Opinion
No. CV05-4008146S
May 19, 2008
MEMORANDUM OF DECISION
I
The court will first address the plaintiff's claim against the defendant. Then it will discuss the counterclaim.
1
This has been a difficult case for the court to resolve and as a result, the court has taken an inordinate amount of time in deciding it. The consequences for the individuals involved will be great. The court has read and reread the transcript and has taken notes on the transcript. There is a claim set forth in the complaint and a counterclaim. The plaintiff is a young man in his thirties and the complaint alleges that from 1981 to 1989, commencing when he was about eight, the defendant "repeatedly sexually assaulted, battered and exploited the plaintiff when he was a youngster." It is alleged that the defendant "placed his hand or hands on the plaintiff's genitals, would kiss the plaintiff on the mouth and face"; he is said to have told the plaintiff "this is what friends do for each other." The defendant is alleged to have given the plaintiff money and alcohol and "repeatedly warned him `not to tell anybody' about" the alleged activities.
The damages claimed are listed in paragraphs 5 through 8 of the complaint and referring to the alleged actions of the defendant, the following is claimed.
5. As a result thereof, the plaintiff has suffered and continues to suffer serious psychological injuries.
6. As a further result of said injuries and in consequence thereof, the plaintiff, Brian Leddy, has incurred considerable expenses for medical care, prescriptions, x-rays, medical services, hospital services and matters incidental thereto and he will be required to insure further expenses for such purposes in the future.
7. As a further result of the injuries sustained, herein, the plaintiff suffered considerable emotional distress, upset, anxiety and psychological trauma, and as a result of said injuries, he will suffer the same from time to time in the future.
8. As a result of said injuries and in consequence thereof, the plaintiff was unable to carry on and perform his usual duties and daily activities, and as a further result of said injuries, he will be prevented from doing so from time to time, thereby depriving the plaintiff of the opportunity to enjoy his life as he could have before the sexual assaults described herein.
2
Generally speaking, these types of cases present at least two problems.
For one thing, as in a case such as this, decades can pass before a claim is even brought. A defendant is for all intents and purposes deprived of any real opportunity to rebut powerful and emotional accusations by way of, for example, alibi or resort to physical evidence to rebut specific allegations of sexual assaults occurring at certain times and places. On the other hand, common sense would seem to indicate that individuals subject to such abuse might have supportable reasons for long delays in reporting such abuse.
Damages present equally difficult problems. Even where a trier of fact finds a defendant responsible for the most reprehensible of actions, a plaintiff still bears the burden of proving every aspect of his or her damage claim and in the last analysis, is entitled to fair, just, and reasonable compensation for his or her injuries — no less but certainly no more. The ordinary rules of judging damage claims based on common sense, credibility, motive, and consistency within the claim itself must still apply.
Consistent with basic concepts of constitutional due process, it cannot be the case, in other words, that if reprehensible sexual assaults are proven, all plaintiffs are thereby entitled to presumptively the same or similar large damage awards without regard to the nature of the assaults or any differences that might exist between plaintiffs in the class regarding the effect such assaults had on their lives and the credibility of any claims to that effect.
Interestingly, it does not appear that many of these cases have gone to trial. A fact finder should not be swayed by the sometimes massive settlements in these cases. The religious institutions often involved can be motivated not by what they conclude is the actual loss and damage suffered by a complainant, but by a desire to avoid the scandal and embarrassment of trials that could produce evidence of lack of concern for potential victims and even a coverup, all of which might result in loss of prestige and fund-raising ability. In any event, settlement figures in cases where similar allegations are made have nothing to do with deciding what is fair, just, and reasonable in a particular case that may be before the court.
3
Turning to the question of liability, the issue of course is whether the sexual assaults took place. The court will review the particular allegations given the importance of the case to both sides. It will try to lay out in detail the basis for its conclusions so that it will be easier for a reviewing court to determine if there has been error.
As to the actual allegations of sexual abuse, Leddy says that when he was between 8 and 10 he was left off at Raccio's house. His parents were good friends with the defendant and he was regarded as an uncle figure. Leddy said on two occasions Raccio would put his hand underneath his pants and caress his buttocks and genital area. He particularly remembers him panting, his heavy breathing. Raccio told him this is what friends do for each other and he should not tell anyone or they both could get in trouble.
