Opinion
No. FST CV 085006811S
September 28, 2010
MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT, MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTION FOR REMITTITUR
BACKGROUND
On February 23, 2010, after eleven days of trial and a little more than one day of jury deliberation, the jury returned a verdict in favor of the plaintiffs. The action was filed in six counts by the plaintiffs. The plaintiffs, Sara Socci and Kraig Socci, are husband and wife. Counts one through five specifically address the claims of Sara Socci. The sixth count alleging a loss of consortium addressed the claim by the plaintiff, Kraig Socci. The parties agreed that the only submission to the jury would be a general Plaintiffs' Verdict Form and a Defendant's Verdict Form. There were no interrogatories provided to the jury as to each of the claims. The jury returned a verdict for the plaintiffs in which they answered yes as to the first inquiry, "We the jury, find as follows: 1. Plaintiff, Sara Socci, has proved by a preponderance of the evidence that the defendant Jeffrey Pasiak is liable." Thereafter, the jury also responded Yes to the second question of, "Were any of the plaintiff Sara Socci's damages proximately caused by the defendant Jeffrey Pasiak." The jury also responded affirmatively to the question that, "Plaintiff, Kraig Socci, for his claim of loss of consortium, has proven by a preponderance of the evidence that the defendant, Jeffrey Pasiak, is liable." The jury awarded damages to each plaintiff. The jury reasonably could have found the following facts. The plaintiff, Sara Socci was employed by Jeffrey Pasiak Construction Service, LLC, to work from his home office at 217 Soundview Avenue. The defendant, Jeffrey Pasiak, was the owner and operator of the business and it was his home that served as the office. On May 9, 2006, the plaintiff reported to work at the house and was alone in the second-floor office when a man with a gun and mask entered the office and told her to open the safe. The plaintiff did not know that there was a safe and was not able to give this man the combination to the safe. He brought her to the bedroom area and demanded the combination to the safe. He tied her hands, he gagged her and blindfolded her. At some point when she was unable to give the combination for the safe, he put a gun to her head and told her that he knew her family and would kill them if she did not give him the combination. She was unable to do so. During his efforts to get to the safe, he cut his hand and his blood was left on her clothing. At some point, Jeffrey Pasiak returned to the home/office and was attacked by Kotulsky. Pasiak testified that his head was cut during this struggle. At some point in the struggle, the mask covering Kotulsky's face was pulled off and the defendant recognized him. The defendant then began talking to Kotulsky and at some point inquired about "the girl" meaning Sara Socci. The defendant and Kotulsky entered the bedroom where the plaintiff was on the floor and she was picked up by Pasiak. The restraints were removed after some disagreement as to who should remove them. She was crying and hysterical about the incident. At this point, the defendant continued conversing with Kotulsky and had the plaintiff sit with them. The plaintiff asked to leave and was told by Pasiak, not Kotulsky, to stay and sit down. The defendant after further discussion allowed Kotulsky to leave the house. Sara Socci told the defendant about the threats that Kotulsky made to her and her family. The defendant did not call police at this time. When asked if she could leave without fear of harm she was told to stay. Pasiak did not want her to call the police or discuss this incident. For many hours thereafter, the plaintiff remained with the defendant Pasiak although she feared for herself and for her family but was concerned if she left something may happen to her or them. It was only after discussing the matter with a mutual friend that the defendant allowed the plaintiff to leave. The plaintiff contacted her husband who picked up their children and returned home to Sara. On the evening of these events, Kraig Socci insisted that they talk to Pasiak about contacting the police. They did and the police were contacted, came to the home/office and thereafter took statements at the police station. On that same night, Mr. Pasiak talked to Kotulsky on the phone in an effort to have him go to the police. During this conversation, Pasiak told Kotulsky that the girl had given him up to the police. The plaintiffs were very disturbed by this conversation. Mr. Kotulsky was eventually caught by the police and is now serving a prison sentence. As a result of the events, the plaintiff, Sara Socci became very fearful and lost her trust in everyone. She would not stay alone and had difficulty sleeping and functioning on a daily basis. Her husband became responsible for most of the household duties as well as taking care of the children. Mrs. Socci began therapy as a result of her inability to cope and continues to see Dr. Timlin-Scalera. She was diagnosed with Post Traumatic Stress Disorder by both Dr. Timlin-Scalera and Dr. Borden. She has been unable to return to work because of her fears and is still under the care of Dr. Timlin-Scalera.
The trial of this matter and the deliberation were not consecutive dates because of conflicts with dates of commitments by counsel. During the week of February 15 to 19, 2010 the jury did not report to the court. The following week deliberations resumed on February 23, 2010.
This man was later identified to be Richard Kotulsky, a friend of the defendant, Jeffrey Pasiak. Richard Kotulsky has not been named as a defendant in this action or any civil action. He is presently serving a prison sentence for the acts alleged by Sara Socci.
