KENNETH TIMMINS v. STEPHANIE MORRISON

CRANE, J. The defendant struck the plaintiff while he was riding a motorcycle in Malden on September 17, 2012. The jury found the defendant’s negligence caused the accident and injuries and awarded the plaintiff damages.

The verdict on special questions itemized the elements of damages for the jury to consider and asked for separate amounts, if any, to be awarded for fair and reasonable medical expenses, pain and suffering, and loss of earning capacity. The jury awarded $9,381.20 for medical expenses and nothing for pain and suffering or loss of earning capacity. The plaintiff appeals from the denial of his motion for new trial upon the ground that the damages awarded were inadequate.

The decision to grant or deny a new trial on the ground of an excessive or inadequate award of damages is within the discretion of the trial judge. Statkus v. Metropolitan Transit Auth., 335 Mass. 172, 174 (1956); W. Oliver Tripp v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). An abuse of discretion occurs only where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The plaintiff submitted evidence of total medical expenses in the amount of $15,935.75. This included $8,668.20 incurred on the date of the accident for ambulance service and treatment from various medical providers at Melrose-Wakefield Hospital. He was treated and released without admission on the date of the accident. The plaintiff did not suffer any fractures, and he was diagnosed with closed-head trauma, cervical sprain, and contusions. The report of the plaintiff’s expert that was in evidence stated that the plaintiff was suffering from neck and lower-back pain caused by the accident that exacerbated preexisting conditions. The plaintiff had a history of surgery to his back and neck in 1998 and 2000, respectively. There was no evidence of any permanent condition or loss of function caused by the accident. The balance of the medical bills in evidence were from medical providers who treated the plaintiff in the following months, including medical doctors and a physical therapist.

The plaintiff testified about periods of pain and losses of bodily function that he suffered. He also claimed that his disabilities from the accident prevented him from riding a motorcycle. However, he rode a motorcycle he had recently purchased to his deposition in this action. The medical providers’ treatment records also contained evidence of the plaintiff’s complaints. There was also conflicting testimony about the

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plaintiff’s efforts and ability to stand up his motorcycle at the scene of the accident as well as some allegedly aggressive actions that he may have engaged in toward the defendant at the scene, which may have indicated that any injuries were less severe than claimed.

At the time of the accident, the plaintiff had been out of work since February, 2012, of his own choosing. He testified that before the accident, he had secured new work commencing on October 1, 2012, but could not start the job because of the injuries in this case. There was also evidence in one of the records that he responded that he was listed as “retired” on one of the medical records.

The plaintiff urges that the trial judge abused her discretion by denying his motion for new trial. In doing so, the plaintiff has not directed us to any decisions where an appellate court in Massachusetts has reversed a trial judge’s decision to deny a motion for new trial because the damages awarded were inadequate. [Note 1] The plaintiff places substantial reliance on Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 (2009). However, that decision involves an affirmance of a trial judge’s exercise of discretion to grant a new trial because an award of damages was inadequate. It does not support the proposition that failing to grant a new trial is an abuse of discretion that requires reversal.

The defendant argues that denial of the motion was not an abuse of discretion because the plaintiff had the burden of proof on each of the elements of damages, including that the accident caused the alleged losses. It was up to the jury to accept or reject whatever evidence it decided was credible on each of the elements. On the evidence presented at trial, the trial judge, who heard the testimony of the witnesses, did not abuse her discretion by denying the plaintiff’s motion for new trial.

Judgment affirmed.