Leddy started going back over to Raccio's house between 14 and 17. He would do odd jobs and get paid. The court will give Leddy's version of events. Alcohol was available in the form of beer and a couple of times so was marijuana. On five or six occasions the same type of sexual contact as previously mentioned was repeated. On one occasion both of them were at a Christmas party and Raccio offered to drive him home in his pickup truck. At one point, Raccio stopped the truck, lunged over and laid on top of him and repeated the same sexual advances. Brian Leddy said he pushed him off and said he was not gay. He testified as to all these incidents he was confused. There was an element of shame. He said for some of these reasons that while the incidents were going on and for years afterward, he never told anyone about them. His father apparently told him to not let anyone touch his private areas. The mother testified she never gave the plaintiff that admonition. The defendant adamantly denies the incidents and claims he never had sexual involvement with youngsters.
How on earth does one go about deciding whether these sexual contacts took place? As noted, complaints are made sometimes years after the incidents. Here Leddy never told anyone about them for almost two decades. There is often, as here, no physical evidence. The incidents by their nature, if they happened at all, happened in private settings so there is no corroboration by witnesses.
The court can take account of observations it made of the witnesses and their demeanor in the courtroom but should be careful in deciding how much weight to give such observations. But they are a valid consideration.
In Dadio v. Dadio, 123 Conn. 88, 92-93 (1937), the court said that "it is the peculiar province of the trial court to observe the demeanor of the parties and their witnesses and to draw inferences therefrom as to the motives of the underlying testimony and conduct. Findings based upon these observations in the courtroom are in the same category as findings based upon a view of the premises or property. Such evidence is as properly to be considered by the court in rendering its decision or making its finding as if presented by the lips of witnesses," see also State v. McLaughlin, 126 Conn. 257, 264-65 (1939).
During the trial the court watched the demeanor of both of the parties very carefully and it was obvious at least to it that Brian Leddy could hardly contain his emotions, at least as far as the incidents themselves. His testimony had the ring of truth. To the court the defendant's denials almost had a mechanical air to them.
The defense tried to impeach Leddy by referencing his knowledge of the large settlements in cases involving sexual abuse of youngsters by priests. Leddy even admitted this was part of his motivation in bringing suit. But the manner in which his allegations were revealed to family and friends was quite convincing.
He went to an Easter brunch at Barbara Scaramozza's house in 2004. She is the defendant's niece and Leddy's family was close to her, going to holiday functions at each others' homes. Leddy saw Raccio and said he saw him bouncing a child on his knee. This set off terrible memories and he avoided Raccio and left. Raccio denies this scenario saying he chatted with Leddy, shook hands, he had no sense he was being put off by him. Scaramozza could not recall any contact between Leddy and Raccio at the party. Leddy's parents did not testify that their son's behavior toward Raccio was unusual or cold. The mother said there were a lot of people present and every family group stayed to themselves. This aspect of the parents' testimony had some significance to the court, as it will try to explain shortly.
Shortly after this Easter brunch, Brian Leddy contacted Barbara Scaramozza. He was agitated and upset; he wept and basically ranted and raved about the defendant's abuse of him as a child. He sat, he stood, twitched and emotionally was all over the place. She told him to write the defendant, getting things off his chest would help. Scaramozza had no motive to lie about Leddy's statements or emotional reactions. It could have all been an act, but it certainly did not appear that way to her. What possible motive would Leddy have in putting on what can only be described as a performance if these things he was telling Scaramozza did not happen? How could he have thought it would advance any civil suit, later to be brought, based on a desire to get money from Raccio for events that did not happen? Did he think putting on this display would encourage Scaramozza to try to wheedle money out of Raccio?
Leddy's revelation to his parents is also instructive. The father said his son had a hard time telling him and his wife about the defendant's actions. He brought them out on the lawn, he was crying and looked drained. The mother said her son first came to her, he was upset and close to tears. He seemed choked up. As the conversation went on, his emotional state got worse and he started crying. Why would he tell his parents of these events in that way if they did not happen? Is it part of some plan by Leddy to set up Scaramozza and his parents for the purpose of using them in some later litigation to show how much Raccio's actions tormented him. Is it even part of a more sophisticated plot by Leddy, his parents, and Scaramozza to purposely ensnare Raccio in false accusations? To pose these questions, at least for the court, provides the answer — Leddy testified truthfully as to molestation at the hands of Raccio.
