Reilly v. DiBianco

• Decision Date: 25 March 1986
• Docket Number: Nos. 3150,3156,s. 3150
• Citation: 507 A.2d 106,6 Conn.App. 556
• Court: Connecticut Court of Appeals
• Parties: Robert B. REILLY, Sr., Conservator (ESTATE OF Robert B. REILLY, Jr.) v. Carl DiBIANCO, Sr., et al.

Page 106

507 A.2d 106

6 Conn.App. 556

Robert B. REILLY, Sr., Conservator (ESTATE OF Robert B. REILLY, Jr.) v. Carl DiBIANCO, Sr., et al.

Nos. 3150, 3156.

Appellate Court of Connecticut.

Argued Oct. 4, 1985.

Decided March 25, 1986.

Paul E. Pollock, Bridgeport, for appellant-appellee (named defendant).

David M. Reilly, New Haven, pro se, appellee-appellant (substituted plaintiff).

Roger J. Frechette, New Haven, for appellee (defendant Carl DiBianco, Jr.)

Before DUPONT, C.J., and HULL and BORDEN, JJ.

DUPONT, Chief Judge.

This case, tried to a jury, is a personal injury action in which the plaintiff sought damages for an assault and battery committed by Carl DiBianco, Jr., and Hector Sein, both alleged by the plaintiff to be employees of Carl DiBianco, Sr. ¹ The complaint also alleges that DiBianco, Jr., while acting within the scope, course or authority of his employment, initiated an assault on the plaintiff in which Sein assisted, at the urging and instigation of DiBianco, Jr. Other allegations are that DiBianco, Sr., is vicariously liable for the acts of DiBianco, Jr., and Sein, and that, as a proximate result of a beating, kicking and stabbing, the plaintiff was rendered comatose and suffered permanent brain damage.

The jury returned verdicts in favor of the plaintiff against all three defendants in the total amount of $2,000,000, and returned a verdict of $2,000,000 against DiBianco, Sr., and verdicts of $1,000,000 each against DiBianco, Jr., and Sein.

These verdicts were returned following prior verdicts which were not accepted by the court because they were inconsistent. ² Interrogatories were then prepared by the court ³ and submitted to the jury with oral instructions to first answer the interrogatories, and then to use whichever one of seven verdict forms ⁴ they deemed appropriate.

DiBianco, Sr., and DiBianco, Jr., both moved to set aside the verdicts for judgments notwithstanding the verdict and for remittiturs. The trial court denied the motion of DiBianco, Sr., to set aside the verdict, as to him, insofar as it encompassed liability for the acts of Sein, but granted it as to his liability for the acts of DiBianco, Jr., set the verdict against him aside as to damages only, and ordered a new trial, limited to the issue of damages. It denied DiBianco, Sr.'s motions for judgment and for remittitur. The court granted DiBianco, Jr.'s motion to set aside the verdict as to the issue of damages only, ordered a new trial limited to the issue of damages, and denied his other motions.

DiBianco, Sr., has appealed from the judgment of the court, claiming that the court erred (1) in admitting into evidence a written statement of Sein given to the New Haven police department, (2) in failing to render judgment notwithstanding the verdicts because there was insufficient evidence to hold him vicariously liable for the actions of DiBianco, Jr., or Sein, and because the jury could not apportion damages between joint tortfeasors, and (3) in charging the jury concerning future medical bills when there was insufficient evidence to prove their amount. The plaintiff has appealed, primarily claiming that the trial court erred (1) in setting aside, in part, the verdicts as to DiBianco, Jr., and DiBianco, Sr., and (2) in failing to conclude that any error in the apportionment of damages between DiBianco, Jr., and Sein affected the verdicts against both, and affected his right to recover full damages as assessed by the jury. The claims of error of the plaintiff are intertwined with the second claim of error of DiBianco, Sr., and are discussed together with that claim of DiBianco, Sr. ⁵

In its memorandum of decision relating to the post-trial motions of DiBianco, Sr., and DiBianco, Jr., the court stated that there was evidence from which the jury could find that both assailants of the plaintiff were employees of DiBianco, Sr., and it reviewed some of the facts which were before the jury.

