Opinion
No. 84618
August 26, 2008
MEMORANDUM OF DECISION
Applying the settled standard to which this court is bound in determining the defendants' motion for judgment notwithstanding the verdict or, in the alternative, to set aside the verdict; Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 269-70, 698 A.2d 838 (1997); Treglia v. Zanesky, 67 Conn.App. 447, 460-61, 788 A.2d 1263 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002); the court agrees with the plaintiff's arguments that there are scenarios under which the verdict for the plaintiff on the count alleging assault and battery is not inconsistent with the verdict for the defendants on the excessive force count brought pursuant to 42 U.S.C. § 1983. Moreover, General Statutes § 53a-22, which applied solely to the assault and battery count, contains a subjective aspect, and is not identical to the objective standard that applies to a claim for excessive force under 42 U.S.C. § 1983.
Turning to the issue of the plaintiff's claim for punitive damages, the jury, answering special interrogatories, found that the plaintiff was entitled to such damages for assault and battery. Prior to the trial, the parties agreed that the court, without the jury, would determine the amount of such damages. In Connecticut, "common law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiff's litigation expenses less taxable costs." Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992). The plaintiff had a one-third contingency fee agreement with his attorney, and his total recovery was $15,000. The defendants argue that the attorneys fees aspect of punitive damages should be limited to $5,000. The plaintiff argues that the contingency fee agreement is not a limitation on his claim for punitive damages and that punitive damages of over $46,000 should be awarded based on his submission of an itemized bill and an hourly rate the court finds reasonable. Having considered such cases as Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252, 828 A.2d 64 (2003), Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 717 A.2d 150 (1998), Berry v. Loiseau, supra, 223 Conn. 831-32 (and cases cited therein), and Holbrook v. Casaza, 204 Conn. 336, 528 A.2d 774 (1987), the court finds that the plaintiff has incurred attorneys fees of $5,000 in prosecuting this action. That amount is palpably unreasonable to the plaintiff's attorney, the fair value of whose efforts is $47,000. It is, however, not unreasonable to either the plaintiff or the defendants.
Neither party suggests that the contingency fee agreement is, by its terms, unreasonable.
The plaintiff has submitted a bill of costs in the amount of $2,061.20. In his bill, the plaintiff seeks to recover the cost of his air fare to and from Florida, totaling $1,264.00. "The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute . . . Costs are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them." (Citation omitted; internal quotation marks omitted.) Traystman, Coric Keramidas, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007). General Statutes § 52-257(b)(1) provides that prevailing parties in civil actions shall receive "[for each witness attending court, the witness' legal fee and mileage . . ." Mileage is not synonymous with airfare. However, the evidence was that after the events giving rise to this action, the plaintiff relocated to Florida. There was no showing that it was unreasonable for him to do so. The plaintiff testified at trial, and his testimony was necessary in order to vindicate his rights. As observed supra, "[p]unitive damages consist of a reasonable expense properly incurred in the litigation . . . less taxable costs." (Citation omitted.) Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985). In an action such as this, the plaintiff's round trip air fare is a reasonable expense that he properly incurred in the litigation.
The motion for judgment notwithstanding the verdict or to set aside the verdict is denied. Punitive damages are awarded in the amount of $6,264.00. Taxable costs are awarded in the amount of $797.20.