Opinion
No. CV 06-5001200
February 25, 2008
MEMORANDUM OF DECISION
I. NATURE AND HISTORY OF THE PROCEEDINGS
This action arises out of an alleged assault on the plaintiff perpetrated by the defendant on April 8, 2004, near midnight, on the campus of the University of Connecticut, that has resulted in serious and permanent injury to the plaintiff. On April 5, 2006, the plaintiff filed a complaint consisting of three causes of action, each based on assault. Specifically, the plaintiff alleges in the first count, that the assault and plaintiff's injuries and other losses were caused by the negligent conduct of the defendant in violently swinging a "board" in such a way as to strike the plaintiff in the head, when the defendant knew or should have known that injury was the likely result. In the alternative, the second count alleges that plaintiff's injuries and losses resulted from reckless and wanton conduct by the defendant, while the third count, as another alternative cause of action, alleges that the assault was intentional. The plaintiff further alleges that as a result of the assault on his person, he suffered a fractured skull; subdural and epidural hematomas; a traumatic brain injury and permanent scarring, in addition to pain and mental anguish. The plaintiff claims that some of his injuries are permanently disabling, as he is unable to perform occupational duties and his earning capacity has been impaired. The plaintiff seeks compensatory and exemplary money damages.
In his amended answer, filed on September 14, 2007, the defendant admits that he was at the scene, but denies that he caused injury to the plaintiff and that he assaulted the plaintiff, under all three of the plaintiff's assault allegations. In his special defense, the defendant claims that he acted in self-defense or in the defense of a third party.
At the conclusion of the trial, over the plaintiff's objection and after hearing argument of counsel, the court permitted the defendant to add the special defense to his answer as, in light of the exhibits, in particular, the police reports, and the testimony, the defense was no surprise to the plaintiff and its formal insertion into the pleadings would not cause undue delay. See Billy and Leo v. Michaelidis, 87 Conn.App. 710, 714 (2005). The plaintiff was granted an opportunity (three days) to request additional testimony; no such request was received.
The one-day trial was held on September 13, 2007, during which the court heard from five witnesses, including each of the parties, and received fifteen exhibits that included police reports, medical bills and reports, a health lien and life expectancy tables. After the trial concluded, a briefing schedule was set; the last brief was filed by the defendant, on November 30, 2007. The court, after reading all of the pleadings; reviewing and studying all of the exhibits; considering the testimony of each of the witnesses and assessing their credibility; and considering the arguments of counsel, makes the following findings.
II. THE CLAIMS OF THE PARTIES A. The Plaintiff's Claim
During the late evening hours of April 8, 2004, the plaintiff had left a party on the UConn campus in Storrs and was walking with three male friends, Nicholas Brown, James Battista and Ryan Rossignol, intending to get into their vehicle that was in the parking lot, known as Farmer Brown's. The plaintiff and his male companions, who were not UConn students, drove to the campus from Southington to visit two female students, Amy Plourde and Allison Pierce, who resided on campus. The six individuals were walking up a pathway leading from the location of the party to the parking lot, when they observed an orange pickup truck coming toward them down the pathway, which was driven by a female, Gina Ballard. A male passenger, Eric Gates, jumped out of the truck and assaulted Battista, whereupon Brown pulled Gates off his friend. According to the plaintiff, the four male friends continued walking up the pathway toward the parking lot, when the plaintiff who claims he was not involved in the altercation with Gates in any manner, was struck by a "stick" on the side of his head by the defendant, who apparently went to assist Gates, who was a friend of the defendant. The plaintiff identified the defendant as the perpetrator, as he saw the defendant immediately before he was struck. Such is the plaintiff's version of the events of that evening or early morning. The plaintiff admitted that prior to the encounter with the defendant, he drank two shots of vodka and smoked some marijuana.
Brown, who has been a friend of the plaintiff since high school days, and referred to the plaintiff as, "a peaceful guy," surmised that Battista apparently did not move out of the way of the pickup quickly enough to satisfy Gates, which precipitated Gates' assault on Battista. According to Brown, after the encounter with Gates, the four male friends continued their walk up the pathway to the parking lot. Brown insisted that neither he nor his friends, especially the plaintiff, beat upon Mr. Gates. According to Brown, as the four males, the two girls were well ahead of them, traversed the pathway, someone yelled obscenities and exclaimed, "mess with me!" He then saw someone who looked like the defendant hit the plaintiff with a "board" while the plaintiff had stopped a distance behind the other three to light his cigarette. It is noteworthy that what the plaintiff (and later, the defendant), referred to as a stick and Brown called a board was in actuality, a four inch by four inch wooden fence post, which was four feet, three inches in length. Plaintiff's Exhibit A, the state police report.
After the plaintiff was struck with the fence post, the three friends, in the presence of the two female students, were attacked by another group as they were assisting the plaintiff and attempting to enter their vehicles, whereupon the police came upon the scene and arrested everyone in sight, with the exception of the defendant, who had left the scene.
