Shawn Roby et al. v. Paul Orsini (2012)

MEMORANDUM OF DECISION

The plaintiffs Shawn Roby (Roby) and Kelle Fitts (Fitts) have brought this action in four counts.   In Count One, Roby alleges that the defendant “assaulted the plaintiff and attempted to kill him with a handgun which he intentionally and maliciously fired in the plaintiff's direction.”   Fitts makes the identical allegation in Count Two. In Count Three Roby alleges that on the date of the incident the defendant “negligently discharged the handgun in the plaintiff's direction while threatening to kill the plaintiff.”   Fitts make the identical allegation in Count Four.

The Court has heard testimony from Roby, Fitts and the defendant.   Based upon the testimony and evidence submitted, there is no credible evidence that the defendant intentionally threatened to kill Roby or Fitts.   Accordingly, the court finds in favor of the defendant on Counts One and Two. With regard to Count Four of the complaint, the plaintiff Fitts has not submitted credible testimony in support of the allegation that the defendant negligently discharged the handgun in her direction while threatening to kill Fitts.   To the contrary, Fitts' testimony is that the defendant discharged the gun into the ground and fifteen feet away from her while engaged with Roby and the two dogs in question.   Accordingly, the court finds for the defendant on Count Four.

With regard to count three, however, the plaintiff Roby has sustained his burden of proof.   The court finds that it is more probable than not that the defendant discharged his firearm in the immediate vicinity of Roby, and in such a manner that Roby was in justifiable fear of his physical safety, even though the defendant ultimately shot the gun into the ground.   Moreover, the defendant admits to drinking “two beers” and having ingested two percocets prior to this incident.   This testimony is consistent with Roby's testimony that the defendant admitted he had been drinking and had ingested percocet before the incident.   While it is clear that the defendant's actions with respect to Roby were not intentional, his words and actions with the firearm (including pointing the gun in the direction of the plaintiff and the dogs Roby was trying to separate them) certainly were negligent and caused Roby some emotional harm.

With respect to damages, Roby credibly testified that he was frightened by the incident, and still has concerns with the defendant.   Roby did not, however, seek any medical or professional treatment specifically as a result of this incident.   It is clear from the reports submitted by the defendant that Roby had a multitude of other emotional and psychological problems both before and after this incident which were not related to this incident.   While Roby testified that this incident did make these problems worse, he submitted no medical testimony or evidence in support of this claim other than his testimony.

Based upon the foregoing, on Count Three alone, the court finds the fair, just and reasonable amount of Roby's damages to be $3,500.

Frechette, J.

Frechette, Matthew E., J.