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Deesso v. Litzie

Court of Appeals of Connecticut

May 9, 2017


          Argued October 24, 2016

         Appeal from Superior Court, judicial district of Fairfield, Hon. Edward F. Stodolink, judge trial referee.

          Jeremy C. Virgil, with whom, on the brief, were Michael S. Samsel and Denise A. Krall, for the appellant (plaintiff).

          Adam J. LaFleche, for the appellee (defendant).

          DiPentima, C. J., and Mullins and Foti, Js.


          MULLINS, J.

         In this tort action, the plaintiff, Mitchell DeEsso, appeals from the judgment of the trial court, accepting the jury's verdict and awarding him $5000 in economic damages. On appeal, the plaintiff claims that the trial court improperly denied his motions to set aside the verdict and to order additur because: (1) the jury's award of economic damages was contrary to the uncontested evidence of the plaintiff's medical bills and lost wages; and (2) the jury's decision to award zero noneconomic damages was inconsistent with its decision to award $5000 in economic damages. We affirm the judgment of the trial court.

         The following facts, as reasonably could have been found by the jury, and procedural history, are relevant to this appeal. On December 15, 2012, the plaintiff and the defendant, Robert Litzie, Jr., along with their wives and children, attended a youth basketball game at St. Joseph's Elementary School in Shelton. At some point during the game, the plaintiff's wife was told by her son that while he and some other children were playing, the defendant's son kicked him in the face. The plaintiff's wife then approached the defendant's son, and, after she asked who his parents were, the defendant's son pointed out the defendant to her. Thereafter, the plaintiff's wife and the defendant had three separate ‘‘confrontations'' or ‘‘meetings'' inside the school, in which they argued over whether the defendant's son had behaved inappropriately. The plaintiff was present during the third confrontation and was able to defuse the situation by convincing the defendant to walk away.

         After the third confrontation, however, the defendant, the plaintiff's wife, and the plaintiff had yet another altercation outside the school. As the plaintiff and his wife and children were exiting the school, the defendant was driving his vehicle on the street in front of the school. The plaintiff's wife pointed at the defendant's vehicle or made some other type of hand gesture in the defendant's direction. In response, the defendant stopped the vehicle, exited it, and started shouting at the plaintiff's wife, who was standing near the sidewalk. As he shouted at the plaintiff's wife, the defendant also began to approach her. The plaintiff intercepted the defendant at the curb before he could reach the plaintiff's wife. The plaintiff positioned himself between his wife and the defendant.

         At around the same time, several male bystanders also attempted to intervene and positioned themselves between the defendant and the plaintiff and his wife. As the defendant continued to approach the plaintiff, two of the male bystanders restrained the plaintiff by holding him back by his arms. A minor melee ensued, as there was ‘‘a lot of agitation on both sides'' and ‘‘some pushing and shoving'' and ‘‘a lot of pushing and pulling'' by the ‘‘group of people involved.'' Both the defendant and the plaintiff were pushing and pulling each other. At some point, one of the men and the defendant came into contact, which in turn caused that man's elbow to strike the plaintiff in the right shoulder.

         In the course of the melee, the defendant's hand made contact with the plaintiff's glasses and knocked them off the plaintiff's face to the ground. This also caused the plaintiff to stumble back, lose his balance, and fall down on the ground. The plaintiff landed on his right arm. As the plaintiff started to get up, ‘‘a lot of [the] people [involved in the altercation]'' were ‘‘trying to hold and tug and grab at[him].'' In the course of standing up, and with the other men ‘‘trying to hold and pull'' him, the plaintiff felt a ‘‘pop'' in his right shoulder. It was at that point that the plaintiff felt a ‘‘sharp pain'' run down his right arm, rendering him unable to lift the arm. By the time the plaintiff returned to his feet, the other individuals had moved the defendant away from the area, and the defendant eventually entered his vehicle and drove off.

         After the altercation, the pain in the plaintiff's shoulder worsened, leading him to seek medical assistance from an orthopedic surgeon. The plaintiff informed the surgeon that he was ‘‘involved in a minor altercation'' in which he was ‘‘held back by his right arm, '' that he felt a ‘‘pop'' in his shoulder, and that he was ‘‘concerned he tore his rotator cuff.'' Sharing the plaintiff's concern that he tore his rotator cuff, the surgeon ordered that the plaintiff have an MRI.

