Opinion
CV-03-0826845 S
November 17, 2003
MEMORANDUM OF DECISION
This matter came before the court at the hearing in damages trial list on November 10, 2003. The court finds that the plaintiff has not sustained her burden of proof as to the damages which she seeks. The court awards nominal damages.
I BACKGROUND
By complaint dated June 19, 2003, the plaintiff, Dennise Rodriguez, seeks damages from the defendant, Stage East, LLC ("Stage East"), for claimed personal injuries, allegedly sustained in an incident which occurred when an unnamed agent, servant or employed of Stage East grabbed her by the wrist and dragged her to the exit of Stage East's drinking and entertainment establishment. Rodriguez claims that at about 11:00 p.m. on March 21, 2003, she was a business invitee of Stage East, at its premises located at 1022 Main Street in East Hartford, Connecticut, and that she was present there, standing in front of the stage, to listen to live entertainment. She alleges that Stage East employs various individuals as bouncers, and, on that date, without warning, she was suddenly grabbed "by the right wrist and dragged . . . violently across the floor and up three or four stairs to the exit door." See Complaint, first count, ¶ 8. She claims also that the unnamed individual violently shook her hand, causing her cigarette to fall to the sidewalk or ground. See Complaint first count, ¶ 10. She asserts that the unnamed individual committed a negligent battery against her. See Complaint, first count, ¶ 11.
As a result of Stage East's acts, Rodriguez claims that she has sustained injuries, some of which may be permanent in nature, including sprains/strains to her lumbar, cervical, and thoracic areas and to her right knee and right ankle. In addition, she claims an "L3-4 central disc herniation" and headaches. See Complaint, first count, ¶ 12. She also claims that she has incurred expenses for medical treatment, medications, physical therapy, and diagnostic testing. See Complaint, first count, ¶ 14.
In her second count, Rodriguez incorporates by reference the factual allegations set forth in the first count and alleges that Stage East is liable for intentional battery. In the third and fourth counts, respectively, she alleges that Stage East is liable for negligent hiring and supervision and wanton and reckless misconduct. In her complaint, she seeks compensatory damages, punitive damages, and attorneys fees.
By motion dated August 6, 2003 (#101.10), which was granted by the court on August 26, 2003, Stage East was defaulted for failure to file an appearance in accordance with the Practice Book. See Practice Book § 17-20.
II STANDARD OF REVIEW
"Upon default, the plaintiff ordinarily becomes entitled to recover nominal damages. The right to further substantial damages remains to be established by the plaintiff at a hearing in damages." (Citations omitted.) Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982). "[The] entry of default, when appropriately made, conclusively determines the liability of a defendant . . . In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive." (Internal quotation marks omitted and citation omitted.) Murray v. Taylor, 65 Conn. App. 300, 334-35, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).
"It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible . . ." (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002). "It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . ., including expert testimony, and can construe such evidence in a manner different from the parties' assertions." State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996).
"The award of nominal damages is appropriate when there is a clear invasion of a legal right, . . . but no finding of a compensable injury." Lyons v. Nichols, 63 Conn. App. 761, 769, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). See Riccio v. Abate, 176 Conn. 415, 417-20, 407 A.2d 1005 (1979) (in action to recover damages for personal injuries, defendants found to be liable on summary judgment; thereafter, as to damages, jury returned a verdict for the defendants).
III DISCUSSION
"In order to recover damages, a plaintiff must establish a causal relationship between the injury and the physical condition which he claims resulted from it . . . The connection must depend upon more than surmise and conjecture, because the trier of fact is concerned only with reasonable probabilities." (Internal quotation marks omitted and citations omitted.) Wilson v. R.F.K. Corp., 19 Conn. App. 548, 550-51, 563 A.2d 738 (1989). Here, the plaintiff has not sustained her burden to establish that the conditions of which she complains are causally related to the incident at Stage East.
Before the court, Rodriguez offered vague testimony concerning her claimed injuries and treatment. She referred to treatment she received from a physician, Dr. Chagnon of Hartford Physical Medicine, and a chiropractor, Dr. Carrano of Wagner Chiropractic Center. She testified that she continues to have pain in her back and leg, and headaches, that she cannot walk well, and that her condition has limited her activities.
