On October 27, 2008 Robert Parrotta drove to Stacey Killon’s home in Minerva to confront him about Killon’s relationship with Parrotta’s ex-wife. Angry words were exchanged as they stood near an outside porch with Parrotta wielding a baseball bat and Killon a maul handle. Parrotta ended up smashing Killon in the face with the baseball bat.
Killon, 41 years old, sustained extensive facial injuries and he sued the 58 year old Parrotta for damages.
In 2011, a Warren County jury returned a verdict for the defendant finding that he was justified and acted in self-defense in his use of deadly physical force upon the plaintiff; however, a new trial was ordered after an appellate court ruled that the defendant, because he drove 20 miles to plaintiff’s home, advanced to his porch with the bat in his hand and demanded a fight, was the initial aggressor and therefore not entitled to the defense of justification.
On October 4, 2013 the new jury returned its verdict awarding plaintiff $25,000 for future pain and suffering but nothing at all for past pain and suffering. Plaintiff appealed again, this time contending that the damages award were inadequate.
In Killon v. Parrotta (3rd Dept. 2015) the judges ordered an increase in the pain and suffering damages to $350,000 ($200,000 past – five years, $150,000 future – 31 years).
The appellate court decision sets forth a description of plaintiff’s injuries. Here are the injury details:
- comminuted fractures of the mandible (jaw)
- bilateral temporomandibular joint (“TMJ”) dislocation
- parasymphysial comminuted fracture with bone loss
- nasoseptal fracture
- dislocation and displacement of the mandible with the loss of three teeth
As a result of his injuries, plaintiff underwent extensive medical and surgical treatment including:
- initial hospitalization for five days
- seven surgical procedures including tracheostomies, open reduction internal fixation of fractures and the placement of a mesh crib graft in the mandible defect with a metal bar that visibly protrudes from the cheek
Plaintiff remains in chronic pain with a severe mandibular symphysis deformity, needs a vascularized tissue graft, suffers from numbness, nerve damage and headaches, is on strong pain medications and has obvious and significant facial scarring.
The defendant argued that the jury’s award was adequate because plaintiff had “minimal past pain and suffering and relatively minor future pain and suffering.” In this regard, defendant asserted that plaintiff (a) was suffering from heavy alcohol intoxication at the time of the battery and therefore felt little pain and (b) has been using pain medication and therefore his ongoing pain and suffering was significantly reduced or minimized.
- The trial judge agreed with plaintiff that the damages verdict was improper but his remedy was an overall new trial on damages (as opposed to the appellate court’s determination to go right ahead and order a conditional increase). In post-trial proceedings, the judge stated: “The jury’s recognition that plaintiff would suffer future pain and suffering can only follow the logical conclusion that the future must necessarily have had a past.”
- Immediately after the incident and before his hospitalization, plaintiff sat on his couch, drank beer, smoked cigarettes. At the hospital, he was combative, attempted to leave and tried to refuse treatment.
- The defendant was charged with felonious assault but the charges were not pursued.
- The earlier appellate ruling – that the justification defense could not be considered by the jury – was by a 3-2 divided court. The Court of Appeals will soon weigh in on that issue.
UPDATE: On October 27, 2016, the Court of Appeals held that the intermediate appellate court applied an incorrect test in setting aside the jury verdict and concluding as a matter of law that the defendant was the initial aggressor rendering a justification defense unavailable to defendant during the retrial. Therefore, the high court reversed and and sent the case back for a new trial