Rossignol is another friend that accompanied the plaintiff to UConn on April 8, 2004. He too has known the plaintiff since high school, graduating together in 2002. He agreed with the plaintiff's and Brown's testimony that Gates, after yelling obscenities, jumped out of the truck and attacked Battista, however, he added that Gates attempted to gouge Brown's eyes when Brown went to assist Battista, who then kicked Gates in the face in an effort to assist Brown. Rossignol testified that when she saw her boyfriend kicked in the face and lying on the ground, Bullard drove away, whereupon the four friends left Gates where he lay and continued up the pathway toward the parking lot. Rossignol insisted that neither he nor the plaintiff were involved in the altercation with Gates.
Rossignol confirmed that while the four friends continued up the pathway, the plaintiff was behind the other three, as he was lighting a cigarette, when Rossignol heard, "a smack like nothing I heard before," immediately after someone yelled: "Do you want to f — with us!" He saw the post hit the plaintiff's head, causing the plaintiff to fall to the ground. He stated that, after the plaintiff was struck, Brown hit the defendant, who then dropped the post and ran. Rossignol was firm on his vivid recollection that, "Jonathon initiated nothing" and that, "if someone says different, that is ridiculous!"
He testified that the third incident occurred seven minutes later, while he and the others were helping the injured plaintiff to the car. A group of males attempted to attack them, whereupon the police arrived, seized the post and took everyone to the station. As noted, the defendant had left the scene.
B. The Defendant's Version
In April 2004, the defendant, who was an Army veteran, was enrolled at UConn as a junior and was the center on the rugby team. His campus residence was a quarter of a mile from the scene. That evening, he was with his girlfriend at Huskies, a bar across the street from Farmer Brown's parking lot. He had been there for two or three hours during which he consumed three or four beers. He left the bar around 12:30 a.m. on April 9, 2004, after which he spotted Gates, who was a freshman on the rugby team. He asked Gates for a ride back to his residence. Apparently, the plan was for Bullard to drive down the pathway to the old rugby house, then turn around and come back for the defendant. After awhile, Bullard drove up the driveway and, hysterically, asked the defendant to help Gates, yelling that he was being beaten by four males. The defendant ran down the driveway and on the way picked up a "piece of old and rotted wood," which he referred to as a "stick." When he saw a group of males, "kicking and punching" Gates and observed that Gates was bleeding, the defendant stated that he placed himself between Gates and the group. According to the defendant, at first, all four members of the group backed up, then one came at him, so he hit him with the wood. Notably, the defendant, related the details of this incident, which nearly took the plaintiff's life, very matter-of-factly and without an ounce of remorse! The defendant further explained that there was, "one big guy" and three others; he believed that if he didn't use the wood in the aforesaid manner, he too would have suffered a beating. After he struck the plaintiff, he testified that another came at him, whereupon, he rolled on the ground, to do a takedown, " just like I was trained to do!" The group then departed the scene, while he helped Gates to his feet who, at first, fell to the ground.
Bullard testified that she was driving her boyfriend's truck, as he had been drinking and was under the age of twenty-one. As she was driving down the pathway to turn around, intending to pick up the defendant, she encountered a group of "kids" who wouldn't move and who hit the front of the truck. When Gates exited the truck to confront the group, four males beat up on him, while the two girls accompanying the four males were screaming. One of the males attempted to steal CDs from the inside of the truck. Bullard testified that her boyfriend was "getting the crap beat out of him [and] there was blood everywhere!" Thus, she drove up the driveway and told the defendant what was occurring, who then ran to help Gates and "grabbed a board." She later took Gates to the hospital for treatment.
C. The Police Investigation
As is apparent from the above accounts of the events that occurred at UConn, near midnight, on April 8, 2004, the plaintiff and defendant's versions differ substantially. This court finds that the truth lies somewhere between the conflicting accounts. In this regard, the investigation conducted by the UConn and state police departments is most enlightening. Both reports are found in Tab A of the exhibits, each separately labeled.
From the state police report, the court was provided with a detailed description of the area where the events took place. Bullard pulled into the driveway leading to the old rugby house, which had apparently been destroyed by fire, in order to turn around and was driving back to King's Hill Road, when she and Gates encountered the plaintiff and his male and female companions in a narrow portion of the driveway. The conflicting accounts are then related. The report goes on to confirm that another group of males, in apparent retaliation for the incident with Gates, attacked the plaintiff and his friends outside the Hilltop Suites. Three persons (names blotted out) were arrested by UConn police for what is referred to as this third incident. After an extensive investigation, on September 20, 2004, the defendant, was arrested and charged with breach of peace and assault in the second degree.
There was no testimony by any witness at the trial as to the arrest of the defendant and no mention in the police reports of the ultimate disposition of the criminal charges. This court, therefore, will consider the arrest of the defendant as irrelevant to the issues to be decided in this civil action.
The state police interviewed, among others, the two female friends of the plaintiff and Bullard. At first, Bullard refused to name the defendant as the one who struck the plaintiff, but finally relented and identified the defendant as the source of the plaintiff's injuries. Plourde told the officers that the plaintiff was behind the others, walking up the path, when a male who came behind the plaintiff, hit him with the wood. Pierce told the officers that the "guy in the truck" i.e., Eric Gates, jumped out of the truck and attacked one of her friends. At a subsequent interview, the defendant, related his version of the events and claimed that he acted in self-defense.
