Opinion
Nos. CV 02 0187128 S, CV00 0177528 S
December 30, 2003
Memorandum of Decision
This matter arises out of injuries sustained by the plaintiff in an altercation in a tavern in Stamford, Connecticut on the night of Saturday, December 11, 1999. In one action the plaintiff sued the owner and operator of the tavern, alleging negligence in failing to provide adequate security for customers of the tavern. In a separate action the plaintiff sued two patrons of the tavern, one of whom allegedly struck the plaintiff in the eye with his fist while the plaintiff was being restrained by the other patron. In that action the plaintiff alleged that his injuries were caused by the negligent and intentional conduct of both defendant patrons. The actions were consolidated for trial before a jury.
The jury returned a verdict in favor of defendant, Mitchell Hoffman, but in favor of the plaintiff with respect to the other defendants. The verdict against defendant, Jeffrey Greco was based on both negligent and intentional conduct. The jury found that plaintiff's economic damages were $234,000 and that his non-economic damages were $246,000. The jury determined that defendant, Greco was 60% negligent and that defendants, Temple Bar, Inc. and Whelan Gordon were 40% negligent and apportioned damages accordingly. The jury also awarded economic damages of $15,000 and non-economic damages of $5,000 against defendant Greco on the count alleging intentional assault and battery.
On the night of December 11, 1999 the plaintiff brought a date to the Temple Bar tavern located on Bedford Street in Stamford, Connecticut. The tavern was busy, but the plaintiff and his date were able to find seats at a table not far from the bar. The tavern was owned and operated by the corporate defendant and defendant, Whelan Gordon. The plaintiff was a regular patron of the bar and was acquainted with a number of the employees of the establishment, including Thomas Herilhy, head of Temple Bar's security. Herilhy was on duty that night with three bouncers and off-duty Stamford Police officer, Frank Forbes — a total on-duty staff of five. Herilhy and Forbes were at the front door while other security personnel were stationed elsewhere, including a back entrance. Normal security staffing for a busy Saturday night would have included four bouncers, for a total on-duty staff of six.
At about the same time as plaintiff arrived at the tavern, the defendant, Jeffrey Greco arrived with his brother John Greco and two friends, Frank Carbino and Sean Zaro. Prior to their arrival the Greco group had been attending a Christmas party at John Greco's business. Shortly after their arrival at the bar, an argument broke out between Zaro and the bartender over the refusal of the bartender to serve Zaro a glass of water. Herilhy noticed the argument and intervened. He escorted Zaro to the front door and, in front of Officer Forbes, advised him that he would not be allowed to reenter the tavern.
Herilhy returned to the bar and notified the remaining members of the Greco party that Zaro would not be allowed to return to the bar and that they should finish their drinks and leave. At that point Herilhy claims that he was attacked by two members of the party. Using martial arts training, he was able to quickly place both individuals on the floor. While Herlihy was so engaged, the plaintiff witnessed an unidentified bar patron raise a bottle as if he were preparing to strike Herilhy. The plaintiff grabbed that individual and disarmed him. Officer Forbes also observed what was happening and left the front door to assist Herilhy. He was prevented from intervening by Zaro who tackled the officer from behind causing him to fall to the floor.
At this point plaintiff testified that defendant Greco tried to "head butt" him. In response, the plaintiff placed Greco in a head lock and the two wrestled around the interior of the tavern. Both the plaintiff and defendant Greco ended up on the floor. At this point the plaintiff testified that he was struck in his right eye by defendant Greco. Although the plaintiff claimed that defendant, Mitchell Hoffman, restrained him while defendant Greco struck him, the jury did not hold Hoffman responsible. The blow to plaintiff's right eye produced cuts requiring seventeen stitches at the emergency room. The plaintiff has experienced head pain from the day of the injury. He was under the care of a neurologist for approximately one year. When he reported increased pain in late 2000 and early 2001 he was referred to an anesthesiologist who successfully treated the pain with a nerve block injection, given at the base of his skull. Medical bills produced in evidence show that this procedure was repeated several times over the next two and half years. The plaintiff's medical reports claim a 5% disability because of the recurrent pain. The same reports indicate slight visual impair of the right eye.
The plaintiff's evidence of economic damages consisted of past medical expenses totaling $8,658.68. No evidence was presented of lost wages or income. The only evidence of the need for future medical treatment consisted of the plaintiff's testimony that he was managing his pain with pain medications and occasional nerve block injections which were administered to him by an anesthesiologist. Between the time of the injury and the trial the plaintiff relocated to Poland His evidence showed that he had received three nerve block injections in the United States on January 18, 2001, March 30, 2001, October 1, 2002 and once in August 2003 when he returned to the United States to participate in the trial of this action. Each of the treatments given in 2001 cost $425.00. The plaintiff introduced no evidence of the cost of the 2002 treatment and testified that at the time of the trial he had not yet received a bill for his latest treatment. The plaintiff testified that he had located a physician in Poland who performed the nerve block procedure. That physician treated him once. No evidence as to the cost of a nerve block treatment in Poland was produced at trial.