But another factor must be considered on the issue of liability. Taking Scaramozza's advice, Leddy did write a letter to the defendant. It is not a "Have a Nice Day" type letter. It is extremely physically threatening. It does say Raccio better start righting his wrongs — the wrongs being the molestation of Leddy and other children. At another point the letter says "Your time is coming . . . if you don't do something." It threatens to take everything from Raccio that means something to him. It is replete with accusations of molestation by the writer who we now know was Leddy, but was sent anonymously. It says "Barbara knows all about this." The tone of the letter is summed up in the sentence: "It's the beginning of the end for you. When we get done with you, you are going to wish cancer took you." It warns Raccio to always watch out for his safety. It says "you will hurt no more children."
The letter recounts the ways the molestation Raccio is accused of ruined Leddy's life up until "now" as the letter said. It hurt him in his search for success. It took away his childhood. He put Raccio's face on others and beat them. He tried to kill himself many times.
The letter is a pure expression of anger and rage. As noted, it does contain expressions that can be construed as the presaging demands of compensation — e.g., "Your time is coming if you don't do something." But the threatening and almost explosively violent nature of its contents can hardly be characterized as a rationally thought-out plan to extort Raccio for money. It really tends to corroborate Leddy's feelings of rage which found their origin not in a desire to get the defendant's money, but in the incidents which Leddy accuses him of.
Defense counsel did make an excellent point, however. He said it would not be very likely that a person receiving such a letter and being accused of such molestation would contact the police. There would be an obvious fear that police involvement would lead to an arrest. On the other hand, the letter is very threatening. Raccio recognized it as such by installing cameras and security devices around his home and, at least to a certain extent, changing his lifestyle as a result of the letter. Under these circumstances it cannot be said that his contacting the police removes the possibility that these acts against Leddy occurred; they simply reflect an understandable effort at self-preservation.
Finally on the issue of liability, the court will now discuss the testimony of two experts presented by the plaintiff as it bears on issues having to do with liability and certain deposition testimony it reviewed. The court will first say, however, that based on the just concluded discussion, it reached its decision that molestation occurred here apart from the expert testimony.
The first expert testimony came in through a Dr. Ciarci. The doctor did testify why a child subjected to sexual abuse would not speak of it, or delay reporting it, cf. State v. Spigarolo, 210 Conn. 359, 375 (1989). It was not clear to the court how this phenomenon with children could translate into reasons why an adult subjected to such treatment would delay reporting or speaking of such molestation for decades after it occurred. The doctor talked of shame, confusion, and guilt, as reasons for the delay, but the court, as trier of fact, could or could not weigh these factors without expert testimony, especially where the abuse occurred years before trial and the complainant was no longer a child — we are not dealing with specialized knowledge about the behavioral characteristics of children at that point but of an adult.
Another point should be mentioned. Even where an expert is allowed to testify about why a child would delay reporting an incident or why there would be inconsistencies in his or her story of sexual abuse, an expert must limit the opinion to child abuse victims in general. The expert cannot testify as to a particular witness' credibility. Spigarolo at 210 Conn. p. 379-80; Tait Handbook of Connecticut Evidence, Tait and Prescott, 4th ed, 57.12.2, page 438.
To address the next issue the court had with this doctor's testimony, the court will begin by saying, in the type of expert testimony just discussed, where a court lets it in the criminal trial context, it necessarily says testimony explaining delay in reporting incidents is not offered to prove the defendant actually committed the crime or that the complainant was a victim of sexual abuse. The evidence goes solely to credibility by showing delay or inconsistency was not necessarily inconsistent with the incidents taking place.
But if the immediately foregoing is true, how can it be permissible for an expert to testify, as Dr. Ciarci did in this case, that the Post-Traumatic Stress Disorder diagnosed here was specifically stimulated and caused by sexual abuse at the hands of the defendant. This, in a case where the expert's opinion derives solely from the statements made by the complainant some twenty plus years after the incidents. The trier of fact is responsible for weighing the credibility of the complainant's narration of prior events and adding the label of Post-Traumatic Stress Disorder on the expert's characterization of and conclusions about the believability of the narration cannot be permitted to usurp the role of the trier of fact.
Paul Albert, a licensed clinical social worker also testified. He diagnosed Leddy as suffering from Post-Traumatic Stress Disorder. His testimony was primarily a vehicle to set forth Leddy's symptomatic history and he did not directly say the condition he diagnosed was caused by the defendant's sexual abuse. Any implications to that effect suffers from the same problems previously discussed.
