Mazzacane v. Elliott, (AC 21454)

• Decision Date: 26 November 2002
• Docket Number: (AC 21454)
• Citation: 812 A.2d 37,73 Conn. App. 696
• Court: Connecticut Court of Appeals
• Parties: ROBERT GEORGE MAZZACANE ET AL. v. ROBERT J. ELLIOTT ET AL.

73 Conn. App. 696

812 A.2d 37

ROBERT GEORGE MAZZACANE ET AL. v. ROBERT J. ELLIOTT ET AL.

(AC 21454)

Appellate Court of Connecticut

Argued September 13, 2002

Officially released November 26, 2002

Schaller, Bishop and West, Js. David G. Toro, with whom, on the brief, was John R. Williams, for the appellants (plaintiffs).

John W. Mills, for the appellee (named defendant).

Philip F. von Kuhn, for the appellees (defendants Warren C. Favreau et al.).

Opinion

BISHOP, J.

This is an appeal from the judgment of the trial court rendered after a jury verdict in the plaintiffs' favor for personal injuries and lost wages resulting from an automobile accident. The plaintiff Robert George Mazzacane was awarded $5608 in economic damages and $5000 in noneconomic damages. His wife and coplaintiff Karen Mazzacane was awarded $500 for loss of consortium. The plaintiffs claim that the court improperly (1) denied their motion for an additur and to set aside the verdict as to damages, (2) directed a verdict in favor of the defendant Warren C. Favreau's employer, Parker X-Ray and Solution Services, Inc. (Parker X-Ray), and (3) tainted the entire trial by directing a verdict in favor of Parker X-Ray. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs' appeal. Robert Mazzacane sought to recover damages for lost wages and for injuries sustained to his neck, lower back and shoulder as a result of an automobile accident that occurred when he was a passenger in a car that was operated by the defendant Warren C. Favreau and owned by Favreau's employer, Parker X-Ray. Karen Mazzacane sought to recover for loss of consortium.

The accident occurred on July 8, 1995, when Favreau's motor vehicle was rear-ended by a car driven by the defendant Robert J. Elliott. At trial, there was a dispute as to which of the defendants, Favreau or Elliott, had caused the accident. Furthermore, the proximate cause and extent of Robert Mazzacane's alleged injuries were contested vigorously due to a prior lower back surgery, a documented history of neck problems and a subsequent accident after which he brought an action for similar injuries. At the close of all the evidence, Parker X-Ray requested that the court direct a verdict in its favor. The court ruled that Favreau had been acting outside the scope of his employment at the time of the accident and, therefore, directed a verdict in favor of Parker X-Ray.

Subsequently, the jury found in favor of the plaintiffs as against Elliott and determined that he bore sole responsibility for the accident. Thereafter, the plaintiffs filed a motion for an additur and to set aside the verdict as to damages. The court denied that motion and this appeal followed.

I

The plaintiffs first claim that the court improperly failed to grant their motion for an additur and to set aside the verdict as to damages. We disagree.

Before analyzing the issue before us, we first set forth the appropriate standard of review. "The trial court's refusal to set aside the verdict 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 [a motion for additur and].... to set aside [a] 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 [it] did.... 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...." (Citation omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn. App. 534, 541, 792 A.2d 132 (2002).

Moreover, "[t]he existence of conflicting evidence limits the court's authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given.... From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury." (Citations omitted; internal quotation marks omitted.) Beverly v. State, 44 Conn. App. 641, 647, 691 A.2d 1093 (1997).

In the present case, the jury was presented with conflicting evidence concerning the nature and extent of Robert Mazzacane's injuries. The jury heard evidence that he had a prior history of neck pain and had undergone lower back surgery two weeks prior to the accident. It also heard that in the year following the accident, he had been involved in another motor vehicle accident after which he brought an action for neck and lower back injuries.

As to his lost wages, Robert Mazzacane admitted that he was not working at the time of the accident due to his prior lower back surgery. He also admitted that his lower back surgery contributed to his inability to return to work after the subject accident.

On the basis of the conflicting evidence before it, the jury could have reasonably concluded that Robert Mazzacane's injuries were caused or aggravated by factors other than the 1995 accident. Given the evidence before it, the jury reasonably could have attributed only a portion of the plaintiffs' alleged injuries and damages to that accident. Therefore, the court did not abuse its discretion in denying the plaintiffs' motion to set aside the verdict and for additur.

II

The plaintiffs next claim that the court improperly directed...