Opinion
No. CV 01-0808992
February 15, 2006
MEMORANDUM OF DECISION
The plaintiff, Thomas A. Flanagan, sues the defendants in negligence and recklessness as a result of being hit in the head by a cue stick at The Grill in East Hartford, Connecticut.
The defendants are The Grill, a restaurant and bar located at 350 Roberts Street, East Hartford, Connecticut, Vito A. Lograsso, the permittee of The Grill, and Joseph Sawka.
The defendant, The Grill, LLC, was defaulted for failure to appear and, after a hearing in damages, a partial judgment was entered against it in the amount of $12,959.57 of economic damages and $40,000 in non-economic damages, for a total of $52,959.57 (R. Shapiro, J.). The defendant, Vito A. Lograsso, entered an appearance pro se, was present for an hour or two on the first day of the trial on November 22, 2005. He left and did not return for the afternoon session on that day nor on the adjourned date of February 1, 2006.
The facts are as follows:
On June 27, 1999, after spending the morning and early afternoon at the beach, plaintiff and his brother, John Flanagan, went to The Grill in East Hartford, arriving at about 4:30 in the afternoon. Plaintiff had several beers and started playing pool with one A.J. Terlizzi. The players got into a verbal argument over who won the game that lasted from seven to ten minutes. The waitress at The Grill heard the argument but did not call for a bouncer. The argument got more and more heated and the plaintiff who was then drunk, threw a beer bottle at Terlizzi but missed him. Flanagan and Terlizzi began swinging their cue sticks at each other.
Defendant, Joseph Sawka, had intended to play pool with Terlizzi and had a cue stick in his hand. At that point his back was to the wall. Plaintiff and Terlizzi swung their sticks near him and he felt threatened. Sawka hit the plaintiff at the back of the head breaking the stick, and he ran out of The Grill.
The plaintiff was knocked unconscious by the blow. He was taken to Manchester Memorial Hospital where he was treated for a fractured skull. His blood alcohol level at the hospital read .29. The next morning he was taken to St. Francis Hospital where his blood alcohol level was still .28. He was kept in observation for two more days and released. His total medical expenses were as follows: Radiology Associates $309.50; Neurological Associated $549.90; St. Francis Hospital $6,966.59; Manchester Memorial Hospital $2,355.00; Manchester Radiologists $246.00; Dr. Jonathan Kost $580; Ambulance Service of Manchester $676.40; Bristol Hospital $907.00. The total of medical and hospital bills are $12,590.39.
The plaintiff's injuries that have persisted since the accident have been blurred vision and dizziness.
The action against the permittee, Vito A. Lograsso, is for negligent supervision of the premises. The verbal argument and fight between plaintiff and Terlizzi lasted from seven to ten minutes; a waitress heard the argument and did nothing to quell it. The court can infer from the plaintiff's blood alcohol that he was very drunk. Our courts recognize a common-law action in negligence against a proprietor or permittee of a restaurant or bar for failing to exercise reasonable care in the supervision of the conduct of the patrons or visitors within the establishment. Nolan v. Morelli, 154, 432, 440-41 (1967). The Superior Court has recognized this cause of action in a number of cases: Whooley v. Archie Moore's Cafe, Judicial District of New Haven, CV 044506 (December 15, 2004, Zoarski, J.); Bioski v. Castelano, Judicial District of Waterbury, CV 0115265 (March 20, 1995, Flynn, J.) ( 14 Conn. L. Rptr. 346); Jensen v. DePaolo, Judicial District of New Haven, CV 01-010277460 (March 8, 2004, Wiese, J.) ( 36 Conn. L. Rptr. 665).
In light of the evidence and the law, the court concludes that the plaintiff has established by a fair preponderance of the evidence that Lograsso, permittee of The Grill restaurant, was liable in negligence for failure to exercise reasonable care in the supervision of The Grill and that that negligence was a proximate cause of the injuries sustained by the plaintiff.
Plaintiff's claim against Joseph Sawka is that he negligently or recklessly struck plaintiff in the head with a cue stick causing plaintiff's injury. Sawka interposed the special defense of self-defense.
Our law recognizes the right of self-defense. As stated in Hanauer v. Corsica, 157 Conn. 49, 54 (1968), a defendant "was justified in acting as he did if he acted on the reasonable belief that the plaintiff intended to do him bodily harm whether or not the danger which gave rise to the belief actually existed if, in resorting to self defense, he reasonably believed in the existence of such a danger . . . The permissible degree of force used in self defense depends on that which is necessary, under all of the circumstances, to prevent an impending injury. Where a person, without fault, is assaulted . . . he . . . may resist even to the extent of seriously injuring his adversary when it becomes necessary."
The defense of self-defense exists not only to ward off intended assaults but also negligent ones. As stated in the Restatement of the Law, Torts 2nd, Section 64 (p. 107 (1965)), "(1) Except as stated in Subsection (2), an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against harmful or offensive contact or bodily harm which he reasonably believes to be threatened by the conduct of another although he recognizes such conduct to be negligent."
In Subsection 2, the Restatement goes on to say that the actor is not privileged to defend himself if he can escape.
In the instant case, the plaintiff was clearly drunk and had already exhibited violence by throwing a beer bottle at Terlizzi. He and Terlizzi were wildly swinging cue sticks at each other near Sawka. A witness to the incident testified that plaintiff advanced into Sawka's area when he was backed against the wall and "the sticks pointed at Joe." Sawka testified that the plaintiff swung his stick toward him and came close. At that point Sawka hit plaintiff in the head with his stick.
The evidence reveals that plaintiff was the aggressor in the fight with Terlizzi and was acting in a wild and uncontrolled manner; Sawka could reasonably believe that he might be struck by plaintiff's stick and felt threatened by the fight going on in front of him. He had his back to the wall so he could not escape or retreat from the area. As a consequence, the court concludes that Sawka's striking plaintiff was in self-defense and, under the circumstances, he was privileged to do so.
The court enters judgment against Lograsso in the amount of $12,590.39 of economic damages and $40,000 of non-economic damages for a total of $52,590.39. The court enters a judgment for the defendant Sawka.