DeEsso v. Litzie

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MITCHELL DEESSO v. ROBERT LITZIE, JR.
(AC 38046)
DiPentima, C. J., and Mullins and Foti, Js.
Argued October 24, 2016—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Edward F. Stodolink, judge trial referee.)
Jeremy C. Virgil, with whom, on the brief, were
Michael S. Samsel and Denise A. Krall, for the appel-
lant (plaintiff).
Adam J. LaFleche, for the appellee (defendant).
Opinion
MULLINS, J. In this tort action, the plaintiff, Mitchell
DeEsso, appeals from the judgment of the trial court,
accepting the jury’s verdict and awarding him $5000 in
economic damages. On appeal, the plaintiff claims that
the trial court improperly denied his motions to set
aside the verdict and to order additur because: (1) the
jury’s award of economic damages was contrary to the
uncontested evidence of the plaintiff’s medical bills and
lost wages; and (2) the jury’s decision to award zero
noneconomic damages was inconsistent with its deci-
sion to award $5000 in economic damages. We affirm
the judgment of the trial court.
The following facts, as reasonably could have been
found by the jury, and procedural history, are relevant
to this appeal. On December 15, 2012, the plaintiff and
the defendant, Robert Litzie, Jr., along with their wives
and children, attended a youth basketball game at St.
Joseph’s Elementary School in Shelton. At some point
during the game, the plaintiff’s wife was told by her
son that while he and some other children were playing,
the defendant’s son kicked him in the face. The plain-
tiff’s wife then approached the defendant’s son, and,
after she asked who his parents were, the defendant’s
son pointed out the defendant to her. Thereafter, the
plaintiff’s wife and the defendant had three separate
‘‘confrontations’’ or ‘‘meetings’’ inside the school, in
which they argued over whether the defendant’s son
had behaved inappropriately. The plaintiff was present
during the third confrontation and was able to defuse
the situation by convincing the defendant to walk away.
After the third confrontation, however, the defen-
dant, the plaintiff’s wife, and the plaintiff had yet
another altercation outside the school. As the plaintiff
and his wife and children were exiting the school, the
defendant was driving his vehicle on the street in front
of the school. The plaintiff’s wife pointed at the defen-
dant’s vehicle or made some other type of hand gesture
in the defendant’s direction. In response, the defendant
stopped the vehicle, exited it, and started shouting at
the plaintiff’s wife, who was standing near the sidewalk.
As he shouted at the plaintiff’s wife, the defendant also
began to approach her. The plaintiff intercepted the
defendant at the curb before he could reach the plain-
tiff’s wife. The plaintiff positioned himself between his
wife and the defendant.
At around the same time, several male bystanders
also attempted to intervene and positioned themselves
between the defendant and the plaintiff and his wife.
As the defendant continued to approach the plaintiff,
two of the male bystanders restrained the plaintiff by
holding him back by his arms. A minor melee ensued,
as there was ‘‘a lot of agitation on both sides’’ and ‘‘some
pushing and shoving’’ and ‘‘a lot of pushing and pulling’’
by the ‘‘group of people involved.’’ Both the defendant
and the plaintiff were pushing and pulling each other.
At some point, one of the men and the defendant came
into contact, which in turn caused that man’s elbow to
strike the plaintiff in the right shoulder.
In the course of the melee, the defendant’s hand made
contact with the plaintiff’s glasses and knocked them
off the plaintiff’s face to the ground. This also caused
the plaintiff to stumble back, lose his balance, and fall
down on the ground. The plaintiff landed on his right
arm. As the plaintiff started to get up, ‘‘a lot of [the]
people [involved in the altercation]’’ were ‘‘trying to
hold and tug and grab at [him].’’ In the course of standing
up, and with the other men ‘‘trying to hold and pull’’
him, the plaintiff felt a ‘‘pop’’ in his right shoulder. It
was at that point that the plaintiff felt a ‘‘sharp pain’’
run down his right arm, rendering him unable to lift
the arm. By the time the plaintiff returned to his feet,
the other individuals had moved the defendant away
from the area, and the defendant eventually entered his
vehicle and drove off.
After the altercation, the pain in the plaintiff’s shoul-
der worsened, leading him to seek medical assistance
from an orthopedic surgeon. The plaintiff informed the
surgeon that he was ‘‘involved in a minor altercation’’
in which he was ‘‘held back by his right arm,’’ that he
felt a ‘‘pop’’ in his shoulder, and that he was ‘‘concerned
he tore his rotator cuff.’’ Sharing the plaintiff’s concern
that he tore his rotator cuff, the surgeon ordered that
the plaintiff have an MRI.
As a result of the MRI, the plaintiff was diagnosed
with a fully torn rotator cuff. According to the surgeon,
the tear was caused by the altercation and, more specifi-
cally, was ‘‘consistent with someone having their arm
pulled on.’’ The plaintiff subsequently underwent a sur-
gical repair of the tear and undertook several months
of physical therapy to rehabilitate his shoulder. At the
time of trial, the plaintiff’s shoulder still had recovered
by only 50 to 60 percent.
