2025 WL 984587 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
 
ANDRINA CHARLES
v.
ST. AUBYN BOYD
 
NO. MPTC-CV-GC-2021-141
|
FEBRUARY 21, 2025

 

MEMORANDUM OF DECISION

Edward B. O’Connell, Judge

The plaintiff, Andrina Charles, brings this action against the defendant, St. Aubyn Boyd, alleging an intentional assault that occurred on December 29, 2020. The lawsuit was prosecuted by counsel and defended pro se.1 The plaintiff submitted over a thousand documents into evidence at trial. Both the plaintiff and the defendant testified at trial. Their testimony as to what occurred at the defendant’s house that morning diverged dramatically.

Before the incident precipitating this lawsuit, the plaintiff and the defendant had lived together at the plaintiff’s house for three years. The defendant was asked to assist the plaintiff with help around the house because she was having trouble doing things herself. He would do chores and cut grass for her. In March of 2020, he moved out of the plaintiff’s house to live with his girlfriend at 8 White Pine Road on the Mashantucket Pequot Reservation, but he continued to regularly help the plaintiff with her household needs until the summer of 2020. In his conversation with the plaintiff, the defendant mentioned that he was denied unemployment. The plaintiff took it upon herself to leave money at the defendant’s house. The defendant told the plaintiff he would give the money back when he had income from unemployment benefits because he does not like owing people.

The testimony of the parties may be summarized as follows: On December 29, 2020, the plaintiff confronted the defendant about the money she believed he owed to her. At about 9:30 a.m. the plaintiff went to the defendant’s house and began demanding her money back by knocking on and kicking the front and side doors of the defendant’s house and blaring her car’s horn. The defendant was asleep on his couch with a guest that morning. When he woke up, he knew it was the plaintiff outside because she had been to his house on other occasions to demand her money back. He could not ignore her for long. He and his guest got up, they got dressed, and then he confronted her.

While the plaintiff was kicking the front door, which swings inward towards the inside of the house, the defendant opened it and shouted at her, “What the hell do you want?” The plaintiff, who had just been banging on and kicking the door, was stunned. The defendant shoved the plaintiff off the porch. She fell off the porch and hit the ground with such a great force that she suffered cervical radiculopathy which would later require surgery.

Even after this shove off the porch the plaintiff and the defendant continued arguing. The plaintiff shouted that the defendant had better pay her the money he owed or else she would have him arrested. The defendant shouted back that he was not going to pay the plaintiff anything because she had been banging on his door incessantly for the past twenty minutes. The defendant walked around his house to inspect the places where the plaintiff had hit it. The plaintiff followed him and continued yelling that he had better pay or else she was going to call the police. The defendant refused, so the plaintiff walked across the street to her mother’s house and called the police.

The Ledyard Police arrived at the defendant’s house at 9:55 a.m. Officers spoke with the plaintiff, the defendant, and the defendant’s guest. The plaintiff told the officers that the defendant owed her $1,000 and she went to his house to ask him for the money. She told them that she had been knocking on front door and then turned around to look at her mother’s house when the defendant suddenly opened the door and shoved her from behind, pushing her clear off the porch and past the concrete path onto the grass. Although she told the officers that she went flying through the air and had leg and back pain from hitting the earth, the officers did not notice any visible marks, bruises, or grass stains on her body or clothes. She nonetheless insisted that the officers should arrest the defendant.

Next the officers spoke with the defendant. The defendant said that the plaintiff had been banging on his door for twenty minutes before he confronted her. He said that when he opened the door the plaintiff had one foot on the bottom step of the porch and fell to the ground by herself, relatively harmlessly. The defendant then walked the officers to a doorbell camera on the ground near his garage door that he said the plaintiff had destroyed. The defendant told the officers that he wanted to press charges against the plaintiff for trespassing if she was going to press charges against him for assault. The officers declined to arrest anyone because both sides told them a different version of events.

The plaintiff was taken to the emergency room by ambulance. She followed up with her primary care provider who referred her to Dr. Watson, her orthopedic doctor, who recommended surgery. She began physical therapy immediately after the injury and underwent surgery on March 17, 2021. After the surgery she developed dysphagia, which the doctor had warned her was a possible side effect. She returned to the emergency room just a few days after the surgery. At the end of April 2021, she began her post-surgery course of physical therapy. Her pain subsided within six weeks of the surgery. She returned to light duty work in July 2021. Her physical therapy continued until September, 2021.