The case was tried to a jury beginning on January 26, 2010 and continuing on various dates until the jury charge on February 9, 2010. The jury returned a verdict for the plaintiffs. By motion dated May 7, 2010, the defendant, Jeffrey Pasiak, requested that the court set aside the verdict, enter judgment notwithstanding the verdict and grant a remittitur. The defendant has raised several arguments in the motion which will be addressed by the court. On May 28, 2010, the plaintiffs submitted an objection to the motion to set aside the verdict, motion for judgment notwithstanding the verdict and the motion for remittitur. The court scheduled argument on the motion and objection on August 5, 2010. The defendant submitted a reply brief on August 12, 2010, that responded to the argument of the general verdict rule addressed by counsel at the August 5, 2010 argument.
DISCUSSION A. GENERAL STANDARD
On a motion to set aside the verdict, "[t]he evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict . . . and indulge every reasonable presumption in favor of its correctness . . . [The court] must determine whether the jury reasonably could have concluded, on the basis of the evidence and reasonable inferences drawn from that evidence, that the verdict . . . was improper." (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 68 Conn.App. 284, 293-94, 791 A.2d 602 (2002). A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to law or unsupported by the evidence. A verdict will be set aside and judgment directed only if this court can determine that the jury could not reasonably and legally have reached their conclusion. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 610, 662 A.2d 753 (1995) "A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption, or impartiality. [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable." (Citations omitted.) Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843 (1981).
"A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Id., 294. "[A trial court] may set aside a verdict where it finds it has made in its instruction, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict. Munson v. Atwook, 108 Conn. 285, 288, 142 A. 737 (1928)." (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 583, 783 A.2d 1001 (2001).
The defendant requests that the court set aside the verdict in the instant matter because he contends that the verdict was contrary to the evidence and that the verdict was contrary to the law.
B. GENERAL VERDICT
The parties agreed at the conclusion of the evidence that the jury would be provided with a General Plaintiffs' Verdict Form and a Defendant's Verdict Form. The parties did not provide the jury with interrogatories that addressed each of the claims and damages that were alleged by the plaintiffs. Although the plaintiff, Sara Socci, had allegations under separate theories of law, the parties chose to submit to the jury a general verdict that elicited the narrow finding that the defendant is liable and that the damages were proximately caused by the defendant, Jeffrey Pasiak. The recent Supreme Court case of Hall v. Bergman, 296 Conn. 169, 994 A.2d 666 (2010), addressed the impact of a general verdict. It stated, "Because multiple causes of action were submitted to the jury without interrogatories and the jury returned a general verdict for the plaintiff, this plaintiff must presume that the jury resolved every issue in the plaintiff's favor and that she proved every element of each of her claims, including damages." Id., at 170. The court in Hall went on to state, "In a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels." (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 471, 857 A.2d 888 (2004), Id., at 181.
In the instant action, the plaintiff, Sara Socci, alleged five causes of action, false imprisonment, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and reckless infliction of emotional distress. The sixth cause of action was a claim for loss of consortium by the plaintiff, Kraig Socci. In the present motion submitted by the defendant, he contends that the verdict was contrary to the evidence in that there was insufficient evidence for a finding on the claims of intentional infliction of emotional distress and negligent infliction of emotional distress. Counsel for the defendant argues that the Hall decision does not impact the present argument because he is seeking to have the court set aside only two counts of the complaint. He argues these can be considered again because he requested that the court direct a verdict to these counts and thus the court has the authority. The court does not accept the defendant's argument which in effect allows the court to pick and chose based upon its review of the evidence which claims the jury determined were proven. This argument does precisely what is eliminated with a general verdict, and that is to determine which claims have been proven by the evidence. Because counsel chose to submit the general verdict form, neither of these arguments can stand to allow the court to set aside the verdict. Even if the court was to review each of the substantive claims of the defendant in relation to the evidence and the claims of emotional distress, there is no basis to find that either claim had insufficient evidence or testimony to result in a verdict for the plaintiff as noted below.
Only four causes of action were submitted to the jury, that is, false imprisonment, negligent restraint, negligent infliction of emotional distress and intentional infliction of emotional distress.
The defendant submitted to the court, jury interrogatories, which addressed a series of factual findings. At the charging conference, counsel for the defendant and plaintiff argued regarding the appropriateness of some of the questions. However, the court at the conclusion of the argument stated that it intended to allow the defendant to submit interrogatories to the jury. Because of the disagreement as to the scope of the interrogatories, the court asked counsel to confer and address any problems that remained with the court before the jury was charged. (Tr., February 5, 2010, pgs. 64-71.) During the course of the argument, counsel for the defendant stated: "The purpose of interrogatories to the jury is to elicit determination of material facts and to furnish the means of testing the correctness of the verdict rendered."
C. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The defendant, with little analysis, moves that this court set aside the verdict in regards to the claim of negligent infliction of emotional distress. The defendant contends that there was no evidence that Mr. Pasiak realized or should have realized that his conduct was creating emotional distress to Sara Socci. The defendant's view of the legal and factual requirements of this claim is very narrow and not in accord with our law. To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements; (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm and (4) the defendant's conduct was the cause of the plaintiff's distress. Carrol v. Allstate Ins. Co., CT Page 19116 262 Conn. 433, 444, 815 A.2d 119 (2003). In Carrol, the court reasoned that a successful claim of negligent infliction of emotional distress "essentially requires that the fear of distress experienced by the plaintiffs be reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be 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." (Internal quotation marks omitted.) Id., 447, see also Scanlon v. Connecticut Light and Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001).
The defendant, Jeffrey Pasiak, argues that the first prong has not been satisfied, in that, there was not sufficient evidence for the jury reasonably to conclude that he realized that his conduct involved an unreasonable risk of causing emotional distress. The court cannot agree. The testimony and evidence that was presented to the jury clearly demonstrated physical actions and lack of compassion by Pasiak to the plaintiff. Mr. Pasiak testified as to the horrific nature of the events when suddenly attacked by Richard Kotulsky. It is inconceivable that after seeing the plaintiff bound and gagged, covered with blood, crying and shaking uncontrollably that he did not realize her very fragile state of mind. The defendant seeing her physical appearance did nothing to appease her but instead continued to converse with this robber while she remained in the room. The defendant did nothing to address her needs and instead continued on a path of what to do for Richard Kotulsky. Additionally, Mr. Pasiak testified about his concern for his own safety yet never addressed the safety of the plaintiff. There were a vast array of acts and deeds from which the jury could determine that there was an unreasonable risk of emotional distress and such a risk was a foreseeable. Therefore, the court denies the motion to set aside the finding as to negligent infliction of emotional distress.
D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendant also argues that there is no evidence that would support a claim of intentional infliction of emotional distress. Although the court may agree that the evidence is not as overwhelming as the defendant believes it should be there are a number of reasons that require the court to deny the motion to set aside a finding of this claim. The first reason is obviously the court's ruling regarding the applicability of the general verdict. The second reason is based upon a review of the verdict by the jury in light of the testimony and evidence that wa presented during the trial. The verdict includes a finding for a punitive award. The only two causes of action that could result in a finding of punitive damages are the intentional infliction of emotional distress and the false imprisonment. The jury awarded $175,000 as punitive damages. It is conceivable that the jury awarded the damages solely for the false imprisonment but without specific interrogatories to the jury, the court is merely speculating as to the award. Again, an award of that magnitude may also be the result of a finding of liability on both intentional acts which may be more consistent given the defendant's argument that the award is excessive. If the court rules that only the false imprisonment action remains, the defendant will certainly argue that the punitive damages are well in excess of a reasonable finding.
In reviewing the defendant's claim that the testimony and evidence does not support a finding of "extreme and outrageous," the court is cognizant of the adage that it is in the eyes of the beholder, that is in the instant matter, the jury. The defendant without support other than his own beliefs argues that the plaintiff failed to show through the testimony and evidence that the defendant knew or should have known that his conduct was likely to result in the emotional distress and that such acts were extreme or outrageous. It cannot be said by this court that the testimony and evidence did not support such a finding. The conduct of Mr. Pasiak, especially after Mr. Kotulsky was no longer involved in the acts of robbing and holding the plaintiff at gunpoint, yields a reasonable basis for the jury to determine the defendant engaged in an intentional act and that he knew or should have known it would create harm to the plaintiff. These include a multitude of acts, including but not limited to the total lack of concern for a woman who had been bound and gagged and was covered with blood so much so that she needed to change her clothing; she was shaking, crying and hysterical; she verbalized the threats by the robber that he would harm her and her family only to have the defendant identify Sara Socci as the person who had called the police. All of these actions and inaction support a jury's findings of intentional infliction of emotional distress. Additionally, the defendant makes this argument yet testified that he was concerned that Kotulsky would harm him if he disclosed his acts. If he felt threatened, how could Pasiak ignore the plaintiff's distress when she had absolutely no connection to this criminal? However, it is not for this court to weigh the evidence and find every instance that would support the findings of the jury. There is certainly enough testimony and evidence to support the findings of the jury. The court denies the motion to set aside the finding as to intentional infliction of emotional distress.
The jury during deliberations sent a note to the court asking specifically about the damages in the emotional distress claim and whether the damages were restricted to the PTSD claim. This question undoubtedly demonstrates the in depth consideration of the claim and the damages that may be associated with it. (Tr., February 9, 2010, pg. 163.)
C. DAMAGES
The defendant challenges the damages awarded on three theories. He contends that the jury's award of the damages was based upon speculation, guess or surmise; that the award was excessive and that the award was contrary to evidence.