Finally, the court will discuss the weight, if any, it gave to the deposition testimony of John Mangini which it felt constrained to let in, as to his allegations of sexual assault by Raccio, to let in under the authority of State v. Kulmac, 230 Conn. 43 (1994). Tait has a well articulated objection to Kulmac, at § 4.19.13, pp. 168-71. He notes that in State v. Romero, 269 Conn. 481, 498 (2004), several limitations were put upon the reach of Kulmac — such evidence must (1) not be too remote in time; (2) the conduct must be similar to the charged offense; and (3) the sexual assault must be committed upon a person similar to the victim. The court let this evidence in but now has reservations about it. The Third Romero criteria is met — at the time of the alleged assaults both Leddy and Mangini were young men who were athletic and played sports. But at the time of his deposition testimony in 2007, the incidents Mangini described occurred some fifteen years before and the type of sexual assaults and activity was much more serious in nature, although the plying with alcohol, money, and drugs bears a similar pattern. Suffice it to say the court has not based its conclusion that sexual molestation occurred here based on the experts' or Mangini's testimony. It has relied solely on the testimony of Leddy, his parents, and Ms. Scaramozza.
4
The fact that the court has found that Raccio committed the acts claimed does not dictate what, if any, damages should be awarded in this case. A plaintiff is "entitled to recover for all damages proximately caused by the defendant's wrongful conduct whether or not the results were reasonably to be anticipated from such an act. The test is, did the act cause the damage, not would such an act be likely to cause such damage," Mourison v. Hansen, 128 Conn. 57, 66 (1941). There must be a causal connection between the wrongful acts and the injury that is claimed to have occurred. cf. Budney v. Zalot, 168 Conn. 388 (1975), Bonner v. Winter, 175 Conn. 41, 48 (1978). And "this causal connection must rest on more than surmise or conjecture," id.
Also, as the court said in Manning v. Pounds, 2 Conn. Cir. 344, 346 (1963), quoting from Am.Jur., "Actual or compensatory damages, the terms being synonymous, are damages in satisfaction or recompense for loss or injury sustained. Either term covers all loss recoverable as a matter of right and includes all damages other than punitive or exemplary damages." Theoretically then, at common law there are two types of damages, compensatory and punitive damages. Judge Flynn in Lenz v. CNA Assurance Co., 42 Conn.Sup. 514 said at page 516: "When compensatory damages are concerned, the focus of the trier must be on what is necessary to compensate fairly the party who has suffered some legal injury and by such compensation, to restore the injured party to the position that the party would have been in had the wrong not been committed."
To ascertain the ambit of compensatory damage awards in our state, it is necessary to discuss punitive damages as it is understood in Connecticut. Oddly, it turns out that they are a form of compensation. News America v. Marquis, 86 Conn.App. 527, 538 (2004), explained that "punitive damages cannot be awarded in tort cases unless the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.," citing Collens v. New Canaan Water Co., 155 Conn. 477, 489 (1967). But in Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208 (1984), our court reaffirmed this state's rule that "(limits) our measure of punitive damages to the expense of litigation less taxable costs." The court noted that the rules in most jurisdictions "the jury was permitted to exercise a virtually unchecked discretion to award damages, not only to make the injured person whole, but to punish the wrongdoer." The court refused to adopt such a position, citing the language of a 1906 case to the effect that permitting recovery beyond compensation because it is a "hybrid between a display of ethical indignation and the imposition of a criminal fine," id., page 236. Such a rule is rejected because it is "found at variance with the generally accepted rule of compensation in civil cases," id. The court did go on to note that "when viewed in light of the ever-rising costs of litigation, our rule does in effect provide for some element of punishment and deterrence in addition to the compensation of the victim, id. at pp. 237-38. Berry v. Loiseau, 223 Conn. 786, 825-27 (1992), reaffirmed the holding of Waterbury Petroleum Products.
What all of this means is that no matter how wanton the tort may be, no matter that it shows a reckless indifference to the rights of others — here the rights of a child to his or her physical integrity and the sanctity of his or her person, the rule in our state is that damages, whether called compensatory or punitive, have as their purpose, compensation — to put the person where he would have been if his rights had not been violated, and even where punitive damages are awarded, to compensate him for the costs of litigation.
Because we must abide by the rule of law then, even in cases where a child has been molested, the trier of fact must make an award not based on ethical indignation or a desire to punish, but must make an award with compensation in mind for loss and injury that the plaintiff victim must prove. This may be a difficult prescription to follow but one that must be followed if the long-standing law in our state is to be followed, as it must be, until changed by the appellate courts or the legislature.
To sum up, the law is set forth in Willow Springs Condominium Association, Inc., v. Seventh BRT Development Corp., 245 Conn. 1, 58-59 (1998); quoting from earlier cases, the court said.
"To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which affords a reasonable basis for measuring the (plaintiff's) loss. The (plaintiff has) the burden of proving the nature and extent of the loss . . ." Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier of fact to make a fair and reasonable estimate . . .
Guided by these general principles, the court will first examine the damages issue as presented through the testimony of Leddy, his parents, Ms. Scaramozza, and Mr. Raccio. Then it will try to evaluate the testimony of the two experts presented by the plaintiff as it related to damages.
(a)
The testimony presented on damages and injury as a result of these sexual assaults is, to the court at least, highly confusing and sometimes contradictory. The court in no way means to imply Brian Leddy was purposely lying. His parents were obviously very decent people, and in the court's opinion, not capable of intentional fabrication and certainly not in a courtroom setting where they would be under oath.
Brian Leddy describes the first incidents occurring when he was between eight and ten, over 27 years ago; they lasted between thirty seconds and a minute; maybe up to two minutes. The court has already described the nature of the physical contact. The child found these incidents upsetting — he was confused. Raccio was like an "uncle" to him and his family. He knew that what happened was not right. There was little, if any, in the way of testimony from Leddy, however, as to the day-to-day effect these incidents had on his life at this age period. Did it upset him, did he brood over it, did he have a constant sense of guilt? None of this was testified to in court. In his letter to Raccio and his communications with the experts, Leddy said he felt his childhood was ruined. He could not lead a normal life. But in fact his parents testified that up until his teen years, Brian was a happy go lucky child with good relationships with his siblings. They did notice a change in his teenage years. He became more withdrawn, he kept to himself, he was not as open and happy as he had seemed to be. It was from 14 to about 17 that several more of these incidents took place according to Brian. He was given alcohol, money, and marijuana by Raccio. He went to Raccio's house to do odd jobs at the property; he also did work for Raccio at his business. One incident took place after a Christmas party for the Raccio construction company employees. Raccio gave Leddy a ride home and assaulted him sexually in the same general manner previously described in his pickup truck.
He felt ashamed, confused; he did not want anyone to think he was gay. But there was still the normal interactions between the families — they would go to Scaramozza's house or his parents' on various holidays throughout this period. Leddy said anyone observing their interrelationships would not suspect anything was wrong. He testified he regarded Raccio at that time as an uncle who stepped over the line a few times. At that time he does not even remember not liking or trusting Raccio.
What is even more confusing on the damage issue is what transpired in the next two years. Leddy went to prep school and he kept up a correspondence with Raccio. The letter introduced into evidence begins, "Hey How" and ends "See you soon, I hope." It is a friendly letter in which Leddy talks about his day-to-day activities at school. A note on the side of the letter says: "I was going to call a few times, but the line was really long. I'll keep in trying." Leddy admits having phone contact with Raccio while he was at prep school. Raccio visited him three or four times at the school, but there was no sexual contact that Leddy testified about during this period. Raccio would take Leddy and his friends out to dinner. While he was at prep school, he asked Raccio if he and his friends could use Raccio's condo in Key West, Florida during a vacation period; Raccio let the young men use the condo. When Leddy came home from school he would visit Raccio, but there were no molestation incidents after he went to prep school.
At one point during the trial, the court asked Leddy why would you ask Raccio to use his Key West condo if you had this anger and rage? Leddy responded by saying his motive was to "use his stuff for what he did to me." That was the first articulation of any anger and rage he felt as to what was done to him, except for his college years and the period immediately surrounding the 2004 Easter brunch at Scaramozza's which led to his letter to Raccio and ultimately his lawsuit. At college he got into dozens of fights. He said he would put Raccio's face on his victims and then proceed to savagely beat them. He drank heavily. He experienced guilt, self-doubt, anger, a whole range of emotions. He was arrested for driving under the influence.