No other witness testified. In addition to her own testimony, Rodriguez offered medical records and bills. See Plaintiff's Exhibit I. She seeks an award of $4,566.00 in economic damages. Her attorney argued also that an award of $25,000.00 in noneconomic damages was appropriate, based on her pain and suffering and permanent impairment.
There is no reference in Rodriguez's medical records to the incident at Stage East. Dr. Carrano's final examination report of September 8, 2003, at page one, states that Rodriguez attributed her injuries to a slip and fall accident, not, as alleged in the complaint, to being grabbed and dragged. The report states that she "consulted my office on March 26, 2003 for initial examination and treatment. The patient stated she was injured as the result of a slip and fall that occurred on March 21, 2003. The patient reported following the accident she sought care at the emergency room of St. Francis Hospital." See Plaintiff's Exhibit 1. No records from St. Francis Hospital were presented in evidence.
As noted before the court, Dr. Carrano's report also states that Rodriguez was involved in a prior motor vehicle accident on July 8, 2002, in which she "sustained a 7% permanent partial impairment of lumbosacral spine . . ." See Plaintiff's Exhibit 1, report of September 8, 2003, p. 1. Dr. Carrano assigned a 10% loss to the lumbar spine, which took into account her previous 7% impairment. He opined that her condition "was directly caused by the slip and fall accident Ms. Rodriguez was involved in on March 21, 2003." See Plaintiff's Exhibit 1, report of September 8, 2003, p. 2.
As part of her evidence, Rodriguez also presented a bill from Hartford Physical Medicine, for the total amount of $1,030.00. See Plaintiff's Exhibit 1. This bill refers to five dates on which she was seen in that office, beginning on March 27, 2003. The entry for that date states that a comprehensive exam occurred. Although the plaintiff seeks the sum of $400.00 for this examination, no notes or report of its results were submitted. None were submitted concerning the follow-up visits.
The evidence also includes a report from Open MRI of West Hartford, addressed to Dr. Chagnon, dated April 22, 2003. This report states, "Impression: Central disk herniation at L3-4. Degenerative disk disease with small bulges at other levels as described." See Plaintiff's Exhibit 1. In the report, this condition is not attributed to the Stage East incident. The court was not provided with a report or other record from Dr. Chagnon which attributed the plaintiff's claimed injuries to the incident which is the subject of the complaint.
The court is unpersuaded by the plaintiff's attempt to causally connect her claimed conditions to the Stage East incident. As noted, her claim is contradicted by her medical records. The plaintiff's presentation about damages lacks credibility. Under these circumstances, the court declines to award the requested compensatory damages. Since liability was admitted as a result of the default entered against Stage East due to its failure to file an appearance in this action, the plaintiff is entitled, as a matter of law, to an award of nominal damages. The court awards nominal damages to Rodriguez in the amount of $1.00.
At the trial, Rodriguez's counsel also requested an award of punitive damages, based on Stage East's intentional conduct, which he suggested should be calculated at one-third of the compensatory damages. It is within the trial court's discretion whether or not to award punitive damages. See Barber v. Mulrooney, 61 Conn. App. 108, 762 A.2d 520 (2000). In Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992), our Supreme Court reiterated the "well settled rule," that punitive damages are limited to "litigation expenses less taxable costs." Id., 825. Although Rodriguez had the opportunity, at trial, to make a presentation concerning reasonable attorneys fees, no such presentation occurred. In its absence, the court may not make a finding about the amount of litigation expenses incurred. See Resurrection v. Normandy Heights, LLC, 76 Conn. App. 642, 650-52, 820 A.2d 1116, cert. denied, 264 Conn. 917, 826 A.2d 1159 (2003). In view of the deficiencies noted above in connection with Rodriguez's claims for damages for personal injuries, and the lack of a presentation on attorneys fees, the court also awards nominal punitive damages of $1.00. See Tang v. Bou-Fakhreddine, 75 Conn. App. 334, 339-40, 815 A.2d 1276 (2003).
CONCLUSION
For the foregoing reasons, judgment may enter in favor of the plaintiff in the amount of $1.00, plus $1.00 in punitive damages. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT.