Barry v. Posi-Seal International, Inc.

672 A.2d 514, 40 Conn. App. 577, 11 I.E.R. Cas. (BNA) 978, 1996 Conn. App. LEXIS 127
CourtConnecticut Appellate Court
DecidedMarch 12, 1996
Docket12101
StatusPublished
Cited by31 cases

This text of 672 A.2d 514 (Barry v. Posi-Seal International, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry v. Posi-Seal International, Inc., 672 A.2d 514, 40 Conn. App. 577, 11 I.E.R. Cas. (BNA) 978, 1996 Conn. App. LEXIS 127 (Colo. Ct. App. 1996).

Opinions

LANDAU, J.

This matter is currently before us on remand from our Supreme Court.1 Barry v. Posi-Seal International, Inc., 235 Conn. 901, 664 A.2d 1124 (1995). [579]*579In this appeal, the defendant claims that the trial court improperly denied the defendant’s motions for judgment, notwithstanding the verdict, for a new trial and for remittitur in that (1) there was insufficient evidence to support the plaintiffs front pay damage award, and (2) there was insufficient evidence to support the plaintiffs punitive damage award. In the cross appeal, the plaintiff claims that the trial court improperly reduced his punitive damage award.

The relevant facts regarding the plaintiffs employment history at Posi-Seal and events leading to his termination are included in our original opinion. Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 3, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995).

I

FRONT PAY AWARD

The defendant claims that there was insufficient evidence adduced at trial to support the front pay damage award.2 He argues that the evidence failed to establish that the plaintiff had an expectation of future employment at Posi-Seal, and that the plaintiff failed to prove any actual loss of future earnings because he gained comparable employment following his termination, thereby mitigating any actual damages. In the alternative, the defendant argues that if front pay damages did exist, the evidence was insufficient to support the jury’s award of $271,775. He argues that this amount was speculative and excessive because there was little or no evidence to guide the jury in its calculations.

The following additional facts are relevant to this claim. The plaintiff had been employed by the defendant for more than ten years, and was earning an hourly wage [580]*580of $11.55 when he was terminated. If he had remained employed at Posi-Seal and received all possible raises, he would have been earning an hourly wage of $13.80 at the time of the trial. Although the plaintiff had considerable seniority at Posi-Seal, his continued employment there was uncertain because Posi-Seal reduced its workforce through layoffs after the plaintiff was fired. Following his discharge in August, 1988, the plaintiff worked for a contractor, except for four months, until January, 1991.3 He then began working at the Electric Boat Division of General Dynamics Corporation (Electric Boat) where he was earning $14.21 per hour at the time of the trial.

“Evidence is sufficient to sustain a verdict where it induces in the mind of the [trier] that it is more probable than otherwise that the fact in issue is true. . . . It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. ...” (Citations omitted; internal quotation marks omitted.) Baker v. Cordisco, 37 Conn. App. 515, 528, 657 A.2d 230, cert. denied, 232 Conn. 907, 659 A.2d 1207 (1995).

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... It has traditionally been [581]*581held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself. . . . Thus, [t]he normal rule of an employment contract is that when the employee is prevented from fully performing because the employer wrongfully fires him, the employee can recover the wages he would have earned under the contract, minus any wages which he has earned or could have earned elsewhere, and the burden of proof of the latter is on the employer.” (Citations omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 32-33. Damages for future lost wages “can be awarded in actions for breach of an implied contract of employment, as long as they are limited to a reasonable time and are supported by the evidence.” Id., 33-34.

We have already set out in detail the facts that the jury could reasonably have found. The issue that remains to be determined is whether the jury could reasonably have concluded, on the basis of the evidence before it, that the damage attributed to future wage loss-impairment of earning capacity amounted to $271,775. The plaintiff has, by obtaining employment elsewhere, either avoided or mitigated the loss.4 “Normally, the determination of the extent of mitigation, if any, as it applies to future wage loss, is made by the finder of fact.” Barry v. Posi-Seal International, Inc., supra, 36 Conn. App. 28 (Foti, J., dissenting).

“Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant. . . . The only practical test to apply to a [582]*582verdict 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 were influenced by partiality, mistake or corruption. . . . Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict. . . . Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged . . . and its ruling will not be disturbed unless there is a clear abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 32 Conn. App. 704, 715-16, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994). “The size of the verdict alone does not determine whether it is excessive.” (Internal quotation marks omitted.) Id., 721.

After a thorough review of the record, we conclude that the award is not supported by the evidence and shocks the sense of justice. The jury awarded damages of $271,775 to the plaintiff for future wage loss-impairment of earning capacity despite the fact that the plaintiff called no witness to testify as to the impairment of his earning capacity.

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Bluebook (online)
672 A.2d 514, 40 Conn. App. 577, 11 I.E.R. Cas. (BNA) 978, 1996 Conn. App. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-posi-seal-international-inc-connappct-1996.