Malmberg v. Lopez, 13276

• Decision Date: 23 August 1988
• Docket Number: No. 13276,13276
• Citation: 208 Conn. 675,546 A.2d 264
• Court: Connecticut Supreme Court
• Parties: Margaret MALMBERG, Administratrix (ESTATE OF Scott C. MALMBERG) v. Ann Marie LOPEZ.

Page 264

546 A.2d 264

208 Conn. 675

Margaret MALMBERG, Administratrix (ESTATE OF Scott C. MALMBERG) v. Ann Marie LOPEZ.

No. 13276.

Supreme Court of Connecticut.

Argued May 6, 1988.

Decided Aug. 23, 1988.

Paul E. Pollock, Bridgeport, for appellant (defendant).

John D. Jessep, Bridgeport, for appellee (plaintiff).

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

SANTANIELLO, Associate Justice.

The plaintiff ¹ brought this action seeking damages for the wrongful death of Scott C. Malmberg. The case was tried to a jury which returned a verdict for the plaintiff, but awarded zero damages. The plaintiff filed a motion to set aside the verdict, claiming that the award was contrary to the law and the evidence, and requested a new trial on the issue of damages only. The trial court denied the motion, and the plaintiff appealed.

The Appellate Court, in a split decision, found error in the court's denial of the motion to set aside the verdict and remanded the case for a hearing in damages only. Malmberg v. Lopez, 12 Conn.App. 438, 531 A.2d 161 (1987). From that ruling, the defendant filed a petition for certification to appeal which this court granted.

The facts as reported in the Appellate Court decision are as follows: "On the evening of May 15, 1982, Scott Malmberg, and his date, Ann Marie Lopez, attended a social gathering at the home of Dwight Kettlehut in Cheshire. Malmberg had driven Lopez and Doreen Mosesian to the party after picking them up at Mosesian's home in West Hartford. They arrived at the party at about 10 p.m. At the party, beer, fruit juice and vodka punch were available for consumption.

"The party broke up at about 12:30 a.m. Thereafter, with the defendant, Kettlehut and Mosesian as passengers, Malmberg began driving [his car] toward West Hartford, via I-84, to take Mosesian and Lopez to Mosesian's house where both women were to spend the night. The trip began with Malmberg in the driver's seat, Lopez in the front passenger seat, Kettlehut in the center of the back seat, and Mosesian to his left. At some point on I-84, Malmberg, complaining of a pain in his shoulder, asked the defendant if she would drive. Upon her assent, [Malmberg] pulled to the side of the road and [he] changed places [with Lopez]. With the defendant driving, they proceeded on toward West Hartford.

"At a point near exit 39 on eastbound I-84, the defendant was proceeding in the left hand lane approaching an exit ramp situated on the left. The car then went off the highway to the left and struck a light pole and a guard rail and rolled down an embankment. Kettlehut and Mosesian were not injured and crawled out of the vehicle through the rear window. Kettlehut observed that Malmberg and the defendant were not in the car. Kettlehut called for Malmberg and then went up the embankment to the highway, where he saw a silhouette on the road that proved to be Malmberg. Kettlehut then flagged down a passing car from which one person got out and another continued on to seek help. Kettlehut then discovered the defendant on the embankment. Shortly thereafter, the police and an ambulance arrived on the scene. Malmberg later died because of fractured cervical vertebrae.

