Opinion
HHDCV106014357S.
11-30-2012
Grant CARRAGHER v. Anthony DiPACE.
Penny Botticello & O'Brien P.C., Manchester, for Grant Carragher. Cummings Lanza & Purnhagen LLC, South Windsor, Garraty Cynthia M. Law Offices, Hamden, for Anthony DiPace.
UNPUBLISHED OPINION
Penny Botticello & O'Brien P.C., Manchester, for Grant Carragher.
Cummings Lanza & Purnhagen LLC, South Windsor, Garraty Cynthia M. Law Offices, Hamden, for Anthony DiPace.
M. NAWAZ WAHLA, J.
I.
NATURE AND PROCEDURAL CONTEXT
This personal injury action arises out of an alleged assault on the plaintiff, Grant Carragher, perpetrated by the defendant, Anthony DiPace, on August 26, 2010, at approximately 7:45 a.m., at Hazardville Motors, 318 Hazardville Avenue in Enfield, Connecticut. On March 21, 2011, the plaintiff filed a second amended complaint consisting of three causes of action. The plaintiff alleges that, while serving a subpoena on the defendant in his official capacity as a state marshal for the State of Connecticut, the defendant assaulted him. The first count alleges that the defendant intentionally assaulted the plaintiff. The second count alleges a claim of negligence. The third count sets forth the plaintiff's claim for willful, wanton and reckless assault and battery.
Hereinafter referred to as the operative complaint.
The defendant filed his amended answer and special defenses on May 4, 2011, denying all of the allegations contained in the first, second and third counts of the operative complaint and pleading a special defense that the plaintiff was contributorily negligent. On September 7, 2012, the defendant filed a request for leave to file an amended answer and a special defense of self-defense to respond and conform to evidence that was presented at trial.
At the end of the first day of trial, over the plaintiff's objection and after hearing counsel's argument, the court permitted the defendant to add the special defense of self-defense to his answer. The plaintiff was provided the opportunity to avail additional time to respond. No such request was received. See Billy & Leo, LLC v. Michaelidis, 87 Conn.App. 710, 714, 867 A.2d 119 (2005).
The two-day trial was conducted on September 6 and 7, 2012, during which this court heard from four witnesses, including each of the parties. The plaintiff introduced a total of thirty documents as full exhibits and the defendant submitted a total of eight documents as full exhibits which included police reports and medical bills and medical records.
Judicial notice of relevant prior court orders in the administrative file was taken. See In re Jeisean M., 270 Conn. 382, 852 A.2d 643, appeal dismissed, 270 Conn. 406, 852 A.2d 657 (2004); Guerriero v. Galasso, 144 Conn. 600, 136 A.2d 497 (1957).
II.
FACTUAL FINDINGS
The court has fully considered the relevant Connecticut statutes and applicable case law, all relevant evidence, the demeanor and credibility of all witnesses and the arguments of the parties in reaching the decisions reflected in this memorandum. In so doing, this court concludes that the plaintiff has met his burden of proof by fair preponderance of the evidence with respect to the second encounter of the First Count only.
The court, having carefully heard testimony and accepted documentary evidence at trial, makes the following findings of fact.
The evidence was that adduced at trial demonstrated that on August 26, 2010, Attorney Paul Smith asked the plaintiff to serve a subpoena on the defendant. (Plaintiff's Exhibit 1.) The plaintiff arrived at the defendant's place of business, Hazardville Motors, around 7:45 a.m. He parked his car and waited, as the business was not yet open. The defendant's business hours as listed on the front door, however, were 7:30 a.m. to 6:00 p.m. The defendant is and has been a resident of Enfield since 1966. He owns and has owned Hazardville Motors, located at 318 Hazardville Avenue, Enfield since 1992. Hazardville Motors is a repair garage and used car dealership. The building consists of 1955 square feet, three work bays and an office where customers wait. There is a keypad inside the building. (Defendant's Exhibit D.) On the day of the incident, the defendant had two employees. One of them, John Day, was waiting in the parking lot where the plaintiff waited for business to open. Besides John Day, who has since passed away, there are no other eyewitnesses to the incident. John Day gave a statement to the police. (Plaintiff's Exhibit 30.)