The plaintiff brought a personal injury action against
the defendant, in which he sought damages for three
claims sounding in negligence, recklessness, and inten-
tional tort. Specifically, the plaintiff alleged that the
defendant caused the plaintiff to sustain four injuries:
(1) ‘‘full thickness tears of the posterior supraspinatus
and infraspinatus tendons in the right shoulder necessi-
tating surgical repair,’’ (2) ‘‘weakness in the right shoul-
der,’’ (3) ‘‘right shoulder contusion,’’ and (4) ‘‘right
shoulder sprain/strain.’’
With respect to the plaintiff’s negligence claim, the
plaintiff listed sixteen ways in which the defendant
caused the plaintiff’s injuries.1 Regarding recklessness,
the plaintiff claimed that the defendant caused the plain-
tiff’s injuries by striking the plaintiff with his hand,
swinging his arms in an aggressive manner toward the
plaintiff’s head or shoulder, swinging his arms in an
aggressive manner toward the plaintiff and necessitat-
ing others to intervene and restrain the defendant and
the plaintiff, forcefully twisting the plaintiff’s arm, and
forcefully restraining the plaintiff’s arm. The plaintiff’s
intentional tort claim alleged that the defendant
assaulted and battered the plaintiff by striking the plain-
tiff with his hand and forcefully twisting the plain-
tiff’s arm.
With respect to damages, the plaintiff claimed that
he suffered both economic and noneconomic damages.
The economic damages consisted of medical expenses
and lost wages. The noneconomic damages were attrib-
utable to past and future pain and suffering.
In his amended answer to the plaintiff’s complaint,
the defendant denied the plaintiff’s allegations and
asserted the special defenses of comparative negli-
gence, contributory recklessness, assumption of the
risk, and self-defense.
At trial, the plaintiff offered the medical bills relating
to the diagnosis and treatment of his shoulder injuries
as an exhibit, and he called an employee from his busi-
ness to testify as to the amount of lost wages that he
incurred. The plaintiff’s claim for economic damages
totaled $61,483.34, consisting of $49,483.34 in past medi-
cal expenses and $12,000 in lost wages. The defendant
did not contest the reasonableness of the plaintiff’s
medical expenses or lost wages. The defendant did chal-
lenge, however, the plaintiff’s contention that the defen-
dant’s actions were the proximate cause of the
plaintiff’s shoulder injuries. In particular, by cross-
examining the plaintiff’s numerous fact witnesses and
the physician who treated the plaintiff’s injuries, the
defendant elicited conflicting evidence as to whether
he caused the plaintiff’s rotator cuff tear. A brief review
of such testimony follows and informs our review of
the plaintiff’s claims.
At trial, the plaintiff called Daniel Weiland, the ortho-
pedic surgeon who diagnosed and repaired the plain-
tiff’s rotator cuff tear. During his testimony, Weiland
explained that his diagnosis that the plaintiff sustained
a ‘‘full thickness rotator cuff tear’’ meant that his ‘‘supra-
spinatus’’ and ‘‘infraspinatus’’ tendons had been torn.
He opined that this type of tear was ‘‘consistent with
someone having their arm pulled on.’’ Weiland also indi-
cated that his diagnosis was based on the account of
the altercation that had been related to him by the
plaintiff, which was the following: ‘‘[The plaintiff] told
me he was in an altercation . . . where someone
pulled his arm, and he felt a pop and has since been
unable to use his shoulder. . . . [H]e was in a fight
. . . where his arm was pulled back, he felt a pop and
then since then he’s had difficulty with his shoulder.’’
Indeed, the plaintiff himself testified that it was ‘‘pos-
sible’’ that his shoulder injury ‘‘occurred because some-
one was pulling back on [his] arm . . . .’’ According
to the plaintiff, the ‘‘pop’’ in his shoulder occurred when
he was in the process of getting up from the ground,
at which time ‘‘people [were] trying to hold and pull
[him].’’ However, when asked by the defendant’s coun-
sel if he knew who was holding him back by his right
arm, the plaintiff answered: ‘‘I have no idea [because]
[t]here were so many people involved and it was a
matter of seconds.’’
In addition to the plaintiff’s own testimony, the testi-
mony of other witnesses called into question whether
the defendant pulled on the plaintiff’s right arm and,
therefore, caused the rotator cuff tear. The defendant
denied ever pulling or grabbing the plaintiff and claimed
that two other men had restrained the plaintiff by hold-
ing him back by his arms. Two other witnesses also
testified that two men other than the defendant
restrained the plaintiff by holding him back, and one
witness testified that she did not observe anyone
‘‘restrain’’ or ‘‘hold [the plaintiff] back by his right arm.’’