But other testimony presents a mixed picture about Leddy's upset and anger at college and immediately thereafter. The father said while at college he seemed to get along with everyone but was still a little angry. After graduation his son was a little better, but not his normal self. He was secluded, did not carry on conversations with his parents or people who visited him. The mother said that during his college years he was lost, seemed to flounder. They, however, did not testify as to any increased anger or combativeness.
The confusing picture, at least for the court, is especially pointed after college. On the one hand there was an attempt to characterize this period as one where Leddy bounced from job to job but could not nail anything down. Leddy said he drove himself. He was not happy. He thought about what had happened to him. He was asked how he coped with his feelings and said, " . . . again, alcohol, and I drove myself into work mostly more than alcohol because I really didn't have time to drink." He thought about treatment but did not go into it again because of his guilt and confusion about why these events with Raccio occurred.
But objectively, when he testified about his post-college work experience there in fact seemed to be a much more positive picture. He did some catering then moved to New York to work at the stock exchange on the floor where he worked the phones. It was an eight-hour a day, five days a week job, which would not seem to tolerate much preoccupation. He worked there a year and a half for two companies. He was earning when he left, $50,000 a year, it was a good job but he was in a downward spiral and was not happy. But the downward spiral did not last long. He left New York, was home for a couple of months, and then was off to Los Angeles. He at first went there to give some friends advice who wanted to start a production company. And then he met a movie producer who wanted Leddy to work for him. He was the assistant to a producer, a general trouble shooter, he did office work. He worked 15 hours a day, 6 days a week in 2000-2001. He left this job not because of any personal problems or emotional issues presented by Raccio's actions, but because in 2001 the film industry was preparing for the possibility of a strike and also because, according to Leddy, after 9/11 no one was spending money on films.
Leddy returned to Connecticut and worked at a landscaping company. He worked for an oil delivery company and for Amtrak. But he eventually got a job with the local fire department. This job pattern does not describe a moody, isolated person prone to bouts of anger.
His personal life did not apparently suffer after his return to Connecticut. He met his wife, entered into a committed relationship and had children in June 2003.
After college his contacts with Raccio are not described in great detail. Raccio brought several tickets to the stag of Leddy's brother in 2001. He and Raccio had interaction there, they talked to each other. Leddy said when he saw Raccio in this period he was not happy to see him.
Leddy then testified to great anger at Raccio which surfaced when his children were born in 2003. He was handed his child and he saw Raccio's face; he said he restrained himself from physically attacking Raccio, no one was going to touch his kids like Raccio touched him. This then was followed by the events at the Easter brunch in 2004 and its immediate aftermath which has been discussed.
To add another confusing detail, Leddy says that the fact that he had to drive by Raccio's to get to his parents' home upset him. But evidence introduced at trial indicates that he in fact did not have to drive by the defendant's house, other routes were available to him.
The court has discussed Leddy's upset and anger which exploded around the time of the 2004 Scaramozza Easter brunch and culminated in the threatening letter to Raccio which itself underlines the fact that at that time he was a deeply angry young man pained by what had happened to him.
As to his present condition and prognosis for the future in terms of pain and suffering, the record is fairly clear. Leddy himself says he visited a counselor, Mr. Albert, after suit was filed. Albert validated his feelings and put him at ease about them. His mother testified that after the conversation with her and her husband, it seemed as if a weight had been lifted off his shoulders. He seemed happy again, his old self. He confides in his mother now. He is married with twins. Leddy's father echoed his wife's thoughts. After he told them about Raccio's abuse, his personality changed. He is not mad or bitter; he is easygoing and more relaxed and all in all, a different person. As noted, the late 90s and first few years after 2000 are practically barren of courtroom testimony of his feelings regarding the molestation and its effect on Leddy except as he relayed them to Dr. Ciarci and Albert. As to what he told Ciarci, Leddy said he had trouble sleeping, felt agitated and had flashbacks to the abusive incidents. He felt insecure in relationships and had a hard time trusting others. He was depressed and socially withdrawn. He liked to be alone and could not get pleasure in things. Leddy also told Albert he had nightmares.
