Madeline Fromageot v. Joan Bennett (2011)

MEMORANDUM OF DECISION

This case arises from two mothers dispensing with the time honored notion of “playground justice” and taking matters between their sons into their own hands.   The claim was triggered by what plaintiff perceived to be the actions of the defendant's ten-year-old son against her seven-year-old son on the ice during a hockey scrimmage at the Wonderland of Ice rink in Bridgeport, Connecticut.   This case is in court because of the undisputed fact that the plaintiff, after witnessing that contact and without first raising her concerns with the coaches, breached the sanctity of the player's-only bench area to physically confront the defendant's young child.   The unfortunate results flowing from the plaintiff's decision are that the defendant confronted the plaintiff as she exited the bench, and the judicial arena has taken the place of the hockey arena to settle the score between them.

The plaintiff couches her lawsuit as one for “simple assault” and claims in her single-count complaint ¹ that the defendant intentionally assaulted her by “grabbing [her] arm and ripping the headband off [her] head.” ²  As a result, the plaintiff claims that she “suffered fear and pain,” ³ and seeks compensatory and punitive damages.

The evidence at trial was presented in a disjointed manner.   Consequently, the court will discuss its findings based on the chronology of the testimony.

The first witness to testify concerning the incident on February 23, 2008 was Michael Roberts.   He was a coach of a team that played at the rink during that time period, but was present on that day only as a spectator.   Roberts stated that he “quickly glanc[ed] over ․ [a]nd it looked like [the plaintiff] was getting her hair pulled by [the defendant].”   He further testified that he “looked over, and it looked like she was getting her head pulled back and forth, and then I turned back away and went back to the game.”   The court concludes that Roberts's testimony concerning the actual altercation is the product of a “quick glance” and was somewhat speculative.   The court gives it no weight in reaching its decision.   The court, however, credits his testimony that the incident took place during a “pickup” game and that he saw the plaintiff's then seven-year-old son, John Paul, “get hit fairly hard.”

The second witness to testify was Francis Callahan, and the court credits his testimony as follows.   He was the coach of a team that played at the rink and on which the plaintiff's two sons were members.   Callahan stated that he “saw two women, it looked like they were—there was some sort of skirmish, and that was it.”   He knew one of the women to be the plaintiff, but he did not know the defendant.   Callahan noticed that the defendant “was pulling [the plaintiff's] ․ headband.”   The incident took place “down at the far bench.”

The plaintiff was next to the stand.   On the date of the incident, her two sons, Francis, then eleven years of age, and John Paul, then seven years of age, were on the ice.   The plaintiff observed the defendant's ten-year-old son knocked down John Paul onto the ice surface.   That caused the plaintiff to approach and enter the player's bench and confront the defendant's son.   She stood over the defendant's son, facing him.

The court finds the plaintiff's testimony, including about what took place once she entered the player's-only area, to lack credibility.⁴  The court also rejects the testimony of her older son, Russell.   His testimony materially differed from his mother's rendition of the events.   The court cannot reconcile, or make logical sense of, the stories.   Therefore, it will not consider the evidence offered by either of them in deciding this case.

After the plaintiff, the defendant had Brian Denham testify and finds the following facts credibly proven.   He was a coach on the defendant's son's team, and observed the plaintiff standing closely over her son.   Denham saw the plaintiff put one of her hands on the son's face mask, push his head backwards more than once while she said to him to leave her son alone.   He also saw the plaintiff exit the box and the defendant approach her, but did not witness any altercation between them.

Next, the defendant herself testified and the court finds the following facts to be credibly proven.   At the time the plaintiff entered the player's bench, the defendant was sitting directly across the ice.   She saw the plaintiff enter the bench area, stand over her son and put her hands on his helmet.⁵  The defendant ran over and into the bench area to confront the plaintiff, and stood face-to-face with her.   She repeatedly asked the plaintiff “what did you do?”   The plaintiff just stood there and did not respond.   The defendant “threw [her] hands in the air and [the plaintiff's] headband ⁶ came off in [her] hand.”   The defendant denied striking or grabbing the plaintiff, and stated that the only contact to the plaintiff was caused by “a graze of her headband, which was loosely on her head.”   She did not intend to knock the plaintiff's headband off of her head, but it happened when the defendant was trying to get the plaintiff's attention “to find out what [the plaintiff] had done to [the defendant's] kid.”   Before she received an answer, a coach intervened and took the defendant to a locker room where she calmed down.