Following the evidentiary portion of the trial, neither
party submitted interrogatories to the jury. Ultimately,
the jury returned a general verdict in favor of the plain-
tiff in the amount of $5000 for economic damages; it
awarded zero noneconomic damages. With respect to
the noneconomic damages, the court specifically asked
the jury whether it had concluded that there were no
proximately caused noneconomic damages. The jury
acknowledged that it had made that conclusion.
Thereafter, the plaintiff filed a motion that requested
the court to set aside the jury’s verdict, order additur,
or, in the alternative, order a new trial. In that motion,
the plaintiff argued: (1) because the $5000 award of
economic damages was contrary to the unchallenged
evidence that the plaintiff’s economic damages totaled
$61,483.34, the court should increase the award or set it
aside; and (2) the award of zero noneconomic damages
should be set aside or increased because the jury’s
decision to award economic damages but no noneco-
nomic damages was ‘‘fatal[ly] inconsistent.’’ The court
denied that motion. This appeal followed.
I
The plaintiff first claims that ‘‘[t]he jury’s economic
damages award was palpably unjust and legally inade-
quate’’ because ‘‘[t]here was no evidence introduced
that would have led a reasonable jury to reach an even
$5,000 in economic damages.’’ According to the plain-
tiff, ‘‘[t]here was no logical breakdown of the [plaintiff’s]
uncontested medical bills or lost wages that would lead
to $5,000,’’ and, therefore, the trial court erred in deny-
ing his motion to set aside the verdict or to order addi-
tur. We disagree.2
We first set forth our standard of review and the
general principles governing the discretion of the trial
court to set aside a jury verdict or to order additur.
‘‘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 neces-
sarily uncertain limits of fair and reasonable compensa-
tion 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.’’ (Internal quotation marks omitted.) Bev-
erly v. State, 44 Conn. App. 641, 646–47, 691 A.2d
1093 (1997).
‘‘[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 upset-
ting the result other than a difference of opinion regard-
ing the conclusions to be drawn from the evidence, the
trial court should let the jury work their will.’’ (Internal
quotation marks omitted.) Daigle v. Metropolitan Prop-
erty & Casualty Ins. Co., 60 Conn. App. 465, 478, 760
A.2d 117 (2000), aff’d, 257 Conn. 359, 777 A.2d 681(2001).
In the present case, the court rejected the plaintiff’s
claim that, because he presented unchallenged evi-
dence of medical bills and lost wages amounting to
$61,483.34, the jury’s award of $5000 in economic dam-
ages was unreasonable. Specifically, the court
explained: ‘‘As I recall the case, I think the real issue
[was] the mechanism of injury, the basis of which your
claim is based as to, as I recall the facts in the case, it
was a very confusing situation. There were other actors
involved. In fact, I think some other actors were in
contact with the plaintiff from time to time. . . . I can
only imagine that the jury sorted it out as to the fact
that if there was any claim as to the named defendant,
then it was a rather nominal one, but to salve their
conscience they entered a verdict of $5000. So I’ll deny
your motion to set aside the verdict because it’s within
the realm of expectation.’’
Upon reviewing the record, we conclude that the trial
court did not abuse its discretion in refusing to set aside
the jury’s award of economic damages or to order an
additur. On the basis of the evidence adduced at trial,
we conclude that the award falls somewhere within
the necessarily uncertain limits of fair and reasonable
compensation and that it does not so shock the sense
of justice as to compel the conclusion that the jury was
influenced by partiality, mistake or corruption.
As a preliminary matter, we note that the parties in
this case did not submit interrogatories to the jury, and,
as a result, the jury returned a general verdict. We
previously have stated that ‘‘[w]here there is a general
verdict and no breakdown of the components of the
verdict, it would be error to set it aside.’’ Marchetti v.
Ramirez, 40 Conn. App. 740, 746, 673 A.2d 567 (1996),
aff’d, 240 Conn. 49, 688 A.2d 1325 (1997). In such a
situation, ‘‘neither the trial court nor this court ha[s]
any reasonable basis on which to break down the ver-
dict’’; id.; and it is ‘‘impossible . . . to determine what
factors the jury considered in making its award.’’ Id.Accordingly, not ‘‘know[ing] how or why the jury
arrived at its determination of damages . . . [w]e can-
not speculate as to how the jury reached its figure.’’
Caruso v. Quickie Cab Co., 48 Conn. App. 459, 462, 709
A.2d 1154 (1998).
This court previously has declined to reverse the
denial of a plaintiff’s claim for additur in part on the
ground that the jury’s award of economic damages was
returned in a general verdict. See Barrows v. J.C. Penny
Co., 58 Conn. App. 225, 229–30, 753 A.2d 404, cert.
denied, 254 Conn. 925, 761 A.2d 751 (2000). In Barrows,
the plaintiff brought an action for false imprisonment,
alleging that the defendants’ conduct caused her to
sustain permanent hypertension. Id., 230. The plaintiff’s
claim for economic damages consisted of $7149.54 in
past medical expenses that she incurred in connection
with the treatment of her alleged hypertension.3 Bar-
rows v. J.C. Penny Co., Conn. Appellate Court
Records & Briefs, January Term, 2000, Appellant’s Brief
pp. 6–7. The defendants did not challenge the reason-
ableness of those expenses. Barrows v. J.C. Penny Co.,
supra, 228. Even though the jury returned a plaintiff’s
verdict, it awarded her only $1000 in past economic
damages. Id.
