Opinion
No. CV08-6001852
March 25, 2011
MEMORANDUM OF DECISION
The plaintiff, Steven Wendt, filed a three-count complaint seeking money damages for personal injuries sustained as a result of being bitten by one or two dogs owned by the defendants, John and Win Naber. The first count was brought pursuant to General Statutes § 22-357, Connecticut's so-called "dog bite" statute, the second count sounded in negligence and the third count sounded in recklessness. The case was tried to a jury, which returned a verdict for the plaintiff on the first count and for the defendants on the second and third counts. The jury awarded the plaintiff $1,290.75 in economic damages and $6,000 in noneconomic damages. The plaintiff has now moved to set aside the verdict and for an additur. The plaintiff claims that (1) the jury's failure to find for the plaintiff on the second count was against the weight of the evidence, (2) the court erroneously excluded evidence at trial and (3) the jury's award of $6,000 in noneconomic damages was inadequate.
General Statutes § 22-357 provides in pertinent part: "If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog."
"[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as [an added] juror . . . but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that 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 [the] evidence." (Citations omitted; internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010).
As a preliminary matter, the court notes that the plaintiff incompletely states the standard by which a court must view the evidence when deciding motion to set aside the jury's verdict. In the memorandum in support of his motion, the plaintiff states: "In ruling on a motion to set aside the verdict, the trial court must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial," citing, inter alia, Suarez v. Sordo, 43 Conn.App. 756, 759, CT Page 7976 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997). Here, the jury found for the plaintiff only on the first count and against the plaintiff on the second and third counts. The plaintiff challenges the jury's verdict against him on the second count and challenges its award of damages on the first count. In this procedural posture, the rule is that "we construe the evidence in the light most favorable to sustaining the verdict," part of which was against the plaintiff. (Emphasis added.) Broadnax v. New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009).
I
The plaintiff first claims that the jury's failure to find that the defendants were negligent, as alleged in the second count, was against the weight of the evidence and indicated that the jury did not correctly apply the law.
Viewed in a light most favorable to sustaining the verdict, the evidence is that the plaintiff and the defendants live in the town of Easton, in close proximity. The plaintiff resides at number eleven and the defendants reside at number twenty-five on the same residential. The defendants owned two dogs, a female American Eskimo named Sarah and a mixed breed pit bull named Simon. In May 2001, the defendants had an "invisible fence" system installed to keep their dogs within their yard. This system consists of underground wires surrounding the property connected to an electrical system. The dogs wear collars that are battery powered. When a dog comes too close to an underground wire, the dog receives an electric shock that deters the dog from going past the wire.
On November 17, 2005, Sarah got through the electric fence and bit the plaintiff's son, Ryan Wendt, shortly after he had disembarked from a school bus. The bite very slightly broke Ryan's skin. The defendants testified that inside their house, Sarah was playful and docile. After the incident in which Sarah bit Ryan, the defendants' dogs bit no one else. After Ryan was bitten, defendant John Naber had both dogs re-trained with the invisible fence system and replaced the batteries in their collars.
This incident was the subject of another law suit, Michelle Wendt v. John Naber, Superior Court, judicial district of Fairfield, Docket No. CV 07 6001682, which the parties ultimately settled. The suit was dismissed on January 31, 2011.
On January 7, 2007, the plaintiff went jogging in his neighborhood. As he jogged down his driveway and into the street he was attacked by the defendants' two dogs. At the time, the plaintiff was not committing a trespass or other tort, nor was he teasing, tormenting or abusing the dogs.
In the second count of his complaint, the plaintiff alleged that the defendants were negligent in the following ways: "(a) . . . the defendants failed to warn the plaintiff of the presence of their unleashed dogs; (b) . . . failed to control their dogs; (c) . . . permitted their dogs to roam in the street unleashed and unmonitored at all times of the day; (d) . . . failed to prevent their dogs from attacking the plaintiff; (e) . . . failed to restrain their dogs; (f) . . . failed to have their dogs on a leash; (g) . . . failed to train their dogs not to attack the plaintiff; and (h) . . . failed to lock their dogs in their yard or on their premises." The third count of the complaint alleged that the defendants were reckless for essentially the same reasons. The third count also alleged that the defendants knew of their dogs' vicious propensities.
The court charged the jury without exception that: "To prove the defendants' liability under this [the second] count, the plaintiff must have proved the following four elements: (1) that the defendants' dog had vicious propensities, (2) that the defendants knew or in the exercise of reasonable care should have known of the dog's vicious propensities, (3) that the defendants were negligent in one or more ways that the plaintiff alleges and that I will read to you in a moment, and (4) that such negligence was a proximate cause of the plaintiff's injuries." See Mann v. Regan, 108 Conn.App. 566, 579-80, 948 A.2d 1075 (2008); Basney v. Klema, 2 Conn. Cir. 538, 544-46, 203 A.2d 95 (1964) and cases cited therein.
The jury could have found that prior to the assault on the plaintiff the defendants neither knew nor should have known of the dogs' vicious tendencies. Although the dogs had attacked another man, Raymond Spector, a few minutes earlier, there was no evidence that the defendants or their children could have known about that attack in time to have restrained their dogs. That left Sarah's 2005 bite of Ryan Wendt as the only evidence that one dog had manifested viciousness before attacking the plaintiff. The jury could have found that the 2005 bite was not severe and that this single bite was not sufficient evidence that Sarah was vicious. See Hope v. Valente, 84 Conn. 248, 251, 79 A. 583 (1911) (in certain circumstances "viciousness may not be found from a single act").
The jury also could have found that the defendants were not negligent. The jury was instructed that negligence is the breach of a duty to use reasonable care under the circumstances. Cackowski v. Jack A. Halprin, Inc., 133 Conn. 631, 637, 53 A.2d 649 (1947). Reasonable care is the care that a reasonably prudent person would use in the same circumstances. O'Briskie v. Berry, 95 Conn.App. 300, 314, 897 A.2d 605 (2006). The jury could have reasonably found that, after Ryan Wendt was bitten, defendant John Naber had both dogs re-trained with the invisible fence system and replaced the batteries in their collars and that, therefore, the defendants were not negligent.
In addition, even if it were assumed that the jury abused its discretion in finding that the defendants were not negligent, any such error was harmless. The jury found in favor of the plaintiff on the first count, which alleged a violation of the statute, and awarded him economic and noneconomic damages. The only relief the plaintiff sought in the lawsuit was money damages. Regardless of whether a claim is made under the "dog bite" statute, § 22-357, or for negligence, the measure of damages is the same. Under General Statutes § 22-357, "[t]he liability of a keeper [or owner] extends to all damage to the person which is proximately occasioned by the dog." Malone v. Steinberg, 138 Conn. 718, 723, 89 A.2d 213 (1952). At oral argument, the plaintiff admitted that he could not show that the amount of the verdict would have been different had the jury found for the plaintiff on the second count. Moreover, since the plaintiff never introduced evidence of punitive damages, any award on the third count could not have exceeded the compensatory damages awarded by the jury on the first count. Any claimed error, therefore, was harmless. A motion to set aside a verdict will not be granted for harmless error. L'Homme v. Dept. of Transportation, 72 Conn.App. 64, 74, 805 A.2d 728 (2002).
"Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008). "Punitive damages consist of a reasonable expense properly incurred in the litigation . . . less taxable costs." (Citation omitted.) Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985). There was no evidence as to these Items. Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004).
II
Next, the plaintiff claims that the court committed error when it refused to allow a police report to be marked as an exhibit.
The following additional facts are necessary to the disposition of this claim. During his case in chief, the plaintiff offered in evidence the police report of the incident. The defendants objected on the grounds that the report had not previously been disclosed and that they were surprised by its production. The court indicated that it was not persuaded by the defendants' objection, but observed that the report did contain inadmissible hearsay. The court further inquired as to whether the defendants agreed that the document was a business record. Based on the defendants' concession that the report was a business record, the court indicated that the report could be admitted into evidence "subject to redactions," and that the court would review the report for that purpose at a later time.
Neither the court nor counsel brought the matter up again. After both counsel concluded their final arguments to the jury, and after the court had charged the jury and the jury was in the jury deliberation room, the plaintiff stated that he had forgotten to have the police report marked and asked the court to mark the document as an exhibit and to send it into the jury deliberation room. The defendants objected. Initially, the court indicated that it would grant the plaintiff's request. This occurred close to the luncheon recess. After examining the document for hearsay, considering the matter further and researching the law pertaining to the plaintiff's request, the court, after the luncheon recess, denied the plaintiff's request to have the police report marked as an exhibit and delivered into the jury deliberation room. The plaintiff claims that this was prejudicial error.
"Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion . . . In any ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided . . . The trial judge's discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . Consistent with this responsibility, the trial court may not, in light of all the relevant factors, arbitrarily or unreasonably reject a motion to introduce additional evidence after the moving party has rested . . . Such a reopening should not be permitted if it would result in substantial prejudice to a party." (Citations omitted; internal quotation marks omitted.) Singh v. Hartford, 116 Conn.App. 50, 54, 974 A.2d 810 (2009). "It is within the trial court's discretion to exclude cumulative evidence." State v. Booth, 250 Conn. 611, 644 (1999).