"During the trial, Kettlehut testified substantially as stated above. The defendant testified that she had planned to spend the night at Mosesian's house located on Farmington Avenue in West Hartford and that the accident happened in the area of the exit for the town of Farmington. She stated that she was unfamiliar with that portion of the highway near the exit. The defendant could remember nothing else about the accident at the trial. The plaintiff, however, introduced into evidence an accident report filed by the defendant one month after the accident. In this report, the defendant admitted that she was the operator of the vehicle at the time of the accident and that while so engaged she was involved in an accident in Farmington on I-84 near exit 39 eastbound. In describing what happened, the defendant stated in the report that 'Vehicle # 1 [Malmberg's car] went off I-84 and hit a light pole and guardrail and rolled down the embankment.' She also stated in the report that one person had been killed in the accident. The plaintiff also introduced into evidence a certified copy of Malmberg's death certificate, which stated that on May 16, 1982, at 1:30 a.m. in the town of Farmington, Scott Malmberg was a passenger in an auto that left the road at a highway exit ramp at exit 39 of I-84 eastbound and that he died in an accident of fractured cervical vertebrae." Malmberg v. Lopez, supra, at 439-40, 531 A.2d 161.

The defendant appeals claiming that the Appellate Court erred in: (1) concluding that the evidence required that the jury find that the defendant's negligence was the proximate cause of the victim's death; ² and (2) remanding the case for further proceedings only upon the issue of damages, allowing the jury's determination of liability in favor of the plaintiff to remain undisturbed. We reverse.

The question before this court is whether the Appellate Court erred in its attempt to interpret the jury's verdict. The Appellate Court, in its review of the trial court's refusal to set aside the verdict, concluded that the evidence supported the jury's finding of liability, but that the award of zero damages in a wrongful death action was inadequate as a matter of law. Id., 443. In contrast to the trial court's apparent analysis of the verdict as an improperly expressed defendant's verdict, ³ the Appellate Court found that the damage award "appeared to have been motivated by sympathy for the defendant." Id., at 447, 531 A.2d 161.

" 'On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot be disturbed unless there is a clear abuse of discretion.' " Riccio v. Abate, 176 Conn. 415, 417, 407 A.2d 1005 (1979). An appellate court cannot retry the facts of a case or pass upon the credibility of the witnesses. Id., at 418, 407 A.2d 1005. The trial court's refusal to set aside a verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. Id., at 417, 407 A.2d 1005. " '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....' " Frankovitch v. Burton, 185 Conn. 14, 15, 440 A.2d 254 (1981). " '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...." 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). In determining whether a verdict does such injustice, "the only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption." Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924); Sepe v. Deemy, 9 Conn.App. 524, 528, 520 A.2d 237 (1987). A direct showing of partiality, prejudice, mistake or corruption is not required. " '[I]f the amount awarded "shocks the sense of justice" as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision....' " Sepe v. Deemy, supra, at 528-29, 520 A.2d 237.

The crucial finding of the trial court was its statement that "[i]t was quite evident that the jury concluded [that] the plaintiff failed to sustain her burden of proof with respect to the injury mechanism and causal relationship between the defendant's negligence and the passenger's death." This finding was rejected by the Appellate Court when it concluded that the jury's verdict for the plaintiff should be upheld, but that a new hearing was required with regard to the plaintiff's claim for damages which was so low as to shock the sense of justice. In our view, however, neither the Appellate Court nor this court is in a position clearly to ascertain from the conflicting jury verdict how the members of the jury found on the underlying issue of liability. The Appellate Court therefore lacked the authority to substitute its finding on liability for that of the trial court.

Our view that the Appellate Court should have recognized the inherent ambiguity in the jury's verdict has implications for whether that court erred in limiting the further proceedings on remand to the issue of damages only. We have held that where the plaintiffs are entitled to recover damages for their injuries, an award limited to nominal or special damages is "manifestly inadequate" and should be set aside, "for the same rule governs upon an application for a new trial in the case of an inadequate award as in the case of an excessive award." Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930). In Johnson, this court distinguished between the case where the damages awarded are inadequate and the verdict was properly for the prevailing party and the case "[w]here the damages awarded are nominal and the verdict should have been against the prevailing party.... " (Emphasis added.) Id., at 230, 152 A. 64. In the former case the verdict should be set aside and a new trial ordered; in the latter, the verdict should stand. Id. An explicitly stated award of zero damages differs from an award of nominal damages. ⁴ A...