On appeal to this court, the plaintiff in Barrows
argued that the trial court erred in refusing to set aside
the award of economic damages. Id., 229. Specifically,
she contended that ‘‘[s]ince there was no evidence chal-
lenging the reasonableness of [the past medical
expenses], the only issue before the jury was whether
some, any or all of them were proximately caused by
the actions of the defendants.’’ Barrows v. J.C. Penny
Co., Conn. Appellate Court Records & Briefs, January
Term, 2000, Appellant’s Brief p. 6. Therefore, because
there was no combination of the $7149.54 in past medi-
cal bills that precisely added up to $1000, the jury’s
award was unreasonable. Id.; Barrows v. J.C. Penny
Co., supra, 58 Conn. App. 229.
Relying in part on the fact that the award was unac-
companied by interrogatories and, thus, resulting in a
general verdict, this court rejected the plaintiff’s argu-
ment. Barrows v. J.C. Penny Co., supra, 58 Conn. App.
229–30. We declined to speculate as to how the jury
accepted and rejected certain components of the
$7149.54 in medical bills to award exactly $1000 in past
economic damages. We reasoned that, ‘‘[a]lthough
[most of the] evidence remained uncontroverted the
jury [was] not obliged to accept it. . . . [The jury was]
at liberty to accept what part of [the evidence it] chose
and factor [that evidence] into [its] calculations.’’ (Inter-
nal quotation marks omitted.) Id.Here, as in Barrows, the plaintiff presented unchal-
lenged evidence of the amount and reasonableness of
his medical bills and lost wages. Specifically, the plain-
tiff offered numerous medical bills relating to the diag-
nosis and treatment of his shoulder injuries that totaled
$49,483.34. Additionally, he presented uncontested evi-
dence that, having missed four weeks of work at a
weekly salary of $3000 per week, he sustained $12,000
in lost wages. However, the general verdict rendered
in this case limits our ability to evaluate the reasoning
behind the jury’s awarding of $5000 in economic dam-
ages. See id., 229 (‘‘a general verdict . . . [makes] it
impossible for . . . this court to determine what fac-
tors the jury considered in making its award’’ [emphasis
added; internal quotation marks omitted]).
Thus, notwithstanding that the evidence of the plain-
tiff’s economic damages was uncontroverted, the jury
was not obliged to accept that evidence wholesale.
Rather, it was free to accept any portion it chose and
factor that evidence into its calculations. Therefore, the
plaintiff’s request to set aside the jury’s verdict or to
order an additur ultimately would require us to specu-
late as to what combination of medical bills and/or
lost wages the jury found the defendant liable for in
awarding $5000. As in Barrows, we decline to engage
in such speculation.
Furthermore, another ground for not disturbing the
jury’s award of economic damages is that the defendant
vigorously contested the causal relationship between
the plaintiff’s injuries and his conduct. We previously
have held that a jury may award a plaintiff less than
the full amount of claimed economic damages where
there is conflicting evidence as to whether the defen-
dant caused the full extent of the claimed economic
damages. See, e.g., Bligh v. Travelers Home & Marine
Ins. Co., 154 Conn. App. 564, 571–74, 109 A.3d 481 (2015)
(trial court properly denied additur where plaintiff
claimed $174,920.52 in economic damages and jury
awarded $65,000 because jury ‘‘only awarded those
expenses that [it] found to be reasonably necessary and
proximately caused by the . . . [defendant’s] negli-
gence’’ [internal quotation marks omitted]); Schettino
v. Labarba, 82 Conn. App. 445, 446–50, 844 A.2d 923(2004) (upholding award of economic damages for $450
where plaintiff claimed $6631 in economic damages
because parties contested issue of causation); Barrows
v. J.C. Penney, Co., supra, 58 Conn. App. 230 (jury could
award only $1000 of uncontested medical bills totaling
$7149.54 because ‘‘extent of the plaintiff’s injury was
hotly contested’’ by expert testimony that defendants’
conduct ‘‘caused only temporary, not permanent, [injur-
ies]’’); Trumpold v. Besch, 19 Conn. App. 22, 32 n.8, 561
A.2d 438 (1989) (affirming denial of additur where jury,
instead of awarding full amount of medical bills submit-
ted by plaintiff, awarded ‘‘only those [medical] bills
submitted which [it] fe[lt] [were] applicable to the acci-
dent’’ [internal quotation marks omitted]), cert. denied,
212 Conn. 812, 565 A.2d 538 (1989), cert. denied, 494
U.S. 1029, 110 S. Ct. 1476, 108 L. Ed. 2d 613 (1990).
