Opinion
CV156013116
11-22-2016
Joseph Viscuso v. John Chevalier et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Julia L. Aurigemma, J.
The plaintiff, Joseph Viscuso, has brought this action against John Chevalier, Cory Martin and other defendants. The action is in three counts. The first count alleges that the plaintiff sustained injuries as a result of a conspiracy by all defendants to confront the plaintiff with bottles and harm the plaintiff. The second and third counts allege a conspiracy to negligently (second count) and recklessly (third count) harm the plaintiff.
The plaintiff has withdrawn the action as to several defendants with whom he has settled and obtained defaults as to others. Cory Martin has filed an answer and appeared at the trial which occurred on October 25, 2016. The trial also served as a hearing in damages against Devan Dupuis and Dylan Yurgel, who were defaulted for failure to appear and who are not in any branch of the military service.
After hearing, the court finds that Cory Martin grew up in Coventry with the defendants John Chevalier, Alex Olmer, Devan Dupuis, Tom Hendel and Dylan Yurgel. On Saturday, February 2, 2013 Martin went to the University of Connecticut in Storrs, Connecticut with Alex Olmer to visit several girls who lived in the Charter Oak apartments. Martin brought a 30 pack of Bud Light and a bottle of Bacardi Dragonfruit Rum.
Martin and Olmer arrived at the party at around 8pm. Chevalier, Dupuis, Hendel and Yurgel were also at the party. After 2 a.m., Martin and his friends agreed with the plaintiff and his friends that they would meet that evening after a series of telephone conversations. It is unclear which group initiated the conversation. According to the plaintiff, the purpose of the meeting was to talk about a running feud between the plaintiff and Chevalier. According to Martin, the purpose of the meeting was to address the plaintiff's insults towards Chevalier's deceased mother. Martin and his friends had driven by the plaintiff and his friends the week before, but the plaintiff had a large number of people with him. Martin and his friends were concerned that the plaintiff would again bring many people to the fight/discussion and that they might be outnumbered.
The two groups met up and mayhem ensued. The plaintiff attempted to come to the aid of his brother who was fighting with Alex Olmer. The plaintiff was knocked to the ground and kicked. He suffered an injury to his left eye, face and head, loss of consciousness, concussion, nasal fracture, abrasions and lacerations. Martin was not involved in the assault on the plaintiff. Martin and others had come armed with beer bottles, but Martin did not use his bottle. After someone punched Martin in the face, he dropped the bottle and went back to wait in his friend's vehicle.
The plaintiff incurred $24,147.04 in medical expenses.
The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff. (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). There is, however, 'no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.' (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., at 779 n. 37, 835 A.2d 953. " [T]he essence of a civil conspiracy . . . [is] two or more persons acting together to achieve a shared goal that results in injury to another." Id., at 779, 835 A.2d 953.Macomber v. Travelers Property and Casualty Corporation, 277 Conn. 617, 636, 894 A.2d 240 (2006).
The courts of this state appear reluctant to find the existence of a civil conspiracy. In Harp v. King, supra, cited by the plaintiff, the intracorporate conspiracy doctrine barred the plaintiff's claim of civil conspiracy against the defendant. In Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964, also cited by the plaintiff, the Supreme Court reversed the trial court's finding that the defendant was liable for civil conspiracy to kidnap the plaintiff's children. The defendant had driven the plaintiff's children and their father to the airport from which they had departed the country. However, the court stated:
In order to impose liability on a third party for conspiring with or aiding another in the removal of children from the custodial parent, the third party must have conspired with, or aided the other, " to do a criminal or an unlawful act or a lawful act by criminal or unlawful means." Williams v. Maislen, supra . In this case, however, civil liability was predicated on acts that were not themselves unlawful when they occurred because on August 7, 1985, the date on which the defendant drove the children and their father to New York, the father still had joint legal custody of the children .Marshak v. Marshak, supra at 666. Emphasis added.
In Macomber, supra, the court stated that the law " does not extend so as to impose civil liability on a coconspirator for damage caused by the actual wrongdoer before the civil coconspirator even joined the conspiracy." Macomber v. Travelers Property and Casualty Corporation, 277 Conn. at 636.
The pro se defendant, Mr. Martin, has pointed out that the theory of civil conspiracy, which imposes full liability for the illegal act on all conspirators, is at odds with Connecticut General Statutes § 52-572h, which provides, in pertinent part:
f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
The criminal act at the issue here is the assault of the plaintiff. The court finds that Martin is not liable for conspiracy to assault the plaintiff. Martin's drinking alcohol with the plaintiff's assailants and going with them to the place where the assault took place did not constitute conduct in furtherance of the assault on the plaintiff. Martin never agreed with anyone that he would help assault the plaintiff. He carried a bottle with him for self defense. He did not assault the plaintiff or anyone else and retreated after he was himself assaulted.
For the foregoing reasons, judgment enters in favor of the defendant, Cory Martin.
Unlike Martin, Dupuis and Yurgel did not appear. Therefore, they have not denied their liability for civil conspiracy to assault the plaintiff and have not interposed any special defense alleging that the plaintiff, by voluntarily going to meet with his assailants, contributed to his own injuries.
At the trial the plaintiff's counsel stated that the plaintiff had recovered $40,000 from other defendants and agreed that that amount would be deducted from judgment amounts owed by Martin, Dupuis and Yurgel.
As against Devan Dupuis and Dylan Yurgel, the court awards that plaintiff economic damages in the amount of $24,147 and noneconomic damages in the amount of $50,000, for a total award of $74,147. After deducting the amount of $40,000 from the foregoing, judgment enters against Devan Dupuis and Dylan Yurgel in the amount of $34,147.