English v. Green

• Decision Date: 21 December 2001
• Docket Number: No. 99-548-Appeal.,99-548-Appeal.
• Citation: 787 A.2d 1146
• Parties: Thomas A. ENGLISH et al. v. Kenneth D. GREEN et al. Bruno Formato v. Kenneth D. Green et al.
• Court: Rhode Island Supreme Court

787 A.2d 1146

Thomas A. ENGLISH et al. v. Kenneth D. GREEN et al.

Bruno Formato v. Kenneth D. Green et al.

No. 99-548-Appeal.

Supreme Court of Rhode Island.

December 21, 2001.

BEFORE: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Donald A. Woodbine, James A. Bigos, for plaintiff.

Michael R. DeLuca/Paul S. Callaghan, Virginia M. McGinn, Providence, for defendant.

OPINION

WILLIAMS, Chief Justice.

The defendants, Kenneth D. Green (Green), Paul Green and Rocchio & Sons, Inc. (Rocchio) (collectively referred to as defendants) appeal the grant of a new trial in favor of plaintiffs Thomas A. English (English) and Bruno Formato (Formato) (collectively referred to as plaintiffs) after a jury failed to assign any degree of negligence to Green for his contribution to an automobile accident. The trial justice determined that the jury's apportionment of negligence was against the fair weight of the evidence, failed to do substantial justice to the parties, and that the damage awards shocked the conscience of the court. After hearing the arguments of counsel and examining the memoranda submitted in this case, we affirm the judgment of the Superior Court.

I Facts and Travel

On the evening of January 8, 1993, the parties were involved in an automobile accident at the intersection of Smith and Gaspee Streets in the City of Providence. The plaintiffs were traveling eastbound on Gaspee Street in an automobile driven by Nicholas Papakyrikos (Papakyrikos). Rocchio earlier had done construction work at the site. A stop sign that usually controlled the flow of traffic at the intersection had been removed temporarily to permit the construction work. Because Papakyrikos was unfamiliar with the area, he did not realize that he was required to stop at Smith Street. When he reached the middle of the intersection, however, he realized his mistake and stopped the car in the first southbound lane of Smith Street. At that moment, he saw a pair of headlights approaching the intersection. Papakyrikos attempted to drive from his position of peril, in an unsuccessful attempt to avoid a collision with Green's automobile.¹ The impact of the collision caused Papakyrikos's automobile to turn 180 degrees and come to rest on the sidewalk adjacent to the northbound lane.

Seeking to recover damages for their alleged personal injuries, plaintiffs English and Formato filed two separate actions, each naming Kenneth Green, Paul Green, and Rocchio as defendants.² The cases were consolidated on January 13, 1997.

At trial, Papakyrikos's deposition was read to the jury. He estimated that Green's automobile was traveling "around [forty] miles an hour" when it entered the intersection. English, who sat in the front seat of Papakyrikos's automobile, testified that Green's vehicle was going approximately thirty miles per hour. Formato, who was in the back seat, stated "[i]t seemed like it was about [forty] milesan hour, [thirty-five], [forty]." John Snedeker (Snedeker), also a passenger in the back seat of Papakyrikos's automobile, testified by deposition that he thought Green's vehicle approached the intersection at a "very excessive rate of speed." Green testified that he had been watching his speedometer before the accident and that despite the area's speed limit of twenty-five miles per hour, he was traveling thirty miles per hour. He also admitted that he was familiar with the intersection and aware that the stop sign had been missing for several weeks.

At trial, English's counsel read aloud the deposition of Lester Sheehan, M.D. (Dr. Sheehan). Doctor Sheehan testified that he had treated English in 1991 for shoulder injuries. At that time, English was diagnosed with "rotator cuff tendonitis [] impingement" in both shoulders, although the injury to his right shoulder was more severe. Doctor Sheehan prescribed conservative treatment and instructed English to come back on an "as-needed basis." Doctor Sheehan testified he did not treat English again until January 1993, after the accident. He then diagnosed English with rotator cuff tendonitis in his left shoulder as a result of the accident. Almost two years later, Dr. Sheehan recorded that "[English] seemed to be complaining of more pain than I could give satisfactory explanation for based on the examination of his shoulder." Consequently, he recommended and did surgery on English's left shoulder. Doctor Sheehan testified that, although ultimately not beneficial, the surgery was necessary to treat English's pain. Doctor Sheehan was unable to say, with any degree of medical certainty, however, whether the shoulder injury was caused by the automobile accident or by English's employment as a tile setter.

In contrast, defendants called A. Louis Mariorenzi, M.D. (Dr. Mariorenzi), an orthopedic surgeon, to testify as an expert witness. Doctor Mariorenzi testified that he had reviewed English's pertinent medical records and also had conducted a physical examination of English, in October 1998.Doctor Mariorenzi testified that English failed to disclose to him his preexisting shoulder injury. Doctor Mariorenzi also opined that the rotator cuff surgery done by Dr. Sheehan had been necessitated by a "preexisting condition which was really arthritis."

After the trial, a Superior Court jury apportioned negligence between the various defendants as follows: Papakyrikos, 75 percent; Rocchio, 15 percent; the State of Rhode Island, 10 percent; and Green, 0 percent.

Although they recovered the apportioned damages from Rocchio, plaintiffs nevertheless filed a motion for new trial, arguing that the jury verdict failed to respond to the merits of the controversy because of the overwhelming evidence pointing to Green's negligence and because of the disparity between the damage awards and plaintiffs' medical expenses. The trial justice granted plaintiffs' motion. In doing so, she concluded that Green's testimony alone "compels the conclusion that he was negligent that night." Moreover, the trial justice found that the jury's assessment of damages shocked the conscience of the court because the awards were so disproportionately lower than the amount of medical bills that had been introduced in evidence. The defendants timely appealed.

II Motion for New Trial

In considering a motion for new trial, the trial justice functions as a "superjuror." Long v. Atlantic PBS, Inc., 681 A.2d 249, 254 (R.I.1996) (citing Barbato v. Epstein, 97 R.I. 191, 193-94, 196 A.2d 836, 837 (1964)). If the trial justice:

"reviews the evidence, comments on the weight of the evidence and the credibility of the witnesses, and exercises his [or her] independent judgment, his [or her] determination either granting or denying a motion for new trial will not be disturbed unless he [or she] has overlooked or misconceived material and relevant evidence or was otherwise clearly wrong." Kurczy v. St. Joseph Veterans Association, Inc., 713 A.2d 766, 770 (R.I.1998) (quoting Pantalone v. Advanced Energy Delivery Systems, Inc., 694 A.2d 1213, 1216 (R.I.1997)).

The defendants argue that the trial justice erred in granting plaintiffs' motion for new trial because the jury verdict was supported by competent evidence. We disagree.

In the instant case, we conclude that the trial justice did not misconceive or overlook material evidence by finding that reasonable minds would certainly agree that Green was at least partly negligent. Green, by his own admission, she noted, failed to enter the intersection with caution, despite knowing that the stop sign was missing. He also had testified that he was traveling in excess of the speed...