The plaintiff was strangled by a customer at her place of work on March 11, 2022. She was treated at the emergency room of Lawrence & Memorial Hospital. She reported this incident to Dr. Watson during her one-year post-surgery follow-up appointment on March 29, 2021, and he referred her to physical therapy. Then, on June 9, 2022, the plaintiff suffered a serious “mechanical fall” in a store. She began experiencing new symptoms after the fall including worsening neck pain, gait disturbance, numbness and paralysis in her hands, and incontinence. She went to the emergency room on June 22, 2022, where she was referred for imaging and neurosurgical evaluation at Yale. Instead of going to Yale, she went to see Dr. Watson, to whom she reported that she had never had symptoms like this prior to May 2022. She was excused from work due to pain in June 2022 and began physical therapy in August, 2022. The plaintiff claims these medical, radiological, and physical therapy expenses as damages in this case. She did not testify as to these events at trial.

As a civil matter between tribal members, this case is governed by the Civil Actions Law codified at 12 M.P.T.L. ch. 1 § 1 et seq.Byron v. McKeon, 5 Mash.Rep. 239, 242 (2010). The burden of proof in such matters is a preponderance of the evidence. Id. at 241–42. The operative complaint is the amended complaint2 filed with the Court during the bench trial held September 14, 2023. In the third count of the complaint, for “intentional assault,” the plaintiff claims that the defendant intentionally pushed her off of his front porch and onto the ground when he knew or should have known that she would suffer serious injuries from such a fall.3

Assault is not a novel claim for the Tribal Court. See Barbosa v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 269 (2005). But because Barbosa involved a fistfight and required scant legal analysis, the issue of intentional assault will be treated in detail here. Hidden complexities arise because an “assault” (also known as “intentional assault” and “civil assault”) is distinguishable from a “battery,” although courts in our neighboring State of Connecticut rarely make the distinction. As the difference between assault and battery has never been addressed in Mashantucket, the Court will do so here. “When interpreting [the Civil Actions Law] the Court should ‘follow tribal law and precedent and may be guided by the common law of other jurisdictions.’ ” Byron, 5 Mash.Rep. at 242 (quoting 12 M.P.T.L. ch. 1 § 5(d)). Because there is neither tribal law nor precedent on point, it is appropriate to look to other courts for guidance. See also Spano v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 127, 129 (2003).

“A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another. Actual, physical contact (technically defined as ‘battery’) is not necessary to prove civil assault; and, thus, it is more technically correct in Connecticut civil tort law to refer to what is commonly called an ‘assault’ as a ‘battery.’ However, the cases rarely make that distinction.” Aryeh v. Aryeh, 2024 WL 340320, *5-6 (Conn. Super. Jan. 23, 2024) (quoting Maselli v. Regional School District Number 10, 198 Conn.App. 643, 659–60 (2020) (citations omitted)) (cleaned up).4 Compare the definition of assault found in the Restatement (Second) of Torts with the definition of battery.

An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.

RESTATEMENT (SECOND) OF TORTS § 21(1) (1965) (emphasis added).

An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.

Id. § 13 (emphasis added).

Imminent apprehension of a harmful or offensive contact is an essential element of an assault. Contact with another person is an essential element of a battery. In other words, assault is making someone afraid you are about to hit him or her, while battery is actually hitting another person. The Court adopts this distinction between the two torts.

Having distinguished between the two torts, the Court now turns to the plaintiff’s complaint. Absent from her complaint is an allegation that she apprehended that the defendant was going to push her from the porch - in fact, she claims that she was facing away from the defendant towards her mother’s house across the street when the defendant opened his door and shoved her from behind. She cannot prevail on an intentional assault claim as defined, supra.5 However, even though her complaint does not include a count for battery, it clearly alleges that the defendant intentionally pushed her and that the push was a harmful or offensive contact.6 For the remainder of this decision the Court will consider the plaintiff’s claim as one for battery. As stated, supra, a defendant is liable for battery if he intentionally makes harmful or offensive contact with the plaintiff.

