Opinion
No. CV00-0440418S
June 16, 2004
MEMORANDUM OF DECISION AS TO SUIT BROUGHT UNDER § 10-236a OF THE GENERAL STATUTES
In this case the plaintiff was injured inside the premises of the defendant school when a student jumped on his back. For his injuries he received compensation under the Workers' Compensation Act, § 31-275 et seq. and he has now brought a civil statutory action pursuant to § 10-236a of the General Statutes for a recovery beyond that provided for in the compensation act.
The plaintiff has brought this action pursuant to the just mentioned statute which is entitled "Indemnification of education personnel assaulted in the line of duty." Subsection (a) of § 10-236a recites as follows:
Sec. 10-236a. Indemnification of education personnel assaulted in the line of duty. (a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the State Board of Education, the Board of Governors of Higher Education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10-183b, shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including payment of expenses reasonably incurred for medical or other service necessary as a result of an assault upon such teacher or other employee while such person was acting in the discharge of his or her duties within the scope of his employment or under the direction of such board of education, Board of Governors of Higher Education, board of trustees, state agency, department or managing board, which expenses are not paid by the individual teacher's or employee's insurance, workers' compensation or any other source not involving an expenditure by such teacher or employee.
(a)
The question which will determine the outcome of this case is the definition of the word "assault" in § 10-236a. There is no appellate case law that interprets the word and both sides agree that the legislative history is of no direct help so this court must try to interpret the meaning of the word "assault" as used in the statute.
State v. Courchesne, 262 Conn. 537 (2003), rejected the so-called "plain meaning rule" of statutory interpretation which it described in the following language:
The plain meaning rule means that in a certain category of cases — namely, those in which the court first determines that the language at issue is plain and unambiguous — the court is precluded as a matter of law from going beyond the text of that language to consider any extratextual evidence of the meaning of that language, no matter how persuasive that evidence might be. Indeed, the rule even precludes reference to that evidence where that evidence, if consulted, would support or confirm that plain meaning. Furthermore, inherent in the plain meaning rule is the admonition that the courts are to seek the objective meaning of the language used by the legislature "not in what [the legislature] meant to say, but in [the meaning of] what it did say." . . . Another inherent part of the plain meaning rule is the exception that the plain and unambiguous meaning is not to be applied if it would produce an unworkable or absurd result . . .
Thus, the plain meaning rule, at least as most commonly articulated in our jurisprudence, may be restated as follows: If the language of the statute is plain and unambiguous, and if the result yielded by that plain and unambiguous meaning is not absurd or unworkable, the court must not interpret the language (i.e., there is no room for construction); instead, the court's sole task is to apply that language literally to the facts of the case, and it is precluded as a matter of law from consulting any extratextual sources regarding the meaning of the language at issue. Furthermore, in deciding whether the language is plain and unambiguous, the court is confined to what may be regarded as the objective meaning of the language used by the legislature, and may not inquire into what the legislature may have intended the language to mean — that is, it may not inquire into the purpose or purposes for which the legislature used the language. Finally, the plain meaning rule sets forth a set of thresholds of ambiguity or uncertainty, and the court must surmount each of those thresholds in order to consult additional sources of meaning of the language of the statute. Thus, whatever may lie beyond any of those thresholds may in any given case be barred from consideration by the court, irrespective of its ultimate usefulness in ascertaining the meaning of the statutory language at issue.
Id. pp. 568-69.
It adopted in its stead the so-called Bender formulation as set forth originally in Bender v. Bender, 258 Conn. 733, 741 (2001). The court quoted from that case at 262 Conn. page 562, footnote 20 to the following effect:
For purposes of both clarity and emphasis, we repeat here the Bender formulation: 'The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to those words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . .
The court however made the following qualification to the application of the rule or perhaps better put set forth a predicate factor to the application of the Bender formulation. At 262 Conn. pp. 577-78, the court said the following:
This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning, that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.
