Tomczuk v. Alvarez

• Decision Date: 12 May 1981
• Citation: 184 Conn. 182,439 A.2d 935
• Court: Connecticut Supreme Court
• Parties: Mark TOMCZUK PPA et al. v. Jaciento ALVAREZ et al. Salvatore CARABETTA v. Alejandro J. ALVAREZ et al.

Page 935

439 A.2d 935

184 Conn. 182

Mark TOMCZUK PPA et al. v. Jaciento ALVAREZ et al.

Salvatore CARABETTA v. Alejandro J. ALVAREZ et al.

Supreme Court of Connecticut.

Argued Feb. 10, 1981.

Decided May 12, 1981.

Harry L. Nair, Hartford, with whom was Valentine J. Sacco, Hartford, for appellant (named defendant) in the first case.

William F. Gallagher, New Haven, with whom were Alfred L. Fordiani, Jr., and William G. Comiskey, Meriden, for appellee (named plaintiff) in the first case.

Harry L. Nair, Hartford, with whom was Valentine J. Sacco, Hartford, for appellants (defendants) in the second case.

William F. Gallagher, New Haven, with whom were Elizabeth A. Dorsey, New Haven, and, on the brief, John R. McGrail, New Haven, for appellee (plaintiff) in the second case.

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

ARMENTANO, Associate Justice.

These two cases were commenced as a result of a collision between two motor vehicles and were consolidated for trial. Salvatore Carabetta was operating a motor vehicle, owned by his employer, Carabetta Bros., Inc., in an easterly direction on Canyon Drive, Meriden, when it collided with the second motor vehicle traveling in the opposite direction. Alejandro J. Alvarez ¹ was operating the second motor vehicle which was owned by his employer, The Meriden Record Company (Record). Mark Tomczuk, a fellow employee of Alvarez, was a passenger in Record's vehicle. In the first case, Tomczuk commenced a negligence action against Alvarez, Carabetta, and Carabetta Bros., Inc., for the personal injuries he sustained. During trial, Tomczuk executed a covenant not to sue Carabetta and Carabetta Bros., Inc., in exchange for $90,000 and subsequently withdrew his complaint against them. A verdict and judgment in the amount of $150,000 was rendered in favor of Tomczuk against Alvarez from which Alvarez has appealed.

In the second case, Carabetta filed a complaint against Alvarez and Record, seeking damages for his personal injuries. Record counterclaimed for the money it had expended for medical treatment for its employee, Alvarez, pursuant to the Workers' Compensation Act. The jury returned a verdict, and the court rendered judgment for Alvarez and Record on the complaint and for Carabetta on Record's counterclaim. Record has appealed from the judgment rendered on the counterclaim.

We have reviewed Alvarez's brief and have framed his claims of error which are discussed below. The issues in the two appeals are identical so that our resolution of Alvarez's claims of error in the first appeal are dispositive of Record's arguments in the second one. In fact, the brief submitted by Record contains no argument, but merely a reference to Alvarez's brief for the appropriate discussion of the issues raised.

I

Alvarez's appeal rests on the court's denial of his motion to set aside the verdict, which was based on seven grounds. He first argues that the court erred in not setting aside the verdict because it was contrary to the law and evidence. The front driver's side of the motor vehicle operated by Carabetta collided with the front driver's side of the motor vehicle operated by Alvarez at approximately 6 p. m. on March 6, 1969, in the center of a ninety degree curve of a narrow, two lane, blacktop road. No painted lines separated the right-hand lane from the left-hand lane. The parties had conflicting views of the location of the motor vehicles and the speed of Alvarez's motor vehicle at the time of the accident. A crucial issue existed as to which motor vehicle crossed the center of the road, thereby causing the collision. The trial court properly delegated to the jury the function of determining whose negligence, if any, caused the accident and resulting injuries. See Jacobs v. Goodspeed, 180 Conn. 415, 418, 429 A.2d 915 (1980).

As a general rule, the jury as the trier of conflicting evidence is entitled to an acceptance of their verdict, unless we can say as a matter of law that the jury's conclusions were such that reasoning minds could not reasonably have reached them. Skaling v. Sheedy, 101 Conn. 545, 548, 126 A. 721 (1924). The ultimate test for determining whether to set aside a verdict is to ask if the jury could reasonably have reached the conclusion they did. Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 610, 419 A.2d 339 (1979); Lopez v. Price, 145 Conn. 560, 564-65, 145 A.2d 127 (1958). The trial court has broad discretion when deciding a motion to set aside on this ground, and its decision will not be disturbed in the absence of a clear abuse. Jacobs v. Goodspeed, supra; Slabinski v. Dix, 138 Conn. 625, 628, 88 A.2d 115 (1952). In this case there was sufficient evidence to support the jury's verdict so that we cannot say that the court abused its discretion by refusing to set aside the verdict on the ground that it was contrary to the law and the evidence.

