Fazio v. Brown

• Citation: 209 Conn. 450,551 A.2d 1227
• Decision Date: 27 December 1988
• Docket Number: No. 13434,13434
• Court: Connecticut Supreme Court
• Parties: , 5 A.L.R.5th 1176 Michael FAZIO et al. v. Carrie BROWN et al.

Page 1227

551 A.2d 1227

209 Conn. 450, 5 A.L.R.5th 1176

Michael FAZIO et al. v. Carrie BROWN et al.

No. 13434.

Supreme Court of Connecticut.

Argued Nov. 2, 1988.

Decided Dec. 27, 1988.

Gregory P. Lynch, with whom, on the brief, was Theodore R. Tyma, Bridgeport, for appellants (defendants).

Salvatore C. DePiano, with whom was Edward F. Czepiga II, Bridgeport, for appellees (plaintiffs).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

CALLAHAN, Justice.

This case is here as a result of our grant of certification from the Appellate Court. Fazio v. Brown, 14 Conn.App. 289, 540 A.2d 1065, cert. granted, 208 Conn. 808, 545 A.2d 1103 (1988). In its decision, the Appellate Court held that the trial court did not abuse its discretion by granting the named plaintiff's motion to set aside the jury verdict in this case as inadequate and that its action in doing so was not unconstitutional. The Appellate Court also determined that the trial court did not err by ordering a new trial limited solely to the issue of damages after the named plaintiff had refused to accept an additur.

As set forth in the Appellate Court opinion, this action arose as the result of a collision between a trail motorcycle operated by the named plaintiff, Michael Fazio, and an automobile driven by the named defendant, Carrie Brown. ¹ The accident occurred in the early evening hours as Fazio, wearing dark clothing, and riding his motorcycle without lights, was crossing the defendants' driveway. Because of the accident, Michael Fazio suffered a severe injury to his left leg. The nature of the injury and the circumstances of the accident are fully described in the Appellate Court opinion. Fazio v. Brown, supra.

The plaintiffs thereafter brought suit against the defendants in two counts. Only the first count of the plaintiffs' complaint, in which Michael Fazio sought to recover damages in negligence for personal injuries caused by the accident, need be discussed in connection with this appeal. ² The defendants denied being negligent and, by way of special defense, alleged that the named plaintiff was contributorily negligent. The plaintiffs denied the defendants' special defense.

The matter was tried to a jury which returned a verdict in favor of Michael Fazio in the amount of $15,570. Because the jury found Fazio to be 30 percent contributorily negligent, the net award for his injuries was reduced to $10,899. The plaintiffs requested the court to return the jury for further deliberations to reconsider the question of the adequacy of the verdict. The court refused, however, and it accepted the verdict and ordered it recorded.

The named plaintiff subsequently filed motions for an additur and to set aside the jury verdict. Ruling from the bench, the trial court stated that it found the jury award for Michael Fazio to be so inconsistent with the severe injuries that he had suffered that it constituted a "manifest injustice," and shocked the conscience of the court. The trial court, therefore, granted the named plaintiff's motion for an additur and increased his award on the first count of the complaint to $136,000, resulting, because of his 30 percent contributory negligence, in a net verdict of $95,200. The trial court further ordered that, if both parties did not accept the additur, it would set aside the verdict on the first count of the complaint as to damages only and order a new trial limited solely to that issue. The named plaintiff refused to accept the additur whereupon the trial court granted his motion to set aside the verdict as to the first count of the complaint, pursuant to General Statutes § 52-228b. ³ The trial court then ordered a new trial limited to the issue of damages.

The defendants appealed to the Appellate Court from the judgment rendered on the named plaintiff's motion to set aside the verdict. In their appeal, the defendants first claimed that the trial court abused its discretion in granting the named plaintiff's motion to set aside the jury verdict as inadequate. The Appellate Court held that based on "the undisputed evidence as to the duration, extent and permanency of Michael Fazio's injuries, the trial court did not abuse its discretion in finding that the jury's verdict shocked the court's sense of justice and was entirely disproportionate to the injury." Fazio v. Brown, supra, at 294, 540 A.2d 1065. The Appellate Court also rejected the defendants' argument that the action of the trial court in setting aside the jury verdict violated their constitutional right to have issues of fact decided by a jury. It stated that although the constitutional right to trial by jury places limitations on the legal discretion of the trial court when it seeks to set aside a verdict, this limitation is not absolute and " ' "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....' State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927)." ' Zarrelli v. Barnum Festival Society, Inc., [6 Conn.App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986) ], quoting Barbieri v. Taylor, [37 Conn.Sup. 1, 3, 426 A.2d 314 (1980) ]." Fazio v. Brown, supra, 14 Conn.App. at 295, 540 A.2d 1065; see also Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988).