No medical reports or testimony were introduced into evidence to support the plaintiff's claim either as to the need for future treatment or the duration or frequency of such treatment.
The defendant Jeffrey Greco has filed two motions addressed to the verdict: 1) motion for collateral source reduction; and 2) motion to set aside and/or remittitur. The defendants, Temple Bar, Inc. and Whelan Gordon have filed two motions addressed to the verdict: 1) a motion for remittitur; and 2) a motion to set aside the verdict and motion for judgment notwithstanding the verdict.
Collateral Source Reduction
The motion to reduce the economic damages awarded to plaintiff by the jury pursuant to General Statutes § 52-225a is not opposed by plaintiff. The parties do not dispute that the appropriate amount of the reduction is $3,103.83.
Remittitur
Greco's motion for remittitur attacks the verdict in two respects. First, the damages awarded were excessive and unsupported by the evidence. Second, the damages awarded on the first count, assault and battery, were duplicative of the damages awarded on the third count, negligence. The defendants, Temple Bar, Inc. and Whelan Gordon's motion for remittitur claims only that the damages awarded were excessive and unsupported by the evidence.
Before addressing defendant Greco's claim of duplicative damages, it is appropriate to first determine the extent to which the jury's award of economic damages was supported by the evidence. The evidence supporting the jury's award of economic damages in excess of his past medical bills is scanty at best. The plaintiff was vague, if not evasive, when questioned by his own counsel regarding concerning his ongoing treatment. In response to a question as to the frequency of his nerve block treatment the plaintiff responded that it was "hard to answer." He testified that he was "not certain" as to the number of treatments he had received or their frequency.
There was no evidence from any professional as to future medical treatment or of the associated expenses. However, the plaintiff testified as to his belief that he would need nerve block injections every three weeks until "the pain goes away."
In order to support a verdict for economic damages it is essential that there be evidence introduced at trial to support the verdict. In this case there was no evidence as to the need for, the expense of, or the frequency or duration of any future medical treatment. Further, there was no evidence of any future economic damages which the plaintiff would suffer because of lost wages or earning capacity.
In a similar case, the appellate court in Calvi v. Agro, 59 Conn. App. 732, 757 A.2d 1260 (2000), upheld the decision of the trial court to vacate a jury award of $197,352 for economic damages relating to future medical expenses which was without foundation in the evidence. The court held that such awards must be "based upon an estimate of reasonable probabilities, not possibilities . . . The evidence at trial must be sufficient to support a reasonable likelihood that future medical expenses will be necessary." Id., 736 In the absence of medical evidence supporting the conclusion that the plaintiff would require future medical treatment, the court properly set aside the verdict. The testimony of the plaintiff herself that she was continuing to experience pain even when coupled with the testimony of plaintiff's doctor that she might require future office visits for treatment of symptoms was insufficient to remove the issue from "the realm of conjecture." Id.
The evidence presented at trial also demonstrated that the plaintiff's damages were due entirely to one blow which he received to his face from defendant Greco. There was no evidence which would support a jury finding that plaintiff suffered damages from defendant Greco's negligence and a different or additional damages from Greco's intentional assault upon the plaintiff. Although a plaintiff is "entitled to allege the respective theories of liability alternatively or in separate claims, he is not entitled to recover twice for the same elements of damage." Jonap v. Silver, 1 Conn. App. 550, 561, 474 A.2d 800 (1984). See also United Services Automobile Association v. Marburg, 46 Conn. App. 99, 105, 698 A.2d 914 (1997) ("It is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only be a matter of degree . . . are separate and mutually exclusive"). Accordingly, the court finds that the plaintiff is not entitled to a separate award of damages from defendant Greco under his claim of intentional assault and battery.
In ruling on the motion for remittitur, the court is obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported by the evidence. See Eisenbach v. Downey, 45 Conn. App. 165, 184, 694 A.2d 1376 (1997). However, the award of economic damages made by the jury in this case was not supported by the evidence and must be reduced by remittitur to an amount which reflects the plaintiff's proven economic damages.
Accordingly, the court orders a remittitur of $225,341.32 from the award of economic damages, reducing those damages to plaintiff's proven economic damages of $8,658.68. As noted above plaintiff's economic damages must be further reduced on account of collateral source payments of $3,103.83 leaving net economic damages of $5,554.85 and non-economic damages of $246,000.00. The total damages of $251,554.85 must be allocated 60% against defendant Greco ($150,932.91) and 40% against defendants Temple Bar and Whelan Gordon ($100,621.94) in accordance with the jury's verdict. In the event the remittitur is not accepted by the plaintiff within thirty days of the filing of this decision, a new trial is ordered.
DAVID R. TOBIN, JUDGE.