Luis Lozada v. Wayne Perry (2016)

MEMORANDUM OF DECISION

BACKGROUND

This vigorously contested matter arises out of a dispute between two neighbors who shared a history of bad relations involving, among other things, their dogs.  The plaintiff, Luis Lozada, brought his complaint dated September 23, 2014, claiming he was a victim of an intentional assault and battery at the hand of the defendant, Wayne Perry, suffering extensive injuries.  The plaintiff further alleges that the assault of the defendant demonstrated a malicious and wanton indifference to his right to be free from physical abuse.  In his complaint the plaintiff seeks both compensatory and punitive damages.  The defendant filed an Answer, Special Defense and Counterclaim alleging that he was assaulted by the plaintiff and suffered emotional distress.  A trial was had to the court at New London on December 15, 2015, where the plaintiff was represented by counsel and the defendant was pro se.  Both parties presented witnesses and exhibits were introduced including medical records and photographs.  Both parties submitted post-trial briefs expressing their respective views.

FACTS

From the evidence produced at the trial, including reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following facts are found.

The plaintiff and defendant were neighbors with a fence between their adjoining properties.  On October 22, 2013, a dispute developed between the parties partly involving dogs running up and down along the fence.  Both parties were raising their voices and moving towards the street where the fence ended and there were openings to the street.  The defendant's wife and son joined in the activities.  The witnesses for each party differed in their recollections of what happened next, leaving the court to evaluate their credibility.  The plaintiff's wife's testimony is found to have been most credible.  The defendant pushed the plaintiff.  The defendant said “go ahead, hit me.”  The plaintiff instead asked the defendant to go home, but he did not.  Without warning or provocation, the defendant struck the plaintiff with his right hand on the left side of his head.  The plaintiff fell back, knocked out cold and hit his head on the ground in the street in front of the property of the parties.  The plaintiff did not provoke the defendant.  Testimony by others to the contrary was not credited by the court.  The plaintiff was immediately bleeding from his head onto the ground.  There was a call to 911.  The plaintiff was taken by ambulance to Lawrence and Memorial Hospital and from there by lifestar helicopter to Yale New Haven Hospital.  There are extensive exhibits relating to the plaintiff's injuries caused by the punch from the defendant.  (Pl's Exh 1.) The transport physician reported an “open skull fracture” with “epidural hematoma.”  At Yale New Haven the records show, among other things, the plaintiff “exhibited severe post-concussive symptoms with hyperemesis and uncontrollable nausea.”  He sustained a nasal bone fracture.  The plaintiff endured pain and was medicated during his hospitalization.  Plaintiff was discharged on October 26, 2013.  The hospital discharge report indicates the diagnosis as skull fracture, subarachnoid hemorrhage and epidural hematoma.  At home, after the hospitalization, the plaintiff was visited by the Visiting nurse whose report on November 12, 2013, indicated the plaintiff suffered from various problems at home including balance problems while walking, sleep problems, nausea/vomiting, headaches, personality changes and hearing loss.  Most of those problems were resolved, some with medication.

The plaintiff incurred total medical expenses as a result of having been assaulted by the defendant totaling $89,010.68.  (Pl's Exh 2.)

The defendant has alleged that he acted in self defense.  The testimony with regard to that claim is not credited by the court.  The defendant offered no evidence of an attempt to retreat or avoid injury without violence.  The defendant offered no credible evidence as to any injury or damages suffered by him as a result of the claimed altercation.  The court finds the defendant did not sustain his burden of proof with respect to the claim of self-defense.

The court concludes that the plaintiff has sustained his burden of proof on his complaint, by a preponderance of the evidence, that the defendant committed an intentional assault and battery upon him on October 22, 2013, as a result of which the plaintiff has suffered economic and non-economic damages.  The plaintiff has not, however, sustained the burden of proof as to the claim of wanton and malicious indifference.

The defendant in a Counterclaim alleges in the first count that the plaintiff “intentionally committed several assaults and batteries” on the defendant.  He alleges that he suffered damages from the same.  In a second count the defendant's counterclaim alleges he suffered emotional distress and mental anguish as a result of the plaintiff's conduct.  First it should be noted that the defendant did not testify with respect to these claims.  The witnesses he did call did not offer any credible evidence about any injury or damage suffered by the defendant as a result of the plaintiff's conduct.  Nor does the court find such evidence from any of the other evidence produced at trial.  Also, the defendant has not briefed any claims in that regard.  The court finds for the plaintiff against the defendant on the defendant's counterclaim.

CONCLUSION

Judgment is entered for the plaintiff, Louis Lozada, against the defendant, Wayne Perry, and awards damages on the complaint to the plaintiff in the amount of $140,000.00.  Together with allowable costs.  No punitive damages are awarded.

Robert C. Leuba, JTR

Leuba, Robert C., J.T.R.