Opinion
No. CV-07-5006960S
November 9, 2010
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT
This premises liability matter was tried to the jury resulting in a verdict in favor of the plaintiff Angela Esteves, and against the defendant LTR, LLC, d/b/a Black Rock and Blue Cafe, ("The Blue"). The trial also included a hearing in damages as to defendant Danielle Collette in a matter consolidated with this action for trial. The plaintiff's allegations stem from an assault by Collette against the plaintiff in October 2006. Both the plaintiff and Collette were patrons at The Blue on the evening in question. As to The Blue, the plaintiff alleged that it failed to provide adequate security and was negligent in its failure to prevent the assault.
In deciding liability, the jury apportioned negligence as follows: 60% against The Blue and 40% against Collette. Although The Blue had asserted a special defense of comparative negligence against the plaintiff, the jury found that the plaintiff was not negligent.
It is the jury's failure to apportion any liability to the plaintiff which forms the basis for The Blue's motion to set aside the verdict and order a new trial.
Standard of Review
The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence. O'Brien v. Seyer, 183 Conn. 199, 208 (1981). The court should neither set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably have reached its conclusion, nor refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as to establish that some mistake was made by the jury in the application of the law, or as to justify the suspicion that the jury was influenced by "prejudice, corruption or partiality." Palomba v. Gray, 208 Conn. 21, 23 (1988), quoting, Burr v. Harty, CT Page 22321 75 Conn. 127, 129 (1902). Indeed, the court has a duty to set aside a verdict where the verdict is so unreasonable as to suggest that it resulted from improper influences. Id., citing, State v. Avcollie, 178 Conn. 450, 457 (1979), cert. denied, 444 U.S. 1015, (1980), aff'd, 188 Conn. 626 (1982), cert. denied, 461 U.S. 928 (1983). The decision to set aside a verdict is one of broad legal discretion. Id.
Such discretion is not without limit however. Litigants have a constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, 207 Conn. 125, 138 (1988); Jacobs v. Goodspeed, 180 Conn. 415, 417 (1980).
The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.
Camp v. Booth, 160 Conn. 10, 13 (1970). Since, in setting aside the verdict, the trial court deprives the prevailing party of this constitutional right, the court must examine the evidence. Palomba v. Gray, supra at 25. In so doing, this court must do just what every juror ought to do in arriving at a verdict. Wichers v. Hatch, 252 Conn. 174, 187 (2000), citing, Birgel v. Heintz, 163 Conn. 23, 27-28 (1972). It must use all available experience, knowledge of human nature, knowledge of human events, past and present, knowledge of the motives which influence and control human action, and it must test the evidence in the case according to such knowledge. Id.
Upon examination of the evidence, "the verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice." See Hunte v. Amica Insurance Co., 68 Conn.App. 534, 541 (2002), citing, Shea v. Paczowski, 11 Conn.App. 232, 233-34 (1987). "The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . Only under the most compelling circumstances may the court set aside a jury verdict." Id.
"Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even if the opinion of the trial court is that a different result should have been reached. Jacobs v. Goodspeed, supra, 180 Conn. at 417, quoting, Horvath v. Tontini, 126 Conn. 462, 464 (1940). In sum, "if there is a reasonable basis in the evidence for the jury's verdict, . . . the trial court should let the jury work their will.' Id., at 419.
Finally, it is worth repeating what is well established: "It is the jury's right to consider evidence, draw logical deductions and make reasonable inferences from facts proven . . . It may accept or reject the testimony of any witness . . . and determine the weight to be given the evidence." Hunte v. Amica Insurance Co., supra., 68 Conn.App. at 541.
The Evidence
The evidence at trial established that the plaintiff was a patron of The Blue on the evening in question. Her brother Jack Esteves was also there that evening as well as some mutual friends. Roxanne Currall and Danielle Collette were also at The Blue that evening. Throughout the evening, the plaintiff was growing increasingly uncomfortable. She perceived the actions of Roxanne Currall to be "bullying," threatening and intimidating. She was uncomfortable with the way Currall looked at her as well as her body language. She believes she told one of the bouncers, Anthony Marino, of her concerns. She did not know why Roxanne Currall was acting as she was towards the plaintiff.
As the bar was closing, the plaintiff was outside in the side parking lot. She was waiting for her ride to leave. Her brother, Jack Esteves, brought Currall towards the plaintiff in an effort to resolve whatever issue existed between them. The uncontroverted evidence is that the plaintiff began an argument by telling her brother to get Currall away from her. The plaintiff testified that she likely used insulting and inappropriate language. Currall responded by shoving the plaintiff. The plaintiff's shoe fell off and she stooped to get her shoe back on. Following the shove by Currall, Jack Esteves stepped between the two women and kept Currall away from his sister. The plaintiff was being assisted by others away from the scene and towards the car that the person giving her a ride was driving. The plaintiff continued, in her own words, to "vent." She and Currall continued to exchange unpleasantries, yelling at each other even as they were separated by others.
