Riccio v. Abate

• Decision Date: 09 January 1979
• Citation: 176 Conn. 415,407 A.2d 1005
• Court: Connecticut Supreme Court
• Parties: Genevieve C. RICCIO v. Richard A. ABATE et al.

Page 1005

407 A.2d 1005

176 Conn. 415

Genevieve C. RICCIO v. Richard A. ABATE et al.

Supreme Court of Connecticut.

Argued Oct. 11, 1978.

Decided Jan. 9, 1979.

Thomas F. Brown, New Haven, with whom, on the brief, was Charles A. Sherwood, New Haven, for appellant (plaintiff).

James O'Connor Shea, New Haven, with whom, on the brief, was Gerald H. Cooper, Orange, for appellees (defendants).

Before COTTER, C. J., and BOGDANSKI, LONGO, SPEZIALE and PETERS, JJ. SPEZIALE, Associate Justice.

In October, 1974, the plaintiff, Genevieve C. Riccio, brought this action to recover for personal injuries that she allegedly received as a result of an accident on October 24, 1972, in which her automobile was struck in the rear by an automobile operated by the defendant Richard A. Abate and owned by the defendant Rosario D. Abate. On April 4, 1975, the court granted the plaintiff's motion for summary judgment as to liability. On September 9, 1976, just prior to the start of trial before the jury on the issue of damages, the defendants amended their answer and the defendant Richard admitted that he failed to keep a proper lookout. At the conclusion of its charge to the jury, the court submitted two separate verdict forms on damages for their consideration: one for the plaintiff and one for the defendants. On September 10, 1976, the jury returned a verdict for the defendants, which the court accepted. The plaintiff's motion to set aside the verdict was denied by the court and judgment was rendered for the defendants. This is the plaintiff's appeal therefrom.

There was evidence before the jury that the plaintiff was driving over the Quinnipiac River bridge on I-95 when the automobile operated by the defendant Richard rear-ended her automobile. The traffic was heavy and the vehicles were moving bumper to bumper at a speed of never more than five miles per hour. The plaintiff claimed, inter alia, neck, arm and back injuries as a result of the accident. At trial, there was conflicting expert medical testimony by doctors who had examined the plaintiff: the plaintiff's two doctors believed that her injuries resulted from the accident, but the doctor who testified for the defendants disagreed and concluded that the plaintiff "probably does not actually have any significant permanent injury resulting from the accident itself of 1972."

The sole issue raised on appeal is whether the trial court erred in denying the plaintiff's motion to set aside the jury verdict. The standard that this court must apply in reviewing such an order is strict: "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. Birgel v. Heintz, 163 Conn. 23, 27, 301 A.2d 249." Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167, 168 (1978). "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. Waldron v. Raccio,166 Conn. 608, 618, 353 A.2d 770; Neal v. Shiels, Inc., 166 Conn. 3, 19, 347 A.2d 102." Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172, 183 (1976).

Even though the defendants were found liable when the court granted the plaintiff's motion for summary judgment, the burden of proof as to the amount of damages sustained was upon the plaintiff; and the jury in this case were "the ultimate judge of the credibility of witnesses and the weight to be accorded their testimony. State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356 (1978). This court cannot retry the facts or pass upon the credibility of the witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975)." State v. Hawthorne, 176 Conn. 367, 371, 407 A.2d 1001, p. 1003 (1978). The verdict returned in this case showed that the jury chose to believe the defendants and not the plaintiff. In testing that verdict, the trial court had wide discretion. We conclude that it did not abuse that discretion in denying the plaintiff's motion to set aside the verdict.

The court was wrong, however, in submitting the two separate verdict forms on the issue of damages to the jury for their consideration. ¹ The issue of liability had been previously decided by the court when it granted the plaintiff's motion for summary judgment, and, therefore, the jury had before them only a hearing in damages. The defendants were found liable by the court and the effect of their liability was "to establish the fact that a technical legal injury had been done by them to the plaintiff, and this entitled the plaintiff to at least nominal damages. Schmeltz v. Tracy, 119 Conn. 492, 496, 177 A. 520; Dewire v. Hanley, 79 Conn. 454, 458, 65 A. 573; Parker v. Griswold, 17 Conn. 288, 302." Keller v. Carone, 138 Conn. 405, 406-407, 85 A.2d 489 (1951); Dimmock v. New London, 157 Conn. 9, 15-16, 245 A.2d 569 (1968). This court, however, as a general rule will not reverse and grant a new trial for a mere failure to award nominal damages. ² Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973); Waicunas v. Macari, 151 Conn. 134, 139, 193 A.2d 709 (1963); Keller v. Carone, supra, 406-407; Went v. Schmidt, 117 Conn. 257, 259, 167 A. 721 (1933); Beattie v. New York, N. H. & H. R. Co., 84 Conn. 555, 559, 80 A. 709 (1911). This case does not warrant an exception to the general rule; see Sessa v. Gigliotti, supra; therefore, it was not reversible error that the plaintiff was not awarded nominal damages.

While it is advisable for some actions in negligence to be tried in two parts, i. e., one part as to liability and the second part as to damages (if liability is found on the part of the defendant); see annot., Tort Separate Trial of Issues, 85 A.L.R.2d 9; this case points up the fact that confusion may result if a jury are given two verdict forms when considering damages. The purpose of separate determinations of liability and of damages is to simplify the process by limitation, not to...