Jane Doe et al. v. III (2011)

MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY

The plaintiffs, Jane Doe and John Doe,¹ pursuant to General Statutes § 52–278a et seq., seek a prejudgment remedy (PJR) in the amount of $2 million to attach real property and/or personal property owned by the defendants, Andrew Thomas McClure, III, and Patricia Ann McClure, and to garnish bank accounts and accounts receivable which are the property of the defendants.   The court conducted a hearing as to probable cause, where all parties had a full opportunity to testify and present witnesses.

The nine-count complaint alleges claims for intentional sexual assault and battery, reckless assault and battery, negligent sexual assault and battery, false imprisonment, and civil violation of § 53–21(a)(2) as it relates to the plaintiff, Jane Doe. Claims on behalf of the plaintiff, John Doe, consist of loss of consortium and recovery of expenditures due to the loss of consortium claim.   Further, both plaintiffs make claims for intentional infliction of emotional distress as well as negligent infliction of emotional distress.

This action arises out of the repeated acts of sexual molestation and sexual assault against Jane Doe, by the defendant, Andrew Thomas McClure, III(Tom), her maternal grandfather.   The complaint alleges that the defendant, Patricia Ann McClure (Pat), the maternal grandmother, knew or should have known about the sexual abuse, but failed to stop, and/or report and/or protect her granddaughter.

The standard for determining probable cause is “a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.”  New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 620, 569 A.2d 1098 (1990).

“The role of the court in considering an award of a prejudgment remedy is well established.   Pursuant to our prejudgment remedy statutes ․ the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits ․ The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim.   The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ․ The court's role in such a hearing is to determine probable success by weighing probabilities ․ Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  J.K. Scanlon Co. v. Construction Group, Inc., 80 Conn.App. 345, 349–50, 835 A.2d 79 (2003).  “Moreover, this weighing process applies to both legal and factual issues ․ It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim.”  (Internal quotation marks omitted.)  Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 32 Conn.App. 118, 126, 628 A.2d 601 (1993).

AS TO PLAINTIFF JANE DOE

Based upon the evidence and testimony presented, the court concludes that the plaintiff, Jane Doe, has demonstrated that she is likely to prevail on her claim that the defendant, Tom, subjected her to repeated acts of sexual abuse and molestation from the ages of six to thirteen.   These acts included touching of her breasts and external vaginal area, placing his fingers in her vagina, and rubbing her body on his erect penis.   Tom does not deny these claims, and did not contest liability at the hearing.

The court finds that the plaintiff, Jane Doe, has failed to meet her burden to establish probable cause with respect to the claims against the grandmother.   There was not sufficient evidence presented at the hearing that would lead the court to conclude that the grandmother knew or should have known that Tom was sexually assaulting and molesting Jane Doe. Although Jane Doe's affidavit indicates that on one occasion she screamed to her grandmother to have her grandfather stop “grabbing, touching, and assaulting [her],” at the hearing she testified that she was in the basement with her grandfather when she called out to her grandmother who was upstairs in the kitchen.   She did not recall what she yelled to her grandmother.   She also testified that her grandmother was either drunk or “passed out” when her grandfather was abusing her, but there was no other evidence to support her claims against the defendant, Pat.

The plaintiff also claims in her affidavit that her grandmother knew or should have known about her grandfather's improper sexual conduct because of “his family's history of pedophilia and his history of pedophilia against female members within his own family.”   Again, there was no evidence to suggest that the maternal grandmother knew this, or to suggest even if she did know of his family's history, that she should have known that Tom would have suffered from the same sexual deviancy.

Therefore, there is probable cause to believe that a judgment in favor of the plaintiff, Jane Doe, against the defendant, Tom, will be obtained.   However, the plaintiff, Jane Doe, did not establish probable cause that a judgment would enter in her favor against the defendant maternal grandmother, Pat.

AS TO PLAINTIFF JOHN DOE

The plaintiff, John Doe, alleges that as a result of the sexual molestation of his daughter by the defendant, Tom, and the inaction of the defendant, Pat, he has suffered a loss of consortium between himself and his wife.   He further alleges that as a result of Tom's sexual abuse of Jane Doe, he and his wife divorced, and he was forced to incur expenditures for alimony, support, and expenses for separate housing.   John Doe has provided the court with no legal basis for such claims, and therefore, the court declines to make any findings with respect to these claims.

As to the claims made by John Doe for intentional and negligent emotional distress caused by Tom's actions and Pat's inactions under the circumstances, again the court has not been provided with any legal authority that the court would recognize such a cause of action or the legal basis for these claims.

AMOUNT OF PJR

Having found that there has been sufficient evidence presented in the affidavit and the testimony of the plaintiff, Jane Doe, at the hearing for the court to form a bona fide belief that the plaintiff was sexually assaulted by the defendant, Tom, the court shall proceed to the second portion of the PJR hearing to determine what amount of attachment of the defendant's property and/or assets may be allowed.  “It is not enough for a plaintiff to establish the first part of the prejudgment remedy equation without adequately proving that there is probable cause to find that damages in the amount of the prejudgment attachment amount will also be obtained.”   Ruffino v. Catalano, Superior Court, judicial district of Middlesex, Docket No. CV 095007256 (October 13, 2009).   The plaintiffs are seeking an attachment of the real and/or personal property of the defendants, as well as a garnishment of the defendants' bank accounts and accounts receivable in the amount of $2 million.   They argue the nature of the sexual assault and molestation of Jane Doe by her grandfather warrants a large prejudgment award.