Thus, a jury may award only part of a plaintiff’s
claimed amount of damages where he has alleged that
such damages arose from multiple injuries, but there
is a reasonable basis in the evidence for the jury to
conclude that the defendant caused only some of the
injuries. See, e.g., Esaw v. Friedman, 217 Conn. 553,
555, 566–67, 586 A.2d 1164 (1991) (award not inadequate
where plaintiff alleged she suffered acute injury to her
cervical and lumbar spine, severe headaches, vertigo
and nausea, severe pain and numbness in her arms,
shoulders and chest, legs, knees and feet, and an aggra-
vation of a prior neck and back injury because ‘‘[t]here
was ample evidence, which the jury was entitled to
credit, that many of the plaintiff’s injuries were [not] the
result . . . of the accident caused by the defendant’’
[emphasis added]); Rickert v. Fraser, 152 Conn. 678,
679, 681, 211 A.2d 702 (1965) (affirming award of less
than full amount of claimed damages where plaintiff
alleged to have sustained ‘‘a permanent neck injury with
a fracture of a spur of the cervical spine, a facial injury
resulting in a permanent drooping eyelid, and an injury
to a nerve in the neck’’ because ‘‘jury could have reason-
ably found . . . that the plaintiff had apparently sus-
tained a strain of the neck and a contusion to the low
back and that the other claimed injuries, if any, were not
proved to have been caused by this accident’’ [internal
quotation marks omitted]).
In the present case, the plaintiff alleged in his com-
plaint that, as a result of the defendant’s conduct, he
sustained four injuries: (1) ‘‘full thickness tears of the
posterior supraspinatus and infraspinatus tendons in
the right shoulder necessitating surgical repair,’’ (2)
‘‘weakness in the right shoulder,’’ (3) ‘‘right shoulder
contusion,’’ and (4) ‘‘right shoulder sprain/strain.’’ The
plaintiff further alleged that those injuries caused him
to sustain economic damages in the form of ‘‘medical
care and attention’’ and ‘‘lost wages.’’4 At trial, the plain-
tiff presented (1) uncontested medical bills reflecting
$49,483.34 expended for diagnostic services, treatment,
surgery and physical therapy relating to his shoulder
injuries, and (2) unchallenged testimonial evidence that
he missed four weeks of work and, consequently, sus-
tained $12,000 in lost wages.
The defendant’s strategy at trial was to challenge
the causal connection between the plaintiff’s shoulder
injuries and the defendant’s conduct by cross-examin-
ing the plaintiff’s numerous fact witnesses and the phy-
sician who treated the plaintiff’s injuries.
In particular, the jury heard conflicting and inconsis-
tent evidence as to whether the defendant caused the
plaintiff’s most significant alleged injury, which was the
rotator cuff tear.
Although the physician who treated the plaintiff testi-
fied that the rotator cuff tear was ‘‘consistent with some-
one having their arm pulled on,’’5 there was conflicting
testimony as to whether the plaintiff’s arm was ever
pulled during the altercation and, more importantly,
whether it was the defendant who pulled it. For
instance, it is true that one witness testified that the
plaintiff ‘‘[was] pulled by [the defendant]’’ at some point
during the altercation. However, the rest of the testi-
mony presented at trial also revealed that (1) there
were several individuals involved in the melee; (2) many
of those individuals were pushing, pulling, and shoving
one another; and (3) two individuals other than the
defendant restrained the plaintiff by grabbing or holding
back his arms.
Indeed, the plaintiff’s own testimony seemed to
undercut the causal relationship between his torn rota-
tor cuff and the defendant’s conduct. The plaintiff stated
that he did not feel a ‘‘pop’’ and pain in his arm until
he was getting off the ground, and as some of the indi-
viduals were ‘‘trying to hold and tug and grab at [him].’’
Moreover, he could not recall who specifically may have
been grabbing his right arm at that point.
As demonstrated by the foregoing, the evidence
regarding the causal relationship between the defen-
dant’s conduct and the plaintiff’s torn rotator was in
conflict. Accordingly, the jury could have resolved the
conflicting evidence in the defendant’s favor and found
that the defendant did not cause the rotator cuff tear.
At the same time, however, the jury still could have
found that the defendant caused the plaintiff to sustain
one or more of the other injuries alleged in the plain-
tiff’s complaint.
Consequently, if the jury found that the defendant
caused only some of the plaintiff’s alleged injuries, then
it reasonably could have awarded the portion of the
economic damages that it had determined was attribut-
able to those injuries. The overwhelming majority of
the medical bills concerned the surgical repair of the
rotator cuff tear and the related postsurgery physical
therapy. Therefore, if the jury found that the defendant
did not cause the rotator cuff tear, which it certainly
could have based on the evidence presented, then it
would have acted reasonably in refusing to award dam-
ages for a significant amount of the medical expenses.