As the plaintiff was moving towards the car, Danielle Collette came out of the crowd, passed by Jack Esteves and Currall and punched the plaintiff in the face. She then quickly left the scene. The plaintiff suffered a severely broken nose, required surgery and endured a lengthy recovery process. There was scant evidence of any prior relationship or even familiarity between the plaintiff and Collette. The plaintiff testified however that she had not had any verbal or physical interaction with Collette on that evening prior to the point that she was punched in the face.
No one was able to identify Collette as the person who threw the punch. However, the issues of liability as to Collette were deemed proven as she had been defaulted. That matter was consolidated with this trial for a hearing in damages.
The extent of the plaintiff's injuries are not discussed in any further detail as they are not germane to the motion to set aside the verdict. Nor does the recitation of facts include the evidence regarding the conduct of the bar employees. The motion to set aside does not challenge whether the jury could have reasonably found the defendant liable. It challenges rather, the determination that the plaintiff was not also liable for her own injuries, at least to some extent.
The series of events, from the time Jack Esteves and Currall approached the plaintiff to the moment the punch was thrown, was described consistently as exceedingly brief, a matter of minutes, if even that long.
The plaintiff further testified that during the course of the evening, she drank alcohol and was feeling its effects. As a result, she did not wish to drive home and so waited for her ride.
Discussion
The defendant asserts that it is against the weight of the evidence and frankly impossible that the jury, if applying these largely undisputed facts, to the law as charged, could return a verdict that the plaintiff was not comparatively negligent. In support of this claim, the defendant relies on the plaintiff's acknowledgment that she had been drinking and was intoxicated to some extent; that she started the verbal altercation with Currall; that she continued to argue with Currall even after she was being separated and escorted away; that her language was insulting and inappropriate. The defendant also points to the plaintiff's closing argument in which she acknowledged legal responsibility and suggested a 10% apportionment of liability for her own role in these events. The defendant relies as well on the plaintiff's testimony in which she acknowledged that she had personal responsibility for her conduct that evening.
The plaintiff does not dispute the evidence relied upon but argues that the jury was free to accept or reject the evidence presented. She further argues that the evidence relied upon does not compel a finding that the plaintiff's conduct was negligence. The plaintiff's arguments are well maintained.
As to the closing argument by plaintiff's counsel, the jury is instructed because it is the law, that counsel's arguments are not evidence. Counsel does not bind the jury to reach any particular conclusion, even if a tactical decision leads counsel to allow for a finding of comparative negligence. The jury is free to except or reject counsel's arguments and suggestions and they are charged to that effect. That they rejected the plaintiff's allowance for a finding of comparative negligence is not a reason to conclude that the jury misunderstood or misapplied the law.
Notwithstanding the closing argument, counsel for the plaintiff also moved for a directed verdict on the issue of the comparative negligence special defense.
Of note, following the closing argument in which it is claimed the plaintiff conceded her own negligence, there was no request made by any party that the jury be charged accordingly. Had the request been made and granted (either by agreement or over objection) and had the jury been instructed as a matter of law that they must apportion some percentage of negligence to the plaintiff, then the verdict would be subject to being set aside.
The evidence cited above and relied upon by the defendant was largely undisputed and came mostly from the plaintiff herself. However, the plaintiff also put her conduct in context. While not proud of her behavior, she was able to explain it in a fashion the jury may well have accepted as appropriate, or if not entirely appropriate, acceptable under the circumstances.
The defendant relies heavily upon the plaintiff's admission that she was impaired by alcohol. However, being impaired does not necessitate a finding of negligence.
The plaintiff had taken steps during the evening to avoid Currall. In fact, she was outside waiting for her ride so that she could avoid Currall. She had alerted her friends and a bouncer that she was concerned and uncomfortable. She had managed to avoid any problem until her brother, albeit well-meaning, approached her with Currall. She describes herself as fed up from an evening of bullying and harassment. When she saw her brother bringing the source of her anxiety towards her, she had simply had enough. However, she did not retaliate when shoved and was leaving the scene at the time she was essentially blindsided by Collette. She further testified that she had not had any verbal or physical interaction with Collette that evening. The evidence established that she had no reason to fear Collette or to view her as a threat. Thus, it was reasonable for the jury to conclude that the plaintiff did not act unreasonably.
There was virtually no evidence on the issue of Collette's conduct or the reason she punched the plaintiff. The jury, in order to find the plaintiff comparatively negligent, would have had to determine that the type of injury suffered by the plaintiff was reasonably foreseeable to the plaintiff as a result of the plaintiff's conduct under the circumstances then and there existing. Here, given the scant evidence as to Collette's conduct, it is not unreasonable or extraordinary that the jury found that a reasonable person in the plaintiff's position would not have foreseen being punched by someone with whom she had no prior interaction, as a result of her argument with Currall.
For these reasons and after a comprehensive look at all of the evidence, not just that portion recited herein, the court determines that the evidence "given the most favorable construction to which it is reasonably entitled" demonstrates that the jury verdict should not be disturbed. The verdict does not "shock the sense of justice" or leave the court with a sense of manifest injustice that is either palpable or plain.
The motion to set aside the verdict is denied.