The UConn police report is even more enlightening. From the third incident, Battista exhibited a swollen left eye as a result of being assaulted by one Denton Gates, presumably, a relative of Eric Gates. Battista told the police that Denton and others were attempting to attack the plaintiff, while he was slumped, seriously injured, in the rear seat of his vehicle. The officers reported that Rossignol, Brown, Pierce, Plourde and Battista were " all helpful and cooperative" and that their accounts of the three incidents were, "consistent throughout their numerous interviews." Emphasis added. They also commented on the "uncooperative and evasive" manner of Denton Gates and his companion.
Included in Tab A, is the affidavit dated June 3, 2004, that ultimately resulted in the arrest of the defendant. Several of the statements contained therein are of interest. At the hospital, Eric Gates' tongue was sutured, after which he was released. According to Rossignol, Gates ordered the plaintiff and his friends to, "get the f — out of the way," whereupon Battista retorted: "What's your problem?" With that comment, Gates got out of the truck and tackled Battista. Bullard, then yelled to Gates, "get back in the truck, you drunk!" Brown told the officers that, in confronting the plaintiff and his friends on the pathway, Gates yelled, "Get the f — out of the way, you fags . . . I'll beat your ass . . . I'll kill you you f — `n pussies!" Before Bullard drove off according to Brown, Bullard pleaded: "Please guys, don't do anything, he's really drunk!" Brown then stated that after the altercation with Eric Gates, while they were walking away, another male was heard to say: "You want to f — with me like that?" Brown then saw the male hit the plaintiff on the left side of the head, after taking a baseball bat type swing with the board. Pierce told the officers that she saw the defendant swing the board, "like a baseball bat," when the plaintiff, who was thirty to forty feet behind her, was hit.
III. APPLICABLE LAW A. Assault (1) In General
As noted, in each of the three separate counts of his complaint, the plaintiff alleges a different theory of assault. In the first count, he alleges a negligent assault; in the second, a reckless and wanton assault; and in the third, an intentional assault. "An assault has been defined as any attempt with force or violence to do corporeal offense to another, coupled with the present apparent ability to complete the act. An assault is sometimes referred to as an inchoate battery. Assault does not require a touching, but merely a threat or gesture." D. Wright, J. Fitzgerald and W. Ankerman, Connecticut Law Of Torts (3rd Edition, 1991) Sec. 6, Page 8.
Practice Book Section 10-25 provides: "The plaintiff may claim alternative relief based upon an alternative construction of the cause of action." This is permitted, even if the theories are inconsistent with each other. Craig v. Driscoll, 64 Conn.App. 699, 721 (2001).
It is more technically correct in Connecticut civil tort law, to refer to what is commonly called an assault, as a battery, however, the cases rarely make that distinction. In Connecticut criminal law, any offense denominated an "assault" requires some injury to be sustained by the victim as a result of some action taken by the perpetrator. The degree of the assault and the resultant penalties provided depend upon the seriousness of the injury, and such factors as the age, health or disability of the victim. Section 53a-3(4) defines "serious physical injury" as a "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the functioning of any bodily organ." As will be hereinafter addressed, the injuries sustained by the plaintiff meet all of the above criteria!
See General Statutes Sections 53a-59 through 53a-61a.
Under Connecticut law, an actual assault and battery may be committed willfully, recklessly or negligently. Chouinard v. Marjani, 21 Conn.App. 572, 575 (1990).
(2) Intentional
A willful, or what is sometimes referred to as a malicious assault, is one that is committed intentionally, which arises from an actual intent to injure the victim. Lentine v. McAvoy, 105 Conn. 528, 531 (1927). The occurrences and declarations of the perpetrator, both before and after the assaultive event, are relevant to a determination of the nature and character of the assault. Id., at page 531-32. "A willful and malicious injury is one inflicted intentionally without just cause or excuse . . . [n]ot only the action producing the injury, but the resulting injury must be intentional." Altieri v. Colasso, 168 Conn. 329, 333 (1975). An injury is deemed as intentional, if "the injury intended, was the apprehension of bodily harm, and the resulting bodily harm was the direct and natural consequence of the intended act." Id., at page 334. The key element in an assaultive action motivated by wilfulness and maliciousness is the "design to injure." Markey v. Santangelo, 195 Conn. 76, 78 (1985); Stohlts v. Gilkinson, 87 Conn.App. 634, 648; cert den'd, 273 Conn. 930 (2005). The design to injure, may be "actually entertained or implied from the conduct and circumstances." Arnone v. Connecticut Light and Power Co., 90 Conn.App. 188, 196 (2005). In Barrese v. DeFillippo, 45 Conn.App. 102, 109 (1997), at footnote #3, the appellate court approved the following jury charge:
For there to be an intentional battery the action producing the injury and the resulting injury must be intentional. However, the resulting injury is deemed to be intentional when the bodily harm inflicted was a direct and actual consequence of the offensive conduct. So, if you find the defendant intended an offensive conduct with the plaintiff and the plaintiff's injuries were a direct and natural consequence of that offensive conduct then you would find the defendant liable for an intentional battery.