Leddy was referred to both of these experts by his lawyers after he decided to bring suit. That does not invalidate the claims being made, but the court cannot ignore it. What is more significant, to the court at least, is that Albert who was to treat him and "probably" explained the benefits of the treatment, noticed what seemed to be substantial improvement in his symptomology, his last session showed real improvement. But more to the point, he missed sessions and did not pursue treatment which Albert recommended should be for one year. Albert discharged Leddy as a "dropout." Dr. Ciarci who made a forensic exam, also said Leddy should see a treating psychiatrist and go on medication.
All of this failure to pursue treatment is consistent with his parents' observation that after the Easter brunch and his revelations to them, he became a changed person and was back to his old self. Again, all of this does not support a picture of one suffering long-term ongoing mental and emotional pain and suffering.
A constant theme in Leddy's testimony was his desire to get vengeance against Raccio for what he did to him. The letter he wrote is an example of this. Although he admitted to a monetary motive in bringing suit, it seems that a large part of the satisfaction he hopes to get in any monetary award lies in the fact that he would thereby be taking money and assets from Raccio. He mentioned $600,000 as the damage award he desires.
True, some of the claims of damage and injury seem exaggerated, but where a child is molested and thinks back in his later years about what happened to him, claims are bound to be exaggerated out of anger and a desire for retribution.
But despite the somewhat mixed message on the damage claim that the court has discussed, the plaintiff is entitled to damages even though not the mega-damages sometimes awarded in cases of this type. He is entitled to recover for the shame, confusion, and intimidation he experienced as a youngster because of Raccio's actions, even though the court cannot conclude his childhood was ruined thereby. He cannot blame Raccio for all his difficulties at college but the court is convinced his rage at what happened to him which burst forth in college and later in his thirties in the events surrounding the fateful Easter brunch was not some pretense invented for litigation. He is entitled to be compensated for that rage and its effect on his day-to-day happiness and memories of what, for example, could have been a more positive college experience.
He is entitled to recover for the emotional upset caused by the way the abuse cloud his present memories of his own childhood.
In any event, in this difficult case, the court awards as economic damages $750.00 to compensate for the treatment received from Mr. Albert, and $150,000 in non-economic damages.
II
The defendant has filed a counterclaim against the plaintiff based on the previously discussed anonymous letter. He bases his claim on (1) unintentional infliction of emotional distress; (2) negligent infliction of emotional distress; and (3) assault.
(a)
As to assault, the sending of this letter would not seem to qualify as common law assault. However, as noted in Connecticut Law of Torts, 3d ed. Wright, Fitzgerald, Ankerman, § 6, page 8 . . . "Connecticut cases on the subject of assault are very rare." Wright basically refers to the Restatement (2d) of Torts and Prosser.
Section 21 of the Restatement states.
§ 21. Assault
(1) An actor is subject to liability to another for assault 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) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it, and therefore, would be negligent or reckless if the risk threatened bodily harm.
See reference to Restatement in Justice Borden's decision on DeWitt v. John Hancock Mutual Life Insurance Co., 5 Conn.App. 590, 594 (1985).
There certainly was intention to cause imminent apprehension of harmful contact and the court believes Raccio was put in imminent apprehension. But as Wright points out in Section 8 referring to the Restatement, "An assault cannot be accomplished by words alone. There must be an overt act evidencing some corporeal threat." Section 31 of the Restatement, which Wright refers to says: "Words do not make the actor liable for assault, unless together with acts or circumstances, they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person." The mere sending of a letter is no more than words on paper. There are no other facts and circumstances aside from the words in the letter that Raccio could claim put him in apprehension of imminent harm that could be definitively attributed to Leddy. The court concludes that civil assault has not been proven. See Marczeski v. Law, 122 F.2d 315, 325 (D.Conn. 2000) for definition of civil assault in our state. Also see generally 6 Am.Jur.2d "Assault and Battery," §§ 94 et seq.
(b)
The court will now discuss the claim for intentional infliction of emotional distress. This concept is defined in Section 46 of Restatement (2d) of Torts.
Our state has recognized the tort of intentional infliction of emotional distress. Peytan v. Ellis, 200 Conn. 243, 253 (1986). Its reference to Murray v. Bridgeport Hospital, 40 Conn.Sup. 56, 62 (1984), and its discussion at pp. 253-54 indicates that the Restatement (Second) Torts § 46 requirements for the tort have been adopted by our court. One of the necessary elements of the tort is that the alleged conduct of the defendant must be "extreme and outrageous." Id., p. 253. In footnote 5 on page 254, the court quotes from Prosser Keeton, torts (5th ed.) § 12, page 60: "The rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Emphasis added by court.)
