Musorofiti v. Vlcek, (AC 19677)

Citation783 A.2d 36,65 Conn. App. 365
Decision Date28 August 2001
Docket Number(AC 19677)
CourtAppellate Court of Connecticut

Foti, Dranginis and Dupont, JS. Thomas M. DeLillo, with whom, on the brief, was James E. Mattern, for the appellants (plaintiffs).

Keith S. McCabe, for the appellees (defendants).



The plaintiff Rocco Musorofiti (plaintiff husband) appeals from the judgment rendered following the denial of his motion for an additur or to set aside as to damages only a jury verdict in his favor against the defendants, Judith A. Vlcek and Ralph Vlcek, on his negligence claim. The plaintiff Barbara Musorofiti (plaintiff wife) appeals from the judgment in favor of the defendants as to her loss of consortium claim. On appeal, the plaintiff wife claims that the trial court improperly refused to charge the jury on the loss of consortium claim. Both plaintiffs claim that the court improperly admitted an exhibit pursuant to the learned treatise exception to the hearsay rule and that such admission prejudiced the plaintiffs, and they claim that the court improperly granted the defendants' motion in limine, which precluded the plaintiffs from cross-examining the defendants' expert concerning a medical malpractice action against that expert. We reverse the judgment for the defendants on the loss of consortium count and affirm the judgment for the plaintiff husband as to the amount on the negligence count.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff husband and the defendant Judith A. Vlcek were two drivers involved in an automobile accident on February 27, 1996, in East Lyme. As a result of the accident, the plaintiff husband allegedly suffered injuries to his spine and temporomandibular joint (TMJ). The plaintiffs filed a two count complaint against the defendants.1 Count one alleges negligence by the defendants with respect to the plaintiff husband's injuries from the automobile accident. Count two alleges that the plaintiff wife suffered a loss of consortium as a result of the defendants' negligence. The defendants' answer contains a general denial.

At trial, the court refused to charge the jury on count two, the loss of consortium claim. On April 7, 1999, the jury returned a verdict in favor of the plaintiff husband on count one in the amount of $10,000 ($3000 for economic damages and $7000 for noneconomic damages). On April 12, 1999, the defendants filed a motion for a collateral source reduction, claiming entitlement to certain setoffs pursuant to General Statutes § 52-225a. The court granted the defendants' motion and ordered an offset in the amount of $2962. On April 16, 1999, the plaintiff husband filed a motion for additur or to set aside the verdict as to damages only.2 Thereafter, on May 17, 1999, the court denied the plaintiff husband's motion and rendered judgment in his favor on count one in the amount of $7038. On August 18, 1999, the plaintiffs filed a motion to complete the record and to render a judgment as to count two, the loss of consortium claim. On September 10, 1999, the court granted the motion and rendered judgment for the defendants as to that count. We will provide additional facts as necessary to the specific claims.


We first address the court's refusal to charge the jury on the plaintiff wife's loss of consortium claim. The plaintiff wife argues that she presented sufficient evidence to support the claim and, therefore, the law required the court to charge the jury on her cause of action. The plaintiff wife asserts that the proper remedy for the failure to charge is a retrial of both the husband's negligence claim and her loss of consortium claim. According to her, the "inextricably intertwined" nature of the two causes of action requires a retrial of both claims.

The defendants claim that the plaintiff wife has failed to supply this court with an adequate record for review of the failure to charge. The defendants argue, in the alternative, that if this court finds that the record is adequate for appellate review and that the plaintiff wife was entitled to a charge on her cause of action, the proper remedy is a hearing in damages limited to the wife's damages relating to her loss of consortium claim. We agree with the plaintiff wife that the court should have charged the jury as to her loss of consortium claim, but agree with the defendants as to the remedy.


The following additional facts are relevant to our resolution of this issue. At trial, the plaintiff husband testified concerning certain changes that his marriage had undergone since the accident. Specifically, he testified that the injuries he sustained in the accident had "put a strain on my marriage. My wife—as I sit here today I realize just how much I've put her through, I went through periods of grouchiness, uncooperative, just downright nasty, which is really not my regular persona. I'm not really like that. And I've really put her through an awful lot .... I can't do a lot of things that I used to do that I would even like to do." The plaintiff husband also testified that he experienced difficulty and inability in helping with certain tasks around the house. The plaintiff wife also offered testimony concerning the effect her husband's injuries had on their marriage. According to her testimony, their vacations changed and became nearly nonexistent because her husband's injuries made airplane travel impossible and road travel very difficult. The travel difficulties altered their retirement plans, according to her testimony. They had intended to "travel ... enjoy life, do things together. We both worked, and it was time to retire and enjoy a little, and it's really difficult." She and her husband no longer take walks together. Moreover, according to her testimony, they would both lose their tempers and argue about household chores, such as cooking. The plaintiff wife testified that her husband's behavior made her "nervous, scared. I worried, very much so."