(3) Reckless and Wanton
A wanton assault and battery is one done under circumstances, evincing a reckless disregard of the consequences of the assaultive act. Lentine v. McAvoy, supra, 107 Conn. 531. Wanton misconduct exceeds that of negligence, including gross negligence; it is conduct "as indicates a reckless disregard of the just rights or safety of others or of the consequences of action." Menzie v. Kalmonowitz, 107 Conn. 197, 199 is (1927); Markey v. Santangelo, supra, 195 Conn. 78; Frillici v. Westport, 264 Conn. 266, 277 (2003). Both of the terms, wanton and reckless are employed interchangeably by Connecticut courts; both refer to "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . [a]t common law contributory negligence was not a defense to a cause of action alleging wanton and reckless misconduct." Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 513 (1992).
One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him. Whether defendant's conduct constituted heedless and reckless disregard of the plaintiffs' rights was a question of fact for the jury . . .
Craig v. Driscoll, 64 Conn.App. 699, 721 (2001); affirmed on other grounds, 262 Conn. 312 (2003) (internal citations and quotations omitted).
In discussing the differences between wilful, on the one hand, and wanton and reckless, on the other, our Supreme Court has stated:
[W]hile we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.
Arnone v. Connecticut Light and Power, supra, 90 Conn.App. 196, quoting Dubay v. Irish, 207 Conn. 518, 533 (1988).
Ten years after Dubay, the Court, again, lumped the terms together and instructed as follows:
In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.
Elliott v. Waterbury, 24 Conn. 385, 415 (1998). Internal quotation marks omitted.
(4) Negligent
In Bordonaro v. Senk, 109 Conn. 428, 432 (1929), the Supreme Court pointed out that the difference between negligent conduct and that which is deemed willful or wanton is, "one of kind, not merely degree," as simple negligence, "does not have for its base, either willfulness or wantonness." In Sansone v. Bechtel, 108 Conn. 96, 99 (1980), the theory of negligent assault and battery was applied to a situation in which a student was injured by a teacher, who, in disciplining the child, caused the unintended injury. The court noted that the teacher exerted force without exercising due care. Thus, a cause of action alleging assault as a result of negligence is separate and distinct from that alleging willful or wanton misconduct. Kostiuk v. Queally, 159 Conn. 91, 94 (1970). In Frillici v. Westport, supra, 264 Conn. 277, the Supreme Court, in discussing the three theories of assaultive behavior, referred to a negligent assault as "a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to [others]." Emphasis added. A negligent assault, may arise out of a, "mere mistake resulting from inexperience, excitement or confusion [or] thoughtlessness or inadvertence, or simply, inattention." Arnone v. Connecticut Light and Power Co., supra, 90 Conn.App 196.
B. Self Defense/Defense of Others (1) As to Negligent Assault
In a recent case, Brown v. Robishaw, 282 Conn. 628 (2007), our Supreme Court had occasion to address the special defense of self-defense in a case in which the plaintiff's claimed injuries resulted from the negligent conduct of a defendant, who, during an altercation, pushed the plaintiff down a stairway. The court ordered a new trial, thereby setting aside the plaintiff's verdict, based upon the trial court's denial of the defendant's request to charge the jury on the law of self defense. In footnote 13 (page 640), the court referred to Markey v. Satangelo, supra, and approved the trial court's instruction on negligent assault. Per that instruction, negligence, became an issue only because the defendant filed a special defense, claiming that he acted in self-defense, thus justifying his assault upon the plaintiff. "If in fact, the jury believed that [he] acted in self-defense, they would have had to consider whether in so acting, he used more force than was reasonably necessary to prevent an impending injury." Id., at page 81. According to the Supreme Court, "the special defense of self-defense, incorporates its own negligence analysis, stating that, "what the plaintiff really claims is that the defendant unreasonably perceived a threat to his person and, in response, used excessive force to protect himself. Brown v. Robishaw, supra, 282 Conn. 640. As to the plaintiff's claim of negligent assault, the court opined:
In reality, however, the plaintiff claims that the defendant committed the intentional tort of assault, and that the defendant's response to the plaintiff's behavior at Robishaw's door was unreasonable, and therefore, unjustified. It is undisputed that the defendant intentionally threw or pushed the plaintiff down the stairs of the house. Therefore, for negligence still to be an issue, the question of whether the defendant's intentional conduct was unjustified remains paramount.
Id., at page 637-38.
(2) Relevant Statutes
General Statutes, Section 53a-19, which is part of the Connecticut penal code, is entitled, "Use of physical force on defense of person." It provides as follows:
(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his or her dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he or she is a peace officer or a special policeman appointed under section 29-18b or a private person assisting such peace officer or special policeman at his or her direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.
(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized bylaw.
Thus, under statutory law, a person is justified in using physical force in defending himself or another, however, that force must be reasonable under the circumstances and must arise out of a reasonable belief on the part of the actor, that the use of force against the actor or a third person is imminent. The actor then may use only that degree of force, which he or she reasonably believes is necessary.
Deadly physical force is defined in Section 53a-3(5) as, "physical force which can be reasonably expected to cause death or serious physical injury." The actor cannot employ deadly physical force, unless he or she holds a reasonable belief that either deadly physical force or great bodily harm is about to be inflicted on him or her. Moreover, Subsection (b) prohibits the use of deadly physical force, if the actor is able to avoid the use thereof by safely retreating. Physical force of any kind is not justified if the actor provokes the use of force or is the initial aggressor.
