Opinion
No. CV02-0079868S
August 9, 2004
MEMORANDUM OF DECISION
Defendants, Randall Incorporated, Randall's Restaurant, and Daniel Carr, filed a motion to strike counts two and three of the revised complaint of plaintiff Amato, dated May 23, 2003 and counts two and three of plaintiff Brady-Boxwell's complaint, dated April 2, 2003. Both plaintiffs, Amato and Brady-Boxwell, filed objections. The court considered all of the arguments raised and presented, in the multiple briefs and at oral argument. For the following reasons, the court denies the motions to strike.
First, Count Two of the Amato revised complaint relates back to the original complaint. Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001); Gurliacci v. Mayer, 218 Conn. 531, 547-48, 590 A.2d 914 (1991). "Whenever the claim or defense asserted in the amended pleading arose out of conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment related back to the date of the original pleading." Gurliacci v. Mayer, supra. The allegations in Count Two set forth claims for negligent service of alcohol, following the Supreme Court decision in Craig v. Driscoll, 262 Conn. 312 (2003). Several Superior Courts considering amended pleadings alleging negligent service of alcohol following the issuance of Craig v. Driscoll have decided that the revised pleading relates back to the original complaint. Nelson v. Sayles, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 02077204, 35 Conn.L.Rptr. 395 (September 8, 2003, Holden, J.); Estate of William Ridgeway v. Silk, Superior Court, judicial district of New London at Norwich, Docket No. CV 01025739, 35 Conn.L.Rptr. 445 (September 12, 2003, Quinn, J.); and Raposa v. Lynam, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No., CV 010182731, 36 Conn.L.Rptr. 174 (December 3, 2003, D'Andrea, J.T.R). This court agrees with the reasoning in those decisions.
Second, the court finds no support for defendants' contention that Amato's revised complaint was not filed until June 7, 2003, fifteen days CT Page 11232-ga after it was actually filed. The defendants argue that though plaintiff Amato filed a revised complaint on May 23, 2003, it is not deemed to have been filed until fifteen days after this date. The defendants provide no legal authority for this proposition, and the court has found none. The defendants cite Practice Book Section 10-60. But that section merely says that if no objection is voiced within fifteen days, then the revised complaint is "deemed to have been filed by consent of the adverse party." Plaintiff Amato filed the revised complaint on May 23, 2003. The court deems that the date of the filing.
Third, this court agrees with other Superior Courts which have concluded that Public Act No 03-91 is not to be applied retroactively. Jensen v. Depaolo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV010277460, 36 Conn.L.Rptr. 665 (March 8, 2004, Weise, J.); Esposito v. Farricielli, Superior Court, judicial district of New Haven, Docket No. CV 030479996, 36 Conn.L.Rptr. 148 (December 9, 2003, Licari, J.); and Craig v. Driscoll, Superior Court, judicial district of Litchfield, Docket No. CV980075654, 35 Conn.L.Rptr. 308 (August 28, 2003, Bryant, J.).
Fourth, this court concludes that Craig v. Driscoll is to be applied retroactively. See, Raposa v. Lynam, supra.
And, fifth, count three in both complaints sufficiently alleges recklessness. Acts constituting negligence and recklessness may be intertwined and may overlap. Raposa v. Lynam, supra. They may be based on the same set of facts. Id. Therefore, the complaints are sufficient as pled.
For the foregoing reasons, the court denies the defendants' motion to strike. CT Page 11232-gb