The defendant's ten-year-old son testified after his mother.   He stated that he skated off the ice and sat on the bench.   He was surprised when the plaintiff, a parent, entered by players only bench area.   She stuck her fingers through his mask, said to him “don't you hit my son” and banged his head backwards against the plexiglass behind his head as she pronounced each word.   The defendant's son saw his mother “come over and deal with the problem,” but he did not witness any altercation.

The defendant's son's testimony was corroborated by the next witness, Harrison Paige, a youth hockey player who was present that day but did not play because he forgot his skates.   The court finds the following facts as proven based on his very credible testimony.   Paige was seated behind the bench with a good view into it.   He said that he “saw a lady walk over fairly angry and I saw her walk into the box, which was extremely unusual because ․ [o]nly coaches are allowed in the box and parents are absolutely not allowed whatsoever ․ I saw her grab [the defendant's son's] head ․ I could hear her slam his head against the glass multiple times.   I could hear it ping off the plexiglass, and I saw her do it also.”   Paige stated the helmet hit the plexiglass multiple times.   He witnessed the plaintiff leave the box, but did not see any altercation between the plaintiff and the defendant.

The law applicable to the plaintiff's assault claim is long settled, although the word is often misused.  “[T]he word ‘assault’ is often used when in truth ‘battery’ would be more accurate in the text book sense.”   D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.1991) § 6, p. 8.1

“In this state an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally;  one done under circumstances showing a reckless disregard of consequences;  or one committed negligently.”   Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980).   See also Lentine v. McAvoy, 105 Conn. 528, 530–31, 136 A. 76 (1927);  Alteiri v. Colasso, 168 Conn. 329, 333, 362 A.2d 798 (1975);  Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).   The ways in which an assault may be committed have been further discussed as follows:  “A wilful and malicious injury is one inflicted intentionally without just cause or excuse.   It does not necessarily involve the ill will or malevolence shown in express malice.   Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved.   Not only the action producing the injury but the resulting injury must be intentional ․ 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 ․ The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  (Internal quotation marks omitted;  citations omitted.)  Markey v. Santangelo, supra, 195 Conn. 77–78.

A plaintiff who proves a negligent assault is only entitled to claim compensatory damages.  Id., 81–81.   However, a plaintiff who proves that an assault was intentional may additionally request punitive damages.  Id., 79.

As discussed, the plaintiff claims an intentional assault.   The crux of her claim is that the defendant committed the tort by “grabbing the plaintiff's arm and ripping the headband off the plaintiff's head,” and she seeks relief in the form of “compensatory and punitive damages for intentional assault.”   In her brief, the plaintiff requests punitive damages in the amount of one-third of any compensatory damages.   The plaintiff's proof at trial was consistent with the allegations of intentional conduct in her complaint.   She testified on direct examination that the defendant “comes running around, yanks my—grabs my arm, pulls it, yanks my headband like this, and throws it on the ground, and says ‘What are you doing?’   And I said to her, ‘Your son has been hitting my son.’ “

Based on the credible evidence at trial, the court concludes that the plaintiff has failed to prove by a preponderance of the evidence that the defendant is liable for intentionally assaulting her.   Specifically, the plaintiff has failed to prove that the defendant's contact with her headband was the direct and immediate consequence of a force exerted by the defendant intentionally.   Other than the plaintiff's testimony concerning her version of the altercation, which the court has rejected, the evidence shows that the force imposed by the defendant on the plaintiff was not wilful;  that is, there was no credible proof that the defendant's conduct was intentional or that the defendant actually or impliedly designed to injure the plaintiff in making such contact.⁷  Rather, the better and weightier evidence shows that the defendant threw her hands up out of her frustration from the plaintiff's total lack of response to her questions relating to her son and knocked the plaintiff's loose fitting headband off her head.   Such inadvertent conduct does not support a legally viable claim for intentional assault.⁸

In view of the foregoing, judgment is rendered in favor of the defendant on the first count of the plaintiff's complaint.

TYMA, J.

