26 Conn. App. 490 | Conn. App. Ct. | 1992
The defendants,
The jury could reasonably have found the following facts. On June 12, 1984, Garafolo, an employee of the named defendant Zaretsky, administered an allergy injection to the plaintiff at Zaretsky’s office in Ansonia. Garafolo injected the plaintiff with a dosage ten times greater than the patient’s prescribed dosage. The plaintiff suffered an allergic reaction consisting of increased body temperature, severe itching, diminished hearing, a rash and labored breathing. Zaretsky administered atarax and adrenaline to the plaintiff to restore her breathing to normal and to alleviate the remaining conditions. She remained in his office for the rest of the afternoon and was then driven home by Garafolo.
In her complaint,
The defendant contends that because the plaintiff did not allege in her complaint that she would be forced to incur future medical expenses, the trial court improperly instructed the jury that it could award such damages. We agree.
“ ‘The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in [her] complaint. ... “A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery.”. . .’ ” (Citations omitted.) Savin v. National Personnel Consultants, Inc., 4 Conn. App. 563, 566-67, 495 A.2d 1109 (1985); see also Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987); Matthews v. F.M.C. Corporation, 190 Conn. 700,
Thus, the plaintiff cannot recover for something that was not specifically set out in her complaint. In her complaint, the plaintiff alleges only that she “was forced to incur further medical expense and sustained great mental and emotional pain and anguish.” (Emphasis added.) This allegation was phrased in the past tense, indicating that she sought recovery for medical expenses already incurred and that she had already sustained great mental pain and anguish. There is no indication in the language of the complaint that the plaintiff anticipates incurring future medical expenses or that she suffers continuing mental pain and anguish.
Our appellate courts have noted the importance and the significance of the use of a particular tense. In Connelly v. Doe, 213 Conn. 66, 68, 566 A.2d 426 (1989), the court examined an order stating “ ‘that an inquiry be made to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the Superior Court have been committed ....’” (Emphasis in original.) The court concluded that the language of the court order empaneling a grand jury investigation authorized investigation into past conduct only.
Because we are bound by the four corners of the plaintiff’s complaint, we must examine the specific language to determine the particular causes of action alleged. The tense used in the complaint dictates whether it encompasses past, present or future claims. Here, the allegations involving the plaintiff’s medical
Our appellate courts have considered numerous cases in which a plaintiff sought future medical expenses. Such expenses have been awarded where they were alleged in the complaint and supported by the evidence at trial. For example, in Mulrooney v. Wambolt, 215 Conn. 211, 575 A.2d 996 (1990), the plaintiffs award of future medical expenses was upheld where she alleged that she had suffered and would continue to suffer injuries and that she had incurred and would incur medical and hospital expenses. In Healy v. White, 173 Conn. 438, 378 A.2d 540 (1977), the Supreme Court affirmed an award of future medical expenses where the complaint alleged that as a result of the injuries sustained, the plaintiff had incurred and would in the future incur medical expenses on behalf of the victim.
Additionally, trial courts have demonstrated an understanding of the difference between medical expenses that have been already incurred and those that will be incurred in the future. In Reilly v. DiBianco, 6 Conn. App. 556, 575, 507 A.2.d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986), the complaint alleged that the plaintiff was rendered comatose and suffered permanent brain damage. Because of the permanent nature of the injuries, the trial court, in its instruction to the jury regarding future medical expenses, stated that the medical expenses incurred by the defendant up to the time of trial and those further expenses likely to be incurred in the future could be included in the jury’s determination of damages, thereby distinguishing between the two types of damage awards. Id., 574-75. In Doyle v. Russell, 5 Conn.
Construing the allegations of the complaint in the light most favorable to the pleader; O’Connor v. Dory Corporation, 174 Conn. 65, 68-69, 381 A.2d 559 (1977); at most, the complaint alleges that the plaintiff has been forced to incur additional medical expenses to date. Even a broad reading of the complaint did not give the defendant notice of the additional issue. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Company, 193 Conn. 208, 223-24 n.16, 477 A.2d 988 (1984). Because the complaint failed to allege that the plaintiff will incur future medical expenses, the trial court improperly instructed the jury that it could award such expenses.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
The defendants are Joel Zaretsky and Francine Garafolo. Garafolo has since married. Although her married name is Mengold, we will continue to refer to her as Garafolo.
The complaint consisted of two counts. The first count alleged negligence on the part of Joel Zaretsky and the second alleged negligence on the part of Francine Garafolo.
The language of the enabling statute also limits the grand jury’s investigatory power to past conduct. General Statutes § 54-47 (a), in effect at the time, provided “an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed . . . within the judicial district . . . .” (Emphasis added.)
The phrase “was forced to incur” is the grammatical equivalent of the term “incurred.”
Because liability and damages are “inextricably interwoven,” we remand for a new trial on both liability and damages. See Fazio v. Brown, 209 Conn. 450, 457, 551 A.2d 1227 (1988).