Our Supreme Court has stated, in interpreting the cited statute, that:
[A] person may justifiably use deadly physical force in self-defense only if he reasonably believes both that: (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack. (Emphasis added.) Thus, if a jury determines that the defendant's honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of § 53a-19.
State v. Lemoine, 256 Conn. 193, 207 (2001). Internal quotation marks omitted.
The court further states that:
Not only must the defendant's belief in the type of threat facing him have been reasonable, but, under the wording of the statute, the degree of force used in response must be evaluated for reasonableness as well.
Id., at page 208.As to the retreat issue, the appellate court has approved the following jury instruction:
[E]ven if the defendant were justified in reasonably believing that [the plaintiff] was about to use deadly physical force, was about to inflict great bodily harm upon him, could the defendant [have] avoided the use of deadly force by retreating from the confrontation or avoiding it all, all together. If he could have retreated with complete safety to himself at any stage of the confrontation then the use of deadly physical force would not have been justified.
State v. Carter, 48 Conn.App. 755, cert denied, 247 Conn. 901 (1998).
IV. FACTUAL ANALYSIS AND FINDINGS
The altercation that took place near midnight, April 8, 2004, involved two young men having markedly different physical characteristics and life experiences. The plaintiff was twenty years of age, and, at the time, weighed 115-117 pounds. At the time of the incident, he was neither attending school nor working, as two months earlier, he was terminated due to a physical altercation with a supervisor. He was looking for work as a computer technician. The defendant was six years older than the plaintiff and, at the time, weighed 192-195 pounds. In high school he was a fullback on the football team. After one semester of college, he enlisted in the United States Army, where he spent the next four years, including nine months with the peacekeeping force in Bosnia. He was trained as a paratrooper and was an Army Ranger, proficient in self defense; he was also trained in sniper and air assault tactics. At the time of the incident in April 2004, he was a junior at UConn and was the center of the rugby team. Given the difference in age and life experience, one could easily infer that the defendant was the more mature of the two young men. Unfortunately, vindictiveness overshadowed the defendant's maturity.
There is no question that the first altercation during that late evening was precipitated by Eric Gates, the defendant's teammate, who, in a drunken stupor, foolishly attacked one member of a group of four males, who didn't move fast enough to allow the truck operated by his girlfriend to pass. Despite the pleas of Bullard to get back in the truck, Gates persisted and launched the physical attack on Battista after yelling obscenities and insults. When that attack was repelled by Brown, Gates then attempted to gouge Brown's eyes, when he was repelled by Battista, who kicked Gates in the face, causing the latter to bleed. After observing the above, Bullard drove up the pathway, where she, hysterically, pleaded with the defendant to come to Gates' assistance.
The defendant admits that, on the way to assist his teammate, he picked up the wooden fence post. This court finds that, at this point, the version of events as related to the police by the plaintiff's friends, in particular, the two young women, is the more credible account of what next transpired. All of the plaintiff's friends confirmed that he did not participate at all in the altercation with Gates and that, while they all were on their way to the parking lot, he was struck by the defendant, while lagging behind the others in order to light a cigarette. This court finds that once the defendant observed Gates on the ground bleeding, armed with the fencepost, Kapustinski intended to inflict punishment on those who hurt his friend. Without bothering to get any explanation as to who may have started the altercation between Gates and the group, and having the clear ability to retreat and to provide assistance to his friend, he was heard to challenge the group and was observed to take a baseball-type swing with the fencepost, striking the plaintiff's head with the full force of his two hundred-pound frame behind that swing. It is immaterial, given these circumstances, whether the plaintiff had anything to do with the injuries sustained by Gates. The plaintiff was viciously assaulted by the defendant with a dangerous instrument. Moreover, the assault upon the plaintiff was perpetrated with the use of deadly physical force, as defined in General Statutes Section 53a-3(5), as the force behind the attack could be reasonably expected to cause, at the very least, serious physical injury.
General Statutes Section 53a-3(7) defines a dangerous instrument as, "any instrument . . . which, under the circumstances in which it is used . . . is capable of causing death or serious physical injury . . ."
Applying the legal principles discussed above, the blow that was inflicted upon the plaintiff by the defendant did not occur due to a mistake, inadvertence or inattention. The injury was not unintended. There was no immediate threat to the defendant's person. The actions of the defendant were not the product of thoughtlessness. The defendant's conduct in striking the plaintiff with the fencepost was not, in any sense of the word, negligent.
