Opinion
CV106004554S.
12-17-2012
Karen CICCOTTI v. Roy JACOBSEN.
Pedersen & Stewart LLC, Hartford, for Karen Ciccotti.
UNPUBLISHED OPINION
Pedersen & Stewart LLC, Hartford, for Karen Ciccotti.
PETER EMMETT WIESE, Judge.
I
PROCECURAL HISTORY
The plaintiff, Karen Ciccotti, commenced a civil action against the defendant, Roy Jacobsen. The April 7, 2010 one-count complaint alleges that on the evening of February 17, 2008, Jacobsen assaulted Ciccotti at her apartment. Ciccotti asserts that she sustained physical and emotional injuries and medical bills as a result of the assault.
In a pleading dated May 22, 2010, the self-represented Jacobsen responded to the complaint through his answer. Therein, Jacobsen denies that he assaulted Ciccotti. The case was tried to the court on October 31, 2012.
II
DISCUSSION
A
Law
" A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another. 1 Restatement (Second), Torts § 21." DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594, 501 A.2d 768 (1985). Although no actual contact is required, the action must be of " such a nature as to excite an apprehension of battery" and that apprehension " must be one which would be normally aroused in the mind of a reasonable person." W. Prosser & W. Keeton, Torts (5th Ed.1984) § 10, p. 43-44. On the other hand, with regard to the tort of battery, physical contact is necessary. " An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results." (Internal quotation marks omitted.) Alteiri v. Colasso, 168 Conn. 329, 334 n. 3, 362 A.2d 798 (1975), quoting 1 Restatement (Second), Torts § 13.
B
Facts
From the credible evidence presented, the court finds the following facts to have been proven.
Ciccotti is 49 years of age and resides with her mother at 212 Pershing Avenue, New Britain, Connecticut. Jacobsen resides at 59 Pape Road, New Britain, Connecticut. The parties have known each other for approximately twenty years. They first met when Ciccotti owned a restaurant on Allen Street in New Britain, Connecticut. Jacobsen was a customer of the restaurant. The parties had maintained a cordial relationship.
Ciccotti invited Jacobsen to a birthday party for a family friend, Brian Perlowski. The party was to take place in the evening hours of February 16, 2008, at Perlowski's residence in Berlin, Connecticut. The original plan was for Ciccotti to use her automobile to drive Jacobsen to the party. This changed during the evening hours when her brother's car experienced mechanical problems. Ciccotti placed a telephone call to Jacobsen during which she informed him that he would have to pick her up and drive to the party.
When Jacobsen arrived at the Ciccotti residence, she was not ready to leave for the birthday party. Jacobsen waited approximately one-half hour, while Ciccotti showered and dressed. The parties proceeded to the party, but by the time they arrived, it was late in the evening. They stayed for several hours and ate food and drank alcoholic beverages. Thereafter, they left the party and proceeded to Jacobsen's residence.
Ciccotti was upset that she was not taken directly home. They proceeded to go into the residence and began to have an argument. This situation was exacerbated because both parties had been drinking. Jacobsen informed Ciccotti that he was too intoxicated to drive her home. Ciccotti offered to drive herself home in his automobile. The parties exited the residence and went to Jacobsen's vehicle. The argument continued and, in fact, escalated.
At some point in time they both returned to the inside of the residence. There the parties engaged in a physical altercation, during which Ciccotti attempted to call the police by dialing 911 from Jacobsen's wall phone located in a hallway.
Jacobsen admitted that the parties were intoxicated and that there was an intense argument. He also concedes that he intercepted the 911 call. Jacobsen denies that he struck Ciccotti. Ciccotti testified that Jacobsen was wearing steel tipped shoes and that he kicked her in the ribs nine or ten times.
This call was unsuccessful because Jacobsen disabled the telephone. Ciccotti was thereafter able to make the call through the use of her cell phone. The police arrived, investigated the situation and took Ciccotti home.
It would appear that Jacobsen was not prosecuted for the alleged assault. He testified that he was given a ticket and the police left his residence.
It was later in the evening that Ciccotti's mother, Janet M. Ciccotti, took her to the UConn Hospital emergency room. At approximately 5:00 a.m., on February 17, 2008, she was examined by various medical professionals. (Plaintiff's Exhibit 2.)
