Kelli Maldon v. David Plasczynski (2013)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY

On December 8, 2010, the plaintiff Kelli Maldon commenced this action against the defendant David Plasczynski, alleging that the defendant is liable for economic and noneconomic damages resulting from events taking place on April 8, 2010, during which the defendant allegedly assaulted and battered her.   Count one alleges that the assault and battery was committed recklessly, count two that it was committed intentionally, and count three that it was committed negligently.¹

The defendant filed an amended answer and special defenses on August 7, 2013, denying all of the allegations in counts one, two and three, and pleading special defenses that plaintiff is not entitled to exemplary damages, that the defendant is entitled to collateral source reductions to any award, and that the defendant was acting in defense of his person at the time of the incident.   Plaintiff replied on 9/13/13.

A court trial of this case was conducted during two half-days on September 17 and 18, 2013, during which the court heard testimony from the plaintiff, the defendant, and the plaintiff's former husband.   The plaintiff introduced eleven full exhibits and the defendant introduced one full exhibit.   Thereafter, the plaintiff and the defendant filed post-trial briefs on October 11, 2013.   On October 15, 2013, the defendant filed a request for leave to amend his answer to add a special defense of comparative negligence, to conform to the evidence that was presented at trial.   The plaintiff and the defendant filed replies to the post-trial briefs on October 21, 2013.   On October 22, 2013, the plaintiff filed an objection to the defendant's request for leave to amend.   On November 2, 2013, the defendant filed his reply to plaintiff's objection to the defendant's request for leave to amend.

II

DISCUSSIONAObjection to Defendant's Request for Leave to Amend

“A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof.”  (Internal quotation marks omitted.)  Billy & Leo, LLC v. Michaelidis, 87 Conn.App. 710, 714, 867 A.2d 119 (2005).  “In the interest of justice courts are liberal in permitting amendments;  unless there is a sound reason, refusal to allow an amendment is an abuse of discretion.”  Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980).  “The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.”  (Internal quotation marks omitted.)   Wassell v. Hamblin, 196 Conn. 463, 466–67, 493 A.2d 870 (1985).  “Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.   The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.”  (Citation omitted;  internal quotation marks omitted.)  Mastrolillo v. Danbury, supra, 61 Conn.App. 693, 696 (2001), 767 A.2d 1232.  “Belated amendments to the pleadings are allowed except where the amendment will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues.  Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).”  In re Lori Beth D., 21 Conn.App. 226, 232, 572 A.2d 1027 (1990).

In the present case, the plaintiff has objected to the defendant's request to amend on the ground that the request is untimely and is unjust to the plaintiff, and has suggested that a new trial would be necessary should the court allow the amendment.   However, the plaintiff has failed to demonstrate any prejudice to her that would ensue due to the timing of the proposed amendment.   Prior to and at the time of trial, the plaintiff was on notice that her own actions would be at issue through the defendant's special defense of self defense, and the plaintiff's own actions were fully explored at trial by both counsel during her testimony and that of the defendant.   In light of said testimony, the proposed special defense of comparative negligence cannot be said to be of any real surprise to the plaintiff, and as the plaintiff has not established that allowing the amendment to conform to the proof at trial will serve to mislead or take unfair advantage of the plaintiff, confuse the issues or delay the trial, her objection is overruled and the defendant's motion is hereby granted.

B

Findings and Judgment

In evaluating the credibility of the witnesses, this Court considered their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, their manner in responding to questions and whether they were candid and forthright or evasive and incomplete, their interest or lack of interest in the case, and the consistency or inconsistency of their testimony in relation to other evidence, including exhibits in the case.   Not surprisingly, the testimony of the plaintiff differed from that of the defendant in a number of respects.   Although the court did not find either party's testimony to be entirely credible, the court finds the defendant's testimony to be the more credible and accepts his testimony with respect to his characterization of the relevant facts.

Based on the credible evidence offered at trial the court finds that on April 8, 2010, the plaintiff and the defendant were involved in an altercation, and that the plaintiff suffered injuries as a result of the altercation.

The court finds that the plaintiff failed to meet her burden of proof as to the her claim that the defendant intentionally assaulted and battered her, and also finds that the plaintiff failed to meet her burden of proof as to her claim that the defendant's conduct was reckless and wanton, and accordingly finds for the defendant on the first and second counts.

The court finds that the plaintiff has met her burden of proof as to her claim that the defendant's conduct was negligent.   As to the defendant's special defense that he was acting in defense of his person at the time of the incident, the court has considered the defendant's actions in light of his perception of the threat of the plaintiff's behavior.   Although the court finds by a preponderance of the evidence that the defendant was acting in self defense, the court also finds that in so acting the defendant used more force than was reasonably necessary to prevent an impending injury, and so finds for the plaintiff on count three of the complaint.

As to defendant's special defense of comparative negligence, the court finds that the defendant has proven by a preponderance of the evidence that plaintiff did not act with reasonable care under all of the circumstances, and accordingly was herself negligent during the altercation.   The court also finds that the plaintiff's negligence was a proximate cause of the plaintiff's injuries.   The court further finds that the negligence of the plaintiff was not greater than the negligence of the defendant, and that the percentage of negligence attributable to the plaintiff is thirty-five percent.

III

DAMAGES

The court finds that the plaintiff suffered both economic and non-economic damages as a proximate result of the defendant's negligence.   The fair, just and reasonable economic damages consist of certain past medical expenses of the plaintiff in the amount of $6,834.73,² and lost wages in the amount of $560.00.   The fair just and reasonable non-economic damages consist of the past pain and suffering experienced by the plaintiff, in the amount of $5,000.00.   The court did not award damages for permanency or future medicals, as the plaintiff did not meet her burden of proof with regard to those requests.   The total damages of $12,394.73 are reduced by the percentage of negligence attributable to the plaintiff (thirty-five percent), to $8,056.58.

IV

CONCLUSION

Judgment shall enter in favor of the plaintiff Kelli Maldon as against the defendant David Plasczynski in the amount of $8,056.58.

BY THE COURT

Gleeson, J.

FOOTNOTES

FN1. The plaintiff did not proceed on counts four and five, which were withdrawn at trial..  FN1. The plaintiff did not proceed on counts four and five, which were withdrawn at trial.

FN2. (1) Bristol Hospital EMS:  $526.54(2) Bristol Hospital ER visit:  $3,012.80(3) Bristol Hospital Physician Billing:  $709.00(4) Radiology Assoc:  $227.00(5) Robert Carangelo, M.D.:  $370.00(6) Hospital of Central CT:  $354.39(7) Grove Hill Medical:  $95.00(8) Orthopedic Surgeons:  $1,540.00Total $6,834.73.  FN2. (1) Bristol Hospital EMS:  $526.54(2) Bristol Hospital ER visit:  $3,012.80(3) Bristol Hospital Physician Billing:  $709.00(4) Radiology Assoc:  $227.00(5) Robert Carangelo, M.D.:  $370.00(6) Hospital of Central CT:  $354.39(7) Grove Hill Medical:  $95.00(8) Orthopedic Surgeons:  $1,540.00Total $6,834.73

Gleeson, Marcia J., J.