On the basis of the evidence presented at trial, we
conclude that the jury’s award was a reasonable com-
posite of the parts of the medical expenses and lost
wages that it reasonably could have determined were
attributable to the injuries that the defendant actually
caused the plaintiff to sustain.
Accordingly, in affording every reasonable presump-
tion in favor of the correctness of the trial court’s denial
of the plaintiff’s motion to set aside the verdict, we
conclude that the court did not abuse its discretion
in refusing to set aside the jury’s award of economic
damages. The jury’s award falls somewhere within the
necessarily uncertain limits of fair and reasonable com-
pensation and does not so shock the sense of justice
as to compel the conclusion that the jury was influenced
by partiality, mistake or corruption.
II
The plaintiff’s second claim is that the trial court
erred in denying his motion to set aside the jury’s award
of zero noneconomic damages. Specifically, the plaintiff
argues that the court should have set aside the award
because the jury’s awarding of some economic damages
but no noneconomic damages was internally inconsis-
tent, ‘‘unreasonable,’’ and ‘‘legally inadequate.’’ We
disagree.
We first set forth the relevant legal principles govern-
ing a jury’s discretion in awarding noneconomic dam-
ages. ‘‘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), [the 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 evi-
dence 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 assump-
tion 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] plain-
tiff [is] not entitled to an award of noneconomic dam-
ages 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 dam-
ages . . . 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.)
Melendez v. Deleo, 159 Conn. App. 414, 418–19, 123 A.3d
80 (2015).
The following additional facts are pertinent to our
review of the plaintiff’s second claim. The plaintiff
sought to establish a $297,360 claim for noneconomic
damages by offering the testimony of numerous wit-
nesses, including himself and his wife. The plaintiff
claimed that both past and future pain and suffering
had resulted and would continue to result from the
rotator cuff tear and its attendant surgical repair.
According to Weiland, the orthopedic surgeon who
treated the plaintiff, the plaintiff sustained a permanent
5 percent impairment rating to his right shoulder as a
result of the tear and surgery. Thus, the plaintiff claimed
that this impairment had rendered him unable to, inter
alia, exercise, play sports, work, perform household
chores, and teach sports to his children, all of which
were activities that he had claimed to actively enjoy
before the rotator cuff tear.
In rendering its verdict, however, the jury awarded
no noneconomic damages for the plaintiff’s alleged past
and future pain and suffering. In fact, upon being asked
by the court, the jury specifically confirmed that it found
no proximately caused noneconomic damages. The
plaintiff subsequently filed a motion requesting that the
court set aside the award or order additur on the ground
that the jury’s decision to award economic damages but
no noneconomic damages was ‘‘fatal[ly] inconsistent.’’
The court denied that motion, explaining: ‘‘As I recall,
I canvassed the jurors when we took the verdict and
asked them whether they had found that the plaintiff
had proved by a proximate cause that he sustained
noneconomic damages with all his economic damages;
and they said no, that they were convinced that there
was no proof, at least not preponderance of the evi-
dence of noneconomic damages and therefore they
rejected that claim.’’
Having reviewed the record, we conclude that,
because the jury could have determined that the plain-
tiff did not carry his burden of proving that the defen-
dant caused the plaintiff’s pain and suffering that was
related to the rotator cuff tear, the trial court did not
err in refusing to set aside the award of noneconomic
damages. The plaintiff’s claim regarding the award of
noneconomic damages is rendered unsound by the
same flaw that undercut his claim regarding the award
of economic damages. That is, both claims fail to recog-
nize that the jury could have awarded less than the full
amount of claimed damages upon determining that the
plaintiff did not prove that the defendant caused the full
extent of the injuries related to the claimed damages. As
set forth in part I of this opinion, the jury reasonably
could have concluded that the defendant caused the
plaintiff to suffer some, but not all, of the alleged injur-
ies, and that he did not cause the rotator cuff tear.
The plaintiff’s second claim, nevertheless, is prem-
ised expressly on the notion that the jury necessarily
concluded that the defendant caused the plaintiff’s rota-
tor cuff tear. For the reasons previously discussed, it
was within the province of the jury to conclude to
the contrary. Thus, the jury was not required to award
noneconomic damages for the alleged pain and suffer-
ing that the plaintiff claimed was attendant to the rota-
tor cuff tear and the resulting surgery, physical therapy,
and partial permanent impairment. Indeed, it would
have been incongruous for the jury to have awarded
noneconomic damages for an injury for which it already
had declined to award economic damages. In other
words, if the defendant was not responsible for the
rotator cuff tear and the actual cost of the surgery,
treatment, and physical therapy related thereto, then
he necessarily would not be responsible for the pain
and suffering alleged to have resulted from the surgery,
treatment, and physical therapy.