         As a result of the MRI, the plaintiff was diagnosed with a fully torn rotator cuff. According to the surgeon, the tear was caused by the altercation and, more specifically, was ‘‘consistent with someone having their arm pulled on.'' The plaintiff subsequently underwent a surgical repair of the tear and undertook several months of physical therapy to rehabilitate his shoulder. At the time of trial, the plaintiff's shoulder still had recovered by only 50 to 60 percent.

         The plaintiff brought a personal injury action against the defendant, in which he sought damages for three claims sounding in negligence, recklessness, and intentional tort. Specifically, the plaintiff alleged that the defendant caused the plaintiff to sustain four injuries: (1) ‘‘full thickness tears of the posterior supraspinatus and infraspinatus tendons in the right shoulder necessitating surgical repair, '' (2) ‘‘weakness in the right shoulder, '' (3) ‘‘right shoulder contusion, '' and (4) ‘‘right shoulder sprain/strain.''

         With respect to the plaintiff's negligence claim, the plaintiff listed sixteen ways in which the defendant caused the plaintiff's injuries.[1] Regarding recklessness, the plaintiff claimed that the defendant caused the plaintiff's injuries by striking the plaintiff with his hand, swinging his arms in an aggressive manner toward the plaintiff's head or shoulder, swinging his arms in an aggressive manner toward the plaintiff and necessitating others to intervene and restrain the defendant and the plaintiff, forcefully twisting the plaintiff's arm, and forcefully restraining the plaintiff's arm. The plaintiff's intentional tort claim alleged that the defendant assaulted and battered the plaintiff by striking the plaintiff with his hand and forcefully twisting the plaintiff's arm.

         With respect to damages, the plaintiff claimed that he suffered both economic and noneconomic damages. The economic damages consisted of medical expenses and lost wages. The noneconomic damages were attributable to past and future pain and suffering.

         In his amended answer to the plaintiff's complaint, the defendant denied the plaintiff's allegations and asserted the special defenses of comparative negligence, contributory recklessness, assumption of the risk, and self-defense.

         At trial, the plaintiff offered the medical bills relating to the diagnosis and treatment of his shoulder injuries as an exhibit, and he called an employee from his business to testify as to the amount of lost wages that he incurred. The plaintiff's claim for economic damages totaled $61, 483.34, consisting of $49, 483.34 in past medical expenses and $12, 000 in lost wages. The defendant did not contest the reasonableness of the plaintiff's medical expenses or lost wages. The defendant did challenge, however, the plaintiff's contention that the defendant's actions were the proximate cause of the plaintiff's shoulder injuries. In particular, by cross-examining the plaintiff's numerous fact witnesses and the physician who treated the plaintiff's injuries, the defendant elicited conflicting evidence as to whether he caused the plaintiff's rotator cuff tear. A brief review of such testimony follows and informs our review of the plaintiff's claims.

         At trial, the plaintiff called Daniel Weiland, the orthopedic surgeon who diagnosed and repaired the plaintiff's rotator cuff tear. During his testimony, Weiland explained that his diagnosis that the plaintiff sustained a ‘‘full thickness rotator cuff tear'' meant that his ‘‘supraspinatus'' and ‘‘infraspinatus'' tendons had been torn. He opined that this type of tear was ‘‘consistent with someone having their arm pulled on.'' Weiland also indicated that his diagnosis was based on the account of the altercation that had been related to him by the plaintiff, which was the following: ‘‘[The plaintiff] told me he was in an altercation . . . where someone pulled his arm, and he felt a pop and has since been unable to use his shoulder. . . . [H]e was in a fight . . . where his arm was pulled back, he felt a pop and then since then he's had difficulty with his shoulder.''

         Indeed, the plaintiff himself testified that it was ‘‘possible'' that his shoulder injury ‘‘occurred because someone was pulling back on [his] arm . . . .'' According to the plaintiff, the ‘‘pop'' in his shoulder occurred when he was in the process of getting up from the ground, at which time ‘‘people [were] trying to hold and pull [him].'' However, when asked by the defendant's counsel if he knew who was holding him back by his right arm, ...

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