Goodmaster v. Houser, 14390

Decision Date01 June 1993
Docket NumberNo. 14390,14390
Citation225 Conn. 637,625 A.2d 1366
CourtConnecticut Supreme Court
PartiesLisa Marie GOODMASTER v. Henry HOUSER, et al.

Martin M. Rutchik, Norwich, with whom was Kerin M. Woods, New London, for appellant (plaintiff).

David E. Schancupp, New Haven, for appellees (defendants).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

NORCOTT, Associate Justice.

The dispositive issue in this appeal is whether, in a negligence action where damages are sought for fear of future medical treatment and disability, the trial court improperly instructed the jury by failing to explain that the mere possibility of future treatment was sufficient to merit an award of such damages. 1 The plaintiff, Lisa Marie Goodmaster, brought a negligence action against the defendants, Henry Houser (defendant) and Avis Rent a Car System, Inc. (Avis), 2 to recover damages sustained in a two car accident on June 11, 1985. The jury returned a verdict in favor of the plaintiff and the trial court rendered judgment in the amount of $59,500. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse and remand for a new trial.

The following facts are relevant to this appeal. On June 11, 1985, the plaintiff and the defendant were involved in a motor vehicle accident on Racebrook Road in Orange. At the time of the accident, the plaintiff was in a pickup truck proceeding in a line of traffic southbound on Racebrook Road. A vehicle owned by Avis and operated by the defendant was proceeding northbound, also on Racebrook Road.

The plaintiff and the defendant proffered substantially different versions of the accident. A witness for the plaintiff testified that the traffic in front of the defendant in the northbound lane had been stopped waiting for a vehicle to turn left. According to the plaintiff and several other witnesses, the defendant was unable to stop his vehicle as he approached the traffic in front of him. 3 The plaintiff and another witness testified that the defendant had skidded sideways across the center line into the southbound lane of Racebrook Road and had collided with the driver's side of the plaintiff's pickup truck. The defendant's vehicle pushed the plaintiff's vehicle off the traveled portion of the road and into an iron pole approximately ten to fifteen feet off the side of the road. The plaintiff testified that she had attempted to avoid a collision by swerving to the side of the road, but was unable to do so before being struck by the defendant's vehicle.

The defendant testified that, as he had approached the stopped traffic in front of him, he had been confronted with the choice of turning right or left to avoid striking the vehicles in front of him. The defendant testified that he had believed he could avoid the collision by crossing the southbound lane and getting clear of the road area, which he proceeded to do. He testified that he had made it safely to the grassy area off the roadway but then had been hit behind the driver's seat by the plaintiff's vehicle. The defendant denied having made contact with any other vehicle while he had been in the travel portion of the roadway.

Joseph Dooley, the investigating officer, testified that his report indicated facts consistent with both the plaintiff's and the defendant's versions of the accident. He testified that there had been no skid marks attributable to the plaintiff's vehicle that would have indicated an application of the brakes or suggested that the plaintiff's vehicle had been pushed to the right as a result of an impact. He stated, however, that in light of the final resting place of the plaintiff's vehicle, he believed that the plaintiff had taken evasive action prior to impact, by either braking or turning her wheel. Dooley also testified that the defendant's vehicle had left seventy-eight feet of skid marks, indicating that the defendant had applied his brakes before the accident. Dooley could not determine with any certainty, however, whether the vehicles first had come in contact while they were on the roadway or on the grassy area off the road.