The sexual assaults and molestation of Jane Doe began when she was six years old, and continued until she was thirteen.   By the time she reached the age of thirteen, she was engaging in destructive behavior, and had sought therapy for cutting herself.   When her grandfather discovered she was cutting herself, he restrained her in a room of her home, held her down, felt her breasts, put his hands up her shorts, and put his fingers inside in her vagina.   It was after this last incident of sexual molestation after years of being subjected to countless acts of sexual abuse that she chose to tell someone about the abuse.

In the last years of abuse and after she reported it to her parents, Jane Doe's academics declined, she tried to commit suicide, and had nightly nightmares.   Her family fell apart.   She entered the Yale psychiatry facility.   Jane Doe then began using drugs and alcohol, and tried to “consume anything she could find.”   She would steal medication from her father, and soon became an intravenous drug user at the age of fifteen.   She was addicted to cocaine and heroin, stole money, engaged in sexual activity for money, and sold drugs.   She attended several residential treatment facilities, and when she finally returned home, she found her brother addicted to drugs, her mother drinking continually, and her family and personal life “horrible.”

Currently she is not in therapy, however she has managed to remain clean and sober.   She has completed her GED, and is enrolled in Gateway Community College and has hopes to become a forensic psychologist.

The defendant, Tom, argues that although he is not contesting liability, he is contesting causation and the amount of the prejudgment remedy being sought.   He suggests that children of the same age engage in the same type of drug abuse that Jane Doe engaged in, and other members of her family, namely her brother, also engaged in these destructive behaviors although he did not suffer the same sexual abuse and molestation as Jane Doe. He argues that her conduct cannot be attributed to the defendant, Tom, but to other factors.²  Further, she appears to be getting on with her life, she is not engaged in any therapy, and does not appear to be attempting to get back into therapy, but has plans on travelling this summer as well as setting other goals for herself.

“Short of homicide, [sexual assault] is the ultimate violation of self.   It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist.  [Although sexual assault] is very often accompanied by physical injury to the [victim] ․ [it] can also inflict mental and psychological damage.”   (Emphasis added;  internal quotation marks omitted.)  Coker v. Georgia, 433 U.S. 584, 597–98, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).  “A sexual assault [by an older, trusted relative] causes obvious psychological and emotional injuries.   Such injuries often far exceed physical injuries in duration and in their impact on the victim's life ․ The emotional and psychological damage, long recognized as one of the most insidious features of sexual assault, may be particularly heinous when the victim is a child.”  (Internal quotation marks omitted.)  State v. Rivera, 260 Conn. 486, 492, 798 A.2d 958 (2002).

“A plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff's subjective complaints ․ [There is] no reason to subject a claim of mental suffering, which is evidenced by subjective complaints, to stricter scrutiny or greater care than a claim of physical suffering evidence by the same type of complaints.   Plaintiffs claiming damages as a result of emotional distress are not required to present expert medical testimony or psychiatric bills to substantiate their claims of noneconomic damages such as pain and suffering.”  (Citations omitted.)  Giordano v. Giordano, 39 Conn.App. 183, 207–08, 664 A.2d 1136 (1995).

Here the defendant, Tom's, conduct was more than egregious.   It would certainly be reasonable for a jury to find that even if her life was not “ruined,” that her life path and her ability to enjoy life in the future was substantially altered by his abuse and manipulation.

The court finds that the plaintiff, Jane Doe, has established probable cause that, as a result of the conduct of the defendant, Tom, as alleged, she has incurred expenses for counseling and treatment, and that she has suffered mental distress, anxiety, and loss of life's enjoyment as to which there is probable cause of recovery of money damages.   The court has considered the amount of $2 million being sought, the facts of this case, the arguments of counsel, as well as the cases cited by the plaintiffs in their memorandum of law.³  Considering that the plaintiff, Jane Doe, was subjected to horrendous abuse by a trusted member of her family from the ages of six to thirteen, that during this time and after the defendant, Tom, was extremely manipulative, that her education was interrupted, and that she has suffered emotional trauma and is likely to suffer such trauma into the future, her family relationships have been shattered, her ability to trust and to feel safe is destroyed, the court grants the prejudgment remedy in the amount of $2 million, as to the defendant, Tom, thereby attaching his property at 200 Thornbush Road, Wethersfield, Connecticut,⁴ as well as a garnishment with respect to the defendant, Tom's, bank accounts and accounts receivable.

Swienton, J.