As to the argument that the award was contrary to the evidence, the defendant contends that there is no testimony or evidence that supports a finding that he was the proximate cause of the damages. The defendant contends that because there was no testimony to determine what injuries were caused specifically by Mr. Pasiak, then any award by the jury must necessarily be guesswork. This argument is not supported by the facts as found by the testimony. The first defect in this argument is that there is no way to specifically determine how the jury arrived at the damages because the plaintiff allowed a general verdict form which did not differentiate any actions to determine damages. In fact, there was testimony from the plaintiff's expert, Dr. Borden that the life threatening stressor that caused her post traumatic stress disorder was a combination of the gun in your face and being told you are going to be killed and then believing that you are going to be saved by your employer, only to be further threatened and frightened. Dr. Borden offered some very compelling testimony that addressed the issue of causation. Unlike the defendant's position, the plaintiff offered testimony through Dr. Borden that the events of May 9, 2006 as a whole caused the post traumatic stress disorder. The events were so tied together from the moment that the plaintiff realized that the defendants' acts were favorable to helping Mr. Kotulsky that it was a concerted effort in the eyes and mind of the plaintiff. (Tr. January 29, 2010, pgs. 28-30, 32, 33, 66 and 74.) This testimony was contrary to the findings of Dr. Timlin-Scalera who stated that certain aspects of the Post Traumatic Stress Disorder such as nightmares and startle response are caused more by Mr. Kotulsky. However, the most important part of the testimony by these experts is that all agree that the events orchestrated by Mr. Kotulsky and then Mr. Pasiak together and separately caused the post traumatic stress disorder. The defendant's argument is that the jury had no evidence to award the amount of $803,200 to the plaintiff. Given the extensive testimony presented by the plaintiffs in their case, the jury had overwhelming evidence of the impact including total lack of trust, inability to work, increase of psoriatic arthritis, difficulty managing routine affairs, crying, depression, poor memory, concentration problems, and inability to make decisions, being immobilized and withdrawn and having no energy for life. (Tr. January 29, 2010, pgs. 35, 41-42, 43, and 50.) The court cannot determine from the facts presented that the jury had no testimony and evidence to support the damages awarded to the plaintiffs.
There was also specific testimony by the plaintiff of the cost of treatment with Dr. Philllips, Dr. Timlin-Scalera and the loss of wages based on her salary at Pasiak Construction.
The defendant's second argument focuses on the defendant's belief that the award was excessive, that is, not consistent with his interpretation of the trial testimony. "The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in a particular case, or whether a verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption." (Internal quotation marks omitted) (Citations omitted) Silva v. Walgreen, 120 Conn.App. 544, 556, 992 A.2d 1190 (2010). "[T]he trial court has broad discretion in determining whether damages are appropriate . . ." Barber v. Mulroney, 61 Conn.App. 108, 111, 762 A.2d 520 (2000). It is not the province of this court to determine what damages it believes are appropriate but, the court can determine from the evidence and testimony whether the award is appropriate. The Plaintiff's Verdict Form contained a breakdown of damages awarded by the jury after finding that the defendant was liable. In particular, it indicates the economic damages of $128,200 and past and future noneconomic damages of $500,000. Additionally, the jury awarded punitive damages of $175,000. It is significant that the jury awarded $35,000 to the plaintiff, Kraig Socci, but did not award any punitive damages as to him. The jury was apparently able to separately and distinctly analyze each portion of the damage award they made. The award of economic damages was consistent with the damages alleged by the plaintiffs. In particular, the jury did not award damages for the Norwalk Medical Group nor for the installation and upkeep of the alarm system. The jury's award of loss earnings future and past were, in combination, less than the testimony of the plaintiff that she was paid $600 per week amounting to a claim of $115,320 for this incident. (Tr. January 27, 2010, pg. 52.) A calculation of the future damages provides a year and a half of lost wages which the court does not interpret as excessive. Additionally, the jury was able to distinguish in so far as the emotional impact upon the Plaintiff, the immediate and overwhelming psychological effect of the events versus the future impact, requiring ongoing treatment to Sara Socci. The testimony of Sara Socci and Kraig Socci was very emotional and detailed concerning the impact that the events of May 9, 2006, had upon them. During the course of the testimony of Sara Socci, there were numerous tearful episodes that required pauses to permit her to regain composure and describe the lasting changes to her life and life style that have occurred since this incident. The notes of the visits with her therapist Dr. Timlin Scalera paint a picture of a severely strained and emotional young woman. Dr. Borden, a forensic psychologist, confirmed the effects of the events and discussed how devastating the events were to her. Having this testimony, seeing Mrs. Socci and having her husband testify about how his wife has changed was certainly sufficient testimony to support the award of damages to the plaintiff.
