Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Micalizzi v. Stewart

Court of Appeals of Connecticut

May 8, 2018

ROBIN MICALIZZI
v.
KENNETH STEWART

          Argued October 16, 2017

         Procedural History

         Action to recover damages for personal injuries sustained by the plaintiff in a motor vehicle accident allegedly caused by the defendant's negligence, and for other relief, brought to the Superior Court in the judicial district of Bridgeport and tried to a jury before Radcliffe, J.; verdict for the plaintiff; thereafter, the court denied the plaintiff's motion for additur or to set aside the verdict, and the plaintiff appealed to this court. Affirmed.

          Tracey Lane Russso, with whom, on the brief, was Gerard McEnery, for the appellant (plaintiff).

          Michael T. Vitali, for the appellee (defendant).

          DiPentima, C. J., and Sheldon and Norcott, Js.

          OPINION

          DiPENTIMA, C. J.

         In this personal injury action arising from an automobile collision, the jury found in favor of the plaintiff, Robin Micalizzi, and awarded her all of her claimed economic damages but zero noneconomic damages. She filed a motion to set aside the verdict and, in the alternative, for an additur on the ground that she also was entitled to noneconomic damages. The trial court denied that motion, and the plaintiff appealed from that denial. She claims that the court abused its discretion by (1) refusing to set aside the verdict or to order an additur because the jury's verdict was inconsistent and inadequate, and (2) refusing to set aside the verdict because of procedural irregularities. We do not agree. Accordingly, we affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On May 10, 2013, at the intersection of North Bishop and Grandfield Avenues in Bridgeport, a vehicle operated by the defendant, Kenneth Stewart, struck the vehicle the plaintiff was operating. The plaintiff claimed that the collision caused a strain/sprain of her cervical spine, permanent damage to her left hand and recurring, severe headaches. She consulted medical professionals and received some treatment for her alleged injuries, incurring a total of $7, 325 in medical expenses.

         On September 11, 2013, the plaintiff brought an action against the defendant, alleging that his negligence, statutory recklessness, and common-law recklessness had caused her aforementioned injuries.[1] On November 3 and 4, 2015, the matter was tried to a jury. On November 6, 2015, the jury returned a plaintiff's verdict, finding the defendant 65 percent responsible for the plaintiff's injuries and awarding the plaintiff that proportion of her total claimed economic damages. The jury did not award the plaintiff any noneconomic damages. The plaintiff filed a motion to set aside the verdict and, in the alternative, for an additur. After a hearing, the court orally denied the plaintiff's motion, and the plaintiff appealed from that denial.[2] Additional facts will be set forth as necessary.

         I

         The plaintiff first claims that the trial court abused its discretion by refusing to set aside the verdict or to order an additur. Specifically, the plaintiff argues that (1) the court should have set aside the verdict because the award of zero noneconomic damages conflicts with the jury's answers to the interrogatories and (2) the court should have set aside the verdict or ordered an additur because the award was inadequate as a matter of law. We disagree.

         We begin with the standard that governs our review. ‘‘The trial court's refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did. The trial court's decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . 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. . . .

         ‘‘[A]lthough the trial court has a broad legal discretion in this area, it is not without its limits. Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . the court's action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. . . . [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will.'' (Internal quotation marks omitted.) DeEsso v. Litzie, 172 Conn.App. 787, 795-96, 163 A.3d 55, cert. denied, 326 Conn. 913, 173 A.3d 389 (2017).

         A

         We first address the plaintiff's contention that the court should have set aside the verdict because the award of zero noneconomic damages conflicted with the jury's answers to the interrogatories she requested and, thus, was fatally inconsistent. We conclude that the verdict and the responses to the interrogatories were not necessarily inconsistent.

         A party may request that the court submit interrogatories to the jury pursuant to Practice Book § 16-18.[3] Interrogatories provide a breakdown of the components of the jury's award and of the factors underlying the jury's ultimate view of the evidence. DeEsso v. Litzie, supra, 172 Conn.App. 797; Caruso v. Quickie Cab Co., 48 Conn.App. 459, 462, 709 A.2d 1154 (1998); Marchetti v. Ramirez, 40 Conn.App. 740, 746, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997). In considering the plaintiff's claim, we note that ‘‘[i]t is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claimis made that the jury's answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers.'' (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698 A.2d 838 (1997); Froom Development Corp. v. Developers Realty, Inc., 114 Conn.App. 618, 626-27, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009).