The defendant's conduct during the late evening hours of April 8, 2004, clearly falls within our Supreme Court's definition of willful, wanton and reckless. The use of deadly force, by way of the dangerous instrument, when the defendant was in no danger and could have easily avoided the altercation was "highly unreasonable conduct." The defendant's actions clearly involved, "an extreme departure from ordinary care." It should have been apparent to the defendant that striking the plaintiff with the post, while taking a baseball swing, posed, "a high degree of danger" to the plaintiff, whose life would be placed in jeopardy by such a rash and unjustified action. Arnone v. Connecticut Light and Power, supra, 207 Conn. 533. The defendant's actions clearly indicated a reckless disregard for the mortality of the plaintiff and the consequences of those actions. Elliott v. Waterbury, supra, 24 Conn. 415. In picking up the fencepost and striking the plaintiff with the force of a baseball swing, this court finds that the assault perpetrated by the defendant on the plaintiff's person was prompted by a malicious desire for revenge, and that the defendant clearly intended to seriously injure the plaintiff. This court finds that both the action causing the injury and the resulting injury were intentional, as the harm inflicted ( a fractured skull and bleeding brain) was the direct result of the defendant's conduct. Barrese v. De Fillippo, supra, 45 Conn.App. 109. This court finds, therefore, that the plaintiff has proven, by a fair preponderance of the credible evidence, that the assault perpetrated by the defendant on the plaintiff's person on April 8, 2004, was wanton, reckless, willful, intentional and malicious.
This court further finds that the defendant has failed to demonstrate that his actions were prompted by self-defense, as the above findings negate such a special defense. As noted, our statutory and case law prohibits the use of deadly physical force, unless the actor reasonably believes that such force or great bodily harm is about to be inflicted upon him. Moreover, the use of deadly physical force is prohibited if the actor is able to safely avoid the use of any force by leaving the scene. As discussed above, this court believes that the plaintiff did nothing to provoke the assault and was viciously attacked from behind by the defendant. However, even if one were to believe that the 115-pound plaintiff, who had no weapon or instrument, somehow posed a threat to the militarily-trained defendant, the defendant could have and should have avoided the use of any degree of force, by simply avoiding an altercation and returning to assist his teammate. The credible evidence shows, quite to the contrary, that the defendant challenged the plaintiff and his friends and precipitated the second incident of the evening by intentionally employing deadly force in assaulting the plaintiff.
V. THE PLAINTIFF'S INJURIES
After the plaintiff was hit by the fencepost wielded by the defendant, he was carried, by one of his friends to the car, while dropping in and out, of consciousness. While in the car, acquaintances of Gates attempted to assault the plaintiff, whereupon, the police arrived. The plaintiff was transported from the scene by ambulance to Windham Hospital, where medical personnel noted a large abrasion on his left temporal area and a visible hematoma. X-rays revealed two skull fractures, and it was reported that blood was collecting inside his brain. See Tab B.1. After consultation with a specialist, it was decided that the plaintiff should be immediately transported to Hartford Hospital by Life Star helicopter. It is noteworthy that the paramedics reported that, during transport to Windham Hospital, the plaintiff's condition worsened, as he became increasingly confused and was mixing-up his words. See Tab B.2.
Upon his arrival at Hartford Hospital, it was noted that the plaintiff's mental status was rapidly declining, as he was disorientated as to time, place and events. After initial examination, he was rushed to the operating room on a " Stat Red" basis, where he underwent an emergency craniotomy for a surgical evacuation of the blood clot in his brain. The operative report reveals that the neurosurgeon, Dr. Kvam, evacuated a "large left temporal epidural hematoma," by performing a " very quick" craniotomy, after " very quickly" administering general anesthesia. The surgeon further reported that the plaintiff sustained a linear skull fracture and that the temporalis muscle was "very swollen and contused." A syncraniotomy was performed both anteriorly and inferiorly using a high speed drill; the clot was then " very quickly" evacuated. See Tab B.3. A reasonable inference can be made that the speed in which the procedure was performed was as important to the life-saving efforts, as was the skill of the surgeon. The plaintiff remained at Hartford Hospital for four days. The plan, on his discharge, included twenty-four hour supervision, and a subsequent referral for traumatic brain injury rehabilitation through a clinic that specialized in the treatment of such injuries. The medications prescribed at discharge included Oxycodone, Dilantin, Pepcid, Percocet and Tylenol. The staples used to close the surgical wounds were removed seven days after his discharge from Hartford Hospital.
The plaintiff testified that for the ensuing four or five months, he was confined to his house, mostly to his bed; that he was not allowed to drive; that he was told not to lift in excess of twenty pounds; and that he could not enroll in a college program, as he had planned. The plaintiff was first seen at the head injury clinic on April 20, 2004, eleven days after the assault. He was complaining of headaches, dizziness, double vision, fatigue and loss of balance. He reported difficulty sleeping. The surgeon had discontinued anti-seizure medications and, despite plaintiff's numerous symptomatic complaints, it was determined that he was "on a good track" toward recovery. See Tab B.5. At the clinic he was followed by a neurosurgeon (Dr. Kureshi) and by a neuropsychologist (Dr. Oakes). During his first visit to the clinic, the plaintiff was warned to cease his use of marijuana, however, during his visit on May 25, 2004, the plaintiff admitted that he was unable to abstain from that drug, whereupon, he was referred to an out-patient drug program. At that time the plaintiff was free of seizures, however he was still reporting frequent headaches. By September 2005, seventeen months after the assault, the plaintiff continued to complain of headaches which he described as "shooting from the frontal region down to the back of his neck." It was reported at that time that a psychiatrist, Dr. Wallington, had diagnosed that the plaintiff was suffering from depression and had prescribed Cymbalta. It was also reported that, in addition to the headaches, the plaintiff was experiencing increased irritability, tinnitus, phonophobia and severe photophobia. The plaintiff was referred to Dr. Bilchick of the Hartford Headache Center for help in the management and control of his headaches. By September 2005, the plaintiff was working as a computer technician and still was hoping to pursue some type of college degree. See Tab B.5.
Tinnitus has been defined as, "a condition causing constant ringing in the ears, which often insights nervousness and agitation." Allen v. Rapides Parish School Board, 204 F.3d 619, 620 (5th Cir. 2000). Phonophobia is an abnormal sensitivity to sound, and a common feature of migraine headaches. Simmons v. Swinton, 715 So. 2d. 370, 372 (Fla.App. 5 Dist. 1998). Stedman's Medical Dictionary (28th Ed. 2006) p. 1484. Photophobia is an abnormal intolerance of light. O'Donnell v. Barnhart, 318 F.3d. 811, 813 (8th Cir. 2003).
Dr. Bilchick examined the plaintiff on October 28, 2005. His report is found in Tab B.7. In that report it was noted that the plaintiff's psychiatrist had prescribed Fentany patches, Morphine, Methadone and Neurotin, in addition to Cymbalta, however, the plaintiff told Bilchick that the only drugs that afford him some relief from his symptoms are marijuana and methadone. As of that visit the plaintiff was no longer working and was continuing daily use of marijuana. Among his reported complaints were "significant photophobia," generalized tremor, insomnia and back pain. He reported experiencing headaches sixty-two days out of ninety-day period. In testing for headache severity, Bilchick noted that the plaintiff was severely disabled from his headaches and that they were caused by scar and post-craniotomy pain. Although Bilchick prescribed low doses of nortriptyline, he concluded that there was, "not much else we can do for this kind of pain other than referring him to a pain center, if no response." Tab B.7.
The most telling of all the medical reports is found in Tab B.11. It is a letter, dated March 2, 2007, from Dr. Wallington to plaintiff's attorney that details plaintiff's psychiatric history since October 29, 1998, when the plaintiff was a high school student at fourteen years of age. It also provides details of the stark contrast between the plaintiff's mental, physical and social status before the defendant's assault upon his person and his current, permanently debilitating condition, which is the consequence of said assault.
Wallington reports, consistent with the plaintiff's testimony, that the plaintiff was under his care due to behavioral problems while he was in high school, as a result of which the plaintiff was dismissed from the wrestling team. He was first seen by Wallington in October 1998, and remained under his care for the next four years. The plaintiff met the criteria for a diagnosis of Attention Defecit Disorder and Depression. Wallington reported that with psychiatric counseling, medication (Wellbutrin), and supportive school services, the plaintiff's aberrant behavior "settled down" and that the plaintiff, "achieved a degree of academic and social success." The plaintiff's last visit with Wallington, prior to the assault, was in November 2002.
Wallington reports that when he next saw the plaintiff on September 21, 2004, nearly six months after the assault, "his presentation was markedly different." Two years earlier, his major depression had resolved, however in September 2004, the plaintiff was having great difficulty in controlling despair and reported the onset of feelings of sudden sadness and the inability to deal appropriately with adversity. Two years earlier, the plaintiff exhibited no signs of social anxiety, however, in September 2004, he disclosed that he was very fearful and anxious around people, especially strangers. Two years earlier, with treatment and medication, the plaintiff's behaviors at school and at home were greatly improved; two years later, the plaintiff's short term memory was greatly impaired and, due to his cognitive deficits, memory loss and mood swings, he has been unable to keep a job. He reported to Wallington that he can't remember what he ate the day before. Most notably, in November 2002, the plaintiff suffered neither pain nor headaches; in September 2004, up to and including the date of Wallington's letter, the plaintiff continued to complain of chronic pain on the left side of his head, relative to which the drugs, those prescribed and those not prescribed, afford limited relief. Dr. Wallington reports, "the pain is constant, severe and impairs his functioning in many aspects of his life."
In concluding his March 2007 letter, Wallington writes:
Throughout the 30 months of treatment Mr. Stewart has struggled to come to terms with the impact of this assault on his life. He has been unable, until very recently, to sustain any romantic relationships. He has tried, but has been unable to hold down a job. He has often spoken of going back to school, but this is unlikely to be successful, given his memory deficits. He has insight into how damaged his brain is, but uses minimization and denial to defend against despair. He can at times be quite animated about his plans to work or go back to school, but the fact is that his ability to remember, to maintain a stable mood, be comfortable around people and to sustain interpersonal relationships is permanently impaired following his brain injury.
Emphasis added.
During the trial the undersigned observed two surgical scars on the plaintiff: the first was crescent-shaped and was located above and around his left ear, it was approximately three to four inches in length; the second was smaller in size and was located under his left eye. The plaintiff testified that he currently suffers from headaches, on average, three times per week, and that his short term memory loss and impaired mental capacity persist. He currently takes methadone for pain, although the dosage is limited to ten milligrams in order to avoid dependence. He admits to the continued use of marijuana to control the headaches. He did state that his pain, although it continues, is not getting worse. At the time of the trial in September 2007, he was not employed, however, he was taking a minimum amount of courses at a local community college, as he stated that he was unable to carry a full load.
