Reberio v. Graichen, No. Cv 97-0571098 (Nov. 5, 1998) , 1998 Conn. Super. Ct. 13916 ( 1998 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION Plaintiff Cynthia Reberio has brought this action against defendant Donald Graichen, claiming that the defendant assaulted and beat her with his fist. She claims in the complaint that said battery fractured her jaw, bruised her mouth and resulted in her losing a front tooth. Defendant has denied that he assaulted her and by way of special defense claims that the contact between himself and the plaintiff occurred when he was defending himself from a physical assault by the plaintiff. He further claims that he was attempting to destroy illegal narcotic drugs which were being used by the plaintiff. He further claims that the injuries and losses alleged by the plaintiff were not caused by the defendant, but were incurred as a result of another incident in which the plaintiff was injured during an automobile collision involving a railroad train.

A trial to the court was held on November 3, 1998. The court finds the following facts.

On February 13, 1996, the plaintiff and defendant were living together in an apartment located in Middletown. They had been living together for approximately four and a half years. The plaintiff was a drug abuser, using both crack cocaine and marijuana. She did not work and was on welfare. The defendant was a long-time security guard at The Institute of Living and the Hartford Hospital, working the second and third shifts.

The plaintiff testified that she and the defendant both smoked marijuana and crack cocaine together, and that on the date of the alleged assault he had given her $20.00 so that she could buy some crack cocaine for him. She stated that she purchased crack cocaine for herself with her own money, and crack cocaine for him with his $20.00. However, she then proceeded to smoke both his and her cocaine herself. She testified that when the defendant arrived home from work in the early morning hours, she was "stoned" and that he became furious because she had failed to save any of the cocaine for him. Thus, she said he began to slap her and hit her in the mouth with a closed fist, causing severe pain and loosening a front tooth. CT Page 13918

The defendant, on the other hand, testified that although he had on occasion used marijuana, he had never smoked crack cocaine. He testified that he arrived home from work at about 3:30 a.m., that he found the plaintiff in possession of what he thought to be illegal drugs, that she appeared to be under the influence, and that he took a package containing suspected drugs away from her and proceeded to flush it down the toilet. He claimed that the plaintiff went ballistic when he did this and started attacking him. Thus, he said he pushed her away in order to protect himself. He denied that he punched her in the mouth.

The plaintiff testified that after the defendant hit her he said he was sorry and she agreed not to call the police. They continued to live with each other for approximately five months after that.

On February 16th two or three days after the altercation with the defendant the plaintiff was in an automobile accident. She was a passenger in a car which was hit by a train when the driver of the car attempted to cross the railroad track. She went to the emergency room at Middlesex Hospital complaining of a severe headache and dizziness. Tests were made with the conclusion "negative CT of the head." She made no complaints about her teeth. Nor did she mention the assault.

On February 22, 1996 the plaintiff presented herself to the Community Health Center (Exhibit 1) because of pain in her mouth. She had a history of very poor periodontal disease and had developed abscesses and very loose teeth. On February 23rd the Community Health Center pulled out two of her back teeth which were loose. On April 2, 1996 the front tooth had to be extracted by Dr. Shapiro and he fitted her with a flipper, which is some sort of a temporary bridge. The plaintiff has made no claim that the back teeth had to be removed because of the altercation with the defendant. She admits to having severe periodontal disease, but claims that the defendant's assault caused her to lose her front tooth.

This whole case concerns the question of credibility. The plaintiff claims the defendant assaulted her. He, on the other hand. claims she assaulted him and he only tried to push her away while defending himself. The court believes the defendant was more credible then the plaintiff for the following reasons.

First, the plaintiff testified that the assault took place on CT Page 13919 February 18th, two days after the car accident, not two days before. The court finds that the altercation took place on February 13th. Second, the plaintiff testified that the defendant, who holds a very responsible job, was a user of crack cocaine. The court does not believe that to be true. Third, the plaintiff claimed that there was a witness to the alleged assault, namely, her daughter. The court does not believe that to be true. At any rate, the daughter was not brought in to testify.

The court believes that the defendant did in fact come home from work at 3:30 a.m., that he found the plaintiff was under the influence of drugs, as she has admitted, that he did not wish to have drugs in the apartment in light of his long-standing job in security, and in light of the fact that the plaintiff was on probation. The court finds that he attempted to take the drugs away, from the plaintiff, that she attempted to attack him, that he tried to push her away, that somehow during the altercation her mouth got injured through no fault of the defendant, that because of her periodontal disease her teeth were loose, and that the altercation started by her, together with the automobile accident, probably caused further problems with her teeth.

In short, the court finds that the plaintiff has failed to prove by a preponderance of the evidence, that the defendant was liable for her claimed injuries and losses.

Judgment may enter for the defendant.

(Allen) Judge Trial Referee