In any event the response of the legislature to Courchesne's abandonment of the plain meaning rule was quite swift. It passed Public Act 03-154 which apparently seeks to restore that rule as a guide to court analysis of statutes. It says that:
[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
There has been no appellate interpretation of this language and of the interplay between the public act and Courchesne. The question presented to a trial court is given all these circumstances, what is the most reasonable interpretation of the language of § 10-236a; what does the word "assault" mean.
Because of the public act, as a starting point we can posit that the plain meaning rule or some legislative variant of it is back in effect but it also should be appreciated that, as noted, even under Courchesne the concept of "plain meaning" has viability as a predicate to the application of the Bender formulation. Excusing the redundancy, what does the phrase "plain meaning" actually mean? Or to approach the problem of the meaning of a statute from another perspective, should we not be concerned with the audience a statute is directed at, whose lives or interests does it try to affect, and is it not a worthwhile goal that our statutory scheme and decisions interpreting it should give the people a clear idea of what statutes mean? A discussion cannot become so abstract that these considerations are forgotten.
Black's Law Dictionary (7th ed.) defines "plain meaning" as follows:
Plain meaning. The meaning attributed to a document (usu. by a court) based on a common sense reading of the words giving them their ordinary sense and without reference to extrinsic indications of the author's intent — Also termed ordinary meanings . . .
For quite a period of time we have had a statute regarding "words and phrases" now at § 1-1 of the General Statutes (formerly General Statutes § 8890) which says:
(a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.
("Assault" is hardly a technical word; emphasis by court.)
Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 522 (1957), cited the predecessor statute and quoted language from an earlier case to the effect that "'the words of a legislative enactment . . . are to be interpreted in their natural and usual meaning unless the context indicates that a different meaning was intended.' State Ex Rel Higgins v. Civil Service Commission, 139 Conn. 102, 114 . . ." The court then proceeded to look to the dictionary to find the "usual meaning" of the words in the statute before it. Language in 82 C.J.S. "Statutes" at § 321, page 419 is also informative: "Words generally do not acquire a peculiar and different meaning when used in a statute. Thus words in a statute normally must be given their usual, natural, plain, ordinary, and commonly understood meaning in the absence of any indication to the contrary. Strict grammatical usage will not necessarily control over the general and popular usage of words." Also, see generally Statutes and Statutory Construction, Singer (5th ed) 47.28 pp. 344 et seq.
Why is all of this important? In gender usage common to an earlier generation Justice Frankfurter importantly noted that:
Legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him. Addison v. Holly Hill Fruit Products Inc., 322 U.S. 607, 618 (1944) (emphasis by this court).
An Idaho case said to the same effect that:
Laws are enacted to be read and observed by the people and in order to reach a reasonable and sensible construction thereof, words that are in common use among the people should be given the same meaning in the statute as they have among the great mass of the people who are expected to obey and uphold them.
City of Lewiston v. Matthewson, 303 P.2d 680, 684 (Id., 1956).
Singer refers to these cases to support the following proposition at § 47.28, page 357. "Despite the frequency with which court opinions adopting common meanings speak about legislative intent, decisions favoring common meanings reflect less concern for legislative intent than for meanings conveyed to others by the statutory texts." (Emphasis by this court.)
Where then do we turn to find the usual, plain, natural or ordinary meaning? As noted in Singer at § 47.28, page 353, "It is not unusual to find cases which indicate that approved usage of words can be established by the definition of a recognized dictionary." He cites Ziperstein v. Tax Commissioner, 178 Conn. 493, 498 (1979), also see Southern New England Telephone Co., at 144 Conn. page 522.
For the purpose of defining the word "assault" the court used the definitions in three standard dictionaries.
Random House Dictionary of the English Language:
assault . . . N. 1: A violent attack; onslaught. 2: Mil. The stage of close combat in an attack. 3: Law. An unlawful physical attack upon another; and attempt or offer to do violence to another, with or without battery, as by holding a stone or club in a threatening manner. 4: Rape.American Heritage Dictionary of the English Language:
N. 1: a violent attack, either physical or verbal. 2: Military. a: an attack upon a fortified area or place. b: the concluding stage of an attack in which there is close combat with the enemy. 3: Law. An unlawful attempt or threat to injure another physically. 4: Rape.