Evidence was also adduced at trial that as the defendant arrived and parked his truck, he was holding his briefcase. The briefcase contained his checkbook, titles to cars, checks, credit cards and $6,000 to $6,500 cash from a car sale the night before. The plaintiff asked about a " Tony" or " Anthony" and identified himself as a state marshal. In conflicting accounts, the defendant either told the plaintiff to " hold on a minute, " or that he would be right with him after opening up. Both the plaintiff and the defendant started walking towards the office without saying anything further to each other. Prior to the day of the incident, the plaintiff had no personal knowledge of the defendant, never had any business dealings with the defendant and never knew what the defendant even looked like. The plaintiff also admitted that at no point before August 26, 2010, had the defendant attempted to evade service of a subpoena from him.
The court finds no evidence in the record to confirm whether the plaintiff was wearing his lanyard identification badge around his neck the entire time. (Plaintiff's Exhibits 9 & 13.) The plaintiff conceded, however, that he was not wearing his metal waistband badge on his belt, but had left it in his car. He also did not have a state marshal notice displayed on his car's dashboard.
The court finds that two distinct encounters are alleged by the plaintiff, and which are testified to differently by the parties. The first encounter allegedly took place by the door to the defendant's business. The plaintiff testified the following account. The defendant put his briefcase down and tried to open the door. During cross examination the plaintiff was questioned: " [The defendant] asked you to hold on a minute?" The plaintiff answered: " Yeah. Hold on a minute." When asked if he did not do that, the plaintiff answered: " No. I followed him in." The plaintiff confirmed that the defendant asked him to hold on. The plaintiff denied that there was anything preventing him from standing outside and letting the defendant enter the office alone. The plaintiff denied that there was any urgency to give the defendant the papers right at that moment. The plaintiff put his right arm inside the door and the defendant slammed the door three to four times causing injury to the plaintiff's arm. The plaintiff stated " I could not take it anymore, my arm hurt, I dropped the subpoena on the floor and declared that you are served."
The court also finds, conversely, the defendant testified to the following facts. He started to unlock the office door and noticed that the plaintiff was approaching him. He asked the plaintiff to let him shut off the alarm and told him he would be right with him afterwards. The defendant testified through questioning: " I ... stepped [into the office]. I turned to the left. I locked the door, then I gave it a push. And then I turned back around [to] go for the alarm. And then at that point I get hit in the back with the door. And I turned around and I saw two hands shoving the door at me ... [I thought] [h]e's coming in to rob me ... I just pushed the door closed. I didn't know that he was coming in— I didn't know if I was going to be robbed, shot— I mean, nowadays, you read it on the news and, you know, read it in the paper. And that's all you see on the news is people robbing places and shooting people ." It was neither the defendant's intention to have the plaintiff stuck in the doorway, nor harm the plaintiff in any way by pushing the door shut; he only intended to close the door. He testified that he was closing the door to protect himself. The court finds this part of the defendant's testimony to be credible.
The evidence was adduced at trial showing that the second encounter took place in the parking lot. The plaintiff testified as to the following; After he dropped the subpoena, the plaintiff started walking toward the sidewalk while the defendant came out of his office running towards him, shouting. At that point, the defendant pushed the plaintiff against a brick wall three times. The plaintiff then pushed the defendant off of him.
The court heard the testimony of the defendant that after picking up the subpoena from the floor and learning that the plaintiff was a state marshal, the defendant went after him and exclaimed that this was not the proper way to serve somebody. Defendant further explained by stating: " [The plaintiff] said, I'm a state marshal. You're served ... [A]t that point I opened the door. I says, Well, you know, that's not [the] right way to be serving papers. I says, you know, I've served papers. And this is not the right way to do it ... [Y]ou know, you wait five more minutes, I'm open for business. You can walk in from anywhere. And, you know, we exchanged words. And then the next thing I know, I got shoved up against the back of a van." The defendant claims that the shoving took place when the plaintiff had dropped the subpoena, declared that the defendant was served and was walking away to the side of the parking lot. The defendant further testified that in his capacity as a planning and zoning board member, he has been subpoenaed for lawsuits " probably [twenty-five] times, " but did not know he was being subpoenaed for litigation between The Villages, LLC and the Enfield planning and zoning commission because he had agreed to do a deposition. The plaintiff testified that he was serving the defendant for that same litigation.
The evidence was adduced at trial that the emergency response team and the police were called to the scene of the incident. One police officer testified at trial. That testimony differed substantially from the statement given by John Day to the police.
The plaintiff did not testify credibly pertaining to his injuries. The plaintiff alleges that after he was struck, he sustained injuries to his arm, neck, shoulder and back. The plaintiff claims that he cannot turn to the left. He claims that he drives for work about eight hours a day and has had difficulty doing so since the day of the incident. The plaintiff claims that he has discontinued gardening, cannot play soccer with his daughter and that he has missed four days of work. In 2000, the plaintiff had an accident during which he suffered neck injuries, but he claims that those injuries have been resolved. The parties have stipulated to the plaintiff's life expectancy of 26.2 years. The plaintiff is seeking economic and noneconomic damages.
The court notes that the plaintiff claimed primary injuries to the forearm and neck. During his testimony, however, the plaintiff claimed that the incident in question resulted in limitations to his ability to look left and resulted in driving difficulty. The court finds that there is no medical evidence in the record to corroborate this claim.
The evidence was further adduced at trial that Enfield Emergency Medical Services (EMS) were called to the scene of incident. The pertinent parts of the EMS report provides the following information: " [The patient] was standing at his car with EPD and Capt Clow ... [The patient] has swelling and red discoloration to his wrist ... [The patient was] given an ice pack for his wrist. [The patient] [s]tated that he [had] himself checked out at ambulatory care and refused transport." (Plaintiff's Exhibit 2.)
The plaintiff testified that as result of the assault he suffered injuries to his forearm and neck. He further testified that he saw Doctor David R. Sherwood, his primary care physician, on August 30, 2010, four days after the incident who referred him to Doctor Yannopoulos. (Plaintiff's Exhibit 3.) Doctor Sherwood stated that the plaintiff continues to have soreness at the right forearm, right shoulder and left neck. Id. Doctor Sherwood also stated that the plaintiff denies numbness into the hand and has had insomnia since the incident. Id. He referred the plaintiff to Doctor Aris D. Yannopoulos. Id.
Doctor Yannopoulos examined the plaintiff on September 1, 2010, and September 28, 2010. (Plaintiff's Exhibit 7.) The plaintiff attended nine sessions of physical therapy. (Plaintiff's Exhibit 6.) The plaintiff met with Doctor Yannopoulos for the last time on November 8, 2011, and was given a 3 percent permanent partial disability rating. (Plaintiff's Exhibit 7.) The same report notes, however, that " the [plaintiff's] prognosis is excellent." Id.
The total medical bills submitted are for $2,048.67. (Plaintiff's Exhibit 8.)
III.
APPLICABLE LAW
As previously noted, the plaintiff alleges three separate counts in the operative complaint: intentional assault, negligence and willful, wanton and reckless assault and battery.
1. Assault
In General
" 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 termed an inchoate battery. Assault does not require a touching, but merely a threat or gesture." (Internal quotation marks omitted.) D. Wright, J. FitzGerald & W. Ackerman, Connecticut Law of Torts (3d Ed.1991) § 6, p. 8. 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. Under Connecticut law, an actual assault and battery may be committed willfully, recklessly or negligently. Chouinard v. Marjani, 21 Conn.App. 572, 575, 575 A.2d 238 (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, 136 A. 76 (1927). The occurrence and declarations of the perpetrator, both before and after the assaultive event, are relevant to a determination of the nature and the character of the assault. Id., at 531-32, 136 A. 76. " [A] wilful and malicious injury is one inflicted intentionally without just cause or excuse ... Not only the action producing the injury, but the resulting injury must be intentional." (Internal quotation marks omitted.) Alteiri v. Colasso, 168 Conn. 329, 333, 362 A.2d 798 (1975). An injury is deemed 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 334, 362 A.2d 798. " A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent ... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." (Internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, 648, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005), quoting Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).
In Barrese v. DeFillippo, 45 Conn.App. 102, 109 n. 3, 694 A.2d 797 (1997), 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." (Internal quotation marks omitted.) Id.
3. Reckless and Wanton
A wanton assault and battery is one that under circumstances, evinces a reckless disregard of the consequence of the assaultive act. Lentine v. McAvoy, supra, 105 Conn. at 531, 136 A. 76. Wanton misconduct exceeds that of negligence, including gross negligence; it is conduct that " indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003). Both 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 ... At common law, contributory negligence was not a defense to a cause of action alleging wanton and reckless misconduct." (Internal quotation marks omitted.) Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 513, 603 A.2d 1173 (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 or her]." (Internal quotation marks omitted.) Brock v. Waldron, 127 Conn. 79, 84, 14 A.2d 713 (1940). " Whether [the] defendant's conduct [constitutes] heedless and reckless disregard of the plaintiff's rights [is] a question of fact for the jury ..." (Internal quotation marks omitted.) Id., at 83, 14 A.2d 713
Our Supreme Court has stated: " While 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 wilful, 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." (Internal quotation marks omitted.) Frillici v. Westport, supra, 264 Conn. at 278, 823 A.2d 1172. " In order to establish that the defendant's 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." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).
4. Negligence
In Bordonaro v. Senk, 109 Conn. 428, 432, 147 A. 136 (1929), our Supreme Court pointed out that the difference between negligent conduct and wilful or wanton conduct is " one of kind, not merely of degree. Negligence does not have for its base either wilfulness or wantonness ..." Id. " An actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally, or one done under circumstances showing a reckless disregard of consequences. It may also be one committed negligently ." Russo v. Porga, 141 Conn. 706, 708-9, 109 A.2d 585 (1954). Our Supreme Court " [has] long adhered to the rule that an unintentional trespass to the person, or assault and battery, if it be the direct and immediate consequence of a force exerted by the defendant wantonly, or imposed without the exercise by him of due care, would make him liable for resulting injury." (Emphasis added; internal quotation marks omitted.) Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980). " [N]egligence and wilful and wanton misconduct are separate and distinct causes of action." Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970). In Frillici, our Supreme Court, in discussing three theories of assaultive behavior, indirectly 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]." Frillici v. Westport, supra, 264 Conn. at 277, 823 A.2d 1172.
Self-defense/Defense of Others
1. As to Negligent Assault
In Brown v. Robishaw, 282 Conn. 628, 922 A.2d 1086 (2007), a case in which a plaintiff's claimed injuries resulted from the negligent conduct of a defendant who pushed the plaintiff down a stairway, our Supreme Court addressed the special defense of self-defense. 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 a footnote, the court referenced Markey, and approved the trial court's instruction on negligent assault. Id., 640, 922 A.2d 1086 n. at 13. In Markey, 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. Markey v. Santangelo, supra, 195 Conn. at 81, 485 A.2d 1305. " If, in fact, the jury believed that [the defendant] had acted in self-defense, they would then have had to consider whether in so acting he used more force than was reasonably necessary to prevent an impending injury." Id. According to the court: " [T]he special defense of self-defense incorporates its own negligence analysis ... [W]hat 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. at 640, 922 A.2d 1086. 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 [the defendant'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 637-38, 922 A.2d 1086. Hence, under our 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 physical force against the actor or a third person is imminent. The actor may then use only that degree of force which he or she reasonably believes is necessary.
2. Legal Standard as to Credibility
The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct. Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " [T]he trier of fact's assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what— all, none, or some— of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " [I]n determining the credibility of witnesses, the trier of [fact] may properly believe all or part of the testimony of a witness." State v. Rothernberg, 195 Conn. 253, 257, 487 A.2d 545 (1985). The trier of fact may even reject testimony that is uncontradicted; Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); or " may accept it even though it is in conflict with that of several other witnesses." Martino v. Palladino, 143 Conn. 547, 549, 123 A.2d 872 (1956). In sum, " [t]he trier of [fact] determines with finality the credibility of witnesses and the weight to be accorded their testimony." State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 46 U.S. 906, 98 S.Ct. 2237, 56 L .Ed.2d 404 (1978).
" The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the compliant." Gulycz v. Stop & Shop Companies, Inc., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). The defendant has the burden of proving its special defenses. See Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 230, 975 A.2d 1266 (2009).
IV.