The plaintiff must prove each element of her civil suit by a preponderance of the evidence. Payne v. Dames, 4 Mash.Rep. 193, 194 (2004). Here, the Court must determine whether the defendant pushed the plaintiff off of his porch. As discussed, supra, the plaintiff arrived at the defendant’s house while the defendant was asleep on the living room couch. The plaintiff proceeded to kick and bang on the defendant’s front and side doors until the defendant confronted her. Their stories vary substantively as to what happened next. The plaintiff stated that she had only been banging on the door for a short time when she heard someone call her name from a passing truck. She turned around, was looking at her mother’s house across the street, and then suddenly felt the defendant shove her from behind. The defendant stated that the plaintiff was kicking and banging on his door and blaring her car horn for close to twenty minutes. The defendant’s testimony disagrees completely from the plaintiff’s story. He asserts that when he opened the door the plaintiff was standing with one foot on the bottom step of the porch and she fell to her knees on her own.

The defendant’s testimony is internally contradictory. He first testified that the plaintiff was kicking his front door just before he opened it.7 From this testimony it is reasonable for the Court to infer that the plaintiff was standing at the top of the porch while she was kicking the defendant’s door. But the defendant later testified that when he opened the door the plaintiff was at the bottom of the porch.8 For the plaintiff to have been kicking the door at the top of the porch and then scramble down several stairs to the bottom of the porch in just the second or so it would have taken the defendant to open the door would require prodigious speed and dexterity. The Court does not believe the plaintiff could have made such a quick move down the stairs. The Court finds that the plaintiff was standing at the top of the porch and had just finished kicking the door when the defendant opened it.

Included in the plaintiff’s voluminous documentary evidence is a medical opinion by Dr. Wagner, which states that “with a reasonable degree of medical certainty [that the plaintiff’s fall] on December 29, 2020 directly resulted in her cervical radiculopathy and need for surgery.” (Trial Ex. 6, Bates No. 1051.) The Court can neither ignore nor doubt this expert medical opinion. The doctor’s statement is strong evidence that the plaintiff suffered a debilitating fall on the morning of December 29, 2020. The Court does not believe that the plaintiff could have suffered such an injury by falling to her knees, as the defendant testified that she did, because Dr. Wagner opined that the plaintiff’s fall resulted in a severe injury to her neck. The plaintiff could not have been standing with one foot on the ground and the other on the first step while falling to her knees, and then suffering the kind of injury described by the doctor’s report. The Court finds that both the plaintiff and the defendant were at the top of the porch when the door was opened. The plaintiff was shoved from the top landing of the porch with sufficient force to cause a severe physical injury that she was not capable of inflicting upon herself by falling to her knees. The Court must conclude that the reason the plaintiff fell from the top of the porch with sufficient force to cause her injury is that the defendant shoved her. The Court finds that the defendant forcefully pushed the plaintiff off of his porch.

Any reasonable actor knows that pushing someone from an elevated platform is likely to injure that person when their fall is broken by the ground. The Court need not belabor the point that pushing someone down a flight of stairs is an intentionally harmful or offensive contact. The Court finds that the defendant’s contact with the plaintiff was intentional, harmful, and offensive. The plaintiff has proven the elements of a battery by a preponderance of the evidence. The Court finds that the defendant is liable to the plaintiff for civil battery.

Next, the Court must determine which of the plaintiff’s injuries were directly and proximately caused by the defendant. See Byron, 5 Mash.Rep. at 425. Dr. Wagner’s report indicates that the plaintiff’s fall on December 29, 2020, “directly resulted in her cervical radiculopathy and need for surgery.” The report was not disputed at trial. The Court cannot disregard this strong evidence of causation. The Court finds that the battery caused the plaintiff’s cervical radiculopathy and subsequent surgery. The defendant is liable for damages arising therefrom.

After the battery, the plaintiff was taken in an ambulance and treated at the emergency room. She had several physical therapy appointments prior to her surgery. She remained in the hospital for two days after the surgery. She returned to the emergency room less than a week after the surgery. She eventually developed dysphagia and sought treatment at an ear, nose, and throat doctor. She had several post-operation follow-up appointments with Dr. Watson, and she had eight months of physical therapy after the surgery. Throughout this course of treatment she underwent regular X-ray, MRI, and CT scans and took prescribed medication. The surgery appears to have been largely successful. The plaintiff reported that her symptoms were improving as early as her two-week follow-up appointment. She returned to light duty work in July 2021, about seven months after the incident in December 2020. By her seven month followup appointment in October, 2021, she had “complete resolution of her upper extremity shooting pain,” although she did “have some deconditioning and ... difficulty with heavy lifting” and “occasional neck pain.” Nevertheless, she returned to full duty work at that time. Her doctor’s report from her one year followup appointment in March, 2022, indicates that she made a complete recovery.

The plaintiff’s medical records show that she had other health problems both before and after the battery. In October, 2020, two months prior to the battery, the plaintiff was out of work due to back pain and had several weeks of physical therapy.9 In March, 2022, one year after her surgery, the plaintiff was strangled at work. And in June, 2022, she had a severe mechanical fall in a store. These incidents led to additional doctors’ appointments, imaging, and physical therapy. No evidence suggests that the defendant caused a customer to strangle the plaintiff at her place of work, so the defendant cannot be liable for the plaintiff’s injuries and damages from that incident. Nor did the plaintiff offer evidence that her June, 2022 fall in the store was a consequence of the battery. She did not provide a written doctor’s report stating the fall was somehow related to her injuries from the battery, and did not discuss that fall during her testimony. The Court can only speculate as to what caused the plaintiff to fall at that time.

After that fall the plaintiff developed novel symptoms and was referred for a neurosurgical evaluation at Yale, but instead opted to see Dr. Wagner and begin physical therapy. She offered evidence as to the cost of these appointments, but did not offer evidence that they were proximately caused by the defendant. The Court finds that the plaintiff has not met her burden of proof that these subsequent injuries were caused by the defendant. The defendant is not liable for any of the plaintiff’s medical expenses associated with the strangulation and fall in the store. The Court finds that the plaintiff’s claimed medical expenses beginning March 11, 2022, are not causally related to the battery. The defendant’s liability is limited to the plaintiff’s medical expenses prior to the date that she was attacked at work.

The defendant is liable for the plaintiff’s medical expenses through October 13, 2021, including ambulance services, emergency room visits, CT, MRI, and X-ray scans, doctors’ appointments, physical therapy, surgery, and treatment for dysphagia.

The plaintiff’s medical expenses for which the defendant is liable total $115,663.98.

The Civil Actions Law is silent regarding the applicability of the collateral source rule in civil actions between tribal members. The collateral source rule is that “an injured plaintiff’s tort recovery cannot be reduced by payments made from another (i.e. ‘collateral’) source.” Mashantucket Pequot Gaming Enterprise v. Sullivan, 4 Mash.App. 23, 31 (2006). Stated another way, “if any injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay.” Collateral Source Rule, BLACK’S LAW DICTIONARY (12th ed. 2024). A “tortfeasor” generally means the defendant, and “a source independent of the tortfeasor” is usually medical insurance.

The Mashantucket Pequot Tribal Court and the Mashantucket Pequot Tribal Council have grappled with the collateral source rule since the earliest years of the Court because of its importance in lawsuits against the Gaming Enterprise. In 1996, the Court rejected the rule in Bauer v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 258, 262 (1996). The plaintiff’s medical expenses totaled $2,945.12, but $1,982.55 had been paid by insurance. Id. The plaintiff’s award was reduced by $1,982.55 because at that time, tribal law required the Tribal Court to “apply tribal law and ‘principles of law applicable to similar claims arising under the laws of the State of Connecticut,’ ” and Connecticut law required state courts to reduce plaintiffs’ awards by an amount equal to the amount paid by collateral source. Id.

The Tribal Court again discussed the collateral source rule again in 2005. See Sullivan v. Mashantucket Pequot Gaming Enterprise, 4 Mash. Rep. 288 (2005), aff’d. sub. nom. Mashantucket Pequot Gaming Enterprise v. Sullivan, 4 Mash.App. 25 (2006). Tribal law had changed in two important ways since Bauer was decided nearly a decade earlier. First, the statute that fettered the Tribal Court to Connecticut law was repealed and replaced by a statute that permitted the Tribal Court to be “guided but not controlled” by the common law of other jurisdictions. Sullivan, 4 Mash.Rep. at 300 n.6. Second, tribal law now defined the term “actual damages” as the “ascertainable loss of money or property sustained as a result of an injury.” Id. at 299. The Court construed the phrase “ascertainable loss” in the definition of actual damages to take into account the amount of the medical bills that were discounted or adjusted or written-off by the medical providers. Id. at 300. It was the amount after those reductions “which the plaintiff must pay out but would not have been required to pay out but for the accident. It represents the amount of the plaintiff’s loss and is, of course ‘ascertainable.’ ” Id. The Court reasoned that the detailed provisions regarding the definition of damages against the Gaming Enterprise abrogated common law principles of tort damages including the collateral source rule. Id.