Webster's Third New International Dictionary
1: a violent attack with physical means (as blows or weapons): as 2: a military charge or onslaught esp. against a walled or defended position b: the phase of an attack in which the attacker moves forward and by means of close combat seeks to eliminate enemy resistance and establish control of the objective c: a part of an offensive action in which close firing develops or may be expected to develop an . . . on beaches . . . troops . . . guns 2: a violent attack with nonphysical weapons (as words, arguments, or appeals) an . . . on his character 3 a: an apparently violent attempt or a willful offer with force or violence to do hurt to another without the actual doing of the hurt threatened (as by lifting the fist or a cane in a threatening manner) — compare ASSAULT AND BATTERY, BATTERY 2b(2) b: RAPE: indecent attack or overture forcibly effected 4: a bout with foils, broadswords, or similar weapons.
The common meaning of the word as reflected in these dictionary definitions and the ordinary understanding of people using our language is that an assault is an intentionally violent and hostile attack on another person.
The foregoing definitions are remarkably similar and convey the same meaning of the word "assault" in common English usage.
But referring to a traditional plain meaning rule case, State v. Cain, 223 Conn. 731, 245 (1992), let us even assume that the word "assault" as used in § 10-236 is not "so absolutely clear that further interpretation is unnecessary," and in any event cases have held that the meaning of a word is not to be determined solely by relying on a dictionary; "we consider the entire paragraph of a statute, the mischief it was designed to remedy, and the policy underlying it." Verrastro v. Siverstein, 188 Conn. 213, 221 (1982). In State v. Magnano, 204 Conn. 259, 273-74 n. 8 (1987), the court said it looked to testimony before legislative committees to ascertain legislative intent and "this is fully consistent with the general principle of statutory construction that we look, in part, to the problem or issue that the legislature sought to resolve, and the purpose it sought to serve in enacting a criminal statute," see State v. Ledbetter, 240 Conn. 317, 337 (1997).
Sophie Banasik who is a representative of the Connecticut Federation of Teachers supported the bill which later was enacted into § 10-236a. She testified before the Education Committee of the legislature and said:
I would like to support bill 2086 which is the protection of teachers in cases of assault. In view of the growing disrespect permissiveness, rebellion, lawlessness, threats, assault and battery of teachers, I think that it is imperative that the Legislature protect teachers. I would like to point out that in New Britain on the very first day of school years ago there was a fight that was broken up by a teacher, two teachers who then were sued by the parents, fortunately the judge ruled in favor of the teachers.
But I don't think the teacher should have to be subjected to assault anymore than any other citizen should have to be subjected to assault. I think it is pretty bad that our youngsters today are growing up unaware of the need for obedience and respect for law and order and I know that in the Legislature there is a bill that has been submitted that would require that boys and girls be taught this. And I certainly hope that when this comes up it will pass. I think we need it.
This concern is consistent with the common meaning of the word "assault" as expressed in the dictionary definition of the word as referenced by the court and in accordance with, what is fair to say is the common understanding of the English speaking peoples?
In interpreting a statute such as § 10-236a, it should also be kept in mind that it operates in tandem with the Workers' Compensation statute, § 31-275 et seq. The worker does not have to prove fault on the part of the employer to collect compensation and in return the employer has an obligation to pay according to a fixed schedule. Both sides give up something. If expansive readings are given to exceptions to the operation of the act, the bargain employers thought they were getting in exchange for the no-fault aspect of the act is seriously compromised. Here, for example, the plaintiff has already received workers' compensation; now under § 10-236a he is attempting to recover very much more than the benefits he was and would be entitled to receive under the act.
