Opinion
No. CV 02 0820305 S
February 23, 2004
MEMORANDUM OF DECISION
I. Background
In her complaint, dated October 2, 2002, the plaintiff, Annette Huggins, alleges that, on February 11, 2002, as a business invitee, she was at a bar and dance hall located at 92 Walnut Street in Hartford, Connecticut, known as Anaconda. Anaconda was operated, owned, and controlled by the defendants, The Octagon, LLC, and/or Marco Dewar.
While Huggins was at Anaconda, an unknown assailant or assailants shot her. Huggins claims that her wounding was due to the carelessness and negligence of the defendants, in one or more of several ways.
She claims that she suffered severe physical injuries, including the gunshot wound, and comminuted fractures of her distal humerus, resulting in pain and suffering. See Complaint, ¶ 7. She claims that she has expended sums of money for medical care, and other medical services, and will in the future be required to expend further sums for such purposes. In addition, she claims to have lost time from her employment and that she may lose more such time in the future. In her complaint she also claims a loss of earning capacity.
A default was entered against the defendants by the court on January 3, 2003 as a result of their failure to appear (# 101.10). Thereafter, on February 17, 2004, the matter appeared before the court for a hearing in damages. At the hearing, the plaintiff presented evidence of her claimed damages, including her own testimony and exhibits. The defendants did not appear at the hearing. The court finds, based on the evidence presented, that defendant Dewar is not in the military service.
II Discussion
"Upon default, the plaintiff ordinarily becomes entitled to recover nominal damages. The right to further substantial damages remains to be established by the plaintiff at a hearing in damages." (Citations omitted.) Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982). "[The] entry of default, when appropriately made, conclusively determines the liability of a defendant . . . In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive." (Internal quotation marks omitted and citation omitted.) Murray v. Taylor, 65 Conn. App. 300, 334-35, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).
"It is axiomatic that the burden of proving damages is on the party claiming them." 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.
"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." (Internal quotation marks omitted and citations omitted.) Vickers v. Jessup, 32 Conn. App. 360, 372, 629 A.2d 457, cert. granted on other grounds, 227 Conn. 992, 632 A.2d 701 (1993) (appeal withdrawn 1994). The evidence must provide a sufficient basis for estimating the noneconomic damages based on reasonable probability. See Putney v. Lehigh Valley Equipment Corp, 145 Conn. 731, 732-33, 141 A.2d 482 (1958); Opotzner v. Bass, 63 Conn. App. 555, 561, 777 A.2d 718 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002).
The plaintiff's medical records reflect that she was taken from Anaconda to Hartford Hospital for emergency medical care, including right elbow surgery. While she recuperated, she lost about eleven weeks of time at work in her job as a laundry aide at a convalescent home. She also underwent a course of physical therapy between March and September 2002.
Huggins testified that her arm was in a cast for two months and that her fractures resulted in hardware being inserted into her arm. She is right-handed; she cannot straighten her right arm and cannot lift heavy items. She suffers from numbness in her right hand, as well as intermittent pain, and has difficulty sleeping. Her arm hurts when she writes.
According to her orthopedist, Andrew B. Caputo, M.D.'s report, dated September 17, 2002, seven months after the Anaconda incident, his impression at that time was "[s]tatus post severe gunshot wound right elbow with bone loss, post-traumatic contracture and ulnar neuritis." He also stated, "[i]f she still has persistent problems with her nerve, we may consider a combination of ulnar nerve surgery and hardware removal with possible resection of the excess bone growth posteriorly."
About three months later, on December 10, 2002, Huggins was examined again by Dr. Caputo. Regarding the possibility of surgery, his report of that date states, "We did discuss briefly the consideration of surgery, to include ulnar nerve neurolysis, hardware removal and consideration of contracture release if she so desires." Dr. Caputo stated also in his report that he would see Huggins again in six months for a repeat x-ray of her elbow. The December 10, 2002 report is the last report in the record from Dr. Caputo.
