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GARZILLI v. HOWARD JOHNSON'S MOTOR LODGES

September 20, 1976

CONNIE FRANCIS GARZILLI and JOSEPH GARZILLI, Plaintiffs,
v.
HOWARD JOHNSON'S MOTOR LODGES, INC., Defendant



The opinion of the court was delivered by: PLATT

PLATT, D.J.

 Following the verdict of the jury in favor of the plaintiffs, Connie Francis Garzilli ("Connie Francis") and her husband, Joseph Garzilli, for $2.5 million and $150,000, respectively, the defendant moved pursuant to Rule 50(b) of the Federal Rules of Civil Procedure to have the verdict and any judgment entered thereon set aside or, in the alternative, pursuant to Rule 59, for a new trial on the grounds that the verdict was against the weight of the evidence and excessive. Defense counsel requested, and were granted, time within which to submit briefs in support of their motion and counsel for both parties have done so. Defense counsel, however, have limited their brief to a discussion of the question of excessiveness.

 It is axiomatic that in considering these motions plaintiffs are entitled to have the evidence viewed in the light most favorable to them and to have "the benefit of all inferences which the evidence fairly supports". Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S. Ct. 1404, 1409, 8 L. Ed. 2d 777 (1962); Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036 (2d Cir. 1976); Gilroy v. Erie Lackawanna R.R., 279 F. Supp. 139 (S.D.N.Y. 1968).

 It is also basic law, as stated in Tennant v. Peoria & Pelkin Union Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 412, 88 L. Ed. 520 (1944), that:

 
"Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable."

 In the case at bar a great many of the facts were not in dispute and a great many more were uncontroverted.

 The proof showed that Connie Francis was and is an internationally known singer, recording artist and professional entertainer who, prior to her partial retirement in 1971, was earning substantial sums for her personal appearances as an entertainer, e.g., in 1968 $163,000, in 1969 $325,000, and 1970 $287,500. Her average fee for an eight performance engagement at a night club or theater during those years was approximately $35,000. It was undisputed that in the course of her career, which commenced when she was ten years old, she had sold approximately 80 million records, had performed in innumerable theaters and night clubs throughout the world and had made some five motion pictures.

 Following her marriage to the plaintiff, Mr. Garzilli, in September of 1973 and the loss of her child in July of 1974 Connie Francis decided to resume her professional career. Her first engagement was at the Westbury Music Fair in Westbury, Long Island, for which she was to receive a guaranteed minimum of $20,000 plus a percentage ranging between 50 and 60% of the gross box office receipts for a series of eight performances beginning on November 6, 1974. The testimony was that her return to the entertainment field was very much a success and she was well received by capacity audiences for her first two evening performances.

 In connection with this engagement, Connie Francis and her husband took rooms at the defendant's Motor Lodge in Westbury and in the early morning hours of November 8, 1974, *fn1" after her second performance, she was criminally assaulted by an unknown man who came through one of the sliding glass doors of her rooms. The doors gave the appearance of being locked, but the testimony showed they were capable of being unsecured from the outside without much difficulty. *fn2"

 In addition to the pain and suffering which accompanied and immediately followed the assault and the fear, anxiety and depression which ensued thereafter, the proof showed that Connie Francis continued to suffer from a significant depressive reaction and a traumatic neurosis which was manifested by depression, social and sexual withdrawal and traumatic phobia. It was the opinion of one of her psychiatrists who testified that she would have significant difficulty in ever trying to resume her professional career for at least the next ten years. Connie Francis herself testified that she could no longer appear before an audience because of her feeling of shame and humiliation, and she could no longer stay in a hotel or motel room which would be necessary for her to do if she were to fulfill her engagements.

 Against this background the plaintiffs called Mr. Martin Kummer, Managing Director of Music Fair Enterprises, who testified that it was his function to book performers into the six theaters owned and operated by Music Fair Enterprises Inc. (including Westbury Music Fair) and that he also booked and packaged such persons for five other theaters. He testified that Connie Francis, then aged 35, was a "superstar" of extraordinary talent and that she would continue to be a leading performer for at least the next 25 years. He also said that he was confident that he could arrange for her appearances annually at the six music theaters and the five other theaters normally booked by him, and that Connie Francis would average approximately the same income as she would have received at Westbury or $40,000 or $45,000 for each engagement for each theater.

 To corroborate and add to such testimony the plaintiffs also called Mr. Dominick Bruno, a proprietor of a dinner theater in Sylvan, New York, who testified with respect to offers which he had made to Connie Francis for engagements at his establishment in 1975 and 1976 which would have paid her fees of approximately $38,000 per year for appearances over the July 4th weekend of each year. He also testified that he would have continued to make such offers to her indefinitely in the future.

 Defendant first argues that from the very size of the verdict the jury must not have been "functioning properly" which is really another way of saying that the evidence was insufficient to sustain the verdict, a point which we will hereinafter discuss.

 In addition, the defendant claims that the size of the verdict demonstrates that the jury was carried away by "passion and prejudice" generated by "the public and press rendering the ...


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