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Monmouth County Superior Court
other-ligament; tear other-scar and/or disfigurement shoulder-fracture(fracture, clavicle); shoulder(fracture, clavicle) surgeries/treatment-arthroscopy
Intentional Torts - Assault and BatteryAffirmative Defenses - Contributory Negligence
Brian M. Repetti v. Joseph R. McGowan, Claire McGowan and Joseph McGowan, No. MON-L-934-10
July 25, 2013
Brian Repetti (Male, 27 Years)
Roy D. Curnow; Law Office of Roy D. Curnow; Spring Lake, NJ, for Brian Repetti
Joseph R. McGowan
John C. Prindiville; Sea Girt, NJ, for Claire McGowan, Joseph McGowan, Joseph R. McGowan
Allstate for all defendants
On August 21, 2009, plaintiff Brian Repetti, 27, an information-technology technician, went to the house next to his Belmar residence to speak to the family that lived there. According to Repetti, he wished to complain about an accumulation of empty beer cans and cigarette butts on their property. When Repetti confronted one of the neighbors, 20-year-old Joseph McGowan, a fight ensued; Repetti claimed he incurred a serious shoulder injury to his dominant arm when he was thrown from the porch during the altercation. Repetti sued McGowan and his parents, for both assault and battery, and for negligence by unintentionally causing an injury in the course of an assault and battery. According to Repetti's suit, McGowan's parents had gone away from home for approximately a week and left their son alone at the home while they vacationed. Repetti testified that a couple of days before the incident, he saw beer cans and cigarette butts in his own yard, and attempted to speak to McGowan about the situation, but McGowan simply ignored him. On the day of the incident, Repetti claimed, he became annoyed when, while on his way to work, he again saw beer cans and cigarette butts in his own yard. He returned from work at the end of the day and went next door intending to speak to McGowan's parents, who he thought had returned from vacation. The parents were not home, he claimed, but McGowan and three friends, along with a large Labrador Retriever, were all present in the living room when Repetti knocked on the door. Repetti testified that McGowan effectively ignored him, just as McGowan had done several days earlier. According to Repetti, McGowan told Repetti that he didn't know what Repettis was talking about in complaining about empty beer cans and cigarette butts. Repetti claimed that when he told McGowan that he was going to speak to his parents about the matter, McGowan asked, "How old do you think I am?" Repetti then told him that he believed McGowan to be "an 18- or 19-year-old pussy." With that, according to Repetti, McGowan told Repetti to "leave my property." Repetti told McGowan to "make me," at which point McGowan -- who, according to Repetti's lawsuit, weighed nearly 200 pounds at the time -- grabbed ahold 135-pound Repetti and drove him off the front porch, causing Repetti to land on his right shoulder. McGowan testified that Repetti came to his property "looking for a fight," and that after being asked to leave, Repetti had wedged his shoe in the McGowan home's doorway, preventing McGowan from simply shutting the door on him. Defense counsel argued that, as a matter of law, Repetti was required to leave the property when ordered to do so by McGowan. The defense successfully requested that the court charge the jury that Repetti became a trespasser the moment he did not leave the property when asked to do so by McGowan.
Immediately following the incident, Repetti was seen at Jersey Shore Medical Center, where X-rays revealed a displaced fracture of his distal clavicle. His arm was immobilized, and he was given a prescription for pain medication. He followed up with orthopedic surgeons, who recommended surgery. On Sept. 1, 2009, Repetti underwent that surgery, consisting of open reconstruction treatment to the coracoacromial ligament using anterior tibialis allograft. The surgery also involved a distal clavicle resection and release of the coracoacromial ligament with a transfer to the distal clavicle. Following the surgery, Repetti's arm was placed in a sling. Post-surgical studies showed a well reduced fracture, but winging of the scapula was noted. Home exercise and therapy were prescribed. On Oct. 21, 2009 it was noted in a medical examination that Repetti could not lift his left arm. An EMG was ordered, and it revealed auxiliary nerve injury to the right-side deltoid and demyelinating secondary nerve-root damage in the cervical area. Additional diagnoses included trapezius strain. The surgical scar was described in medical reports as measuring nine centimeters, over the superior aspect. Repetti claimed he was out of work from late August 2009 through most of December 2009 due to the injuries sustained during the altercation with McGowan. Repetti allegedly has residual complaints of occasional pain in his right clavicle. He said finds it difficult to reach behind him, and that his dominant (right) arm tires when he works out. He has discomfort when throwing a ball and during stormy weather, he claimed, and also has continued numbness over the scarred area of his shoulder. His shoulder clicks when he is performing certain movements, such as push-ups; he allegedly cannot perform as many push-ups as he was able to before the injury. He further claimed that use of seatbelts aggravates his shoulder, and that he continues to experience intermittent pain in the right side of his neck and down his right trapezius. The defense argued that Repetti had been well treated for whatever injuries he may have suffered during the underlying altercation, that he had healed.well.
The jury determined that McGowan had negligently inflicted injury upon Repetti, but that Repetti was 28 percent comparatively at fault with respect to his being injured. In reflection of the comparative-fault allocation, the total damages amount of $250,000 as returned by the jury was reduced by the court to $180,000.
Paul A. Kapalko
1 male/ 6 female
This report is based on information that was provided by plaintiff's counsel. Defense counsel declined to contribute.