Markey v. Santangelo

• Decision Date: 22 January 1985
• Citation: 195 Conn. 76,485 A.2d 1305
• Parties: Bernard MARKEY v. Charles SANTANGELO et al.
• Court: Connecticut Supreme Court

Page 1305

485 A.2d 1305

195 Conn. 76

Bernard MARKEY v. Charles SANTANGELO et al.

Supreme Court of Connecticut.

Argued Nov. 14, 1984.

Decided Jan. 22, 1985.

Karen F. Tross and Howard A. Jacobs, New Haven, for appellants (defendants).

Burton M. Weinstein, Bridgeport, with whom, on the brief, was Richard Emanuel, Bridgeport, for appellee (plaintiff).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and DANNEHY, JJ. PARSKEY, Associate Justice.

This action for assault and battery was brought against the named defendant and four others. After a jury trial, a plaintiff's verdict was returned against the named defendant and Anthony Santangelo only. From the judgment rendered on the verdict these defendants have appealed, claiming that the trial court erred in charging the jury on punitive damages and on negligent assault. Charles Santangelo subsequently withdrew his appeal leaving Anthony Santangelo as the only appellant. We find no error.

We first consider whether the court was justified in charging on punitive damages. To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought. Manning v. Michael, 188 Conn. 607, 619, 452 A.2d 1157 (1982).

"A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional." Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). "A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent.... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). "It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 (1929).

The complaint alleged that "the defendant Charles Santangelo with the aid of the other named defendants assaulted the plaintiff and repeatedly beat and kicked [him]." "In this state an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently." Alteiri v. Colasso, supra, 168 Conn. at 333, 362 A.2d 798. Since an assault may be committed in any one of these three ways and since only a wilful or a wanton assault would warrant a recovery of punitive damages, a complaint charging a defendant with an assault and battery without more would not sufficiently characterize the assault so as to alert the defendant respecting the aggravated character of his conduct. In this case, however, the complaint went beyond a mere bare bones allegation of assault and battery. It alleged repeated beating and kicking. If we view this complaint in a manner most favorable to the plaintiff; Collens v. New Canaan Water Co., 155 Conn. 477, 488, 234 A.2d 825 (1967); it charges by way of reasonable inference that the defendants wilfully assaulted the plaintiff. At the very least it charges that they wantonly did so. Malley v. Lane, 97 Conn. 133, 139, 115 A. 674 (1921). In either case the complaint gave the defendants sufficient notice that they were being charged with aggravated conduct.

It is apparent that the defendants so understood the complaint. In taking their exception to the court's charge on negligent assault, the defendants responded in the affirmative when asked by the court whether it was their contention that the plaintiff specifically limited himself to a wilful or wanton assault. When pressed to point out the language in the complaint on which they relied defense counsel replied, "I find it in Paragraph 2, the assault of the plaintiff, 'repeatedly beat and kicked the plaintiff.' I don't see how under any circumstances that could be considered to be a negligent assault."

Although neither in the body of the complaint nor in the claims for relief does the plaintiff explicitly claim punitive damages, it is clear from an examination of the transcript that the defendants during the trial were well aware that the plaintiff was making such a claim. When the plaintiff sought and received permission to open his case in order to present evidence of punitive damages, the court observed that the matter had been discussed in chambers and that "[i]t was no surprise to counsel that you [the plaintiff] are claiming this [punitive damages]. You previously claimed it as I understand it in the earlier partial trial of this matter." The defendants neither remonstrated with the court that its impression was incorrect nor did they object to the evidence on the ground that punitive damages were not claimed. Had they so objected the court in its discretion could have and undoubtedly would have permitted the plaintiff to file an appropriate amendment to his pleadings. Manning v. Michael, 188 Conn. 607, 619-20, 452 A.2d 1157 (1982). It would not serve the ends of justice for us to give recognition to what at best is the defendant's insistence on mere formalism. A party with knowledge of an opposing party's claims cannot play possum during the presentation of evidence in the trial court and then, when faced with an unfavorable result, expect relief on appellate review.

Punitive damages consist of a reasonable expense properly incurred in the litigation; Shupack v. Gordon, 79 Conn. 298, 303, 64 A. 740 (1906); less taxable costs. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966). The plaintiff testified that he had agreed to an arrangement whereby in the event of...