II

Alvarez also claims that his motion to set aside should have been granted because the trial court did not honor his post-verdict request to inquire whether the jury included in their award of damages the $90,000 payment by Carabetta and his employer for Tomczuk's covenant not to sue. The court has broad discretion when considering a party's request to submit interrogatories to a jury. Falk v. Schuster, 171 Conn. 5, 8-9, 368 A.2d 40 (1976). In addition, the accepted procedure requires that such a request be made prior to oral argument and not after a verdict has been returned. Ibid.; see Keeler v. General Products, Inc., 137 Conn. 247, 252, 75 A.2d 486 (1950). Furthermore, the court clearly and unequivocally charged the jury to deduct the $90,000 payment from any damages they found were sustained by Tomczuk as a result of Alvarez's negligence. ² It must be presumed that the jury carried out the instructions of the court. Spiess v. Traversa, 172 Conn. 525, 528, 375 A.2d 1007 (1977); State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1972).

III

We next consider Alvarez's claim that the verdict was excessive and ought to have been set aside or that a remittitur should have been ordered. "We review the verdict in this case in the light of certain principles. First, the amount of an award is a matter peculiarly within the province of the trier of facts. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978); Johnson v. Flammia, 169 Conn. 491, 499, 363 A.2d 1048 (1975). Second, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant. Thomas v. Katz, 171 Conn. 412, 416, 370 A.2d 978 (1976). 'The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.' Birgel v. Heintz, 163 Conn. 23, 28, 301 A.2d 249 (1972); Maltbie, Conn.App.Proc. § 197. Third, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness. Mansfield v. New Haven, 174 Conn. 373, 375, 387 A.2d 699 (1978)." Pisel v. Stamford Hospital, 180 Conn. 314, 340-44, 430 A.2d 1 (1980). See Kiniry v. Danbury Hospital, --- Conn. ---, ---, 439 A.2d 408 (42 Conn. L.J., No. 42, pp. 4, 8-9) (1981). Likewise, in "ordering a remittitur, a fair appraisal of compensatory damages, and not the limit of legitimate generosity, is the rule." Brower v. Perkins, 135 Conn. 675, 682, 68 A.2d 146 (1949). The court's broad power to order a remittitur should be exercised "only when it is manifest that the jury have included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions." Rosenblatt v. Berman, 143 Conn. 31, 37-38, 119 A.2d 118 (1955). The "relevant inquiry is whether the verdict falls within the necessarily uncertain limits of fair and reasonable compensation or whether it so shocks the conscience as to compel the conclusion that it was due to partiality, prejudice or mistake." (Citations omitted.) O'Brien v. Seyer, --- Conn. ---, ---, 439 A.2d 292 (42 Conn. L.J. No. 34, pp. 1, 4) (1980).

There was medical evidence from which the jury could have found that Tomczuk sustained multiple lacerations, bruises and abrasions on his face and left leg; acute sprain of his neck and lumbar spine; and injury to his left knee. The injured left knee required, over a period of eight years, continual medical supervision, treatment and medication; major surgery; and five hospitalizations. During the last hospital visit, his knee was fused, eliminating all movement and resulting in a 60 percent disability for the remainder of his forty-seven and one half-year life expectancy. His medical bills and lost wages amounted to over thirteen thousand dollars. Finally, the jury had the right to consider Tomczuk's pain and suffering as well as the effect of his permanent injury on his ability to pursue life's enjoyments. Giving due weight to the principles and evidence which we have stated, we conclude that the award is within the bounds of a fair, reasonable, and just compensation.

IV

Alvarez also finds error in the court's instruction to the jury on "the right to assume" and "the unavoidable accident." We will consider each individually. The trial court did not give "the right to assume" charge requested by Alvarez, ³ but did instruct the jury in the following manner: "For after all, the test in law is whether or not a party has failed to exercise the same degree of care which an ordinary prudent person would have exercised under the same circumstances. In determining this question, you must bear in mind that everyone is entitled to assume that everyone else is exercising reasonable care and will exercise reasonable...