Six months later, in 2007, in a legislative reaction to the Sullivan decision, the collateral source rule was amended by the Tribal Council when the definition of “actual damages” was radically changed: “[The] ascertainable loss of money or property sustained as a result of an injury without any reduction for collateral sources.” Ruffo v. Craft Worldwide Holdings, LLC, 6 Mash.Rep. 366, 370 (2016) (emphasis in original). The Court had awarded medical expenses of $163,026.41, despite the fact that $58,179.01 had been paid by insurance or written off by medical providers. Id. at 367-68. The Court found that collateral sources, including both insurance payments and medical write-offs, were to be included in a plaintiff’s award for actual damages. “Until further guidance is provided by the legislature, this Court holds that actual damages may not be reduced by insurance payments or medical write-offs.” Id. at 368.

Finally, this discussion arrives at the current state of the law. Effective August 15, 2019, the definition of actual damages was once again reversed by the Tribal Council in a legislative U turn: “[T]he ascertainable loss of money or property sustained as a result of an injury after any reduction for collateral sources as defined in this law.” 12 M.P.T.L. ch. 1 § 2(b)(5) (emphasis added); see also 4 M.P.T.L. ch. 1 § 1(g).

The foregoing summary of the applicability of the collateral source rule to actions against the Gaming Enterprise, which demonstrates that the Tribal Council zigzagged at times to opposite definitions of the rule, and does not reveal a consistent pattern or approach to the rule, convinces this Court that it would be inappropriate to attempt to impose a collateral source rule in actions between tribal members. Whether or not to establish a collateral source rule in lawsuits between tribal members is a uniquely legislative decision which is the sole province of the Tribal Council. Depending on whether or not the collateral source rule is applicable on these occasions, there might be a “double recovery” by a tribal plaintiff against an insured tribal defendant. This is the type of policy decision which only the Tribal Council should make. When and if the Tribal Council adopts a collateral source rule for actions between Tribal members, this Court will follow it. Until then, this Court cannot apply it. “This court can go no faster and no further than the Mashantucket Pequot Tribal Council has gone.” Moore v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 317, 325, (2005); citing Gregory v. Mashantucket Pequot Gaming Enterprise, 1 Mash.Rep. 483, 486 (1997). The collateral source rule does not apply to this case.

The defendant remains liable to the plaintiff for medical expenses in the amount of $115,663.96 without any setoff or reduction for amounts paid by others (i.e., collateral sources) for any such services.

Dr. Watson’s report indicates that the plaintiff’s fall on December 29, 2020 “directly resulted in her cervical radiculopathy and need for surgery.” The Court cannot disregard such strong evidence of causation. The Court finds that the battery inflicted on the plaintiff by the defendant caused the plaintiff’s cervical radiculopathy and subsequent surgery.

After the battery, the plaintiff was taken by ambulance and treated in the hospital emergency room and scheduled for surgery. She had several physical therapy sessions prior to surgery and remained in the hospital for two days after the surgery. Thereafter, she had eight months of physical therapy and follow up appointments with Dr. Watson. Throughout this course of treatment the plaintiff underwent regular x-ray, MRI and CT scans and took prescribed medication.

The surgery appears to have been successful. The plaintiff returned to light duty work in July of 2021, about seven months after the battery. By her ten month follow up in October of 2021 she had “complete resolution of her upper extremity shoot pain,” although she continued to “have some deconditioning and ... difficulty with heavy lifting” and “occasional neck pain.” Nonetheless, she returned to full duty work at that time.10

The plaintiff’s medical records show that she had other health problems after the battery. In March, 2022, one year after her surgery, she was strangled at work. And in June, 2022, she had a mechanical fall in a store. These incidents led to additional medical appointments, imaging and physical therapy. No evidence was submitted which suggests that the defendant caused a customer to strangle the plaintiff at her place of work, or cause the plaintiff to suffer a mechanical fall, or that her original injuries were exacerbated by these events. The Court finds that the defendant is not liable for any of the plaintiff’s medical expenses associated with these other injuries. The plaintiff’s claimed medical expenses beginning March 11, 2022, are not causally related to the battery. The defendant’s liability for medical expenses is limited to the plaintiff’s medical expenses prior to the date she was attacked at work.

As a result of the defendant’s battery, the plaintiff underwent transportation by ambulance to the hospital emergency room, CT scans, MRI scans, neck surgery, a hospital recovery stay, x-rays, physical therapy, treatment for dysphagia and medical office visits and hospital tests before and after the surgery and a long recovery after the surgery. By September of 2023, almost three years after the battery, the plaintiff’s medical condition had healed.

The neck surgery may have been successful but this does not fully describe the effect of the defendant’s battery on the plaintiff’s day to day recovery and her activities of daily life thereafter. The plaintiff’s recovery was slow and difficult. She underwent extensive physical therapy to her neck. She was sore, stiff and unable to move well at first. She could not lift her arms above her head. After multiple bouts of physical therapy she attained a better range of motion in her neck and shoulders.

The plaintiff is not a malingerer. She went back to work at Foxwoods. However, she had to change jobs to an indoor driver for guests at Foxwoods. At the end of the day, she is often exhausted and aches.

The plaintiff cannot take extended weekend trips, as she had in the past, because she has neck pain while standing or sitting for too long. Likewise, she cannot do yard work or basic household chores such as grocery shopping. She must pay someone for the yard work and must rely on friends and family for the grocery shopping. This was verified by her longtime friend, Jacquilyn Henderson, who testified regarding the plaintiff’s change in lifestyle before and after the battery. Before the battery, the plaintiff was a lively person who took many weekend entertainment and shopping excursions and who constantly tended to her lawn and hedges. Now she no longer travels, relies on others to do her chores and appears self-conscious about how she moves and frequently appears to be physically uncomfortable.

The Court finds that the plaintiff has suffered significant pain from the initial injury and pain and trauma associated with the surgery. She also underwent a difficult and painful recovery process. In addition, although she continues to work a typical 40 hour week, she is sore and aching at the end of each day. Dr. Wagner opines that she has a permanent impairment and assigned her an 8% disability rating. Her future life will have limitations and loss of enjoyment of life’s activities, including shopping trips, housekeeping, landscaping and traveling. Each day will include some level of pain; her personality will be affected by it.

Taking into consideration the pleadings, the testimony of the parties and witnesses, the documentary evidence and the oral and written arguments of counsel, the Court finds that a fair, just and reasonable amount to compensate the plaintiff for her pain and suffering is $375,000.

Judgment may enter in favor of the plaintiff as follows:

Medical damages $115,663.96 Pain and suffering damages 375,000.00 Total damages $490,663.96

BY THE COURT,

All Citations
2025 WL 984587

Footnotes
1	It is the policy of the Mashantucket Pequot Tribal Court to allow leeway to self-represented individuals when it does not interfere with the rights of other parties or the established procedures of the Court. The right of self-representation, however, does not excuse compliance with substantive and procedural law.
2	The amended complaint corrects the legal name of the defendant and omits a claim against the Tribal Nation that the plaintiff had previously withdrawn.
3	Although the complaint lists three causes of action, plaintiff’s counsel has abandoned her first two counts sounding in negligence and recklessness. See Trial Tr. 10:17–23 (Dec. 7, 2023).
4	The parenthetical “cleaned up” indicates that brackets, ellipses, and internal quotation marks have been omitted from the quoted language without altering its meaning in order to clarify its readability.
5	“[A]n allegation of contact, while sufficient to establish battery, is not sufficient to establish an assault claim, where any inference of apprehension was discredited by affirmative allegations that the plaintiff had no warning of the imminent contact.” 6 Am.Jur. 2d, Assault and Battery, § 144.
6	“A battery claim may be heard, even though the complaint did not specifically allege that tort, so long as the factual allegations, if proven, could constitute a battery.” Id.
7	“One of the last times Ms. Charles kicked my front door [I] ... was at the door. I opened the door to – my front door to where Ms. Charles was.” Trial Tr. 56:9–12 (Sep. 14, 2023).
8	“Um, when I get to the front door and open the front door Ms. Charles is nowhere on this landing. She has a foot on the bottom step and she has a foot on the walkway.” Trial Tr. 56:17–19.
9	The defendant did not assert that these were pre-existing injuries that were exacerbated by the events described in the complaint.
10	The plaintiff makes no claim for lost wages arising out of these events or the battery on December 29, 2020.