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Cusano v. Lajoie

Court of Appeals of Connecticut

December 12, 2017


          Argued October 5, 2017

          Karen L. Dowd, with whom, on the brief, was Brendon P. Levesque, for the appellants (defendants).

          Scott A. Leventhal, for the appellee (plaintiff).

          Sheldon, Prescott and Bear, Js.


          BEAR, J.

         The defendants, Edward Lajoie and Kathleen Weaver, [1] appeal from the judgment of the trial court granting the motion of the plaintiff, Christopher Cusano, for additur in the amount of $2000. On appeal, the defendants argue that the trial court abused its discretion in granting the motion for additur. We agree and, accordingly, reverse the judgment of the trial court.

         The plaintiff filed this action following a minor car accident that occurred on July 4, 2014, in which Weaver's vehicle, while being driven by Lajoie, rear-ended the plaintiff's vehicle. The collision caused the plaintiff's vehicle to sustain damage requiring approximately $678 in repair costs.

         Following the collision, the plaintiff did not immediately feel injured, so he drove away and spent several hours at a picnic. When the plaintiff woke up the next day, however, he allegedly felt pain in his neck and upper back, which caused him to leave work approximately ninety minutes after he arrived. Five days later, the plaintiff saw a chiropractor, Awilda Figueroa, to whom he reported that he was experiencing pain that was ‘‘like a nine'' on a scale of one to ten. Figueroa saw the plaintiff nineteen times over the ensuing three months for the alleged injuries to his neck and upper back. Over the course of his treatment, the level of pain the plaintiff reported to Figueroa decreased. After the plaintiff's final visit in January, 2015, Figueroa stated in her final report that ‘‘[t]he patient reports that all injuries and underlining pain have resolved with reference to the accident he suffered.''

         Following the accident, the plaintiff's employer, a furniture liquidation company, placed him on light duty. When the plaintiff attempted to resume his more labor-intensive duties, he allegedly began to feel discomfort in his neck and upper back. The plaintiff also worked part time for an executive protection firm, performing five or six jobs per year, ranging from what he described as high risk to low risk assignments. After the accident, the plaintiff allegedly did not accept any high risk assignments; however, he occasionally accepted low risk assignments.

         On April 7, 2015, the plaintiff filed a two count complaint alleging negligence against the defendants. The defendants did not contest liability. After a jury trial in April, 2016, the jury initially sought to return a verdict awarding the plaintiff the full amount of his claimed $3320 in medical expenses, but no damages for his claimed lost wages of $750 or his claimed noneconomic damages. After its review of the initial verdict, the court declined to accept it and instructed the jury as follows: ‘‘While that is a possible verdict, some might argue that it is inconsistent to say that a person was injured enough to incur medical expenses and lost wages, but experienced no pain and suffering or other noneconomic damages. On the other hand, you may have concluded that while the plaintiff proved his economic damages, he failed to prove any noneconomic damages. To help eliminate any concerns either party might have, I'm going to ask you to go back and review your verdict. In addition to my instructions regarding the plaintiff's burden of proving damages, you should, also, remember my instruction that even momentary pain and suffering is compensable.''

         After reconsidering its verdict, the jury once again sought to return a verdict awarding the plaintiff no noneconomic damages. On April 13, 2016, after the second verdict was accepted and recorded, the plaintiff filed a motion for additur, or in the alternative, to have the verdict set aside as ‘‘inconsistent and unreasonable given the evidence presented in this case.'' The court determined that ‘‘under the particular circumstances of this case, it is inconsistent to conclude that [the plaintiff] was injured to the extent that he incurred substantial medical expenses and at no time during the course of the treatment experienced pain and suffering. The court is compelled to conclude that the jury did not apply the law to the facts of the case, or were influenced by partiality, prejudice or mistake.'' The court accordingly ordered an additur for noneconomic damages in the amount of $2000. The plaintiff accepted the additur, but the defendants rejected it. This appeal followed.

         The standard of review for determining whether a trial court properly ordered an additur is well settled. ‘‘[W]e review a decision of the trial court . . . ordering an additur to determine whether the trial court properly exercised its discretion.'' Wichers v. Hatch, 252 Conn. 174, 181, 745 A.2d 789 (2000). ‘‘[T]he jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue. That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.'' Id., 188-89.

         ‘‘It is axiomatic that [t]he amount of damages awarded is a matter peculiarly within the province of the jury . . . . Moreover, there is no obligation for the jury to find that every injury causes pain, or the amount of pain alleged. . . . Put another way, [i]t is the jury's right to accept some, none or all of the evidence presented. . . . It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what-all, none, or some-of a witness' testimony to accept or reject.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Smith v. Lefebre, 92 Conn.App. 417, 421-22, 885 A.2d 1232 (2005). ‘‘The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption.'' DeEsso v. Litzie, 172 Conn.App. 787, 796, 163 A.3d 55, cert. denied, 326 Conn. 913, A.3d (2017).

         On appeal, the defendants argue that the court failed to review the evidence in the light most favorable to sustaining the verdict. Specifically, the defendants argue that the court abused its discretion in ordering the additur because there existed conflicting evidence and questions of credibility, and the plaintiff's complaints were of a subjective nature, ...

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