October 5, 2017
L. Dowd, with whom, on the brief, was Brendon P. Levesque,
for the appellants (defendants).
A. Leventhal, for the appellee (plaintiff).
Sheldon, Prescott and Bear, Js.
defendants, Edward Lajoie and Kathleen Weaver,  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
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.
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.''
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.
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
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.
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.,
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).
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