FOOTNOTES

FN1. Pursuant to Practice Book § 11–20(A)(h), the court granted the plaintiffs' ex parte application for the use of pseudonyms in light of the subject matter of this case to ensure anonymity..  FN1. Pursuant to Practice Book § 11–20(A)(h), the court granted the plaintiffs' ex parte application for the use of pseudonyms in light of the subject matter of this case to ensure anonymity.

FN2. The defendant did not detail what these other factors could be other than this is behavior exhibited by other teenagers..  FN2. The defendant did not detail what these other factors could be other than this is behavior exhibited by other teenagers.

FN3. The plaintiffs cited several cases involving childhood sexual assault where the courts have awarded large prejudgment awards in the past.   See Dotson v. Roman Catholic Diocesan Corp., Superior Court, judicial district of New Haven, Docket No. 06012742 (October 19, 2010) [50 Conn. L. Rptr. 821] ($10 million prejudgment remedy awarded to victim of childhood sexual abuse);  Kent v. Kent, Superior Court, judicial district of Fairfield, Docket No. 010384655 (January 10, 2002) ($1.2 million prejudgment remedy granted where father abused adopted daughter);  Ruffino v. Catalano, Superior Court, judicial district of Middlesex, Docket No. 095007256 (October 13, 2009) ($750,000 prejudgment remedy where the plaintiff was abused for two years by a volunteer for the Big Brother/Big Sister program).   Also cited were cases where courts allowed victims to recover high damage awards.   See Michaud v. Stanco, Superior Court, judicial district of Waterbury, Docket No. 105015985 (March 5, 2010) (court awarded damages at $250 day for a total award of $6.9 million for sexual abuse of a 12–year–old boy by a sexual predator for a period of four years);  Hill v. Christiano, Superior Court, judicial district of Waterbury, Docket No. 109327 (September 28, 1994) ($1,007,250 awarded to plaintiff that was sexually assaulted by foster parent);  and Blair v. LaFrance, Superior Court, judicial district of Waterbury, Docket No. 90149622 (September 27, 2000) ($575,200 awarded to plaintiff sexually abused by an uncle on two occasions by inserting fingers and tongue into her vagina)..  FN3. The plaintiffs cited several cases involving childhood sexual assault where the courts have awarded large prejudgment awards in the past.   See Dotson v. Roman Catholic Diocesan Corp., Superior Court, judicial district of New Haven, Docket No. 06012742 (October 19, 2010) [50 Conn. L. Rptr. 821] ($10 million prejudgment remedy awarded to victim of childhood sexual abuse);  Kent v. Kent, Superior Court, judicial district of Fairfield, Docket No. 010384655 (January 10, 2002) ($1.2 million prejudgment remedy granted where father abused adopted daughter);  Ruffino v. Catalano, Superior Court, judicial district of Middlesex, Docket No. 095007256 (October 13, 2009) ($750,000 prejudgment remedy where the plaintiff was abused for two years by a volunteer for the Big Brother/Big Sister program).   Also cited were cases where courts allowed victims to recover high damage awards.   See Michaud v. Stanco, Superior Court, judicial district of Waterbury, Docket No. 105015985 (March 5, 2010) (court awarded damages at $250 day for a total award of $6.9 million for sexual abuse of a 12–year–old boy by a sexual predator for a period of four years);  Hill v. Christiano, Superior Court, judicial district of Waterbury, Docket No. 109327 (September 28, 1994) ($1,007,250 awarded to plaintiff that was sexually assaulted by foster parent);  and Blair v. LaFrance, Superior Court, judicial district of Waterbury, Docket No. 90149622 (September 27, 2000) ($575,200 awarded to plaintiff sexually abused by an uncle on two occasions by inserting fingers and tongue into her vagina).

FN4. The defendants represented to the court that the property located at 200 Thornbush Road, Wethersfield, Connecticut, is jointly owned by the defendants, Tom and Pat, and ask the court to issue the attachment as to Tom's interest only.   The interest of a joint tenant with right of survivorship may be attached per General Statutes § 47–14f, which provides:  “During the life of any joint tenant his interest may be attached ․ in the same manner as if he held his interest as tenant in common ․” If the attachment is levied upon, then the joint tenancy is converted to a tenancy in common between the levying party and the remaining tenants.  New Haven Bus Employees Credit Union v. Hill, 145 Conn. 332, 335, 142 A.2d 730 (1958) (“It is the general rule that the interest of a joint tenant may be taken on execution ․”)..  FN4. The defendants represented to the court that the property located at 200 Thornbush Road, Wethersfield, Connecticut, is jointly owned by the defendants, Tom and Pat, and ask the court to issue the attachment as to Tom's interest only.   The interest of a joint tenant with right of survivorship may be attached per General Statutes § 47–14f, which provides:  “During the life of any joint tenant his interest may be attached ․ in the same manner as if he held his interest as tenant in common ․” If the attachment is levied upon, then the joint tenancy is converted to a tenancy in common between the levying party and the remaining tenants.  New Haven Bus Employees Credit Union v. Hill, 145 Conn. 332, 335, 142 A.2d 730 (1958) (“It is the general rule that the interest of a joint tenant may be taken on execution ․”).

Swienton, Cynthia K., J.