Julie Burgess v. Frank Samokar (2016)

MEMORANDUM OF DECISION RE (Hearing in Damages 4/18/2016)

This assault, battery, negligent and intentional infliction of emotional distress action between the plaintiff, Julie Burgess, and the defendant, Frank Somokar, came before the court by writ, summons and complaint returnable to the court on August 25, 2015.  The appearing defendant was defaulted for failure to plead on November 9, 2015.  A hearing in damages was conducted on April 18, 2016.  The plaintiff was represented by Attorney Howard Schiller and the defendant was self-represented.

The court makes the following findings in light of the defendant's default and the plaintiff's uncontroverted testimony.  Julie Burgess is a divorced mother of three who in May 2014 was employed as a teacher of mathematics at Baltic Academy.  On May 8, 2014, the defendant drove the plaintiff to the Mohegan Sun Casino to attend a concert and celebrate the plaintiff's thirty-sixth (36th) birthday.  The defendant consumed alcohol.  During and after the concert, the defendant questioned the plaintiff regarding cell phone messages she received during the evening.  The defendant and plaintiff left the Mohegan Sun Casino and the defendant drove to his residence located at 141 Black Hill Road, Plainfield, Connecticut and arrived at about 11:00 p.m. Contrary to prior practice he pulled the car into the garage rather than letting Ms. Burgess out in the driveway.  At about that time the plaintiff received a cell phone text message from a male friend.  While they were still in the defendant's vehicle, the defendant demanded that the plaintiff tell him who sent her the message, and the plaintiff relayed that the message was a happy birthday wish from a friend.  The defendant interrogated the plaintiff about messages she had received from male friends.  The defendant without provocation struck the plaintiff, hitting her repeatedly in the face and back of her head.  The plaintiff exited the vehicle but the defendant continued to strike her.  After the plaintiff fell to the ground, the defendant also kicked the plaintiff while she was on the ground despite the plaintiff pleading with the defendant for him to stop the attack.

Ms. Burgess did not immediately seek medical treatment.  She believed that there was no available treatment for her concussion and was embarrassed by her physical condition and her status as a victim.  When her symptoms did not abate, she sought medical attention and consulted law enforcement.¹

On May 28, 2014, 20 days after the incident, Ms. Burgess was seen at Day Kimball Hospital.  An x-ray of her facial bones indicated an equivocal non-displaced fracture of the anterior wall of one of the maxillary sinuses.  Subsequent x-ray examination of the orbits of the eye did not disclose the presence of a fracture.

Ms. Burgess was seen by Dr. Isabelita Bella, a neurologist.  Dr. Bella opined that Ms. Burgess had post-concussion syndrome with significant symptoms.

An EMG of the upper extremities was performed on January 7, 2015 at Day Kimball Hospital.  The EMG test showed minimal median neuropathies at the wrist and no definite evidence of superimposed bilateral cervical radiculopathies.  An MRI of the cervical spine performed at Day Kimball Hospital on December 18, 2014 at Dr. Bella's request demonstrated a broad-based disk protrusion at C5–C6. At C6–C7 there was also severe left-sided neural foraminal stenosis and a small posterior left paramedian disk protrusion.  Ms. Burgess was referred by Dr. Bella to neurosurgery.  She saw Dr. Criscuolo on January 15, 2015.  Dr. Criscuolo on examination noted limited range of motion of the neck, positive crepitus, and positive l'Hermitte's and tilt test findings.  Ms. Burgess returned to Dr. Criscuolo's care on January 30, 2015.  He again found bilateral sensory disturbance in the C6 and C7 nerve distributions and weakness in the right biceps and triceps musculature.  The determination was made to proceed with surgical treatment.

Surgery was performed at WW Backus Hospital on February 18, 2015.  The discharge summary indicates that Ms. Burgess was hospitalized for February 18 and February 19, 2015 and discharged with significant activity restrictions pending postsurgical evaluation by Dr. Criscuolo.  Ms. Burgess was seen for her first post-operative visit on March 2, 2015.  Ms. Burgess indicated a desire to return to work and Dr. Criscuolo permitted her to return to work on a half-day basis commencing March 3, 2015.  By February 22, 2016 Dr Criscuolo's impression was that although Ms. Burgess's prognosis is good there is a chance going forward that she could develop adjacent segment disease requiring surgery at a juxtaposed level.  “With regards to her permanency rating, I do believe she has incurred a permanent partial disability to her cervical spine based on her initial injuries, which were related to the assault and battery on May 8, 2014.  The AMA Guidelines Sixth Edition, page 564, table 17–2 cervical spine regional grid spine impairments allows for a class I disability rating with a 25% permanent partial disability specifically referable to the cervical spine-based on the multiplicity of motion segment lesions involving two discs.”

In addition to the appointments with the physicians who treated Ms. Burgess for her physical injuries, Ms. Burgess had 13 visits to the physical therapy department of Day Kimball Hospital between December 4, 2014 and January 15, 2015.  The physical therapy was discontinued when the decision was made that surgery was required.

In addition to the physical injuries Ms. Burgess sustained as a result of Mr. Samokar's assault, she asserts she has suffered significant emotional trauma.  Ms. Burgess has required psychological counseling due to post-traumatic stress disorder.

The court finds Ms. Burgess has suffered physical injury and pain as well as emotional distress.  Dr. Criscuolo has assigned a 25% permanent partial impairment to Ms. Burgess' cervical spine and indicated that future treatment and increased disability may well occur.  Ms. Burgess can no longer engage in many of the sports activities she previously enjoyed and is subject to restriction in her day-to-day activities because of restricted range of motion in her neck as well as lifting restrictions.  Dr. Bella's reports confirm that Ms. Burgess continues to experience mild cognitive impairment secondary to the severe concussion she sustained.  According to Dr. Coyle resulting emotional trauma may continue for years and require ongoing therapy.

Ms. Burgess was out of work totally for two full calendar weeks and two half weeks, effectively losing three weeks' pay at $500 a week a total of $1,500.

Ms. Burgess incurred numerous bills for treatment.  The expenses associated with Ms. Burgess' treatment total $79,089.15, broken down as follows:  $29,162.98 in hospital expenses, $47,049.21 in medical expenses and $2,876.96 in therapy expenses.²  The court awards Ms. Burgess economic damages of $80,589.15.

The court awards Ms. Burgess noneconomic damages of $100,000 for her temporary impairments and for her permanent physical injuries.  A further award of $50,000 for her emotional injuries.  Ms. Burgess is awarded punitive damages as the assault was willful, wanton, reckless, malicious and intentional and represents extreme and outrageous behavior.  Exhibit 13 establishes that plaintiff's attorney is entitled to a fee of one-third of plaintiff's recovery, subject to the limitations of C.G.S. 52–251c.  Upon a Court award of damages of $230,589, an award of attorneys fees will be $78,864 (one-third of $230,589).  An award of punitive damages in that amount reflecting the plaintiff's costs for her attorney is justified by the defendant's conduct.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. Mr. Samokar was convicted of Assault 3rd and two other misdemeanors relating to his behavior and was sentenced to 1 Year, execution suspended after 30 Days, and two years of probation..  FN1. Mr. Samokar was convicted of Assault 3rd and two other misdemeanors relating to his behavior and was sentenced to 1 Year, execution suspended after 30 Days, and two years of probation.

FN2. As the medical expenses were covered by medical insurance provided through the State of Connecticut, there is an obligation to reimburse those costs.  No collateral source reduction applies..  FN2. As the medical expenses were covered by medical insurance provided through the State of Connecticut, there is an obligation to reimburse those costs.  No collateral source reduction applies.

Calmar, Harry E., J.