235 CONN 107 - Childs v. Bainer

BERDON, J.,

¶1dissenting. The majority concludes that a jury award for the plaintiff that consists of $3649 in economic damages but zero noneconomic damages is not ambiguous and, therefore, may be sustained on appeal. I disagree. Like the Appellate Court,1I conclude that in a personal injury case, when a plaintiff has alleged and produced evidence to support an award of both economic and noneconomic damages, a jury verdict that consists of substantial economic damages but zero noneconomic damages is ambiguous as a matter of law. Accordingly, the trial court should have set aside the verdict.

¶2At common law, damages in a personal injury action were classified as either “special damages” or “general damages.” “Ordinarily, such things as loss of earnings, *123doctors’ and hospital bills are referred to as special damages.” Varley v. Motyl, 139 Conn. 128, 134, 90 A.2d 869 (1952); see Wood v. Bridgeport, 216 Conn. 604, 610, 583 A.2d 124 (1990). General damages, on the other hand, included compensation for conscious pain and suffering. Kiniry v. Danbury Hospital, 183 Conn. 448, 460, 439 A.2d 408 (1981). In personal injury cases, the court would instruct the jury about these categories of damages. If the jury returned a verdict for the plaintiff, however, it would not break down the monetary award into these separate categories. Rather, it would return a lump sum verdict that included both special and general damages.

¶3In the mid-1980s, the legislature rewrote the tort recovery provisions of our civil system in successive legislative enactments known together as Tort Reform.2 As a result of the latter of these enactments, No. 87-227 of the 1987 Public Acts, the trier of fact in a personal injury action must break down its award of damages into two categories: economic damages and noneconomic damages. Economic damages are defined as “compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages.” General Statutes § 52-572h (a) (1). Noneconomic damages are defined as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering.” General Statutes § 52-572h (a) (2). For the most part, therefore, “economic damages” are akin to special damages, and “noneconomic damages” are akin to general damages.

¶4In Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), this court addressed a question identical to that *124posed here. In Johnson, the jury returned a verdict that awarded substantial special damages, but zero general damages, to each of three plaintiffs. This court concluded that the awards were inadequate as a matter of law. In overturning the trial court’s refusal to set aside the verdicts, this court held that “if the plaintiffs were entitled to verdicts those rendered were manifestly inadequate and the motion to set them aside should have been granted.” (Emphasis added.) Id., 232. Similarly, in Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993), we concluded that a jury verdict that found liability issues in favor of a defendant on her counterclaim against a particular plaintiff but that awarded her zero damages was “inherently ambiguous.” We reasoned that “[u]nder these circumstances, we can only speculate as to why the jury failed to award damages in her favor; therefore, the jury’s verdict creates an ambiguity.” Id., 425-26; see Malmberg v. Lopez, 208 Conn. 675, 681, 546 A.2d 264 (1988); Creem v. Cicero, 12 Conn. App. 607, 611, 523 A.2d 234 (1987) (“[a]s a general rule, it is manifestly unjust for the jury to fail to award damages for pain and suffering when it awards special damages”).

¶5In my view, this case is squarely controlled by Johnsonand Ginsberg. Although the terminology of Johnsoninvolves “special damages” and “general damages,” the principles announced therein apply with equal force to the economic and noneconomic damages at issue in this case. Under the rationale of Johnson, an award of economic damages without accompanying noneconomic damages cannot stand. Likewise, just as this court in Ginsbergfound ambiguity in the jury’s failure to award damages consistent with its verdict, the same ambiguity exists here, where the jury has awarded economic damages but no noneconomic damages to reflect pain and suffering.3 On the basis of these clear prece*125dents, therefore, the Appellate Court was correct in reversing the judgment of the trial court and remanding the case for agreement on an additur or, in the alternative, a new trial.4

¶6The reasoning behind the majority’s attempts to distinguish this case from Johnsoneludes me.5 First, the majority suggests that the percentage recovery of the amount of special damages alleged by the plaintiff is a factor. The majority points out that in Johnsoneach plaintiff was awarded an amount equal to his or her entire amount of special damages alleged,6 but that in this case the plaintiff was awarded only 19 percent of the noneconomic damages he had alleged.7 I do not *126understand why this makes any difference. In both cases, the jury awarded substantial special damages, but nothing for pain and suffering. That is the significant factor, and that was the basis for this court’s decision in Johnsonto set aside the verdict. Indeed, this case is more compelling than Johnson. In Johnson, because the jury was not asked to differentiate between special and general damages, the court was required to assume that the amount awarded to each plaintiff, which matched exactly the amount he or she had alleged as special damages, consisted only of special damages. Johnson v. Franklin, supra,112 Conn. 229. In this case, however, as a result of the specific jury findings required by § 52-572h, we know for a fact that the jury awarded the plaintiff only economic damages and refused to award noneconomic damages. Under the rationale set forth in Johnson, that ambiguity requires that the verdict be set aside.

¶7Second, the majority attempts to distinguish this case on the basis that, in Johnson, this court stated that the pain and physical injuries suffered by the plaintiffs had been “substantial.” I do not know what the Johnsoncourt meant by substantial, but it is undeniable that the $3649 in special damages awarded in this case is not nominal. Moreover, although the evidence was hotly contested, there was medical evidence that the plaintiff had sustained a 12 percent permanent disability to his lower back and that he had suffered from pain.8 Accord*127ingly, the majority cannot attempt to distinguish this case from Johnsonon the ground that the plaintiff had failed to demonstrate “substantial” injuries.