Based upon the above, the argument that the award is guess or speculation is not consistent with the testimony and evidence.
The defendant has not provided a clear argument for his request for a remittitur. However, as noted above, there was extensive testimony about the impact of this incident on the Plaintiff, Sara Socci. "The court's broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explict and unchallenged instructions . . . With this background, the court does not find that the award of damages was so unreasonable as to shock the conscience or to find that the jury was influenced in any way by partiality, mistake or corruption." Therefore, the court does not find that the damages were excessive or based upon speculation or guesswork and denies the motion to set aside or remittitur of the damages.
D. CAUSATION CHARGE
The defendant has raised several issues in regard to the jury charge. The defendant contends that there were errors in the charge as it related to the issue of causation. In particular, the defendant contends that the decision not to charge on superseding cause, charging on sole proximate cause, and not specifically including his charge regarding joint and concerted conduct is error.
The court and the parties engaged in one lengthy charge conference and prior to the final arguments of counsel, a brief conference that specifically addressed the causation issues again. A substantial amount of time was devoted to the issues of causation and damages in this matter. (Tr., February 5, 2010, pgs. 37-49.) During the course of the charging conference, the court discussed the position of the defendant that their claims as to Mr. Kotulsky's involvement were two-fold. The first was that his actions were a superseding cause of the injuries to the plaintiff. The second argument was that Mr. Kotulsky's actions were the sole proximate cause of the damages alleged by the plaintiff, Sara Socci. The defendant argued that the actions of the robber, Richard Kotulsky, were of such nature that they were superseding and thus, a charge should be given to the jury that if he was a superseding cause, he alone, would be liable for damages. The plaintiffs objected to the charge and argued two points; first, that this charge required that the acts were subsequent to the alleged negligent or wrongful acts of the named defendant and secondly, that the courts have found that a defense of superseding cause is no longer useful and acceptable in negligence cases with the apportionment and comparative responsibility theories utilized today. The court in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), addressed similar issues of superseding cause and proximate cause as it related to a number of named defendants. The plaintiffs argue in their opposition that the actions of Mr. Kotulsky were prior to the involvement of the defendant and therefore his actions cannot be considered superseding for purposes of causation. The defendant argues that there is no decision that specifically precludes a claim of superseding cause for conduct that was prior to and possibly carried over to the time of the succeeding actions. Although the defendant provides a viable argument, it is also logical that the court simply analyze the conduct under the commonly accepted definition of superseding. However, even having stated the obvious, the factual scenario in Barry and cases that involve superseding causes, supports the concept that superseding refers to acts that occur following or after. Superseding liability must intervene in some manner to break causation. The court in Barry described the relationship between proximate cause, concurrent cause and superseding cause as follows. "Proximate cause results from a sequence of events unbroken by a superseding cause, so that it's causal viability continued until the moment of injury or at least until the advent of the immediate injurious force . . . a concurrent cause is one that is `contemporaneous and coexistent with the defendant's wrongful conduct and actively cooperates with the defendant's conduct to bring about the injury' . . . finally, `[a] superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.'" (Citations omitted.) Id., at 433-34. In Barry, the complaint was brought against the manufacturer of roof brackets alleging the sale of defective products. The superseding acts that were alleged for purposes of the defense in Barry were the improper placement of the roof brackets, the failure to provide additional fall protection, and the improper nails used by an employee of the DeLuca Construction Company to nail the roof brackets that caused the accident. The defendant argued that these acts rather than the alleged defective manufacture were the cause of the accident. All of these acts occurred after the manufacture of allegedly defective goods. (Emphasis added.) The court refers to these actions as "antecedent" negligence. The court further elaborates on the doctrine of superseding cause as "a device by which one admittedly negligent party can, by identifying another's superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere." (Citation omitted.) Id., at 434. The court further states: "The circumstances under which a defendant's liability for negligence shifts entirely to the superseding conduct of a third person has been well defined in our case law. `Even if a plaintiff's injuries are in fact caused by a defendant's negligence, a superseding cause may break that causal connection if it so entirely supersedes the operation of the defendant's negligence that it alone, without his negligence contributing thereto in any degree, produces the injury; or it must be the nonconcurring culpable act of a human being who is legally responsible for such act . . ." Id., at 435 (Citations omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 180, 700 A.2d 38 (1997). In Barry, the court confronted a similar issue, in that, it was possible that all of the defendants contributed to the product giving way and the plaintiff falling by various acts. However, the obvious distinction of Barry is that the acts of the claimed superseding party all took place after the bracket was placed into the market. It was the manner in which the company and its employee installed the brackets that was a claimed superseding cause. Even in this scenario with an obvious subsequent action, the Supreme Court adhered to the position that the appropriate analysis is based upon the theories of comparative fault and apportionment liability. This analysis by the court clearly indicates that if there is a defense of superseding cause, it relates to acts that occur after the alleged negligent act. This timing of the acts is precisely what is addressed in the court's limiting the defense of superseding cause and instead viewing the negligent conduct from an approach of "cause in fact and proximate cause of the plaintiff's injury in light of all of the relevant circumstances." Barry v. Quality Steel, supra, at 442. A claim of superseding cause is limited to an unforeseeable intentional tort, force of nature or criminal event that supersedes the defendant's tortious conduct. In the present action, the defendant argues that the continuing fear of the plaintiff that Kotulsky will harm her or her family is part of the superseding cause. The actions here by Kotulsky are not the unintentional unforeseeable act or criminal acts that would support a defense of superseding cause. This concept is not an action by Mr. Kotulsky but more so, a continuing damage claim by the plaintiff. Mr. Kotulsky's criminal and intentional acts occurred before any actions by Mr. Pasiak who was thereafter responsible for not permitting the plaintiff to leave, report the incident to the police and address the fears of harm to herself and her family.