FOOTNOTES

FN1. The plaintiff filed a withdrawal of the second count against the defendant, Brian Denham, on the day of trial..  FN1. The plaintiff filed a withdrawal of the second count against the defendant, Brian Denham, on the day of trial.

FN2. In her post-trial brief, the plaintiff essentially requests leave to amend her complaint to “omit the word ‘intentional’ from the conclusory paragraph of the complaint.”   The court reads the request as leaving open for interpretation the characterization of the assault as being intentional, reckless or negligent.   The request is prejudicial to the defendant, and will result in an injustice to her, in that it was made more than two months after the trial and fails to put the defendant or the court on notice as to the nature of the assault claim.   Basically, the plaintiff is asking the court to “fill in the blank” before the word “assault” from its findings based on the evidence.   The court does not countenance such vague pleadings and, consequently, denies the plaintiff's request to amend.   The action will be determined based on the plaintiff solely asserting in her complaint an intentional assault claim.   Therefore, the court need not address the defendant's special defenses as they are not applicable to that claim..  FN2. In her post-trial brief, the plaintiff essentially requests leave to amend her complaint to “omit the word ‘intentional’ from the conclusory paragraph of the complaint.”   The court reads the request as leaving open for interpretation the characterization of the assault as being intentional, reckless or negligent.   The request is prejudicial to the defendant, and will result in an injustice to her, in that it was made more than two months after the trial and fails to put the defendant or the court on notice as to the nature of the assault claim.   Basically, the plaintiff is asking the court to “fill in the blank” before the word “assault” from its findings based on the evidence.   The court does not countenance such vague pleadings and, consequently, denies the plaintiff's request to amend.   The action will be determined based on the plaintiff solely asserting in her complaint an intentional assault claim.   Therefore, the court need not address the defendant's special defenses as they are not applicable to that claim.

FN3. Those are the only injuries claimed by the plaintiff.   She does not claim other things such as medical bills or loss of life's activities..  FN3. Those are the only injuries claimed by the plaintiff.   She does not claim other things such as medical bills or loss of life's activities.

FN4. The court was particularly troubled by the plaintiff's steadfast denial, in the face of other credible evidence, that she grabbed the defendant's son's face mask with her hand and repeatedly banged his head against the plexiglass.   Additionally, the plaintiff did not exhibit a good appearance and demeanor on the stand, which also adversely affected her credibility at trial..  FN4. The court was particularly troubled by the plaintiff's steadfast denial, in the face of other credible evidence, that she grabbed the defendant's son's face mask with her hand and repeatedly banged his head against the plexiglass.   Additionally, the plaintiff did not exhibit a good appearance and demeanor on the stand, which also adversely affected her credibility at trial.

FN5. The defendant testified to the following:  “I had concern because she was standing ․ menacingly over him, and then I noticed that her hands—it—looked like her hand were on his helmet ․ And I had no idea at that point what she was going to do.   I stood up and I ran as fast as I could, because I noticed the coaches weren't aware of what was going on at the end of the box, where [her son] was sitting.   They were involved in the play.”.  FN5. The defendant testified to the following:  “I had concern because she was standing ․ menacingly over him, and then I noticed that her hands—it—looked like her hand were on his helmet ․ And I had no idea at that point what she was going to do.   I stood up and I ran as fast as I could, because I noticed the coaches weren't aware of what was going on at the end of the box, where [her son] was sitting.   They were involved in the play.”

FN6. The defendant described the headband as “a type of fleece headband that ․ women wear to cover their ears in the winter.”.  FN6. The defendant described the headband as “a type of fleece headband that ․ women wear to cover their ears in the winter.”

FN7. As manifested by the court's conclusion, the court disagrees with the assertion in the plaintiff's brief that “there is no question that the defendant assaulted the plaintiff within the meaning of the law, even under the defendant's own version of the facts.”.  FN7. As manifested by the court's conclusion, the court disagrees with the assertion in the plaintiff's brief that “there is no question that the defendant assaulted the plaintiff within the meaning of the law, even under the defendant's own version of the facts.”

FN8. Because the plaintiff has failed to prove the issue of liability in her favor, the court need not address her damage claims..  FN8. Because the plaintiff has failed to prove the issue of liability in her favor, the court need not address her damage claims.

Tyma, Theodore R., J.