¶8The majority’s reliance on another aspect of Ginsberg v. Fusaro, supra,225 Conn. 430,9 and on Rickert v. Fraser, 152 Conn. 678, 211 A.2d 702 (1965), is misplaced. Both Ginsbergand Rickertwent to trial prior to the legislature’s enactment of Tort Reform and, consequently, the juries in those cases had not been required to separate their awards into economic and noneconomic damages. On appeal, therefore, this court was unable to determine whether the jury awards included only special damages, only general damages, or a combination of both. For example, in Ginsberg, a dental malpractice case, the injured party claimed special damages in excess of $50,000, along with general damages; we were unable to determine how the jury had apportioned the $5000 it had awarded to her against one of two dentists and whether that amount might have included damages for pain and suffering. Consequently, we affirmed the jury verdict. Likewise, in Rickert, although the plaintiff had claimed special damages of $3400, we had no way of determining whether any part of the $2500 awarded by the jury constituted damages for pain *128and suffering. This precise distinction was made clear in Creem v. Cicero, supra,12 Conn. App. 611 (“there was no reasonable basis upon which the court could have concluded that the jury’s verdict was limited to special damages”). These cases, therefore, are not helpful to the majority.

¶9In sum, I agree with the Appellate Court that the trial court should have ordered an additur and, if the parties failed to agree on that sum, the trial court should have set aside the verdict and ordered a new trial.10I respectfully dissent.

¶10 See Childs v. Bainer, 35 Conn. App. 301, 305, 645 A.2d 1041 (1994).

¶11 See Public Acts 1986, No. 86-338; Public Acts 1987, No. 87-227.

¶12 My conclusion would be different if the jury had awarded only nominal economic damages, or if the economic damages had been limited solely to *125damages without accompanying pain and suffering, such as the cost of a physical examination to ascertain whether the plaintiff was injured

¶13 The Appellate Court remanded the case as follows: “The judgment is reversed and the case is remanded for further proceedings to determine a reasonable additur for noneconomic damages, to give the parties an opportunity to accept the additur, and, if they do not accept the additur, a new trial is ordered as to all issues.” Childs v. Bainer, supra,35 Conn. App. 305.

¶14 In an endeavor to distinguish this case from our well reasoned precedent in Johnson v. Franklin, supra,112 Conn. 228, the majority speculates in footnote 7 that the jury could have found that the permanent injury to the lower back was related to his employment. But the majority simply misses the point. In this case, as in Johnson, we do not know what the jury found other than that, as a result of the defendant’s negligence, the plaintiff sustained substantial special or economic damages in the amount of over $3600, but no pain and suffering or other noneconomic damages. In light of the medical evidence of injuries to the neck and lower back of the plaintiff, as a result of the defendant’s negligence, an award of over $3600 for special damages and zero for pain and suffering and other noneconomic damages malees this verdict ambiguous. It is ambiguous because if they did not believe the plaintiff was injured, the jury would not have awarded him the substantial special damages. And the suggestion by the majority that the special damages awarded by the jury may have included lost wages does not make the verdict less ambiguous. “We presume that the jury will abide by its duty to make a thoughtful, reasoned decision, applying its common sense and logic to the evidence presented.” Wasfi v. Chaddha, 218 Conn. 200, 211, 588 A.2d 204 (1991). For this reason, the verdict must be set aside.

¶15 To the three plaintiffs in Johnson, the jury awarded $573.25, $240.57 and $142, respectively. Johnson v. Franklin, supra,112 Conn. 229.

¶16 The jury awarded $3649 of the $19,129 claimed by the plaintiff.

¶17 Three reports of the plaintiffs physician, Richard Matza, were introduced into evidence during the trial. Each of the reports noted that the patient is “being followed along” for cervical and lumbar strain. The first report, dated March 10, 1989, indicated that the plaintiffs “low back has pain. [Physical therapy] definitely helps but the headaches continue.” That report also referred to “[t]enderness in the paraspinous muscle region of the low back with spasm in the paraspinous muscle region of the low back” and “[r]esolved cervical strain with persistent low back strain.”

¶18The second report, dated May 10,1989, indicated that the plaintiffs “neck is doing quite good; low back is better. He has some tenderness in the left posterior superior iliac spine.” This report also referred to “cervical strain and low back strain.”

¶19 *127The third report, dated February 7, 1990, concluded that “[h]is neck is doing fine. His low back is still symptomatic. ... On physical exam, the patient has tenderness in the paraspinous muscle region of the neck and low back with pain .... My impression is the patient has improved cervical strain with chronic low back strain which has reached maximum improvement with a 12% permanent, partial disability of the back and none of the neck.”

¶20Ginsbergwas originally a collection case that ripened into a claim of dental malpractice. The plaintiff dentists brought the action against their former patient and her husband, and the patient counterclaimed for negligence. The jury returned a verdict for the patient against both dentists, Robert Miller and Martin Ginsberg. The jury, however, awarded $5000 damages against Miller only and none against Ginsberg. The trial court accepted the jury verdict as to Miller but set aside the verdict as to Ginsberg. We affirmed the trial court’s decision on appeal. Ginsberg v. Fusaro, supra,225 Conn. 432.

¶21I disagree with the remand ordered by the Appellate Court. See footnote 4 of this dissent. Because this is a case of an ambiguous jury verdict, the trial court, in my view, should have set aside the verdict without first ordering an additur. See Ginsberg v. Fusaro, supra,225 Conn. 430; Johnson v. Franklin, supra,112 Conn. 232.

How this case has been cited