         Only if a court cannot harmonize the verdict and the interrogatories may it refuse to accept such verdict. Rendahl v. Peluso, 173 Conn.App. 66, 95-96, 162 A.3d 1 (2017). ‘‘A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear. . . . A verdict will be deemed intelligible if it clearly manifests the intent of the jury.'' Sigular v. Gilson, 141 Conn.App. 581, 587, 62 A.3d 564, cert. granted, 308 Conn. 948, 67 A.3d 291 (2013) (appeal withdrawn Aug. 1, 2013).

         ‘‘The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury's allegedly inconsistent answers to . . . interrogatories is extremely limited. . . . To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as [a] matter of law judgment could only be rendered for the party against whom the general verdict was found; they must [negate] every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial.'' (Citation omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 269-70; Snell v. Norwalk Yellow Cab, Inc., 172 Conn.App. 38, 72, 158 A.3d 787, cert. granted, 325 Conn. 927, 169 A.3d 232 (2017); Froom Development Corp. v. Developers Realty, Inc., supra, 114 Conn.App. 626-27.

         In this case, in its answers to the interrogatories, the jury specifically found that (1) the defendant violated both General Statutes §§ 14-218a[4] and 14-222, [5] (2) the defendant violated both statutes ‘‘with reckless disregard''[6] and (3) the defendant's violation of such statutes with reckless disregard proximately caused the plaintiff's injuries, but that (4) the plaintiff was not entitled to double or treble damages. In addition, the jury found that the plaintiff was comparatively negligent. Ultimately, the jury determined that the plaintiff was entitled to recover 65 percent of $7, 325, the latter sum representing her claimed and proven economic damages, but no noneconomic damages. Thus, the jury's total award was $4, 761.25.

         It is the plaintiff's contention that, notwithstanding its award of noneconomic damages, the jury found that she had necessarily endured pain and suffering, therefore entitling her to noneconomic damages. Specifically, the plaintiff directs our attention to the third interrogatory, which reads: ‘‘Do you find that the violation of either or both statutes ‘with reckless disregard, ' was the proximate cause (substantial factor) of the injuries sustained by [the plaintiff]?''[7] The jury answered this interrogatory in the affirmative. The plaintiff contends that the phrase ‘‘injuries sustained by [the plaintiff]'' implies a subordinate finding that there were, in fact, noneconomic damages.[8] Specifically, the plaintiff asserts that were we to ‘‘[break] down the plain meaning of the terms used by the [j]ury in [its] findings, '' we would have to conclude ‘‘that medical care would not be rendered for injuries if there was no ‘physical pain and suffering [or] permanent injury disability or impairment.' ''

         This argument is unavailing. Even if we assume that the interrogatory and its answer were open to interpretation, our standard of review requires us to resolve any ambiguity in the verdict in favor of the verdict's propriety. See Barry v. Quality Steel Products, Inc., 263 Conn. 424, 435 n.14, 820 A.2d 258 (2003) (harmonizing verdict where compound question in jury interrogatory resulted in ambiguous answer); Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 270 (‘‘the court has a duty to attempt to harmonize the answers'' [internal quotation marks omitted]).

         When read in conjunction with the court's instructions to the jury; see Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 271 (‘‘we do not read the interrogatories in isolation, but, rather, in conjunction with the jury instructions''); it is clear that the third question concerned the nature of the defendant's liability, not the existence or extent of the plaintiff's damages. The court instructed the jury that it ought to decide damages last, that it should consider each claim for damages separately from all others, that it was free to credit or discredit any witness' testimony, and that the plaintiff had the burden of proving her damages by a fair preponderance of the evidence.[9]

         Indeed, the court made it clear that ‘‘the mere fact that the plaintiff suffered an injury or loss does not automatically entitle her to damages. She must prove by the preponderance of the evidence standard that her injuries and damages were proximately caused by some act or acts of negligence on the part of the defendant. In other words, the plaintiff must prove three elements to you. First, at least one act of negligence on the part of the defendant as specified or outlined in her complaint. Second, that that act or those acts proximately caused her injuries. And third, she must prove the resulting injuries and damages.'' (Emphasis added.) These instructions clarify that each component of the jury's verdict requires a separate consideration, and that the jury would necessarily have had to address the question of proximate causation before it turned to the question of damages. The plaintiff's interpretation of the challenged interrogatory would require the jury to proceed contrary to the court's instructions and consider the questions of causation and damages simultaneously. ‘‘[I]t is well established that, [i]n the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them.'' Monti v. Wenkert, 287 Conn. 101, 116, 947 A.2d 261 (2008).