The plaintiff testified that as a result of the accident she suffered injury to her knees, right arm, head, face, legs and neck, causing her to have limited mobility and frequent pain and headaches. The testimony of Matthew Gagliardi, the plaintiff's treating physician, revealed that the plaintiff had suffered permanent partial disabilities to her cervical spine, lumbar spine, knees, left lower leg, right lower leg, and right arm as a result of the accident. 4

The plaintiff also testified that one month after the accident she had begun having pain on the left side of her face near her jaw, as well as severe headaches and a clicking and popping when she opened her mouth. The plaintiff, as a result, had to be fitted with an oral appliance that she wore continuously for over two years. The plaintiff later underwent a surgical procedure on her jaw, after which her jaw had to be wired shut with a splint for a period of time, during which she had been limited to a liquid diet. Casper Burke, an oral surgeon who had reviewed the plaintiff's medical records, testified that the plaintiff had sustained a temporomandibular joint (TMJ) injury in the accident. 5

The defendant and Avis disputed the causal relationship between the motor vehicle accident and the plaintiff's TMJ injury and requested that the plaintiff be examined by Stanley Cohen, a dental surgeon from New York. The day before he was scheduled to testify, Cohen suffered a stroke. His report was therefore admitted into evidence pursuant to General Statutes § 52-174(a). 6 The report, admitted over the plaintiff's objection, expressed the opinion that the plaintiff's dental condition was not causally related to the automobile accident and that there was no evidence of TMJ syndrome or myofascial pain disorder.

The jury returned a verdict in favor of the plaintiff, awarding her damages in the amount of $70,000 but finding her 15 percent contributorily negligent. The trial court thereafter rendered judgment in the amount of $59,500. The plaintiff moved to set aside the verdict as to damages, which motion was denied by the court. The plaintiff then brought this appeal.

I

The plaintiff claims that the trial court's instructions to the jury on damages for the fear of future disability as an element of mental suffering improperly required the jury to find that it was reasonably probable, rather than merely possible, that future disability would occur. We agree that the trial court's instruction on this issue failed adequately to guide the jury to a correct application of the law, and for that reason we remand for a new trial.

Testimony was elicited at trial regarding the possible future effects of the plaintiff's TMJ injury. Burke testified that additional surgery to correct the plaintiff's TMJ injury was recommended. This surgery would expose the plaintiff to the risk of paralysis of a facial nerve, which could interfere with her ability to smile and to move her forehead and eyes, and could result in a droop eye. The surgery would also pose a risk of infection, which could cause numbness of the face up to the cheekbones.

The plaintiff testified that she had been advised of the risks inherent in any future surgery and that she was afraid of surgery and the related risks. The plaintiff also testified that she was afraid of excessive weight loss and dehydration if surgery required her jaw to be wired shut, feared being hospitalized, and was "scared to death" about the risk of disability posed by the TMJ surgery.

At trial, the plaintiff requested that the following instruction be given to the jury on damages for fear of future disability: "In this case you have heard testimony from the plaintiff of her concern for future medical treatment and disability. If you should find that these facts are proven to you, then the plaintiff is entitled to a recovery for the fear of future illness or disability and her anxiety over the future consequences of her injury. The anxiety over the future consequences of her injury such as loss of teeth or future surgery is an element of mental suffering that you can consider in determining her entitlement to damages. In order for you to consider her anxiety, it need not be proven to you beyond a reasonable doubt that such occurrence will take place, but the mere possibility of such an occurrence will entitle her to a recovery. Likewise you can consider whether there is evidence of an increased susceptibility to a disability as an element of damages."

The trial court gave the following instruction to the jury on this issue: "Now also in this case you heard evidence from the plaintiff of her concern for future medical treatment and disability. If you should find that these facts are proven to you, then the plaintiff is entitled to recovery for fear of the future illness or disability and her anxiety over the future consequences of her injury, the anxiety over the future consequences of her injury such as future surgery is an element of mental suffering that ... you can consider in determining her entitlement to damages. Mental suffering is a proper element of damages to physical suffering. It's just as proper as the physical suffering, when it is accompanied by a physical injury, and when it is a natural and proximate consequence of the physical injury."

The plaintiff contends that the trial court failed to include an instruction alerting the jury to the proper standard of proof to apply to the plaintiffs' claim for damages for fear of possible future medical treatment or disability. 7 The plaintiff argues that the only reference to a standard of proof in the court's instructions concerning damages occurred in that portion that stated: "She's entitled to recover...

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