We agree with the reasoning of, and the result reached by, the Appellate Court in holding that the trial court's action was not unconstitutional and that the trial court did not abuse its discretion when it set aside the verdict for the named plaintiff as inadequate. We disagree, however, with the Appellate Court's disposition of the defendants' remaining claim of error.

The defendants' remaining claim on appeal is that the trial court erred when it ordered a new trial limited solely to the issue of damages. Citing Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920), the Appellate Court held that the trial court had the authority to limit a retrial to damages and that it did not err in doing so. Given the facts in this case, we conclude that the Appellate Court was incorrect when it affirmed the trial court's action in ordering a retrial to resolve only the issue of the named plaintiff's damages. ⁴

Although we stated in Murray v. Krenz, supra, at 507, 109 A. 859, that a trial court may limit a retrial to a specific issue or issues, we clearly confined that grant of authority to situations "[w]here the error as to one issue or issues is separable from the general issues ... [and] such ... limitation does not work injustice to the other issues or the case as a whole." See also Schuerholz v. Roach, 58 F.2d 32, 33-34 (4th Cir.1932); Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Ala.1981); Gagliano v. Ditzler, 437 Pa. 230, 232-33 263 A.2d 319 (1970); Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 126, 519 A.2d 1021 (1987); annot., 29 A.L.R.2d 1199; annot., 98 A.L.R. 941. We went on to state that "where the retrial of the single issue may affect other issues to the prejudice of either party, the court [can] not exercise its discretion in limiting the new trial but [rather should] grant it de novo." Murray v. Krenz, supra, 94 Conn. at 508, 109 A. 859; Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796, 462 A.2d 1043 (1983); see also Mickel v. New England Coal & Coke Co., 132 Conn. 671, 681, 47 A.2d 187 (1946); Hawley v. Rivolta, 131 Conn. 540, 543, 41 A.2d 104 (1945). The decision to retain the jury verdict on the issue of liability and order a rehearing to determine only the issue of damages "should never be made unless the court can clearly see that this is the way of doing justice in [a] case." (Emphasis added.) Murray v. Krenz, supra; Hawley v. Rivolta, supra; Niles v. Evitts, 16 Conn.App. 696, 699, 548 A.2d 1352 (1988); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn.App. 46, 55, 492 A.2d 223 (1985). "As a rule the issues are interwoven, and may not be separated without injustice to one of the parties." Murray v. Krenz, supra; Sparico v. Munzenmaier, 134 Conn. 194, 197, 56 A.2d 165 (1947); Niles v. Evitts, supra. Therefore, "[a]n order restricting the issues [of a new trial] is the exception, not the rule." Niles v. Evitts, supra.

The facts in the instant matter do not present a case for an exception to the rule. Here the issues of damages and liability are so interwoven that, in fairness, a new trial is mandated as to both issues. In Malmberg v. Lopez, supra, we reversed a decision of the Appellate Court directing the trial court to set aside a jury verdict and grant a new trial limited solely to the issue of damages. Malmberg involved a wrongful death action in which the plaintiff obtained a jury verdict but was awarded zero damages. The trial court in that case had denied the plaintiff's motion to set aside the verdict because of its finding that the jury's verdict was, in reality, an improperly expressed defendant's verdict motivated by sympathy for the plaintiff. Based on the possibility that the jury's verdict reflected a misunderstanding as to liability, we ordered the Appellate Court to direct the trial court to retry both liability and damages stating that " '[w]here ... liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues.' (Emphasis added.) [Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312, 316 (1977) ]." Id., 208 Conn. at 682, 546 A.2d 264.

Relying on Malmberg v. Lopez, supra, the Appellate Court recently held that, whenever there is ambiguity in the jury's verdict as to liability, justice requires that both liability and damages be retried. Niles v. Evitts, supra. In Niles, a case it decided after this case, the Appellate Court deemed it necessary to order a new trial on both liability and damages where the jury found the...