In an affidavit submitted to the court, dated November 21, 2003, Huggins stated, "My doctor, Dr. Caputo, has discussed surgery with me to remove excess bone growth, address my ulnar nerve problems and to remove hardware. I am reluctant to have the surgery performed because of the additional pain and recovery period, but I am not satisfied with my present circumstances. I do not know when I will have the surgery." See Affidavit, ¶ 17.
Huggins testified that she is concerned also about losing additional time from work as a result of having surgery in the future. She also stated that she is still thinking about whether to have the surgery or not.
The evidence of Huggins' economic losses includes medical expenses of $23,804.83, lost income of $4,642.00, and home assistance expenses of $1,210.00 (Huggins paid $110.00 per week to an individual who helped with meals, child care, and personal assistance; 11 weeks times $110.00 equals $1,210.00). Her economic losses total $29,656.83.
In this case, there is no evidence of a permanency rating. Huggins' counsel asserted that she is still under treatment and that she has not reached maximum medical improvement. He suggested that the court should include in an economic damages award an amount for the costs associated with the future surgery, based, due to similarity to the surgery which Huggins underwent previously, on the amounts previously incurred. In argument before the court, the plaintiff sought a total monetary award of $150,000.00, including pain and suffering, and including amounts for the cost of future surgery and for future lost wages, which would be incurred while Huggins recuperates from that surgery.
An award of damages may not be premised on speculation. See Card v. State, 57 Conn. App. 134, 138-40, 747 A.2d 32 (2000). "It is well established that [i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities . . . Consequently . . ., as to future medical expenses, the jury's determination must be based upon an estimate of reasonable probabilities, not possibilities . . . The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses . . .; [i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . ., when there is also a degree of medical certainty that future medical expenses will be necessary." (Emphasis in original; internal quotation marks omitted; citations omitted.) Marchetti v. Ramirez, 240 Conn. 49, 54-55, 688 A.2d 1325 (1997).
A medical expert's testimony that a plaintiff " might need future treatment," does not necessarily remove the issue from the realm of conjecture and speculation. (Emphasis in original.) Id., 240 Conn. 55. In contrast to the evidence in Marchetti v. Ramirez, supra, 240 Conn. 55-56, where the plaintiff's treating physician testified that the plaintiff would require future medical treatment for his injuries, here, as noted above, Dr. Caputo's last report does not state that future surgery will be needed. Rather, future surgery was under consideration. As noted, Huggins testified that she is still unsure about whether to have the surgery.
Huggins does not claim that she is entitled to damages for future medical expenses because her injuries have exposed her to a quantifiable risk of future medical expenses. See Marchetti v. Ramirez, supra, 240 Conn. 55 n. 9.
Under these circumstances, an award based on the possibility that Huggins will have surgery in the future would be speculative. The court declines to award, as part of economic damages, an amount for future surgery or an amount for future lost wages. Also, no amount is awarded for loss of earning capacity, since no evidence concerning that subject was presented. See Daigle v. Metropolitan Property and Casualty Insurance Co., 257 Conn. 359, 363 n. 5, 777 A.2d 681 (2001).
According to the record, Huggins has not seen her orthopedist since December 2002. However, more than two years have elapsed since the incident at Anaconda and Huggins must still deal with its consequences, including pain, diminished physical capacity, and impairment. While it is apparent that she will continue to suffer for some time into the future, her prognosis for the long-term future is unclear.
Huggins has proved that she has sustained injuries, as a result of the incident, for which she is entitled to recover fair, just, and reasonable damages. The court finds that she is entitled to recover the past economic damages which she alleges, $29,656.83. In addition, she is entitled to recover noneconomic damages, for her pain and suffering; for bone loss; for her impairments and diminished capacity; and for the restrictions on her ability to enjoy life, in the amount of $90,000.00.
CONCLUSION
Judgment may enter for the plaintiff in the amount of $29,656.83 for economic damages and $90,000.00 in noneconomic damages, for a total of $119,656.83. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT