Malmberg v. Lopez

Co vello, J.,

dissenting. I respectfully disagree with the position adopted by the majority.

“ ‘The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.’ ” Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981). “From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).

The respect due the trial court’s refusal to set aside a jury verdict is especially significant when the issue involves damages. “It must be borne in mind that the weight to be accorded to testimony is a matter for the jury, and the assessment of damages is peculiarly within their province.” Camp v. Booth, 160 Conn. 10, 12, 273 A.2d 714 (1970).

“It serves no useful purpose to compare a verdict in one death case with those in others. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others.” Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893 (1956). “Because the trial court had an opportunity far superior to ours to evaluate the evidence ... its conclusion will not be disturbed unless there is a clear abuse of discretion.” Kiniry v. Danbury Hospital, 183 Conn. 448, 462, 439 A.2d 408 (1981).

Without assessing the evidence as to damages (or the lack of it), the majority finds an abuse of the trial court’s discretion and orders a remand. I find this to be an unwarranted intrusion upon the trial court’s very significant discretion in this case.

The majority further declares that a hearing in damages is now in order. Although I would not have dis*449turbed the jury’s verdict, if there must be further proceedings, it is surely arguable that the finding of zero damages is reflective of some misunderstanding on the issue of liability. Such a likelihood in my view transcends any public policy considerations concerning finality and judicial economy. I would at least order a new trial.