On April 5, 1999, the plaintiff wife filed a preliminary request to charge concerning count two, the loss of consortium claim. The court refused to charge on that count, and the plaintiff wife took exception to that denial. The record does not indicate the court's reason for denying the request to charge, and the plaintiffs did not file a motion for articulation.

Upon deliberation, the jury received one verdict form to complete. The verdict form was phrased in the singular, referring to only one plaintiff, and did not refer to either count one or to count two.3 The form reads in relevant part: "What sum of money do you award to justly compensate plaintiff for the plaintiff's economic damages, if any?4 ... What sum of money do you award to justly compensate plaintiff for the plaintiffs noneconomic damages, if any? ... Total Damages for the plaintiff (Emphasis added.) The verdict form precluded the jury from returning a verdict for the plaintiff wife on the loss of consortium claim.

Although the record does not indicate whether the defendants filed a motion for a directed verdict on count two, the loss of consortium claim, or that the court ordered one on its own motion, we determine that the lack of a charge to the jury on loss of consortium, coupled with the verdict form referring to only one plaintiff, was tantamount to a directed verdict. See Borkowski v. Sacheti, 43 Conn. App. 294, 312, 682 A.2d 1095 (denial of request to charge amounted to sua sponte directed verdict), cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). Accordingly, we invoke the standard of review applicable to directed verdicts.5

"Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." Harewood v. Carter, 63 Conn. App. 199, 202, 772 A.2d 764 (2001). We believe the jury reasonably could have reached the conclusion that the plaintiff wife was entitled to prevail.

To avoid a directed verdict on the loss of consortium claim, the plaintiff wife in the present case needed to present evidence from which a reasonable jury could conclude, more probably than not, that (1) her husband sustained injuries, (2) she suffered damages due to those injuries and (3) the defendants were liable for those injuries. See 41 Am. Jur. 2d 166, Husband and Wife § 250 (1995).

"Loss of consortium is defined as the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage.... The `intangible' components of consortium are the `constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.'" (Citation omitted.) Shegog v. Zabrecky, 36 Conn. App. 737, 751, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). "By such services is meant not so much earned wages as assistance and helpfulness in the relations of conjugal life according to the station of the parties. In addition, there is the exclusive right in each to the society, companionship and conjugal affection of the other. To damages for the loss of these rights may be added recovery for mental anguish and injured feelings." Keyes v. Churchward, 135 Conn. 115, 118, 61 A.2d 668 (1948). "Damages awarded for loss of consortium include future as well as past suffering, and are measured by the extent of the loss incurred, to the extent that money can measure it.... Since loss of consortium is incapable of precise measurement, considerable latitude is allowed a jury in estimating damages." (Citation omitted.) Shegog v. Zabrecky, supra, 751.

In the present case, the defendants do not...

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  • Ashmore v. Hartford Hosp.
    • United States
    • Supreme Court of Connecticut
    • June 4, 2019
    ...the consortium award exceeded the damages award to the principal plaintiff" [internal quotation marks omitted] ); Musorofiti v. Vlcek , 65 Conn. App. 365, 376, 783 A.2d 36 ("the derivative spouse may not recover more than the injured spouse"), cert. denied, 258 Conn. 938, 786 A.2d 426 (2001......
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    ...such authority.Although we have not had occasion to do so, the Appellate Court previously addressed this issue in Musorofiti v. Vlcek,65 Conn.App. 365, 382–85, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). In that case, after the plaintiff's treating physician identified th......
  • Voris v. Molinaro
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    • November 22, 2011
    ...the derivative consortium claim. For that same reason, the plaintiff's reliance on the Appellate Court's decision in Musorofiti v. Vlcek, 65 Conn.App. 365, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001), is unavailing. Moreover, even if we were to look to Musorofiti as persua......
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