Although not argued, if any acts were superseding, it was the actions of Mr. Pasiak which are the alleged intentional acts of false imprisonment and infliction of emotional distress.
Lastly, although the Barry court does not eliminate superseding acts it clearly limits its viability to acts such as subsequent criminal acts. The appropriate analysis for an action with multiple possibilities of negligence is to simply view the liability from the prospective of determining proximate cause as it relates to the defendant. The factual scenario in this matter does not satisfy the description of a superseding act. Thus there was no evidence or testimony of a superseding act which would require a jury charge by the court.
In Sullivan v. Metro North Commuter Railroad Co., 292 Conn. 150, 971 A.2d 676 (2009), the court found that the defense of superseding cause was available when a young man was shot at the railroad station and the claim in the action was failure to maintain and provide adequate security. The shooting was a subsequent criminal action.
The court in Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003), refers to applicability of apportionment and comparative issues as a basis for viewing the superseding cause defense differently. In the present action, the defendant chose not to bring an apportionment complaint against Mr. Kotulsky, although it was possible. The failure to name Mr. Kotulsky should not change the analysis for purposes of the defense of superseding cause.
This court's focus on the aspect of proximate cause and the analysis that incorporates the proportion of responsibility follows the court in Barry and the decisions that have followed.
The elimination of the charge for superseding cause prefaced the court's inquiry regarding the defendant's claim and attempts to prove that the sole cause of the damages was the conduct of Richard Kotulsky. The defendant now raises as an issue the court's charge of sole proximate cause. This objection is raised for the first time in the motion to set aside. During the course of the charging conference, the court addressed the issue and its proposal to include a charge about the sole proximate cause. (Tr., February 5, 2010, pgs. 37-38 and 48-49.) The defendant contends that this charge is illogical and confusing but on two separate times when the causation charge was discussed and this charge specifically, defense counsel sat mute. The defendant, through the course of the trial, espoused a position that Mr. Kotulsky alone was the cause of the alleged damages. This theory was acted out throughout the presentation of the defendant's case and until the return of the jury verdict, was a basis of the defense. Therefore, to have the defendant raise this as an objection and an issue in the motion to set aside is disingenuous. Lastly, the failure to raise this as an objection in sufficient time for all of the parties and for the court to analyze, waived his objection to the inclusion.
The last objection to the causation charge involves the request to charge on joint and concerted conduct. The defendant points to particular phrases or portions that he contends are objectionable. "Jury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge." Pestey v. Cushman, 259 Conn. 345, 351, 788 A.2d 496 (2002). "The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . ." Baranowski v. Safeco Co. of America, 119 Conn.App. 85, 90, 986 A.2d 334 (2010).
The defendant's objection is that the court did not give the charge he submitted on joint and concerted conduct. However, the objection is more accurately described as not including the precise terminology that the defendant requested. "[A] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance." Baranowski v. Safeco Co., of America, Id., 90. While it is true that the court did not provide the specific terminology requested by the defendant in regard to the joint liability, the court did indicate to counsel during the second review of the charge on February 9 that: "They are getting that particular charge in a different form, the causation section. So they are going to get a charge which is going to tell them about the joint and united or concerted . . ." (Tr. February 9, 2010, pg. 6.) The court then read the language to be used in the charge and requested of counsel if there was anything else. The defendant did not reply nor object at this time. In fact, the language in the charge provides a number of theories to determine causation based upon the facts presented to the jury. The charge states: "Now a cause in fact is an actual cause. In other words, a cause in fact is when the injuries claimed flowed in a natural sequence from the actions of another. The test for a cause in fact is simply, would these injuries have occurred were it not for the defendant's conduct. However, there can be many factual causes of an injury claimed. For instance, in this case you have heard testimony that an individual who is not a party to this action was involved in the events that occurred on May 9, 2006. It is your duty to determine whether the defendant's conduct is the actual and proximate cause for the injuries as I explained those terms to you. Now proximate cause means that there must be a sufficient causal connection between the acts alleged and any injury or damage sustained by the plaintiffs. An act or omission is a proximate cause if it was a substantial factor in bringing about or actually causing the injury. That is, if the injury or damage was a direct result or a reasonably probable consequence of the defendant's act, it was proximately caused by such act. In other words, if an act had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act is a proximate . . ." The court went on to address further the causation issues related to the two individuals, "Under the definitions I have given you, the defendant's conduct can be a proximate cause of an injury if it is not the only cause or even the most significant cause of the injury, provided it contributes materially to the production of the injury and thus is a substantial factor in bringing it about. If, however, you determine that the injuries would have occurred in the absence of Mr. Pasiak's actions on May 9, 2006, then you cannot find that he was the substantial factor. To contribute materially or to be a substantial factor means that his act cannot be remote, trivial or an inconsequential contribution to the production of the injury. Therefore, when a defendant's conduct combines together with one or more causes to produce an injury, the act is a proximate cause of the injury if its contribution to the production of the injury in comparison to all other causes is material or substantial. Now you heard testimony that the defendant's acts were independent of the acts of Mr. Katulsky (sic). If you find this, it does not by itself break the chain of causation. However, if you find that the acts of the defendant were independent of the acts of Mr. Katulsky (sic) and cannot be separated for purposes of a finding of proximate cause, then the defendant will be liable for all of the injuries. If however you determine that the acts of the defendant were independent and were not the proximate cause of the injuries, you cannot find that the defendant is liable for the injuries. If you find that the defendant engaged in independent acts which were the proximate cause of injuries that can be separated, then you cannot find him liable for the entire injury, but only for those injuries that his independent acts proximately caused." (Tr., February 9, 2010, pgs. 110-13.)
After the jury was charged, the court again requested objections to the charge. At this point counsel for the defendant raised again the lack of a charge on superseding and a general Objection that the "Court did not adopt our charge regarding the issue of causation, and that is already on the record." (Tr., February 9, 2010, pg. 153.)
One of the fallacies in the defendant's arguments is that they are objecting to the court not giving a charge on an issue that is not a controlling issue in relation to causation. It was clear that the plaintiff was not looking for damages for the actions of Mr. Kotulsky before the defendant entered the premises, nor is the plaintiff alleging that the two acted together at any time. The premise of this contention is that the plaintiff was seeking to hold the defendant liable for the actions of Mr. Kotulsky. That premise is wrong. The plaintiffs seek damages for the actions of the defendant that caused their damages. The relationship between Kotulsky and Pasiak is that some or almost all of the damages may have been caused by both of the individuals and that the damages were of such a nature that the jury may or may not believe that the emotional damages were the same even if the acts were independent of each other. The real issue of causation was not that they were acting together like in Lamb v. Peck, 183 Conn. 470, 441 A.2d 14 (1981) and so were responsible for all of the damages but whether the plaintiff demonstrated that the damages alleged were proximately caused by the specific conduct of Mr. Pasiak. That is, whether the emotional distress claimed would be the same even though the acts were independent. If not the same damages, the question before the jury is whether the jury could determine what, if any, damages were attributable to this defendant. The jury charge as a whole adequately addresses this causation issue. In addition to the general charge as noted above by the court, the instruction given by the court as noted by the defendant indicates that if there were independent acts but they were in concert with the acts of Kotulsky and could not be separated for purposes of proximate cause, the defendant would be liable. This is consistent with the charge on joint and concerted activity and more specifically as this theory relates to the facts in this case.
The defendant in his motion contends that "the Court did not instruct the jury that Mr. Pasiak could only be held liable for Mr. Kotulsky's conduct if the plaintiff proved: "plaintiff's damages were caused by the joint and concerted action of Mr. Pasiak and Mr. Kotulsky."
As stated earlier in footnote #4, the defendant was given the opportunity to submit interrogatories that would address the findings by the jury and the basis for an award of damages, but at the last moment the defendant chose not to submit any interrogatories to the jury and to submit a General Verdict form.
It is interesting that the testimony of Dr. Borden offered support that the acts by Mr. Pasiak were in concert with the acts of Mr. Kotulsky, that is, for purposes of the post traumatic stress disorder they could not be separated. (Tr. January 29, 2010 pgs. 66 and 74.) It follows from his testimony that all of the damages could be attributed to Mr. Pasiak absent the blood work.
Therefore, the court did charge in a manner consistent with the evidence and testimony regarding the joint activity and provided a charge that, as a whole, addressed the causation issues in this action. The court denies the motion to set aside based upon this argument.
