Childs v. Bainer

• Decision Date: 15 August 1995
• Docket Number: No. 15048,15048
• Citation: 235 Conn. 107,663 A.2d 398
• Parties: Harry CHILDS v. Frank BAINER.
• Court: Connecticut Supreme Court

Page 398

663 A.2d 398

235 Conn. 107

Harry CHILDS v. Frank BAINER.

No. 15048.

Supreme Court of Connecticut.

Argued May 26, 1995.

Decided Aug. 15, 1995.

Katherine C. Callahan, with whom, on the brief, were Karen P. Blado, Robert R. Simpson, Hartford and David A. Sylvestre, West Hartford, for appellant (defendant).

James A. Mulhall, Jr., with whom was Kevin T. Nixon, Sr., Naugatuck, for appellee (plaintiff).

Before BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The sole issue on appeal is whether a trial court is required to grant an additur in a personal injury case in which the jury has awarded to the prevailing party economic damages but no noneconomic damages. The plaintiff, Harry Childs, had alleged and attempted to prove at trial that the negligent driving of the defendant, Frank Bainer, had caused him to sustain damages resulting from personal injuries. The jury returned a verdict in favor of the plaintiff and awarded him economic damages only. ¹ Because the jury had failed to award noneconomic damages, the plaintiff, pursuant to General Statutes § 52-228b, ² filed a motion with the trial court for an additur and, alternatively, to set aside the verdict as to damages only. The trial court denied the plaintiff's motion, and the plaintiff appealed from the judgment to the Appellate Court.

The Appellate Court held that the trial court had improperly denied the plaintiff's motion, determining that an award of economic damages coupled with an award of zero noneconomic damages is inadequate as a matter of law. The Appellate Court reversed the judgment and remanded the case "for further proceedings to determine a reasonable additur for noneconomic damages, to give the parties an opportunity to accept the additur, and, if they do not accept the additur, a new trial is ordered as to all issues." Childs v. Bainer, 35 Conn.App. 301, 305, 645 A.2d 1041 (1994). We granted the defendant's petition for certification to consider the following question: "Is it an abuse of discretion for a trial court to refuse an additur in a personal injury case in which the jury awarded economic damages but no non-economic damages?" Childs v. Bainer, 231 Conn. 924, 648 A.2d 162 (1994). We conclude that the trial court did not abuse its discretion in denying the motion for additur in this case and, therefore, we reverse the judgment of the Appellate Court.

The following facts are relevant to this appeal. The plaintiff commenced an action against the defendant seeking damages for personal injuries allegedly arising from a rear end collision caused by the defendant. The plaintiff claimed that, as a result of the defendant's negligent driving, the plaintiff "was thrown about the interior of his car and sustained bruises, contusions, lacerations and abrasions about his body and an acute strain/sprain of the cervical and lumbosacral area of the spine and from said injuries has suffered great pain and will continue so to suffer for the rest of his life." The plaintiff claimed that as a direct result of these injuries, he incurred medical expenses for hospitalization, doctor's care, drugs and medication, and would continue to incur such expenses in the future. The plaintiff also claimed a loss of earnings and earning capacity, which losses would also continue in the future. The defendant denied that he had been negligent and that he had caused the accident, stating that any injuries sustained by the plaintiff were the result of the plaintiff's own negligence and carelessness.

It is undisputed that at trial, ³ the plaintiff claimed medical expenses of $5129, lost earnings of $14,000, and damages for pain and suffering. In support of his claims, the plaintiff submitted evidence of an injury to his shoulder, which resolved itself within one week of the collision, a neck injury, which healed within five months of the collision, and a lower back injury, which left him with a 12 percent permanent disability as a result of the collision. The plaintiff did not claim property damage.

The defendant submitted evidence to rebut the plaintiff's claims, including: an emergency room report, which did not disclose the existence of any bruises, contusions, lacerations or abrasions on the plaintiff following the collision; statements made by the plaintiff to emergency room medical staff that his body had not come into contact with any part of his car; evidence that he had returned to work at his nursery and landscaping job the day after the accident; evidence that the plaintiff did not take painkilling medications despite his allegations of significant pain; emergency room and radiology reports on the day of the accident showing that the plaintiff's only complaint had concerned his neck and shoulder; a diagnosis from the plaintiff's doctor that the neck was "doing fine" and that the plaintiff suffered no permanent disability of the neck; and photographs of the plaintiff lifting large cabinets soon after the collision. In short, the extent and duration of the plaintiff's injuries were "hotly contested."

The jury returned a verdict in favor of the plaintiff and awarded him $3649 in economic damages, but did not award any noneconomic damages. Thereafter, the plaintiff requested that the trial court order an additur or, if the defendant failed to accept the additur, set aside the verdict as to damages only. The trial court denied the motion, finding that "the award [was] not manifestly unjust and palpably against the evidence." The plaintiff appealed from the judgment to the Appellate Court.

On appeal, the plaintiff claimed that an award of more than nominal ⁴ economic damages coupled with an award of zero noneconomic damages in an action seeking damages for personal injuries is inadequate as a matter of law. The Appellate Court agreed with the plaintiff and reversed the trial court's judgment. Childs v. Bainer, supra, 35 Conn.App. at 305, 645 A.2d 1041. The question before this court is whether the Appellate Court improperly imposed a per se rule that an award of economic damages must be coupled with an award of noneconomic damages. The defendant argues that the decision to order an additur is a matter of judicial discretion and that the trial court did not abuse its discretion in light of the conflicting and insubstantial evidence of injury presented at trial. We agree with the defendant and reverse the judgment of the Appellate Court.

"In an appeal following certification, the focus of our review is not the actions of the trial court, but the actions of the Appellate Court." (Internal quotation marks omitted.) Cahn v. Cahn, 225 Conn. 666, 671, 626 A.2d 296 (1993). We must determine, therefore, whether the Appellate Court improperly concluded, as a matter of law, that a plaintiff's personal injury verdict is defective if the jury awards greater than nominal economic damages but zero noneconomic damages.

We accord great deference to a jury's award of damages. "Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.... This 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 among fair-minded men passed upon by the jury and not by the court.' ... The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury." Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). Similarly, "[t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury." Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596 (1960). "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984)." (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 10, 633 A.2d 716 (1993).

"The trial court's refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. The trial court's decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.... Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case...." (Citations omitted; internal quotation marks omitted.) Ginsberg v. Fusaro, 225 Conn. 420, 430-31, 623 A.2d 1014 (1993); accord Skrzypiec v. Noonan, supra, 228 Conn. at 10-11, 633 A.2d 716; Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988).

"If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court's acceptance of the verdict.... However, it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ... palpably against the evidence...." (Internal quotation marks omitted.) Malmberg v....