What is the plaintiff's alternative to the common meaning definition of "assault" in § 10-236a? In a very thorough brief the plaintiff first argues, without any support for the proposition advanced, that "the legislature most probably did not intend to use the word 'assault' in its strictest, most limiting definition. 'Assault' technically represents the interest in freedom from apprehension of a harmful or offensive, contact, as distinguished from the contact itself. 'Assault' and 'battery' have become inadvertently synonymous." Interestingly there is a recognition in this argument that there is a recognizable "definition" of assault which the plaintiff appears to recognize comports with the definition of a hostile, violent attack meant to be such. What may be a "restrictive" interpretation of the words for purposes of plaintiffs' litigation under the act would certainly seem to be the only ambit of protection someone like Ms. Banasik from the Connecticut Federation of Teachers had in mind when she spoke in favor of the bill before the Education Committee.
The plaintiff then makes an argument that there is no intent requirement for civil assault in our state. He quotes a federal district court case applying Connecticut law to the effect that under our law ". . . assault, an unlawful application of force or violence to the person of another, need not be intentional," Jonelis v. Russo, 863 F. Sup. 84, 88 (D.Conn., 1994); there can be such a thing as a "negligent assault," Chouinard v. Marjani, 21 Conn. App. 572, 580 (1990), cf. Sansone v. Bechtel, 180 Conn. 96, 99 (1980).
The plaintiff goes on to argue that Connecticut recognizes numerous types of criminal assaults in its penal code. It is argued that "these criminal statutes have descending levels of intent required ranging from actual intent to no intent (C.G.S. § 53a-60d and § 53a-61a(1), (2) and (3), for example). If the defendant argues that C.G.S. § 10-236a should be interpreted to only include criminal assault, which criminal statute would trigger it and why?" This last observation, for the court at least, presents the difficulty with the whole of plaintiff's argument. To determine the meaning of "assault" let alone the common meaning or ordinary usage of the word in this 1973 civil statute, why would one turn to the criminal assault statutes in the 1969 penal code. Section 10-236a was not passed with any ascertainable reference to these statutes and the particular policies behind them nor could there be any reason for it to incorporate notions of intent or lack thereof in the general law of common-law civil assault. What the plaintiff's argument comes down to is the statement he makes that an "objective view of the statutory language requires that 'assault' in C.G.S. § 10-236a be interpreted to mean exactly what the term express: that is, all forms of assault recognized in Connecticut."
This position raises some interesting problems hypothetically. What if the legislature wished to amend the penal code to remove certain crimes which did not involve intentional assault, what if the Appellate Courts were asked to review civil assault law and prior holdings regarding negligent assault and its continued viability? Should they be at all constrained by a realization that their actions could limit the ambit of § 10-236a? Would the ambit be so limited? The answer is of course no, and to ask these silly questions only underlines the point that in initially passing § 10-236a in 1973 there would be no rational reason to take into account all the civil and criminal statute definitions of "assault."
The definition of "assault" the plaintiff advocates forgets the audience the statute was aimed at — school administrators trying to meet budgets and run their schools and teachers concerned with their rights above and beyond workers' compensation. The word "assault" would have a common meaning for them as the word is ordinarily used — they would not be expected to reference civil case law and the entire penal code to find out how § 10-236a applies to them.
Furthermore, although such an observation may violate the post- Courchesne public act and the court thus does not base its decision on this observation the effect of legislation on the actions of those affected must be kept in mind. In other words if the strict definition of assault suggested by common usage of that word and ordinary meaning controls § 10-236a the schools would be expected to and the legislature might have thought it would be desirable for school districts to take certain steps to control violence prone students — special classes, identifying problem children, counseling, hallway monitoring, home tutoring etc. School districts could take a variety of steps to limit their exposure under this worthwhile act. If the broad definition of "assault" suggested by the plaintiff is adopted the only way school districts could protect themselves is by having schools become highly regimented places — negligent assault, would that include injury to a teacher by a twelve-year-old rambunctiously running down a hallway and bumping into him or her, how about the teacher walking through a merry game of tag during recess?
For all of the foregoing reasons the court concludes as previously indicated that an "assault" under § 10-236a means an intentionally violent and hostile attack on another person. The question then presented is whether based on the evidence in this case that definition has been met by the plaintiff so that an action may lie under § 10-236a of the General Statutes.
