591, 627 A.2d 443 (1993). "The refusal of the trial court to set aside the verdict, as in this case, is a significant factor in deciding whether it was excessive." Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990). We conclude that the trial court did not abuse its discretion in refusing to set aside the jury verdict as excessive.

II

The defendant claims next that the trial court improperly permitted the plaintiff's treating physician, Joel Feigenson, to testify at trial. Specifically, the defendant claims that he suffered prejudice because the plaintiff did not disclose Feigenson as an expert witness pursuant to Practice Book § 220(D). The defendant failed to request a continuance to remedy the claimed disadvantage, however, and, therefore, we decline to review this claim further. See Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749, 535 A.2d 1287 (1988).

III

The defendant claims next that the trial court improperly refused to take judicial notice of General Statutes § 14-227a. We disagree.

"[A] trial court's determination not to take judicial notice is essentially an evidentiary ruling.... Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 398-99, 662 A.2d 118 (1995). Our review of the record convinces us that the trial court did not abuse its discretion in denying the defendant's request to take judicial notice of § 14-227a.

IV

The defendant claims next that the trial court improperly limited the testimony of his medical expert, Lewis Siegel. We disagree.

A trial court has broad discretion in ruling on the admissibility of evidence, and such discretion will not be disturbed on appeal except on a showing of a clear abuse of discretion. Hayes v. Manchester Memorial Hospital, 38 Conn.App. 471, 474, 661 A.2d 123, cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995). At trial, the defendant attempted to have Siegel testify that the plaintiff's blood alcohol content was .0152 at the time she was admitted to the hospital so that the jurors could make their own determinations as to what the plaintiff's condition was at the time of the incident. The trial court permitted Siegel to testify as to the plaintiff's condition at the time she was admitted to the hospital, but only for the purpose of challenging her credibility and not for showing what her condition was at the time of the incident. ² We conclude that the trial court did not abuse its discretion in limiting this evidence in this manner.

V

The defendant claims next that the trial court improperly refused to instruct the jury on the law of unavoidable accident. We disagree...