Medical Costs
At the time of trial, the plaintiff and his parents had incurred $38,602.20 in medical, hospital and pharmaceutical costs. See Schedule A for the dates of services and the fees and charges of the various medical providers. The last service listed was an office visit to Dr. Wallington on August 2, 2007. Most of the provider charges were paid by Connecticare via the health plan available through the U.S. Postal Service, by whom the plaintiff's mother is employed. Upon attaining the age of twenty-one, the plaintiff was no longer covered by his mother's plan. At the time of trial, the plaintiff had no heath insurance and had not applied for any state assistance. Connecticare has filed a valid ERISA lien in the amount of $20,803.45 and is seeking reimbursement.
The court notes that, according to DCS Recovery Services, which does the collecting for Connecticare, the total amount billed (claim amount) by the medical providers was $41,174.62. At the trial, the plaintiff was claiming a total of $38,602.20 in medical specials per Schedule A.
COMPENSATORY DAMAGES
This court is well aware that the plaintiff, prior to the assault of April 8, 2004, was not a model citizen. Due to his behavioral history and mental disorders, he had difficulty in holding on to employment and seemed to be procrastinating relative to the pursuit of his education. Despite these deficiencies, however, Wallington opined that, with medication, treatment and a supportive environment, the plaintiff had made significant progress. That progress, and the plaintiff's opportunity to overcome his mental disorders, was permanently derailed by the unjustified and vicious assault perpetrated by the defendant during the late evening hours of April 8, 2004.
As we often instruct jurors, a defendant whose conduct causes injury to a plaintiff takes that plaintiff as he finds them. With respect to any pre-existing physical or mental conditions, this defendant cannot excuse the plaintiff's resultant injuries by pointing to his previous impairments. The defendant is, therefore, liable for all proximate results of his unjustified assault and is responsible for all injuries and other damages caused by him, even if the results are worse, in part, due to the plaintiff's previous mental health history. Iazzetta v. Nevas, 105 Conn.App. 591, 593, footnote #4 (2008).
In determining the amount of fair, just and reasonable compensatory damages to which the plaintiff is entitled, this court has considered the medical expense incurred by the plaintiff to the date of the trial, as well as reasonably anticipated future medical expenses, given his continued necessity to medically manage his persistent headaches and maintain mental stability. This court has considered the "horrendous" pain that the plaintiff has suffered in the past, including the initial trauma and the emergency surgery, and his past and future emotional pain and mental suffering. This court has also considered the permanent scars and the major adverse impact that his permanent traumatic brain injury will have on his ability to forge personal relationships, pursue his education, engage in recreational activities with his family and friends, enjoy life's pleasures and obtain and retain lucrative employment. All of these factors have been considered in light of his current age of twenty-three and his life expectancy of fifty-three years. See Tab, D.
This court, therefore, awards to plaintiff the sum of $1,008,602.20 as fair, just and reasonable compensatory damages, all as set forth in Schedule A attached hereto.
VII. PUNITIVE DAMAGES
In his prayer for relief, the plaintiff has requested an award for exemplary or punitive damages. In order to make such an award, the evidence must demonstrate conduct performed in "reckless indifference to the rights of others or an intentional and wanton violation of those rights." Stohlts v. Gilkinson, 87 Conn.App. 634, 648 (2005). An injury caused by the willful and malicious acts of another will justify an award of punitive damages. Marley v. Santangelo, supra, 195 Conn. 78. This court has earlier found that the actions of the defendant in assaulting the plaintiff on April 8, 2004, were wanton, reckless, willful, intentional and malicious. The circumstances of this case more than justify an award of punitive damages as further compensation for the actual loss of compensatory damages, once the plaintiff's attorney is paid. National Semiconductor Corporation v. Allendale Mutual Insurance Company, 549 F.Sup. 1195, U.S. District Court, District of Connecticut (October 22, 1982). The court will award an additional $300,000.00 as punitive damages.
VIII. CONCLUSION AND ORDER
Based on the foregoing, judgment shall enter in favor of the plaintiff, as against the defendant on the Second and Third Counts of the plaintiff's complaint. The First Count is dismissed, as the conduct of the defendant in assaulting the plaintiff on April 8, 2004, went far beyond any concept of negligence, as it was wanton, reckless and intentional. The defendant is ordered to pay to the plaintiff TOTAL DAMAGES of $1,308,602.20, with costs.
Wilson J. Trombley, Judge
SCHEDULE A — DAMAGES I. Compensatory Damages:
TOTAL AWARD $1,308,602.20
Past Economic Damages (Compensation for all past pecuniary losses; i.e., the cost of reasonable and necessary medical and hospital care) $ 38,602.20 Future Economic Damages (The reasonable cost of probable future medical treatment and prescriptions) $ 50,000.00 Non-Economic Damages (Compensation for all non-pecuniary losses, including physical and emotional pain and suffering, permanent injury, disability or impairment, permanent scarring, and the ability to participate in and enjoy fully the daily activities of life) $ 920,000.00 Total Compensatory Damages $1,008,602.20 II. Punitive Damages $ 300,000.00