Opinion
HHDCV176075793S
03-07-2019
Gashford WILLIAMS et al. v. Richard BIRMINGHAM
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
On March 5, 2019, evidence was presented to the court at a bench trial in this personal injury matter. After consideration of the evidence and arguments presented at the trial, the court issues this memorandum of decision.
I
Background
In the complaint, dated January 26, 2017, the plaintiffs, Gashford Williams (hereinafter referred to as Williams or plaintiff) and Delerie Williams, allege that, on January 4, 2016, Williams was operating a motor vehicle on Parkway Place in Meriden, Connecticut, when the defendant, Richard Birmingham, caused a vehicle he was operating to collide with Williams’ vehicle by crossing directly into Williams’ lane of travel.
The case was withdrawn as to plaintiff Delerie Williams on September 20, 2018. See # 119.
Williams claims that, as a result of the accident, he suffered personal injuries and seeks monetary damages. The defendant admitted liability.
At the trial, the plaintiff presented evidence of his claimed damages, including his own testimony, and documentary and photographic evidence. The defendant was represented by counsel at the trial, but was not present.
II
Discussion
In a case tried to the court, "[t]he ... judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 324 Conn. 631, 637, 153 A.3d 1264 (2017). "[I]t is well established that it is the exclusive province of the trier of fact to make determination of credibility, crediting some, all, or none of a given witness’ testimony." (Internal quotation marks omitted.) Gonzalez v. State Elections Enforcement Commission, 145 Conn.App. 458, 475 77 A.3d 790, cert. denied, 310 Conn. 954, 81 A.3d 1181 (2013).
"It is axiomatic that the burden of proving damages is on the party claiming them." (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). "The determination of damages involves a question of fact ..." Id., 690. "When damages are claimed, they are an essential element of the plaintiff’s proof and must be proved with reasonable certainty ..." (Internal quotation marks omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 549, 39 A.3d 1207 (2012).
"Damages may be awarded for pain and suffering, past, present and future, resulting from the injuries as long as the evidence affords a basis for a reasonable estimate by the trier of fact of the amount ... An award of damages for pain and suffering is peculiarly within the province of the trier of fact and the fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery for that element of damages ... Not only are damages for pain and suffering peculiarly for the trier of fact, but proper compensation for pain and suffering cannot be computed by a mathematical formula, and there is no ironclad rule for the assessment of damages." (Citations omitted.) Vickers v. Jessup, 32 Conn.App. 360, 372, 629 A.2d 457, cert. granted on other grounds, 227 Conn. 922, 632 A.2d 701 (1993) (appeal withdrawn 1994).
Williams proved that, as a result of the accident, he sustained injuries, for which he is entitled to recover fair, just, and reasonable damages. His injuries have curtailed his physical activities. He incurred expenses for medical care, including medical treatment, and physical therapy.
In his final medical evaluation, dated June 2, 2016, Dr. S. Johar Naqvi, an internist, assigned to Williams a permanent partial impairment rating of 4% to his neck and 4% to his back. See plaintiff’s Exhibit 4. However, that opinion did not consider a subsequent motor vehicle accident, which occurred just two days later, on June 4, 2016, in which the plaintiff also was diagnosed as having suffered injury to his neck and back, and concerning which he received treatment elsewhere. See plaintiff’s Exhibit 10 (including records of Shaw Chiropractic Group). The plaintiff did not return to see Dr. Naqvi.
The plaintiff’s first visit to Dr. Tomas Sanjurjo, a chiropractic physician at Shaw Chiropractic Group, occurred on June 13, 2016, after the June 4, 2016 accident. He complained of left shoulder, low back, and right foot pain. According to a preliminary report on that date, the plaintiff did not mention Dr. Naqvi. See plaintiff’s Exhibit 10. The past medical history mentions another collision in January 2016, which is the subject of the current litigation, but does not describe the claimed injuries which resulted, even though it had occurred less than six months before.
Dr. Sanjurjo’s initial working diagnoses on June 13, 2016 included lumbar, cervical, left shoulder, and right foot sprains/strains.
In Dr. Sanjurjo’s final report concerning the plaintiff, dated December 8, 2016, he states that the plaintiff "notes he had prior lower back pain from another collision ..." See plaintiff’s Exhibit 10. No reference is made to a neck injury suffered in the January 2016 accident. No reference is made to treatment records from Dr. Naqvi. Dr. Sanjurjo gave the plaintiff an additional 3% permanent impairment rating as to his lumbar spine.
The plaintiff’s claims are undermined by the fact that he did not fully inform Shaw Chiropractic Group about the January 2016 accident, and the evaluations and treatment which he previously received for claimed injuries to his neck and back. Under these circumstances, the effects of injuries suffered in the subsequent accident are unclear and undermine his claims here for an award of non-economic damages for pain and suffering and permanent impairment as a result of the January 4, 2016 accident.
The plaintiff also seeks to recover for a hand injury. See plaintiff’s Exhibit 6 (records of Hartford Orthopedic, Plastic & Hand Surgeons, Inc. ("The Hand Center")). The plaintiff was first seen there on April 13, 2016, more than three months after the January 4, 2016 accident. The initial report states incorrectly that the plaintiff sustained injury on January 14, 2016.
The plaintiff’s claim for a hand injury is undermined by the delay in seeking treatment for his hand. Also, this claim is undermined by his physical therapy records from Total Care Physical Therapy & Sports Medicine (Total Care) (see plaintiff’s Exhibit 5), which do not reflect that he complained of hand pain. The first date of treatment notes was January 7, 2016, three days after the accident. The last date of treatment there was June 2, 2016, after he was first seen at The Hand Center. No claim of hand pain is noted. Also, the records from the Hand Center do not reference the plaintiff’s history of treatment with Dr. Naqvi. The court declines to credit the plaintiff’s claim for a hand injury.
Concerning economic damages, the court finds that the plaintiff is entitled to recover $ 6, 654.34. See plaintiffs’ Exhibit 2 (summary). As to noneconomic damages, the court finds that the plaintiff is entitled to recover for his injuries, pain and suffering, and impairment, in the amount of $ 20, 000.00.
CONCLUSION
1. The court awards total compensatory damages to the plaintiff Gashford Williams as follows: economic damages: $ 6, 654.34 and noneconomic damages in the amount of $ 20, 000.00, for a total of $ 26, 654.34.
If no collateral source hearing pursuant to General Statutes § 52-225a(b) is requested within ten days, judgment may enter in this amount.
2. Costs are to be assessed by the Clerk.