Bleau v. Ward

Berdon, J.,

concurring in part and dissenting in part. I agree with the majority that counsel must be allowed to argue damages by suggesting specific amounts, “lump sums or by mathematical formulae,” to the jury as provided in General Statutes § 52-216b unless the argument “would lack any rational basis in the evidence and thus result in a constitutionally unfair trial . . . .” Since the trial court failed to follow the statute, and there was no evidence that the argument would have lacked a rational basis, a new trial is required.

That new trial, however, should be limited to damages. Early on we recognized the injustice of requiring the retrial of both liability and damages when there was merely an error that affected damages. In Smith v. Whittlesey, 79 Conn. 189, 193-94, 63 A. 1085 (1906), the court held the following: “The only error apparent in the record or claimed upon appeal is one affecting the assessment of damages. Other material issues *342submitted to the jury have been found for the plaintiff, to wit: that while [the] plaintiff and [the] defendant were traveling the same course on the public highway, the defendant carelessly drove his vehicle against that of the plaintiff and hurled the plaintiff against the wheel of his vehicle whereby the plaintiff was severely injured; that the plaintiff as well as the defendant at the time of the injury was traveling in a vehicle for the conveyance of persons as described in . . . the General Statutes. These issues have been legally settled, and the error of the court in respect to damages may be fully corrected without a retrial of these issues. In such a case it is plain that the issues rightly settled ought not to be reopened, and this court has the power to qualify its order for a new trial by limiting the retrial to that part of the case in which alone there is any error. . . . This principle may be applied to trial by jury when its application is necessary to do justice to the parties.” (Citations omitted.) See Davenport v. Bradley, 4 Conn. 309, 311 (1822). Indeed, we have continued to remand jury cases for a new trial only on damages when the error was limited to that issue. E.g., Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985); Ryszkiewicz v. New Britain, 193 Conn. 589, 479 A.2d 793 (1984); Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982).1

The majority claims that a new trial as to liability and damages is necessary in this case because “those issues are likely to be ‘inextricably interwoven’ from the viewpoint of a jury. ’ ’ By that I take it the majority believes there is a likelihood the jury compromised the issue of liability when it reached its verdict. It is fundamental, *343and I have no reason to believe that it was not done in this case, that the jury is instructed that they are to determine the issues of liability first, and unless they have found those issues in favor of the plaintiff the jury may not proceed to consider damages. E.g., 1D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 222f.2 It is reasonable to assume that the jury followed the instructions of the trial court and did not consider damages unless it first determined that there was liability. “[J]urors are presumed to follow the instructions given by the judge.” State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987).

When there is no error in the liability portion of the case, it generally serves no purpose to retry the issue. Only in the most exceptional case should we order on remand a full trial when the only issue on appeal is a claim of error on damages. This is not such a case. The plaintiff was injured when he was a passenger in a vehicle operated by the defendant Ward that was involved in a one car collision, and there was no issue of liability raised on appeal. Indeed, in this case Ward did not request a remand for a full trial if error was found. To require the relitigation of liability would only result in unnecessary costs for the litigants and add to an overburdened judicial system.

1 also disagree with the majority that the questions the plaintiff sought to ask the prospective jurors were improper as implanting in the mind of “a venir eperson . . . the notion that an exceptionally high award of damages would be warranted . . ..” During the last *344decade there have been extensive national campaigns advertising that high jury awards have caused increases in the costs of automobile insurance premiums. This was a case of serious personal injuries for which a jury could award a substantial amount of damages. Indeed the plaintiff appealed from the denial of his motion to set aside a verdict of $150,000 in his favor that Ward was obviously content to pay.

These questions by the plaintiff’s counsel; see p. 339 of the majority opinion, supra; were designed to ferret out whether the prospective juror had been exposed to those advertising campaigns, and if so, to determine whether that would prevent that person from awarding substantial damages if the evidence justified such an award. They were also formulated to determine whether the prospective juror would reduce an award that was fair, just and reasonable merely because of the amount involved, or would be inclined to place artificial limits on an award. They were perfectly proper questions and are routinely allowed. Although the extent of the voir dire examination of prospective jurors rests largely in the discretion of the trial court; State v. Hernandez, 204 Conn. 377, 381, 528 A.2d 794 (1987); in exercising its discretion the trial court “should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges.” State v. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987). “ ‘[I]f there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. . . ” State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985).

Although the subject matters of the disallowed questions were proper, I agree with the trial court that they were adequately covered by prior questions to the *345prospective juror. The trial court wrote the following in its memorandum of decision on the motion to set aside the verdict: “The juror had already indicated in response to plaintiff’s counsel’s questions that had previously been permitted by the court that nothing about the concept of money damages being awarded for personal injuries bothered him; nor was he specifically troubled about compensation for medical expenses, pain and suffering or permanent disability; and had no preconceived specific dollar amount which he would not go above or below no matter what the evidence in the case showed. Counsel was also permitted to ask if the venireperson thought there was a lawsuit crisis and the venireperson replied, ‘No.’ The court is satisfied that the plaintiff had an adequate and fair opportunity to inquire of prospective jurors as to possible bias or inability to fairly serve.” It is well within the trial court’s discretion to exclude repetitious questions or questions on the subjects that were adequately explored. State v. Marsh, 168 Conn. 520, 523, 362 A.2d 523 (1975).

Not content with sustaining the trial court on the grounds that the voir dire questions were properly excluded because they were cumulative, upon which we all agree, the majority goes further and actively reaches out to hold at least two of those questions to be, as a matter of law, improper. The permissible content of the voir dire questions cannot be reduced to simplistic rules, but must be left fluid in order to accommodate the particular circumstances under which the trial is being conducted. Thus, a particular question may be appropriate under some circumstances but not under other circumstances. The majority fails to recognize this.

Accordingly, I concur with the majority regarding the right to argue monetary amounts to the jury, but I respectfully dissent to the majority’s remand that directs a retrial on the issue of liability as well as damages and to the majority’s conclusion that the subject matters of the voir dire questions were improper.

I concede that in the past we have on occasion remanded the matter for a full trial on both liability and damages when there was an error on only the issue of damages. Those cases, however, involved matters in which serious issues of contested liability were raised. E.g., Fazio v. Brown, 209 Conn. 450, 451-52, 551 A.2d 1227 (1988) (“The accident occurred in the early evening hours as [the plaintiff], wearing dark clothing, and riding his motorcycle without lights, was crossing the defendants’ driveway.”).

For example the substance of the following jury instruction is routinely given: “Now, unless or until you come to the conclusion that one or more of these defendants were negligent, and that such negligence was the proximate cause of the plaintiffs injuries, you have no occasion whatsoever to consider the question of damages. I speak of damages only because there is law in connection therewith which I must give you in the event that you get that far in your considerations. If you do come to the conclusion that any or all of the defendants were negligent, and that such negligence was the proximate cause of the injuries in the given case, then you must turn to the question of damages.” (Emphasis in original.) 1 D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 222f.