Therefore, the only noneconomic damages that the
jury would have awarded, if any, would have been those
that it had determined to have resulted from the other
less severe injuries alleged by the plaintiff and caused
by the defendant. Because these injuries were less
severe than the rotator cuff tear, the jury reasonably
could have concluded that these injuries, perhaps in
contrast to the rotator cuff tear, caused the plaintiff
little or no pain and suffering. Accordingly, the jury
reasonably could have concluded that the plaintiff did
not sustain any compensable pain and suffering that
was proximately caused by the defendant.
We are not persuaded by the defendant’s reliance on
cases in which our appellate courts have set aside a
jury’s verdict that awarded economic damages but no
noneconomic damages. See, e.g., Schroeder v. Traingu-
lum Associates, 259 Conn. 325, 789 A.2d 459 (2002);
Fileccia v. Nationwide Property & Casualty Ins. Co.,
92 Conn. App. 481, 886 A.2d 461 (2005), cert. denied,
277 Conn. 907, 894 A.2d 987 (2006); Elliott v. Larson,
81 Conn. App. 468, 840 A.2d 59 (2004).
Those cases are factually distinguishable from the
present case because the juries in those cases awarded
‘‘ ‘virtually all’ of [the] plaintiff[s’] claimed economic
damages.’’6 Fileccia v. Nationwide Property & Casu-
alty Ins. Co., supra, 92 Conn. App. 487–89 (jury’s award
of entire amount of economic damages sought and no
noneconomic damages was ‘‘internally inconsistent’’
because ‘‘finding that the plaintiff, by virtue of the acci-
dent, had suffered an injury requiring treatments and
medication, the purpose of which was to alleviate pain
and to improve functioning, the jury necessarily found
that he had experienced pain and decreased functioning
. . . [and] should have awarded noneconomic damages
to compensate him for that pain and decreased func-
tioning’’). See also Schroeder v. Triangulum Associ-
ates, supra, 259 Conn. 332 (‘‘[u]nder these
circumstances, the jury reasonably could not have
found the defendant to be responsible initially for the
full amount of the plaintiff’s economic damages, but
not liable for any noneconomic damages’’ [emphasis
added]); Elliott v. Larson, supra, 81 Conn. App. 477(concluding that trial court properly exercised discre-
tion in granting plaintiff’s motion for additur, where
jury failed to award noneconomic damages even though
it awarded plaintiff all claimed medical expenses).7
In the present case, although the plaintiff claimed
$61,483.34 in economic damages, the jury awarded him
only $5000, which, rather than representing ‘‘virtually
all’’ of the claimed economic damages, represents only
a small fraction of that amount. The overwhelming
majority of the claimed economic damages directly per-
tained to the surgical repair and rehabilitation of the
plaintiff’s torn rotator cuff. Having determined that the
jury reasonably could have found that the defendant
did not cause the economic damages flowing from the
rotator cuff tear, it would be consistent, rather than
inconsistent, for the jury also to conclude that the defen-
dant did not cause the substantial noneconomic dam-
ages attributable to that injury.
Accordingly, in affording every reasonable presump-
tion in favor of the correctness of the trial court’s denial
of the plaintiff’s motion to set aside the verdict, we
conclude that the court did not abuse its discretion in
refusing to set aside the jury’s award of zero noneco-
nomic damages. The jury’s award falls somewhere
within the necessarily uncertain limits of fair and rea-
sonable compensation and does not so shock the sense
of justice as to compel the conclusion that the jury was
influenced by partiality, mistake, or corruption.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Specifically, those included the defendant’s (1) failure to remain in his
vehicle, (2) failure to return to his vehicle, (3) failure to drive away promptly,
(4) failure to use reasonable care to prevent his body from coming into
contact with a nonparty who was knocked off balance and fell into the
plaintiff, (5) failure to use reasonable care to prevent his body from coming
into contact with a nonparty who was knocked off balance, who then came
into contact with the plaintiff, (6) failure to use reasonable care while moving
on or about snow and/or ice, (7) failure to use reasonable care when pushing
the plaintiff who was standing on or about snow and/or ice, (8) failure to
use reasonable care when pulling the plaintiff, who was standing on or
about snow and/or ice, (9) failure to use reasonable care while moving
around the sidewalk and street area where there was a gathering of people,
(10) failure to use reasonable care when pushing the plaintiff, who was
standing on or about the curb of the sidewalk and the street, (11) failure
to use reasonable care when pulling the plaintiff, who was standing on or
about the curb of the sidewalk and street, (12) failure to reasonably control
his body and/or his appendages, (13) swinging of his arm in an unreasonably
close proximity to the plaintiff, (14) use of an unreasonable amount of force
to hold onto the plaintiff’s arm, (15) acting in an unreasonably aggressive
manner toward the plaintiff and/or his wife that caused others to restrain
the plaintiff, and (16) failure to keep his hands from contacting the plaintiff.
