Regina Canty, Administratrix of the Estate of Shamaia L. Smith v. Kenneth J. Otto, Sr. (2013)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE

This is a case of wrongful death, but not the ordinary wrongful death action.   It is an intentional tort based upon the murder of Shamaia L. Smith (“Shamaia”), on or about March 14, 2007.   She was 22 at the time of her death and a resident of Indian Hill Street, East Hartford, Connecticut.   The defendant, Kenneth J. Otto, Sr. (hereinafter also “Otto”), committed the murder and was convicted of same on December 9, 2008, in this Judicial District as well as on two counts of tampering with evidence.   He was sentenced to sixty years in state prison, and his appeal was denied by the State Supreme Court in Volume 305 Conn. 52 (2012) (plaintiff's Exhibit 5).   He is presently serving his sentence of sixty years incarceration.

It was a horrendous crime taking the life of a 22–year–old girl.   The specific cause of death is unknown since the defendant either killed her in Stafford, Connecticut, or prior to that and took her body to Stafford, Connecticut, a 75–acre undeveloped piece of land owned by him where he buried her in a large firepit and burned her body.   The police found, at or near the firepit, a .40 caliber pistol and in the firepit a .40 caliber shell casing.   Shamaia may have been shot in the defendant's trailer on that land where the police found a .38 caliber bullet, a .38 caliber pistol and a .357 caliber weapon.   The police concluded with forensic evidence that she was killed probably in the trailer, with a semi-automatic pistol, in all likelihood, the .40 caliber pistol.   According to the defendant there was a friendly relationship between the victim, Shamaia, and the defendant but it was not of a sexual nature.

In this civil action for damages for Shamaia's death, liability was found by Sheridan, J., in a motion for summary judgment on September 30, 2013.

It has now fallen to this Court to assess both economic damages and loss of life's enjoyment by Shamaia as a result of the brutal killing by Otto. This Court held the hearing in damages on November 6, 2013.

STANDARD OF REVIEW

“The plaintiffs in a civil case sustain their burden of proof as to any essential element in their cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probably than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the exhibits in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff to prove her allegations by a preponderance of evidence.

ISSUES AND FINDINGS

1. Economic Damages

Shamaia had indicated to several people that she wanted to be a hairdresser and was already performing that service on a voluntary basis hoping to get a certificate to do so commercially.   The first witness to testify at the hearing was Professor (Doctor.Ph.D.) Gary M. Crakes, a professor of economics at Southern Connecticut State University.   The Court accepts his appraisal of economic loss, plaintiff's Exhibit 8, that Shamaia would have earned as a hairdresser, throughout her life, the sum of $1,353,849.00.   Of course, she may have during her lifetime changed occupations and earned more, but at this point, the only reasonable evaluation has to be as a hairdresser.

Accordingly, the Court concludes that her economic damages are $1,353,849.00.

2. Loss of Life's Enjoyment

This is a more difficult area to assess.   There is no precedent because every life is unique.   From the testimony of her mother, Gloria Frink, her aunt, Christiana Figgs, and another aunt, Regina Canty, the Court finds that the Smith family was very close and full of love of family.   The members of Shamaia's family were the most important part of Shamaia's life.   Shamaia had two brothers and many cousins with whom she was very close, particularly at family gatherings, such as, an annual Smith family picnic, but also on several occasions during the year when the families got together, she enjoyed close relationships with her siblings, her cousins, her aunts, and, of course, her parents.

Her attorney, Stephen F. McEleney, through the testimony of Shamaia's mother and aunts and photographs of Shamaia (plaintiff's Exhibit 20) presented a vivid portrait of a vibrant young lady who loved her family and was loved by them in return and who enjoyed life to the fullest and was excited about her future, all of which was abruptly and intentionally taken away by the defendant.

She was fascinated with beauty and fashion, loved to walk, play games and go shopping, but above all else, her interaction with her family, was paramount.   In fact, her relationship with her aunt, Christiana Figgs, was at least two or three times a week even though they lived in separate areas of the state.   Shamaia liked music and dancing and as Mrs. Canty said, she was always happy and smiling and enjoyed life;  all of this until her life was taken from her by the brutal murder of the defendant, Otto. At 22, she had her entire adult life ahead of her.

So, how does the Court measure the loss of life's enjoyment?   Shamaia will never feel the warm embrace of her parents or other relatives, her boyfriend and eventually her husband and probably, her children.   She will no longer be able to walk as she loved to do in the fall, in particular, when the colors are vibrant.   She will not be here to see the first snowfall of the winter, she will not enjoy the beach, or the sparkle of sun upon the water, she will not see the blue sky or the beautiful sunset, she will not be able to pursue an occupation that she likes, she will never know love again, or friendship, or the intangible things of life that the people who are living find precious.

How does this Court measure the loss of life's enjoyment?   The Court finds that her life expectancy is 57.1 years based upon the life expectancy table in plaintiff's Exhibit 9.

There are various alternatives.

1. Taking her permanent injury which is 100% times her life expectancy is inadequate;

2. This Court has awarded in accident cases for pain and suffering $10,000 per month for each of first two months following the accident, and this Court finds that it is not unreasonable to award that amount, not for pain and suffering because we don't know whether she suffered before she was shot, but for the loss of life's enjoyment, and $10,000 per month is certainly not unreasonable.   Pain and suffering include the loss of use of various parts of one's body, and death is the ultimate loss of human feeling.   This results in damages of $120,000 a year and multiplied by her life expectancy of 57.1 years, her loss of life's enjoyment amounts to damages of $6,852,000, which is fair, just and reasonable.

3. Another alternative is the judgment of this Court which is more general in nature taking into account the loss of life's enjoyment as specified above and the general loss of life and the happiness of which she was deprived.   Approximately $7,000,000 is fair, just and reasonable for the loss of her life's enjoyment.   To no longer be able to love and be loved, to no longer be able to breathe, to enjoy the smells of the air, the flowers, the rain, the smell of snowfalls, fires burning in the fireplace, the visions pleasing to the eye, the wonderful feeling of being alive should be $120,000 per year which is fair, just and reasonable.

4. Total Damages

1. Economic damages:  $1,353,849.00

2. Loss of life's enjoyment:  $6,852,000.00

3. Fee for Professor Crakes:  $5,800.00

4. Punitive damages in the form of attorneys fees.

Punitive damages are permitted for an intentional tort.   Paragraph 4 of the plaintiff's complaint states “where he committed such an assault upon a person as to directly cause her death.”   Under CGS Sec. 52–251c the attorney is allowed to contract with the plaintiff for fees on a contingent fee basis which was done in this case, plaintiff's Exhibit 11.   The contract following the aforementioned statute calls for:  1. 33 1/3% of the first $300,000;  2. 25% of the next $300,000;  3. 20% of the next $300,000;  4. 15% of the next $300,000;  5. 10% of any amount in excess of $1,200,000.   Calculating this on the basis of the economic damages and the loss of life's enjoyment, at a total of $8,205,849.

The Court finds the total attorneys fees as punitive damages to be:  $986,584.00

TOTAL DAMAGES:  $9,158,233.00

CONCLUSION

For the foregoing reasons, the Court enters judgment for the plaintiff in the amount of $9,158,233.

Rittenband, JTR

Rittenband, Richard M., J.T.R.