         Accordingly, it is entirely plausible and reasonable for the jury here to have found that the defendant violated the two pleaded statutes with reckless disregard and that the plaintiff's injuries were caused by the same, but that the plaintiff did not prove her noneconomic damages by a fair preponderance of the evidence. See also part I B of this opinion. As a result, the plaintiff cannot demonstrate that the jury's verdict is inconsistent with its answers to the interrogatories. The court, therefore, did not abuse its discretion in refusing to set aside the verdict on that ground.

         B

         Having determined that the jury's verdict is not inconsistent with its answers to the interrogatories, we turn now to the plaintiff's contention that the award is inadequate and, thus, that the court abused its discretion in refusing to set it aside or to order an additur. This contention has two parts. First, the plaintiff argues that an award of zero noneconomic damages is inadequate as a matter of law where the jury has awarded one hundred percent of the claimed economic damages, which include medical expenses for the treatment of pain. Second, the plaintiff argues that the facts and circumstances of this case demand an award of noneconomic damages. We do not agree.

         1

         As to the first part of the plaintiff's argument, we disagree that an award of all claimed economic damages, including compensation for medical expenses for the treatment of pain, requires an award of noneconomic damages.

         ‘‘It is well established that in Connecticut a jury's decision to award economic damages does not trigger, as a matter of law, an automatic award of noneconomic damages. Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue here to determine whether inconsistency renders them legally inadequate. . . . In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), [our Supreme Court] held that trial courts, when confronted with jury verdicts awarding economic damages and zero noneconomic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law. . . .

         ‘‘Under Wichers, [r]ather than decide that an award of only economic damages is inadequate as a matter of law, the 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. . . .

         ‘‘Thus, pursuant to Wichers and its progeny, [a] plaintiff [is] not entitled to an award of noneconomic damages simply because the jury awarded her economic damages. On the contrary, [a] plaintiff, as the party claiming noneconomic damages, had the burden of proving them with reasonable certainty. . . . Simply stated, [where] the plaintiff claim[s] noneconomic damages . . . she ha[s] the burden of proof to show that she experienced pain as the result of the accident.'' (Citations omitted; internal quotation marks omitted.) DeEsso v. Litzie, supra, 172 Conn.App. 804-805.

         The plaintiff cites to Wichers v. Hatch, supra, 252 Conn. 174, and Schroeder v. Triangulum Associates, 259 Conn. 325, 789 A.2d 459 (2002), in support of her argument that the award is inadequate per se. She contends that these cases hold that where the jury awards all of the plaintiff's claimed economic damages, the jury has unambiguously determined that the claimed medical expenses were reasonable and necessary to treat pain caused by the claimed injury, and, thus, that an award of zero noneconomic damages invariably is inadequate.

         This is not an accurate reading of these cases. Although our courts sometimes have been reluctant to do so, [10] our Supreme Court expressly has allowed for an award of 100 percent of the claimed economic damages and zero noneconomic damages under the right circumstances. See Wichers v. Hatch, supra, 252 Conn. 188-89 (‘‘[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.''); Schroeder v. Triangulum Assocs., supra, 259 Conn. 334 n.5 (‘‘[o]ur conclusion on the facts of this case does not foreclose the possibility . . . that a jury in a case with different facts reasonably could award the full amount of a plaintiff's claimed economic damages but no noneconomic damages''); see also Melendez v. Deleo, 159 Conn.App. 414, 418-19, 123 A.3d 80 (2015) (affirming judgment awarding 100 percent of past claimed medical bills including for treatment of pain, wages, and property damage but zero noneconomic damages); Lidman v. Nugent, 59 Conn.App. 43, 46, 755 A.2d 378 (2000) (reversing and remanding with direction to reinstate jury verdict awarding all economic damages and zero noneconomic damages and render judgment thereon). Thus, contrary to the plaintiff's reading of our cases, they clearly stand for the proposition that there is no per se rule in cases where a jury awards substantial economic damages but no noneconomic damages.