(b)
This is an unfortunate case where it appears Mr. Patrie suffered fairly serious injuries which will cause limitations and difficulties for the rest of his life. In the court's opinion this is the type of situation that raises real questions about the adequacy of benefits under the Workers' Compensation Act. The solution, however, is to amend the act to provide for increased benefits not to broaden common-law and statutory exceptions to its operation so as to violate the purposes for which the compensation act was passed in the first place.
The court concludes that, given the definition of "assault" in § 10-236a that it adopts, the plaintiff has not met by burden of proving that he is entitled to a recovery under that statute. As previously stated the court is convinced this statute was not meant to apply to injuries, no matter how serious or unjustified, that were the result of juvenile rambunctiousness or playfulness that has gone too far. Interestingly enough Mr. Patrie himself seemed to have a sense of the distinction between such activity and an assault or violent attack which, in the court's view, would allow coverage under § 10-236a. His testimony was that two youths were fooling around, yelling, bumping into each other around the periphery of a class room. At the date of the incident on January 16, 1996 he was a teacher's assistant driver and told the youngsters to stop their behavior. He said he then went looking for a teacher when he was blind sided, one of the youths jumped on his back, put his arms around Patrie's neck and asked for a piggyback ride. Later in his testimony he embellished the incident on cross examination.
Q. You also said that the student, Student C, when he said this about the piggyback, he kind of whispered in your ear, true?
A. Hissed it, yes.
Q. I'm sorry?
A. He hissed it.
Q. But the volume was low, it was kind of a whisper true?
A. It was more of a gritty kind of give me a piggyback ride, Patrie. It was menacing.
He also testified the youngster who jumped on his back was taller and stronger than the other student, he was a "man child" about six feet tall. However, Dr. Slalom who is currently the executive director of ACES (the defendant) and in 1996 was the deputy director testified he knew the student who jumped on the plaintiff well and in 1996 "he was kind of a scrawny adolescent" of about 5'4" in height.
The most damaging testimony for the plaintiff's cause came, however, from Maude Robarge. In 1996 and currently she worked as a teacher's assistant driver at ACES. She struck the court as an honest, straightforward witness. She had dated the plaintiff for seven years from 1994 to 2001. They never really broke up but started seeing each other less frequently; she did not want to commit to a long-term relationship. They still kept in touch with each other periodically and she had a good relationship with the Patrie family — she had sent the plaintiff's mother a card shortly before the trial. The court noted and put on the record that after she had finished testifying and exited the courtroom the court could observe through the windows giving a view to the hall that Mr. Patrie's father gave her a friendly embrace. The court will quote at length from her testimony. She said in the afternoon or night of the incident Patrie called her; the following then occurred:
Q. What did Mr. Patrie tell you about the incident?
A. He told me that a student, Student C, had jumped on his back playfully — it seemed playfully — as he was going down the hallway. I wasn't there. So this is what I had heard.
Q. But Mr. Patrie said to you that he portrayed it as a playful incident?
A. At that point. Um-hum.
Q. Did he portray it to you at that point, in any way, as an assault or an attack?
A. Not at that point.
Q. All right. Did there come a time when Mr. Patrie's portrayal of the incident changed in any way?
A. Yes.
Q. How so?
A. It became an assault very shortly afterwards. He felt that he had been assaulted.
Q. All right. So he later on started portraying it as an assault? CT Page 9411
A. Yes.
Q. And did he portray it as an assault in any particular context for you?
A. Um — Well, he had found out some information, I think, that would — had made him think it was an assault —
. . .
A. Um — His — I believe his father had given — had looked up some information to find out about a new statute, or a statute in Connecticut that if a student had been attacked by — if a person had been attacked by a student, then the town the student was from was responsible for expenses for the rest of life for the person.
Q. And was it your understanding that Mr. Patrie's father was looking into that statute for Mr. Patrie?
A. Oh, yes.
Q. You know Mr. Patrie's father?
A. Yes.
Q. Do you see him here in the courtroom today?
A. Yes.
Q. Is he the gentleman in the gallery behind us?
A. Yes.
. . .
Q. Did he say anything to you that indicated an interest in that statute that he had mentioned?
A. Yes.
Q. And what kind of things did he say to you?
A. That if it was won, that he would be in for a lot of money.
Q. I take it you know that Mr. Patrie had been a behavior technician at one point?
A. Yes.
Q. And am I correct he then later became a — a teacher's aide — a teacher's assistant driver like you are?
A. Right. Yes. Yes.
Q. How would you characterize Mr. Patrie's general relationship with the students?
A. He got along very well with the students.
Q. Were you ever familiar with Mr. Patrie kind of fooling around with students, or kidding with them at all?
A. He kidded around with them a lot, and the kids also kidded around with him.
It is difficult to dismiss this witness' testimony on the basis that like other witnesses for the defendant she is an employee or had had a long employment relationship with ACES. She testified in a very straightforward manner and had a long relationship with Patrie and his family and still maintains some contact with them.
Also Ms. Robarge's testimony is corroborated by the testimony of other witnesses. Janice Saunders is, and at the time of the incident was, an administrative assistant in the human resources office. She said she spoke to Mr. Patrie shortly after the January 18, 1996 incident and Patrie said: "that Student C jumped on his back. They were fooling around." It was not clear whether Mr. Patrie meant he was fooling around with a student or students at the time of the incident but he used the word "they" — from the evidence Patrie could have been referring to two students who were boisterous, one of whom jumped on his back. He did not mention another student being involved but in response to a question as to whether Saunders remembered Patrie saying "fooling around was involved," Saunders responded "Yes."
Barbara Walsh was the principal in 1996. She spoke to Patrie on January 19th about the incident asking whether Mr. Patrie had filed a behavioral report, the meaning of which the court will discuss later. Otherwise her characterization of how Patrie described the incident and the intent and behavior of the youngster who jumped on him is reflective of what Ms. Robarge testified to at trial.
A . . . Dean had said to me on the 19th that this was a student that he often fooled around with, horse played with and that the student did not mean to do that.
She was questioned if she disciplined Mr. Patrie for that kind of behavior with a student and said:
A. I certainly questioned Mr. Patrie that I had not seen a behavioral report. That was my first statement to Dean after I asked him how he was feeling. I said I had not seen a behavior report. And that led Mr. Patrie responding to me saying "Oh, it wasn't the student's fault. We often fooled around and Horseplayed, and 'X' student, you know, didn't mean it."
Joan Tenedine is employed as a nurse at ACES and said Patrie spoke to her the day after the incident. During her testimony the following occurred, counsel for the defendant asked:
Q. Did Mr. Patrie present this incident to you in a way as being like an attack or an assault by the student?
A. Never.
Sheila Nesdale is a special education teacher at ACES and she testified that she spoke to Mr. Patrie in January 1996 about the incident. Patrie said Student C jumped on his back but Nesdale said Patrie said nothing to her to indicate "that this was an attack by Student C in any way" or that "Student C had assaulted him in any way." She denied any memory that Patrie brought the student to her office for discipline or asked that the student be disciplined. She also testified that she did not tell Patrie to file a behavioral incident report. This contradicted Patrie's testimony that she would take care of disciplining the youngster. Peter Kimmerlin was an art teacher in January 1996 and Cornelia Mislick was a special education teacher. They are still employed by ACES. Kimmerlin denied being aware of the incident as it was going on and both denied that Patrie spoke to them about the incident shortly after it happened as he testified.
Actions of Patrie subsequent to the incident also corroborate Robarge's version of what Patrie told her at first regarding the absence of an assault, and the testimony of other ACES witnesses to the same effect. When an incident occurs between a staff member and a student, an incident report is filed with the nursing department and a behavioral report is prepared usually by the staff person if it is the type of occurrence that might require disciplinary action. Mr. Patrie knew of these procedures. The incident report contains his description of what happened and is hardly consistent with a violent attack or assault. He said, "I had my back to a student and was unprepared when he jumped on me as if to get a 'piggyback.'" Patrie said he had written out another incident report but was told by the nurse it was too wordy so that the report finally submitted and in evidence, by implication, did not present a full picture of what happened. Nurse Tenedine quite emphatically denies Patrie's testimony on this point. Patrie never retained a copy of the first report he said he filled out and interestingly there was no description of what that report said beyond what was set forth in the court exhibit. He also said he filed a behavioral report of which he kept no copy but several ACES witnesses denied having any knowledge of such a report. Again there was no testimony from Patrie as to what this report said about the incident. If he in fact did not prepare and file a behavioral report, it could be deduced that no violent attack or assault happened here.
There could be quite an innocent explanation for the contradictions between Patrie's testimony and that of Robarge and other ACES witnesses. Upon cross examination Patrie denied having a memory problem but when confronted with claims made in separate litigation admitted he did and in fact carried a notebook or calendar around with him apparently to record things. Also in fairness to the plaintiff, however, the court has no clear understanding of the extent of the memory problem and thus cannot say it was of such a nature that Patrie's trial testimony must have been a fabrication to support his claim rather than a true memory of what actually happened.
Somewhat more disturbing was the fact that shortly before trial Patrie contacted Robarge and gave presents to her pets and told her he needed her support and toughness to get him through the trial. At that time Patrie would of course have known that Robarge knew he had changed his version of the incident from a playful episode to an attack or assault. But it is not clear to the court that Patrie understood Robarge was going to testify and there was never any explicit encouragement by him to support his version of the incident as an attack.
In any event based on the foregoing factual discussion in light of the definition it gives to "assault" as used in § 10-236a the court concludes the plaintiff did not meet his burden of establishing that § 10-236a should apply and judgment should enter for the defendant.
The plaintiff also raised the issue that the so-called "horseplay" defense was not raised by ACES in the Workers' Compensation proceeding — this to suggest that ACES really never thought horseplay was the reason for the incident but that an actual assault occurred. Connecticut has recognized this defense for employers. Mascika v. Conn. Tool Engineering Co., 109 Conn. 473, 477 (1929); DiLauro v. Bassetti, 133 Conn. 642, 645 (1947); Shedlock v. Cudahy Packing Co., 134 Conn. 672, 676 (1948); see generally, 82 Am.Jur.2d "Workers' Compensation," §§ 341, 342, pp. 319-20. The "horseplay" evidence is somewhat confusing in this case. Either the incident occurred as a result of the plaintiff engaging in horseplay or fooling around just prior to the injury or in the past the plaintiff had engaged in fooling around and the student who jumped on the plaintiff in light of that play history jumped on the plaintiff for a piggyback ride and not with the animus of a violent attack. In any event the "horseplay" defense cannot be used in the workers' compensation context if the employer knew of the fooling around, employee wrestling or play resulting in injury and tolerated it. Shedock, 134 Conn. at 677; cf. Stulginsky v. Waterbury Rolling Mills Co., 124 Conn. 355, 361 (1938); § 342 of Am.Jur. Article. Also where a group of boys were employees, compensation was upheld where boys being boys in playing injured a claimant fellow employee who at the time was a "passive actor." Masaka, 109 Conn. at page 481. Thus, if the incident happened after the horseplay had terminated or the student acted as he did because he had fooled with Patrie in the past query whether the defense could even be resorted to. Furthermore, in the school setting some playful interaction between students and people in Patrie's position should be expected and even if Patrie had participated in horseplay prior to the incident where the ensuing actions of the student exceeded what would normally be expected as simple horseplay, can it really be said that in the school context the injury did not arise from the employment? — the reason for excluding coverage for horseplay injuries in the first place. That observation would seem to comport with a witness called by the plaintiff, Robert Macdonald, Jr. who handled Patrie's workers' compensation claim and who works for the Connecticut Health Care Workers' Compensation Trust.
In any event perhaps ACES made a mistake when it did not raise this defense to compensation. In light of the evidence which the court concludes does not support a finding of "assault" under § 10-236c that is as likely an explanation as the one that posits failure to raise the defense shows ACES did not believe the defense applied.
Corradino, J.