At the trial, Ciccotti testified that she had not been drinking alcohol at the party. This claim is not corroborated by the medical records. The emergency room record states in relevant parts, " Pt. refusing to answer any questions. Angry and belligerent." (Id., at p. 1, 362 A.2d 798.) " Patient agitated. Patient alert but slurred speech. Interim crying and yelling." (Id. )
Ciccotti informed the medical staff that she had been punched in the face, fell back and hit her head, and then claimed that she was kicked in the ribs. Ciccotti told hospital staff that she fought off an attempted sexual assault. (Id., at p. 1, 2, 362 A.2d 798.) Ciccotti complained of rib and abdominal pain. A CAT scan test was performed and x-rays were taken. Both procedures produced negative results. (Plaintiff's Exhibit 2.)
The nursing assessment notes indicate in part, " Skin: dime sized ecchymotic area noted to pt's LUE. No abrasions, lacerations or ecchymotic areas noted to her anterior or posterior ribs, back, leg, hips, abdomen, neck, or arms (other than on LUE as above). Right cheek has some swelling, both cheeks are pink." (Plaintiff's Exhibit 1, p. 4.) They also indicate, " punched in the face (rt zygometric arch area swollen, reddened) kicked in the ribs when laying on the fall." (Sic.) (Plaintiff's Exhibit 2, p. 4.) At one point, Ciccotti reported that " she ‘ saw stars' but did not actually pass out because she was able to fight him off." (Id., at p. 1, 362 A.2d 798 .) However, elsewhere it is indicated that Ciccotti reported that she was " punched in the face fell backwards and passed out. [W]oke to him leaning over her and then started kicking her in the ribs with his steel tipped boots." (Id., at p. 3, 362 A.2d 798.)
The discharge instructions prescribe a follow up with her regular doctor in two days. Ibuprofen with Vicodin if needed, and ice to contusions for 24 hours followed by heat. (Plaintiff's Exhibit 2, Emergency Department Discharge Instructions Receipt.)
On March 24, 2008, approximately one month later, Ciccotti returned to the UConn emergency room. The report again indicates that the February 17, 2008 chest x-ray and CAT scan were both normal. (Plaintiff's Exhibit 3, p. 1.) Additionally, it states that " patient refers that the pain continues to be an 8/10, but she describes the pain as a burning sensation more than a dull ache." The physical examination revealed, " intense pain and palpitation of lower left ribs with no bruises over this area and no deformities ." (Plaintiff's Exhibit 3, p. 2.) The assessment and plan included a second round of chest x-rays and a referral to a psychiatrist, " because of acute stress disorder after the physical assault." (Id. )
The second chest x-ray did not show any rib fracture. (Plaintiff's Exhibit 5.)
Thereafter, on May 13, 2008, approximately four months after the incident, Ciccotti returned to the UConn emergency room for a third time. (Plaintiff's Exhibit 4.) The medical records indicate she reported that " [p]ain most severe in left chest ..." (Id., at p. 1, 362 A.2d 798.) " Patient's condition relieved by nothing." ( Id. ) The diagnosis was identified as " [c]hest wall pain." (Id., at p. 2, 362 A.2d 798.) The treatment instructions stated in part, " [Y]ou [sic] physical exam in the ED does not show any new or acute abnormalities; your chest x-ray was also normal." ( Id. )
On May 29, 2008, Ciccotti appeared at the UConn internal medicine clinic for follow up treatment. (Plaintiff's Exhibit 5.) She complained of " pain in her left flank and left chest at this time." (Id., at p. 1, 362 A.2d 798.) Ciccotti reported that " [s]he says she still continues to be in pain in the same site in the left lower chest, and it is constant. She is not able to sleep at night because of the pain." (Id. ) Finally, Ciccotti testified that she still experiences psychological issues as a result of the incident. She indicated that she has been and is currently undergoing counseling at a YMCA.
There is in evidence a printout of medical charges in the total amount of $770.78. (Plaintiff's Exhibit 6.) The exhibit indicates a zero balance due, because of Medicare Part A and B coverage. (Id. )
The court finds that on the night in question, both parties had been drinking and mutually engaged in loud verbal disturbance. This situation escalated and a physical altercation ensued. Ciccotti sustained some injuries, but certainly not to the extent alleged. The medical records and other credible evidence do not support the claim that she was knocked unconscious and kicked by Jacobsen nine to ten times with steel tipped shoes.
The court finds liability in favor of Ciccotti on her claims of assault and battery. Ciccotti has also proven her entitlement to monetary damages. In this regard, the court finds that fair, just and reasonable damages amount to $3, 500. The court awards that amount to Ciccotti.
III
CONCLUSION
Judgment should enter in favor of Ciccotti as against Jacobsen in the amount of $3, 500, plus taxable costs.
SO ORDERED.