Opinion
No. X02 CV 01-0177551-S
July 6, 2005
RULING ON PLAINTIFF'S POSTTRIAL MOTIONS
The jury in this case returned a verdict for defendant Rhoda Cohn and a verdict for the plaintiff that awarded zero damages in the case of defendant Stuart Cohn. The plaintiff has filed a motion to set aside the verdict in the case of Rhoda Cohn claiming that the verdict was against the weight of the evidence. The court finds that there was more than ample evidence to support the verdict and accordingly denies that motion. The plaintiff also moves for an additur or, in the alternative, a new trial in the case of Stuart Cohn. This motion requires further discussion.
I
When a jury returns a plaintiff's verdict with zero damages, it ordinarily "cannot be stated with certainty either that the jury found that the plaintiff had failed to prove any damages or that the jury was confused as to the correct interplay between damages and liability." Fox v. Colony T.V. Appliance, Inc., 37 Conn.App. 453, 455-56, 656 A.2d 705, cert. denied, 233 Conn. 915, 659 A.2d 185 (1995). In such a case, therefore, the usual course of action is to order a new trial on all issues. Id., 456. Recently, however, the Appellate Court concluded that there is no requirement for a new trial in this situation when the complaint alleges negligence per se, because a finding of violation of a statute, without a finding of injury, is sufficient to establish liability, and thus there is no reason to doubt that the jury found a failure to prove damages. See Hughes v. Lamay, 89 Conn.App. 378, 383-86, 873 A.2d 1055 (2005).
The plaintiff here pursues a middle course in which she asks for an additur or, in the alternative, a new trial. The ultimate standard for deciding whether to grant an additur is to determine "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." (Internal quotation marks omitted.) Schettino v. Labarba, 82 Conn.App. 445, 448, 844 A.2d 923 (2004). The court must bear in mind that "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 . . ." (Internal quotation marks omitted.) Id., 449.
In the court's view, the jury made a legal mistake and therefore some level of additur is appropriate. The jury initially returned a plaintiff's verdict form against defendant Stuart Cohn that awarded zero damages and contained a note at the bottom that read "Count Three: Negligent Infliction of harm (a), (d); Count Four: Intentional Infliction of Harm (a), (d)." The jury also returned a defendant's verdict form for Stuart Cohn that contained a note reading "Count One: Unjust Enrichment." The court sent the jury back with instructions to return only one verdict form — either plaintiff's or defendant's — in the case of Stuart Cohn. Shortly thereafter, the jury returned with the plaintiff's verdict form that awarded zero damages and made no additional notations.
Counts one, three and four were the only counts against Stuart Cohn. In the case of Rhoda Cohn, which involved counts one, two (alleging vexatious litigation), and three, the jury initially returned a blank plaintiff's verdict form and a signed defendant's verdict form.
The court does not know the basis of the jury's ultimate verdict with certainty. Further, both sides agreed to submit the case to the jury with general verdict forms rather than with interrogatories that might have disclosed the count or counts upon which the jury based its verdict for the plaintiff. However, from the initial verdict forms returned by the jury, it appears most likely that the jury found in the plaintiff's favor on count three, alleging negligent infliction of emotional distress (called "negligent infliction of harm" in the instructions) and count four, alleging intentional infliction of emotional distress (called "intentional infliction of harm").
These two torts require proof that the plaintiff suffered emotional distress — and "severe" emotional distress in the case of the intentional tort — proximately caused by the defendant's conduct, and the court so instructed the jury. See DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 872, 875, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003). Thus, in order for the jury to have found Stuart Cohn liable for either of these torts, the jury necessarily had to find that he caused the plaintiff some amount of emotional distress. The jury was mistaken in not attaching any monetary value to this emotional distress. See Elliot v. Larsen, 81 Conn.App. 468, 477, 840 A.2d 59 (2004) (affirming the trial court's conclusion that "`[t]he failure to award noneconomic damages is inconsistent with the conclusion of injury and the award of lost wages.'") The plaintiff is therefore entitled to an additur.
II
In determining the amount of the additur, the court must give considerable deference to the jury, which appears to have stated, albeit awkwardly, that the plaintiff was entitled only to, at most, the minimum amount of damages. The court concurs, based on its own observation of the trial and evaluation of the witnesses. In general, the court did not find the plaintiff to be a credible witness, either on liability or damages. Although she produced medical testimony to support her claims of emotional distress, that testimony depended almost entirely on her own exaggerated and in some cases fanciful reports of the underlying facts.
From the note at the bottom of the first set of jury verdicts, it is arguable that the jury rested its findings of liability on specifications (a) and (d) of both the infliction of harm counts. In specification (a), the plaintiff alleged that the defendant made "threats to kill and/or harm the plaintiff, including a threat in March 1998 by Stuart Cohn to plaintiff that `You're dead.'" In specification (d), the plaintiff alleged that the defendant had committed a "theft of the plaintiff's dog in October 1998 and November 1999."
Those same medical reporters, however, did make occasional references to the plaintiff's delusional thinking, her grandiosity, and her perception of being persecuted. To the court, this testimony provided a better explanation for the plaintiff's claims than the defendant's behavior. Further, the plaintiff herself testified about the presence of a multitude of stressful and sometimes traumatic events in her life, all of which were independent of the defendant's conduct, that could have contributed to any emotional distress that she experienced during the time period in question.
For all these reasons, the plaintiff is entitled only to a modest additur. The court orders an additur of $2,000.
III
The plaintiff contends that, in the event the court orders a new trial or the parties become entitled to one by rejecting the additur, the new trial should be on damages only. In Wallace v. Haddock, 77 Conn.App. 634, 640-41, 825 A.2d 148 (2003), a case in which the trial court granted an additur but failed to offer the alternative of a new trial, the Appellate Court did order a new trial on damages only. In that case, however, the jury had already awarded the plaintiff some monetary damages and it was thus clear that the jury had found liability. Although in the present case the plaintiff requests an additur and thus presumes that the jury found liability, the case in reality is much closer to Malmberg v. Lopez, 208 Conn. 675, 546 A.2d 264 (1988). There our Supreme Court stated: "the jury's intent in finding the issues for the plaintiff, but awarding zero damages, is known only to the jurors, and this court's endorsement of one plausible explanation of the verdict over another would amount merely to speculation. Such ambiguity requires a rehearing in full, on both liability and damages." Id., 688. Accord Schroeder v. Triangulum Associates, 259 Conn. 325, 344, 789 A.2d 459 (2002).
Accordingly, the court orders an additur of $2,000 in the case of Stuart Cohn. Within twenty days either party may file a rejection of the additur or a notice of appeal as authorized by law. See Stern v. Allied Van Lines, Inc., 246 Conn. 170, 175-83, 717 A.2d 195 (1998). While the plaintiff's motion to set aside the verdict is denied without prejudice at this time, in the event that either party files a timely rejection of the additur the court will grant the motion to set aside and order a new trial on both liability and damages against Stuart Cohn.
The plaintiff's motion to set aside the verdict in the case of defendant Rhoda Cohn is denied.
It is so ordered.
Carl J. Schuman Judge, Superior Court