Preliminarily, the court observes that regardless of whether evidence has been conditionally admitted, as here, or conditionally excluded, it is incumbent on the party offering the evidence, not the court, to bring the matter back before the court and remedy the condition impeding its full admission into evidence. See Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 345-46 (2nd Cir. 1994); In re M.M.S., 256 S.W.3d 470, 478 (Tex.App. 2008); Bean v. Baxter Healthcare, 965 S.W.2d 656, 660 (Tex.App. 1998); Plemons v. State, 155 Ga.App. 447, 451, 270 S.E.2d 836 (1980).
In denying the plaintiff's request, the court exercised its discretion based on several factors. First, to admit the document would have required a hearing at which counsel could be heard on the issue of what in the report should have been excluded as hearsay. Second, after the redacted document had been marked, fairness would have required the court to afford counsel an opportunity to argue further to the jury over the contents of the document. Third, the court would have been required to give a supplemental instruction to the jury addressing the limited purpose for which certain items in the document could be used. Fourth, the document had little, if any, probative value. Although the police report added further corroboration to the plaintiff's testimony that he had been attacked by two dogs and had been bitten, the court already had determined, based on the testimony and arguments of counsel, that it would not accept a defendant's verdict on the statutory count. In any event, the jury returned a verdict for the plaintiff on that count. Moreover, the report added nothing to the issue of damages that was not already graphically and pictorially in evidence. The disallowance of the police report as an exhibit did not result in a "serious danger of a miscarriage of justice."
Notably, General Statutes § 52-216 provides: "The court shall decide all issues of law and all questions of law arising in the trial of any issue of fact; and, in committing the action to the jury, shall direct them to find accordingly. The court shall submit all questions of fact to the jury, with such observations on the evidence, for their information, as it thinks proper, without any direction as to how they shall find the facts. After the action has been committed to the jury, no pleas, arguments or evidence may be received before the verdict is returned into court and recorded." (Emphasis added.) This action was committed to the jury when the court excused the jury to the jury room after delivering its charge to the jury. The case of McClure v. Connecticut Co., 135 Conn. 599, 601-02, 67 A.2d 407 (1949), holds that at that point, the court was powerless to grant a motion to reopen the evidence.
The italicized language in § 52-216 appears to be in conflict with the language in the line of Supreme Court cases stating that, under certain circumstances when exercising its discretion, the court "may properly permit that evidence to be introduced at any time before the case has been decided." See, e.g., DiLieto v. County Obstetrics Gynecology Group, P.C., 297 Conn. 105, 134 n. 35, 998 A.2d 730 (2010). Those cases do not cite § 52-216 or attempt to reconcile this holding with the statute. The issue may have been resolved by the 1982 amendment to the statute changing the word "shall" in the phrase "shall be received" in the last sentence of the statute to "may be received," thereby making that portion of the statute directory and avoiding a separation of powers issue.
Regardless of this potential conflict, the court has opted not to exercise its discretion to admit the evidence at issue. Therefore, under both the text of § 52-216 and the seemingly conflicting line of Supreme Court cases, the evidence was properly excluded.
Finally, even if it is assumed that the court did abuse its discretion, any error was harmless. Improper exclusion of evidence is harmless if there is a "fair assurance that it did not affect the jury's verdict . . . A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial." Klein v. Norwalk Hospital, 299 Conn. 241, 254-55, 9 A.3d 364 (2010). "In those instances wherein a party claims that the trial court improperly excluded testimony, we undertake a review of the relationship of the excluded evidence to the central issues in the case and whether that evidence would have been merely cumulative of admitted testimony." Id., 255.
The exclusion of the police report did not affect liability since the jury found liability in favor of the plaintiff. The plaintiff, nonetheless, claims in his memorandum in support of his motion, that the report "was indispensable" for the following reasons: (1) the report corroborated that he was attacked by two dogs; (2) it documented that he sustained a six-inch laceration of the right knee; and (3) it impugned the credibility of Christopher Naber, who testified that shortly after the attack that the plaintiff was cursing him and belligerent, and claimed that the plaintiff incited the dogs to attack him.
The nature and extent of the plaintiff's injuries were definitively documented in the records of Bridgeport Hospital soon after the attack. That record also documents that the plaintiff "was out jogging when two dogs ran after and proceeded to bite him." Christopher Naber testified that he saw his family's two dogs around the plaintiff. The extent of injuries was also documented in several color photographs. The demeanor of Christopher Naber, as well as that of the plaintiff, had little or no relevance to the issue of damages. Finally, the jury would have found it unremarkable that the plaintiff was in ill-humor after having been attacked by the defendants' dogs, as reflected in the police report. The court finds that there is a fair assurance that the exclusion of the police report, after the plaintiff had rested his case, after both counsel had concluded their arguments to the jury, and the court had charged the jury and excused them to the jury room, was harmless.
