McSwiggan v. Kaminsky

• Decision Date: 20 October 1994
• Docket Number: No. 12283,12283
• Citation: 35 Conn.App. 673,647 A.2d 5
• Court: Connecticut Court of Appeals
• Parties: Thomas A. McSWIGGAN v. Kera A. KAMINSKY et al.

Page 5

647 A.2d 5

35 Conn.App. 673

Thomas A. McSWIGGAN v. Kera A. KAMINSKY et al.

No. 12283.

Appellate Court of Connecticut.

Argued April 25, 1994.

Decided Aug. 30, 1994.

Certification Denied Oct. 20, 1994.

John D. Jessep, Danbury, for appellant (plaintiff).

Paul E. Pollock, with whom, on the brief, was Colleen D. Fries, Bridgeport, for appellees (defendants).

Before FREDERICK A. FREEDMAN, SCHALLER and SPEAR, JJ.

SPEAR, Judge.

The plaintiff appeals from the judgment rendered in his favor in a personal injury action. He claims that the trial court's instructions as to the difficulty of proving pain and suffering improperly enlarged his burden of proof. We agree and reverse the judgment.

The jury reasonably could have found the following facts. On May 1, 1988, the plaintiff was standing in a parking lot when a car operated by the defendant Kera A. Kaminsky and owned by the defendant Zane Kaminsky backed up and struck the plaintiff. The force was sufficient to break the plaintiff's left leg and turn his foot 180 degrees. The plaintiff was transported to the hospital where he underwent surgery to manipulate his tibia and fibula back into place. He returned to the hospital ten days later and underwent a second surgery after the orthopedist discovered that the plaintiff's fractured bones were again displaced. To stabilize the fractured bones, metal plates and bone grafts removed from the plaintiff's hip were inserted in his leg. On May 16, 1989, the plaintiff underwent a third surgery in which the plates and screws were removed from his leg.

In February, 1992, doctors discovered that new bone had grown between the plaintiff's tibia and fibula, resulting in a restricted range of motion and a limp in his walk. This condition necessitated further surgery. As a result of the pain, the plaintiff slept poorly and experienced nightmares. He also experienced physical difficulties in attempting to work and his emotional state "was not very good." Since the injury, his leg has felt unusually cold, he has not participated in any sports and he has a poor gait.

The jury returned a verdict of $81,159.03, consisting of economic damages of $66,159.03 and damages for pain, suffering and permanent injuries of $15,000. ¹ The plaintiff moved to set aside the verdict because of the allegedly improper instructions and the inadequate pain and suffering award. After denying the motion, the trial court rendered judgment on the verdict, and this appeal ensued.

As a threshold issue, we must first determine whether the plaintiff properly preserved his claim for appeal. The defendants contend that the plaintiff failed to except properly to the jury charges regarding physical and mental pain and suffering and, therefore, is precluded from raising any claim of error in the charge on appeal. We disagree.

The trial court instructed the jury concerning physical and mental pain and suffering on three occasions: (1) during the initial charge to the jury; (2) in the supplemental instruction after the plaintiff's exception; and (3) in the instruction given in response to the jury's request for guidance on the issue of pain and suffering. ²

Practice Book § 315 provides that jury instructions are reviewable if "the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered." ³ See also Yale University School of Medicine v. Collier, 206 Conn. 31, 39-40, 536 A.2d 588 (1988); Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 750, 535 A.2d 1287 (1988); Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 591, 627 A.2d 443 (1993). The plaintiff properly took exception to the initial charge but did not except to the second and third charges. The defendants claim that further exceptions were necessary because our Supreme Court has stated that "[w]here a court specifically corrects a portion of its charge after an exception is taken to it, the rule is that the excepting party must again except to the charge as corrected. If he does not so except, he may not claim that alleged error on appeal." (Emphasis added.) Enlund v. Buske, 160 Conn. 327, 332, 278 A.2d 815 (1971). Contrary to the defendants' assertion, however, this is not fatal to the plaintiff's appeal because the trial court did not make any specific corrections to the first instruction. Rather, it simply gave a second instruction without correcting the initial charge. In the third and final instruction, the trial court referred the jury back to the first instruction.

In Enlund, our Supreme Court held that where a party properly excepts to the initial charge and the court does not make any subsequent corrections to its instructions, the initial charge may be properly assigned as error on appeal. Id. By excepting to the initial charge on pain and suffering the plaintiff properly preserved this claim for our consideration.

The plaintiff asserts that the trial court improperly instructed the jury as to pain and suffering. We agree.

"In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts.... We consider whether the instructions are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.... The charge must give the jurors a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues." (Citations omitted.) Goodmaster v. Houser, 225 Conn. 637, 644-45, 625 A.2d 1366 (1993); see also Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991); Castaldo v. D'Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).

The court charged the jury with regard to physical and mental pain and suffering as follows: "There was evidence that the plaintiff's injuries were painful to him at the time and that he has had pain from time to time. If you find that he has suffered and continued to suffer physical and mental pain and suffering, he's entitled to be compensated for it. You should keep in mind that pain and suffering is difficult to prove and disprove and there's always the possibility that there is no real basis for the claim. Consider the evidence with care, but if it is proven by a preponderance of the evidence you should award damages for the plaintiff for physical and mental pain and suffering to the extent that it exists." (Emphasis added.)

After the jury was excused, the plaintiff excepted to the trial court's charge. The jury was brought back and further instructed: "I think I also did mention to you on the concept of pain and suffering that what's involved in that is both physical pain and mental suffering. They're similar but related concepts, so you can award--to the extent that you find ... pain and suffering, physical and mental exist you're entitled to award damages for that if proven by a fair preponderance of the evidence."

Shortly after the jury retired to deliberate, they returned and requested guidance from the trial judge with respect to his charge on physical and mental pain and suffering. ⁴ His further explanation did not correct the first instruction. The court referred to its original instruction stating that: "You should keep in mind as I indicated to you originally that this is something that is difficult to prove or disprove. And there's always the possibility that claims can be either overrated or underrated. And you should consider the evidence and decide if it's been proven by a preponderance of the evidence if there is a pain and suffering award and to the extent there is, you should award damages for it." ⁵ (Emphasis added.)

The plaintiff contends that Buckley v. Lovallo, 2 Conn.App. 579, 481 A.2d 1286 (1984), is dispositive of this appeal. In Buckley, we held that instructions similar to those given in the present case were improper and we remanded the case for a new trial on the issue of damages. In Buckley v. Lovallo, supra, 2 Conn.App. at 587-88, 481 A.2d 1286, the court charged the jury as follows: " 'A plaintiff injured by the wrongdoing of another is just as much entitled to be compensated for mental suffering thereby, and the results that would [proximately] follow from it, as well as physical suffering. From the nature of the evidence in support of such suffering, however, it is difficult to prove or disprove its existence or extent with certainty, and there is always the possibility that there is no real basis for the claim or that the suffering, to a greater or lesser extent is exaggerated. For that reason, you should scrutinize with care the evidence offered and approach the matter with caution. But if you are satisfied that a fair preponderance of the evidence supports the claim, the plaintiff is entitled to be compensated for mental distress and suffering.' " (Emphasis...