2
The plaintiff’s claim for additur is premised on the notion that by
returning a general verdict and awarding some economic damages, the jury
necessarily found that the defendant was liable for at least half of his
undisputed medical expenses and lost wages. Specifically, the plaintiff high-
lights (1) that he raised three claims as the basis of the defendant’s liability—
intentional tort, recklessness, and negligence—and (2) that the defendant
asserted the special defense of comparative negligence. The plaintiff reasons
that if the jury found the defendant liable on the basis of either intentional
or reckless conduct, then he would be entitled to the full $61,483.34 in
undisputed economic damages, regardless of whether the jury found compar-
ative negligence on his behalf. If the jury found the defendant liable on the
basis of negligence, as long as the plaintiff was not more negligent than
him; see General Statutes § 52-572h (b); the plaintiff would be entitled to
at least half of his undisputed medical expenses and lost wages, which
is $30,741.67. Thus, the plaintiff maintains that, pursuant to this state’s
comparative fault scheme, $30,741.67 equals the smallest recovery that the
jury could award and still render a plaintiff’s verdict. Accordingly, he asks
that the award of economic damages be increased to at least $30,741.67.
We reject this claim.
We agree with the plaintiff’s general observation that ‘‘a general verdict
without interrogatories’’ makes it ‘‘impossible to know the jury’s precise
findings.’’ However, we do not agree with his contention that the general
verdict in the present case somehow defies that observation, insofar as the
jury necessarily found the defendant liable for at least half of the amount
in claimed economic damages. As we explain later in this opinion, even
though the amount and reasonableness of the claimed economic damages
were undisputed, the parties hotly contested the issue of whether the defen-
dant proximately caused the injuries to which those damages were allegedly
attributable. Accordingly, we do not know whether, on that basis, the jury
rejected some part of the plaintiff’s claim for economic damages. Thus, the
scenarios proposed by the plaintiff are simply unfounded assumptions that
he speculates the jury must have relied on in rendering a verdict and calculat-
ing damages. Given that the parties did not submit any interrogatories, and,
therefore, the jury returned a general verdict, we cannot resort to such
speculation. See 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).
3
As presented in the plaintiff’s appellate brief in Barrows, the medical
expenses consisted of the following: (1) $246 for ‘‘Chamberlain Ambulance,’’
(2) $152.53 for ‘‘Milford Hospital Emergency Room,’’ (3) $4526.78 for ‘‘Cardi-
ology Associates,’’ (4) $150.19 for ‘‘Burt Medical Laboratory,’’ (5) $1884.54
for ‘‘Miscellaneous Prescription Drugs,’’ (6) $147.40 for ‘‘Quest (Metpath)
Diagnostics,’’ (7) $29.30 for ‘‘Quest Diagnostics,’’ and (8) $12.80 for ‘‘Diagnos-
tic Medical Laboratory.’’ Barrows v. J.C. Penny Co., Conn. Appellate Court
4
The trial court read the plaintiff’s complaint in its entirety to the jury
during its instruction.
5
The plaintiff also testified that it was ‘‘possible’’ that his ‘‘shoulder injury
occurred because someone was pulling back on [his] arm . . . .’’
6
The plaintiff also relies on Snell v. Beamon, 82 Conn. App. 141, 842 A.2d
1167 (2004). Snell is distinguishable from the present case in two significant
ways. First, the defendants in that case did not challenge the causal relation-
ship between the defendants’ conduct and the plaintiff’s claimed economic
and noneconomic damages. Id., 143. Second, in Snell, we upheld the granting
of additur; id., 145; whereas in the present case the plaintiff has asked us
to reverse the denial of additur. In cases involving either the granting or
denial of additur, we apply our deferential abuse of discretion standard. Id.;
Beverly v. State, supra, 44 Conn. App. 646. Accordingly, in reviewing the
plaintiff’s claim, we are mindful that ‘‘the trial court’s refusal to set aside
the verdict or to order an additur is entitled to great weight and [that] every
reasonable presumption should be given in favor of its correctness.’’ Beverly
v. State, supra, 646.
7
The plaintiff also suggests that this court has upheld verdicts that award
economic damages but no noneconomic damages only where there was
evidence that the plaintiff suffered from preexisting injuries. Although in
some cases we have relied on such evidence in determining that an award
of no noneconomic damages was proper; see Fileccia v. Nationwide Prop-
erty & Casualty Ins. Co., supra, 92 Conn. App. 488 (listing cases where
‘‘jury reasonably could have concluded that the prior condition was the
cause of the pain alleged, rather than the tortious actions of the defendant’’);
we do not read those cases as establishing that, in the absence of such
evidence, an award of no noneconomic damages is per se unreasonable.
See, e.g., Melendez v. Deleo, supra, 159 Conn. App. 424 (trial court did not
abuse discretion in refusing to set aside verdict that awarded economic
damages but no noneconomic damages even though defendant did not claim
that plaintiff suffered from preexisting injuries).