III
Finally, the plaintiff claims that the jury's award of $6,000 in noneconomic damages is shockingly low and that a new trial should be ordered. In the alternative, the plaintiff seeks an additur.
The court takes this occasion to again correct the plaintiff's misapprehension of the appropriate standard of review. The plaintiff contends that in examining the amount of the verdict, the court must consider the evidence and reasonable inferences to be drawn therefrom, in the light most favorable to the party who was successful at trial, citing Suarez v. Sordo, supra, 43 Conn.App. 759. In Suarez, the defendants claimed that the trial court improperly denied their motions for a directed verdict, to set aside the verdict, and for judgment notwithstanding the verdict in an action for negligence on the ground that their conduct was not the proximate cause of the plaintiff's injury. Id., 758. Suarez did not involve a claim as to the adequacy of the amount of the verdict.
Setting aside a verdict implicates the constitutional right of the defendants to have disputed issues of fact determined by a jury. "The right to a jury trial is fundamental in our judicial system, and . . . 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 . . . [I]n setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury . . ." (Citation omitted; internal quotation marks omitted.) Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000). "Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . Similarly, the credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury." (Citation omitted; internal quotation marks omitted.) Johnson v. Chaves, 78 Conn.App. 342, 346, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
"[I]t is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence . . . 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 . . ." Smith v. Lefebre, 92 Conn.App. 417, 422, 855 A.2d 1232 (2005). "[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 conclusion to be drawn from the evidence, the trial court should let the jury work [its] will." (Citations omitted; internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 189.
When ruling on a motion for additur, "the court should not assume that the jury made a mistake, but should suppose that the jury did exactly what it intended to do." Weiss v. Bergen, 63 Conn.App. 810, 814, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001). Moreover, "[t]he existence of conflicting evidence curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given." Schettino v. Labarba, 82 Conn.App. 445, 450, 844 A.2d 923 (2004).
The plaintiff observes that the jury viewed over twenty photographs depicting the many injuries he sustained as a result of the attack of the defendants' dogs. The largest injury was a four-to six-inch laceration on the plaintiff's right knee. This laceration was open and oozing. The jury heard that the laceration was "loosely" sutured to prevent infection. The jury also heard evidence of the puncture wound to the plaintiff's left calf and bite marks made by the defendants' dogs. The plaintiff testified as to the pain he suffered and the daily activities he was unable to perform without pain or discomfort until the sutures were removed. He testified that bathing, dressing, walking, sitting, driving a car and exercising were among the activities he was unable to perform for six to eight weeks following the injury to his right knee.
The jury saw the plaintiff's scars. The plaintiff also testified that as a result of the attack, he feared for his and his children's well-being because one of the dogs was still in the defendants' home. In his brief, the plaintiff argues: "More poignantly, Mr. Wendt shared his predominant thought as he walked back to his home, bloody, scared, emotional, and in shocked [sic], following his January 7, 2007 attack, that by the grace of God, these two dogs attacked him and not one of his children."
The bites which the plaintiff suffered were indeed severe, as the plaintiff argues. He undoubtedly suffered pain and his daily activities were impeded for some time. However, the plaintiff testified that the pain was gone after two months and the jury could have found that he soon resumed his normal daily activities. The jury likewise could have reasonably concluded that while the plaintiff has two residual scars on his leg, they are minor and so situated as not to be disfiguring, that the plaintiff is now healthy and that he has healed well. Moreover, it is in the nature of things that such scars on a hirsute forty-nine-year-old married male are not as injurious as the same scars on, for example, a thirty-year-old unmarried female.
There was little testimony that the plaintiff harbored a fear of dogs as a result of his attack. As the trier of fact, the jury was at liberty to disbelieve that he suffered from such fear; e.g., Bogart v. Tucker, 164 Conn. 277, 283, 320 A.2d 803 (1973) ("the jury were at liberty to disbelieve the defendant's testimony"); and that any fear he had for himself or his children on account of Simon remaining in the defendants' home was exaggerated because Simon is now physically confined to the defendants' property. There was evidence that the plaintiff and his children have resumed their ordinary activities, including those that occur on the same road where the plaintiff was bitten. See Silva v. Walgreen Co., 120 Conn.App. 544, 992 A.2d 1190 (2010).
The award of noneconomic damages was not generous. Admittedly, had the case been tried to the court, the award of noneconomic damages would have been higher. But that is not the test to be applied in deciding whether to grant the plaintiff's motion. "[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 645-46, 904 A.2d 149 (2006).
This court concludes that the jury could have reasonably reached the conclusions it did. The plaintiff's motion to set aside the verdict and for an additur is denied.