2019 WL 3967437 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE, et al.
AUGUST 21, 2019
MEMORANDUM OF DECISION
Thomas J. Londregan, Judge
The defendant concedes that there was an incident that involved a collision like the complaint describes. However, the defendant vigorously argues, based upon the credibility of the witnesses, that it could be that the plaintiff wasn’t even in the vehicle, and even if he was in the vehicle, he did not sustain any injuries.
“[I]t is well established that the evaluation of a witness’ testimony and credibility is wholly within the province of the trier of fact.” Opotzner v. Bass, 63 Conn. App. 555, 564–65, 777 A.2d 718 (Conn. App. Ct. 2001) (quoting Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 434, 759 A.2d 1050 (Conn. App. Ct. 2000)).
A. There Was a Collision.
The Connecticut uniform police crash report (Plaintiff’s Exhibit 5, page 2; Defendant’s Exhibit G) states that police officer Anthony Holloman confirmed the account of how the accident occurred, writing that the defendant’s vehicle “accidentally backed into” the plaintiff’s vehicle. Plaintiff’s Exhibit 5, page 2. The driver of the defendant’s vehicle had not realized that the plaintiff’s vehicle “had pulled in behind him prior to the accident.” Id.
B. The Plaintiff Was In the Vehicle.
The Court heard the testimony of the plaintiff, who testified that he was a passenger in the automobile. The Court heard testimony from the plaintiff’s daughter, the driver of the automobile, who also testified that her father was seated in the passenger seat. She testified that her father was present when the accident occurred. She stated that he was at the scene of the accident for about ten minutes before he got on the bus to New York. She could not recall whether the plaintiff spoke with the police, but she did state that the police were there before her father boarded the bus. The plaintiff testified that he was not present when the police arrived. The defendant argues that because of this inconsistency the Court should question the credibility of the plaintiff in this regard. The Court will not make a finding based upon what is not in a police report, incident report, or in medical records. Based upon a preponderance of the evidence presented, the Court finds that the plaintiff was in fact in the automobile at the time of the incident.
C. The Plaintiff Was Injured.
(1) At the trial he remembered where his niece and granddaughter were sitting in the car; while at the deposition he didn’t know where they were sitting.
(2) At the trial the plaintiff testified he was struck as he was getting out of the car, one foot in and one foot out; while at his deposition he couldn’t recall if both feet were out of the car and that he was getting ready to get out of the car.
(3) At the trial he said he hit his neck by the doorframe of the car door; whereas, at his deposition he testified that he got hit where the door closes onto the frame of the car.
(4) At the trial he said there was a significant hit by the defendant’s van; at his deposition he claimed that the defendant’s van bumped into the automobile.
Based on these discrepancies the defendant urges the Court to discount the plaintiff’s credibility and find that he was not injured.
The defendants note that in medical reports from Bronxville Internal Medicine (Dr. Rabadi), reports of April 27, 2017 (date of the accident), June 5, 2017, July 6, 2017, and August 8, 2017, there is no mention of a motor vehicle accident nor mention of any neck pain. The Percocet level prescribed by Dr. Rabadi for preexisting conditions was still at level 5 after the accident.
The plaintiff argues that he had stiffness in his neck and was advised by Dr. Rabadi to go to the emergency room. The day after the accident, on April 28, 2017, the plaintiff did in fact go to New York-Presbyterian/Lawrence Hospital. The chief complaint on that record indicates “motor vehicle collision.” The primary impression was described as a motor vehicle accident, and the secondary impression was diagnosed as neck pain. So while his personal physician who was treating him for pre-existing issues did not mention a motor vehicle accident or any neck pain, there is a medical record one day after the incident that does mention a motor vehicle accident and neck pain. Considering the totality of the evidence, the Court finds that the plaintiff has shown by a preponderance of the evidence that he was involved in a motor vehicle collision and claimed neck pain as a result.
D. The Plaintiff’s Damages.
The Court finds the expense of the emergency room visit to be reasonable. As for pain and suffering, the Court hereby awards an additional sum of $500.00. The Court notes, as the defendant has argued, that there was no increased pain medication after the accident. All medical reports are asymptomatic regarding any pain relating to this accident. The plaintiff was inconvenienced for a time, had to go to the emergency room, and testified to stiffness in his neck. The Court has no additional evidence regarding lasting injuries. The Court finds $500.00 for this “pain and suffering” to be reasonable.