DiBianco, Sr., owned and operated a gasoline service station on which premises a checkbook used in connection with the business was located. On the date of the assault, DiBianco, Sr., had left DiBianco, Jr., in charge of the business. DiBianco, Jr., told Sein that the plaintiff had stolen the checkbook and they went to the bank which issued the checkbook to look for the plaintiff Not finding him there, they returned to the station. Shortly thereafter, the plaintiff appeared and was confronted by DiBianco, Jr., with the alleged theft. The plaintiff denied stealing the checkbook and DiBianco, Jr., then punched and kicked him. At the time, DiBianco, Sr., was present, and told his son to stop fighting. Sein subsequently told the police that he worked at the station and became involved in the fight between DiBianco, Jr., and the plaintiff to protect the interest of the station at which he worked, and that he alone had stabbed the plaintiff. ⁶

Other facts which the jury could reasonably have found were that the plaintiff was knocked to the ground by DiBianco, Jr., was repeatedly kicked and punched by both him and Sein, ⁷ was kicked by DiBianco, Jr., while DiBianco, Jr., was wearing workboots, was punched in the mouth by DiBianco, Jr., causing a large amount of blood on the plaintiff's face, and eventually staggered into a street adjacent to the station where he collapsed. The jury also had evidence that on occasion Sein pumped gas for DiBianco, Sr., and received payment from him from time to time, and that the latter kept no books or receipts for his business, had no cash register, and did not pay any person, including his son, a regular salary. A trail of blood ran from the vicinity of the gas pumps on the station premises to the street where the plaintiff eventually collapsed. A police officer testified that DiBianco, Sr., stated that his son was responsible for the assault on the person in the street. DiBianco, Sr., just prior to the arrival of the police, told his son to go home and take a shower. When DiBianco, Jr., arrived home he did not tell his mother and sister anything because he "didn't want to upset them." The plaintiff suffered a penetrating stab wound to his left chest which lacerated his heart. The plaintiff's chest was opened and his heart was sutured. He never regained consciousness, and at the time of the trial was a quadriplegic and in a permanent coma.

I

The first claim of error of DiBianco, Sr., is that the court should not have admitted into evidence a written statement of Sein given to the police. The statement was given approximately two and one-half weeks after the alleged assault on the plaintiff, and was sworn to, by him, before a police officer. The statement was voluntary and was preceded by warnings of Miranda rights which were waived in writing by Sein. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sein initialled the waiver of each of his rights and acknowledged, in writing, that the statement could be used against him. During the question and answer format of the statement, he stated that he had consumed two short beers before coming to the police station to make the statement, felt good enough to make a statement, and had graduated from high school while in the military service. He further stated that the plaintiff had stolen a checkbook "from the garage where I work," and that he had accompanied DiBianco, Jr., to a bank to see if the plaintiff was there cashing any checks. About five minutes after returning from the bank, the plaintiff arrived at the garage and was questioned about the checkbook by DiBianco, Jr., who then began hitting the plaintiff. "[W]hen I noticed the struggle going on I jumped in and started hitting him. During the struggle we were on the ground and I started hitting him and seen him reaching for his knife and grabbed it before he did in fear that he would use it on Junior or myself and I used it on him during the fight...." He also stated that he became involved in the struggle "[b]ecause I do work at the garage and I do have to protect the interest of the garage also." He also stated that he came to the station because "Junior's mother worries a lot and she feels that Junior was responsible for the whole thing of which he was not ..." and that he had consulted with a lawyer prior to giving the statement.

The statement was introduced as evidence against all three defendants as a declaration against penal interest. Such statements are admissible if they are trustworthy. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Courts have concluded that the test for admissibility as formulated in Chambers requires a consideration of when the declaration was made and to whom, the existence of corroborating evidence, whether it is, in fact, against penal interest, and the unavailability of the declarant as a witness. State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980).

The threshold requirement is the unavailability of the declarant. State v. DeFreitas, 179 Conn. 431, 440-41, 426 A.2d 799 (1980). Here, during the trial, the witness claimed the protection of the fifth amendment to the United States constitution and refused to answer whether he recalled the statement, and then stated that he could not recall it because he was intoxicated at the time. He would not answer if he was working at the garage on the date of the assault, and refused to answer the questions of whether all of his statements to the police were untrue, or whether he had taken any action to protect the station's checkbook.

Sein was physically present in court but was functionally unavailable because of his exercise of a testimonial privilege. ⁸ His testimony on crucial issues was unavailable. Sein was both a witness and one of three defendants in a civil action. He was questioned and refused to answer material questions. Although in court statements are capable of being tested by cross-examination and are, therefore, preferred to the use of out...