ANALYSIS
The plaintiff's first count of intentional assault, more particularly, when the plaintiff claims that he put his right arm inside the door and the defendant slammed the door three to four times causing injury to his arm, is neither persuasive nor credible. The plaintiff conceded that there was nothing preventing him from handing over the subpoena to the defendant in the parking lot. He also admitted that the defendant was neither evading nor running away from accepting the subpoena. The plaintiff further admitted that despite being told to wait for a minute, he attempted to enter the defendant's office. In light of the foregoing facts and evidence, an inference can be drawn that the defendant's conduct was reasonable as to the first encounter, at the door.
The most troubling and telling part of the defendant's testimony is that the plaintiff shoved him against the van during the second encounter between the two parties. The court finds this testimony to be unpersuasive and not credible. The defendant could have avoided this encounter and he was not in any danger. The plaintiff was walking away from the scene of the incident. The defendant came out of his office and went after the plaintiff, challenging him. The defendant's conduct in this second encounter was not mistake, inadvertence or inattention; his encounter was intended. There was no immediate threat to the defendant's person. The court infers, from the totality of the circumstances, that the defendant could have easily avoided all this by just staying inside his office. The court credits and believes the plaintiff's version of the facts that he was shoved against the wall by the defendant in the second encounter. The defendant engaged in " intentional conduct" in the second altercation.
The court further finds that the defendant has not proven that he was acting in self-defense in the second altercation. The defendant could have and should have avoided the altercation by staying in his office. The defendant's characterization of the events is not credible by a preponderance of the evidence.
In view of the forgoing, the plaintiff has proven the first count of the complaint, specifically during the second encounter near the wall, by the fair preponderance of the evidence, that an intentional tort was committed.
The court finds it unnecessary to rule on the second count, negligence, as it has made a finding of intentional assault.
The elements of the third count of the complaint, willful, wanton and reckless assault have not been proven by the plaintiff. There is no evidence or testimony presented which proves that the defendant's conduct was " highly unreasonable ... involving an extreme departure from ordinary care in a situation where a high degree of danger was present ..." (internal quotation marks omitted). Frillici v. Westport, supra, 264 Conn. at 266, 277, 823 A.2d 1172.
As presented at trial that the plaintiff was shoved three-four times against the wall by the defendant. The shoving of the defendant cannot rise to the level of willful, wanton and reckless assault and battery. There is no evidence or testimony presented which proves that defendant's conduct was wanton or reckless. As noted above, our Supreme Court has stated: " 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." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).
The plaintiff has not proven the third count of his complaint.
The defendant's theory of self-defense as presented to the court is neither credible nor persuasive. The defendant has not proven the factual predicates of self-defense during the second encounter. As the court has noted above the defendant was not under any threat during that encounter.
V.
DAMAGES
" [T]he amount of a damage award is a matter peculiarly within the province of the trier of fact." (Internal quotation marks omitted.) Hughes v. Lamay, 89 Conn.App. 378, 384, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005). " [A party] who seeks to recover damages [on the ground of lost earnings or capacity] must establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss." (Internal quotation marks omitted.) Hicks v. State, 287 Conn. 421, 463, 948 A.2d 982 (2008). As for noneconomic damages, " [t]he measure of damages in this State for pain and suffering has long been fair, reasonable and just compensation ... This standard is employed because of the universal acknowledgment that a more specific or definitive one is impossible." (Citation omitted; internal quotation marks omitted.) Carchidi v. Rodenhiser, 209 Conn. 526, 534-35, 551 A.2d 1249 (1989).
As the court has previously noted, the plaintiff's injury to his forearm while attempting to enter the defendant's office is the main injury in the present case. The court has found in favor of the defendant during that encounter. The court has not been presented with a breakdown of expenses for the injury sustained during the second encounter other than Plaintiff's Exhibit 8. The court declines to award the plaintiff damages with respect to his medical expenses.
For the plaintiff's injury in the second encounter and the pain and suffering he has incurred to date, the court finds that a fair, just and reasonable award for his noneconomic damages is $10,000.
VI.
CONCLUSION
For the foregoing reasons, judgment will enter for the plaintiff on the first count in the amount of $10,000. The court declines to rule on the second count in view of its finding in the first count. Additionally, the plaintiff has not proven the third count of the complaint by fair preponderance of the evidence.
Judgment may enter accordingly.