The Restatement at § 46, page 73 states: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his (sic) resentment against the actor and lead him (sic) to exclaim `Outrageous.' The liability clearly does not extend to mere insults, indignities, threats, petty oppressions or other trivialities."
A cursory reading of the letter indicates its language was extreme and outrageous and that language was intentionally chosen to terrify the defendant especially given its anonymous nature. Despite the actions of Mr. Raccio some twenty years before, the letter was written long after those admittedly inexcusable events. No "decent society" can permit even a victim to send such a letter. This is especially so in the context of statutes allowing the pressing of criminal charges years after child molestation has occurred and common law access to civil litigation which the court has every reason to believe that the plaintiff was perfectly aware of at the time he wrote the letter. The court concludes the plaintiff's conduct in regard to the letter constitutes the intentional infliction of emotional distress. The court understands the plaintiff's anger and rage, but this cannot justify a violation of the civil law.
(c)
The court has had more difficulty with the claim of negligent infliction of emotional distress.
In Montinieri v. Southern New England Telephone Company, 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court, for the first time, recognized a cause of action for negligent infliction of emotional distress. It has been said that "in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001). In Barrett v. Danbury Hospital, 232 Conn. 242, 261-61, 654 A.2d 748 (1995), the court said: "This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendant's conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable."
If Montinieri is read closely, however, it would seem to indicate that the conduct alleged here in writing the letter would not fall under that case's conceptual limits. Montinieri talked in terms of " unintentionally caused emotional distress," Id., 175 Conn. at page 345. (Emphasis by this court.) There was nothing unintentional in this letter; the plaintiff said he wrote the letter to make Raccio feel uncomfortable. He said the defendant should be grateful he has not acted through on the threats. All he was thinking about was his rage when he wrote the letter.
The court believes that the proper claim against Raccio lies in intentional, not negligent inflictions of emotional distress.
(d)
Having determined that the defendant has proven one count of his counterclaim, the court must address his damage claim.
Mr. Raccio testified that the receipt of this letter caused a complete change in lifestyle. He went out less often, lived in fear, installed security devices around his home or upgraded ones already in operation, and to this day, keeps his shades down. But again, what seems to be a common denominator in this case presents itself. Wayne Imperati was called as a rebuttal witness by the plaintiff after Mr. Raccio testified. The purpose was apparently to counter Raccio's damage demand on the counterclaim. This witness had lived with his family with Raccio for several years. At the time of trial he still lived there with his son but the mother had moved out eight months previously. Imperati was an extremely nervous witness who gave answers to questions which contradicted responses given at a deposition. Overall, through this testimony, the court was not left with the impression that Raccio was an extremely terrified individual as a result of receiving this letter who totally changed his lifestyle. At one point Imperati said Raccio was "a little upset" when he got the letter, he acted "a little" afraid. At the deposition he said "no" when asked if Raccio acted as if he were afraid. He had the same response when asked if Raccio changed his routine around the house. Imperati did say Raccio went out a few times less per week, "he probably went out less."
On the other hand the letter is a frightening document and the court has no reason to doubt Raccio's real fear which was quite understandable under the circumstances. He did have security devices installed or upgraded at his home which support a claim of ongoing apprehension. It is true that Raccio contracted for a camera surveillance system and upgrade to the burglar alarm system in 2006, long after receipt of the letter and even the commencement of litigation but that only supports his claim of ongoing fear, even though the identity of the letter writer was known to him long before.
It could be said that one who is found to have engaged in the type of acts alleged here is not entitled to protection in the courts and is rightfully subjected to any type of threat or even the use of force. But as previously indicated, that would not be a response appropriate to a civilized society governed by the rule of law where even the most serious allegations must be addressed in the civil and criminal courts. Having reached this conclusion, the court is not aware of any principle of law which would bar a litigant like Mr. Raccio from seeking compensatory damages.
Therefore, the court awards by way of economic damages $104.94 for an upgrade to the burglar alarm system and $8,478.96 for the camera surveillance system for a total of $8,583.90. The later expense was contracted for by Raccio and although at trial he seemed to say that he did not pay this bill, the court took this to mean his company paid for it which, in effect, represents an outlay of his assets.
As far as non-economic damages are concerned, the court awards Mr. Raccio $7,500.