E. COLLATERAL SOURCE DOCTRINE
The defendant requests in the alternative if the court does not set aside the verdict that the court reduce any award by $11,000 that he alleges was paid to Dr. Timlin-Scalera from the Victim's Compensation Fund. The first issue in relation to this contention is that the defendant has not provided any evidence of the actual receipt of these funds for a claim related to the instant action. The defendant in his memorandum states that upon information and belief the Victim's Compensation Fund paid $15,000 of the medical bills. The defendant failed to provide any other evidence. The application and the basis of this application may have an impact upon this action which is for damages against Jeffrey Pasiak based on his actions on May 9, 2006. The application and any payment may very well involve the actions of Richard Kotulsky and his attempt to rob the business by threatening and restraining Sara Socci. If the payment of benefits was the result of claims against Mr. Kotulsky then there would be no basis for the court to review the application and award as a collateral source involving Mr. Pasiak. The defendant has failed to demonstrate any connection to this claim which the court should consider. However, even if the application and benefits were based upon acts of Mr. Pasiak, the law regarding collateral sources does not apply to money received as part of the Victim Compensation Fund. General Statutes § 52-225b defines collateral source as "(1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services." "Collateral sources" do not include amounts received by a claimant as a settlement. In viewing the definition of collateral sources there is no allowance for funds received through the Victim's Compensation Fund. This may be so because pursuant to General Statutes § 54-212, the Office of Victim Services has a lien on the recovery when the applicant for compensation brings an action against the person or persons responsible for such injury and has been granted an award. Since the defendant has not provided any information that the claim for Victim Compensation relates to the present defendant and even if so, the plaintiff is responsible to reimburse Victim's Compensation, the court will not reduce the award by $11,000 as requested by the defendant.
It should noted that Kotulsky is presently serving a prison term related his actions on May 9, 2006. There is no information before this court that would support a finding that the Victim's Compensation Fund was contacted for any criminal conduct related to anyone other than Mr. Kotulsky.
F. INADMISSIBILITY OF MEDICAL CONDITION
The defendant proposed exhibits and possible expert testimony related to emotional conditions including a possible traumatic brain injury and hydrocephaleus that he alleges were caused by the incident with Mr. Kotulsky. The plaintiff objected to the admission of the medical claims and reports as well as testimony. The plaintiff submitted a motion in limine to preclude admissibility of information concerning the defendant's medicals and treatment. The court heard argument and granted the motion in limine with certain parameters that would allow a further submission to address issues of recall or memory lapses. The defendant now challenges the ruling of the court and contends that refusing to allow the information was prejudicial to his defense and an error on the part of the court.
Although the court did not permit the submission of expert testimony and reports, during the course of the trial, both the plaintiff and the defendant disclosed the violent nature of the confrontation between the defendant and Mr. Kotulsky on the morning of May 6, 2006. The defendant testified extensively as to the assault and the injuries that he received in the altercation with Mr. Kotulsky upon his return to the office on May 9, 2006. The testimony also indicates that Mr. Pasiak received an injury to his head that caused Sara Socci to get ice and a towel to help the defendant. This testimony provides the information which satisfies the defendant's concern that the jury may believe they are the best of friends. This testimony negates the defendant's argument that he was prejudiced because of the reference to him being a friend of Kotulsky. The next argument by the defendant is that the medical reports and doctors would show that he has cognitive deficits and memory lapses that may affect his appearance of credibility. The defendant contends the purpose of offering the information is to counter the plaintiff's argument that he was friends with Mr. Kotulsky; that the assault caused the defendant to have some fear; and lastly that he has some cognitive difficulties that may affect his ability to recall. A few reports were available from the medical doctors but none of the reports contained the legal connection necessary to introduce the report as relevant to the claims in the instant case. First of all, there was no evidence testimony or even theory as to why his medical treatment and conditions had any relevance to the claims that have been filed by Sara Socci. The court in ruling upon the motion was cognizant that the defendant was claiming some cognitive difficulties and provided an opportunity to the defendant to demonstrate relevance and a legal connection between his behavior on May 6, 2006 and the treatment. During the argument of the motion, the court inquired as to whether the defendant claimed that the medical conditions changed his behavior or affected his behavior on May 6, 2006 and thus was relevant. The defendant never provided reports or testimony that would link this claim with the behavior on May 6. Additionally, although, a claim of the defendant was that medical condition would affect his appearance for purposes of credibility, there was no indication or evidence that this played any part in the jury verdict. Further, the court's order allowed the defendant to address this issue if he had further support for his position, but he did not request further relief from the court during the course of the trial.
For instance, the report of the hydrocephaleus is couched in terms that the assault "possibly" caused the hydrocephaleus although it could be from other factors.
The court does not find that the defendant was prejudiced by the decision of the court to preclude the medical information and he has not demonstrated that the information has any relevance or connection to the issues which were tried to this court.
CONCLUSION
Based upon the above, the court denies the defendant's motion to set aside the verdict, motion notwithstanding the verdict and motion for a remittitur.