         Additionally, the fact that the jury awarded economic damages for medical treatment, including treatment for pain, does not necessarily mean that it must award damages for pain itself. Under the fact intensive, case-by-case inquiry demanded by Wichers v. Hatch, supra, 252 Conn. 188-90, it may be reasonable for a jury to conclude that although a plaintiff suffered an injury caused by a defendant and incurred reasonable and necessary medical expenses in treating that injury, that plaintiff nevertheless did not suffer compensable pain and suffering. See Cusano v. Lajoie, 178 Conn.App. 605, 611, 176 A.3d 1228 (2017) (‘‘[T]he court seems to assume that because the plaintiff sought medical treatment for pain . . . and was awarded the full amount of the cost of that treatment, the plaintiff inevitably experienced compensable pain and suffering. Our Supreme Court expressly rejected that reasoning in Wichers v. Hatch, [supra, 188-90].'' [Emphasis added.]); Smith v. Lefebre, 92 Conn.App. 417, 422, 885 A.2d 1232 (2005) (‘‘there is no obligation for the jury to find that every injury causes pain'').[11] Indeed, this court previously has upheld verdicts that awarded economic damages for procedures specifically targeting pain and suffering, but zero noneconomic damages. Cusano v. Lajoie, supra, 605 (chiropractic); Melendez v. Deleo, supra, 159 Conn.App. 414 (manipulation, stimulation, cold packs, chiropractic); Silva v. Walgreen Co., 120 Conn.App. 544, 992 A.2d 1190 (2010) (emergency room observation and medication for anxiety, depression, and sleep disorders caused by alleged post-traumatic stress disorder); Smith v. Lefebre, supra, 92 Conn.App. 417 (physical therapy, ultrasound, traction, chiropractic); see also Lidman v. Nugent, supra, 59 Conn.App. 46 (upholding jury verdict awarding no noneconomic damages where trial court, in its decision, noted use of hot/cold packs, ultrasound, electrical stimulation, assisted therapeutic exercise, massage with deep friction, myofascial release and manual traction).

         These cases indicate that it is possible for a jury to conclude that medical treatment was reasonable and necessary as a diagnostic or prophylactic measure, but that the plaintiff experienced either no pain or pain caused by an underlying illness, preexisting condition or other cause. See, e.g., Wichers v. Hatch, supra, 252 Conn. 189-90 (‘‘the jury could have accepted the evidence that it was advisable for the plaintiff to see his chiropractor more frequently than usual following the accident, but that the accident did not cause him actually to suffer greater pain than he already had experienced as a result of his preexisting condition'' [emphasis added]); Silva v. Walgreen Co., supra, 120 Conn.App. 559 (‘‘[T]he jury, in its commonsense assessment of the case and evaluation of the plaintiff's credibility, might well have believed that she either sought medical treatment as an appropriate precautionary measure or in anticipation of possible litigation but that she failed to prove that she had actually suffered compensable pain. The jury was not required to find that, because the plaintiff sought treatment for pain and suffering, she necessarily experienced pain and suffering.'' [Internal quotation marks omitted.]).

         2

         Accordingly, we must examine with care the specific facts and circumstances of this case to determine whether the jury reasonably could have concluded that although the plaintiff's economic damages were compensable, her noneconomic damages were not. In light of this record, we cannot conclude that the jury's award was inadequate.

         At trial, the plaintiff testified that, after the Friday collision, she experienced several symptoms: ‘‘Really bad headache. My neck felt really stiff. I had-couldn't bend my hand at all and I was all black and blued . . . .'' For these, the plaintiff eventually sought treatment from various sources. First, over the weekend following the collision, she called her brother, a neurologist, who, over the telephone, ordered an MRI scan and prescribed Soma compound for the headaches. Then, on the Monday after the collision, the plaintiff consulted her primary care physician, who advised her to receive physical therapy for her neck. The plaintiff later sought advice regarding her hand from an orthopedist, who ordered X-ray imaging but did not prescribe any treatment.

         The plaintiff testified that her neck injury was temporary and that she eventually stopped getting treatment therefor: ‘‘I went to physical therapy for a few months, but it was just sort of making it worse just massage or exercise. It didn't really do anything so it I discontinued that.'' Despite the lack of continued treatment, the plaintiff testified at trial that, at that time, her neck injury ‘‘isn't that bad. It's pretty much, much better. . . . Once in a while it'll, like, stiffen up but it's-it's not that bad.'' Conversely, the plaintiff testified that her headaches were persistent. She described them as ‘‘viselike, '' causing a ‘‘squeezing pressure pain type of feeling'' in the ‘‘frontal'' region of her head ‘‘[j]ust about on a daily basis.'' She testified that she believed the headaches might be related to ‘‘abnormal findings'' in her MRI, but agreed on cross-examination that such findings ‘‘could be'' representative of ‘‘a normal variance'' in someone her age. Although the MRI report the plaintiff received recommended that she undergo follow-up scans every four to six months, she admitted that she had never gotten a second scan; she testified that she intended to do so in the near future.

         In addition to her recurring headaches, the plaintiff testified that the partial loss of mobility in her left hand was a permanent impairment, affecting her ability to type, crochet, garden, and bowl-activities she claimed she had enjoyed before the collision. She also testified, however, that during her initial consultation with the orthopedist, she was told that ‘‘there's really nothing that can be done'' for her left pinky finger, and that her ‘‘finger should clear up.'' Despite a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.