Opinion
No. 568685
September 6, 2005
MEMORANDUM OF DECISION
The plaintiff, Richard A. Buzon, has filed a motion to strike the fifth special defense of the defendant, Ballard Kane, LLC (Ballard). Tins case arises out of an automobile accident in which the plaintiff was injured while he was the passenger of an automobile driven by an intoxicated driver.
In its fifth special defense, the defendant alleges that the plaintiff is barred from recovery because he assumed the risk of injury and acted in a reckless manner. The plaintiff moves to strike the fifth special defense on the ground that assumption of risk is not a valid defense to a dram shop claim and that recklessness is not a valid defense for a recklessness claim. In its memorandum of law in opposition to the motion to strike, the defendant argues that assumption of risk and recklessness on the part of the plaintiff are proper defenses. For the following reasons, the motion to strike the fifth special defense is granted.
I DRAM SHOP CLAIM
Although neither our Supreme nor Appellate Courts have addressed the issue of whether assumption of risk is a valid defense to a dram shop claim, several of our trial courts have addressed this issue; however, with mixed results. Relying on the statutory scheme of § 30-102, several more recent trial courts have opted not to recognize assumption of risk as a defense to a dram shop claim. See Rivera v. Miceli, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 0104721 (April 15, 2005, Silbert, J.) ( 39 Conn. L. Rptr. 151, 153); Jones v. Cross, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176102 (December 8, 2003, Gallagher, J.) ( 36 Conn. L. Rptr. 85). As aptly reasoned by the Rivera court: "Located in Title 30, dealing with intoxicating liquors, § 30-102 is part of a detailed scheme for the regulation of an entire industry. It provides a direct cause of action against a seller of intoxicating beverages to already intoxicated persons, who, in consequence of their intoxication, cause damages to others. To prevail, a plaintiff need not show negligence, recklessness, wilfulness or wantonness on the part of the seller, only that the sale took place under circumstances where the seller knew, or should have known, of the patron's state of intoxication. While a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated, as several cases have held, he can not be held to have `assumed the risk' that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated. General Statutes § 30-102 does not regulate the driver of the vehicle, only the seller of the intoxicating beverage. While a plaintiff may not be a totally `innocent third party' with respect to the principal tortfeasor, he is such with respect to the party who allegedly sold the intoxicating beverage to an already intoxicated person." Rivera v. Miceli, supra, 39 Conn. L. Rptr. 152-53. This court therefore finds that assumption of risk is not a valid defense to a dram shop claim in Connecticut.
General Statues § 30-102 provides in relevant part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of such person's or persons' intention to bring an action under this section."
II RECKLESSNESS
"As a general legal proposition . . . comparative negligence is not a defense to a cause of action alleging recklessness . . . General Statutes § 52-572h, which encompasses the law of comparative negligence, applies only to negligence actions and not to claims based on recklessness." (Citation omitted.) Rubel v. Wainwright, 86 Conn.App. 728, 740, 862 A.2d 863 (2005). It is therefore found that recklessness is not a valid defense to a recklessness claim, and that the motion to strike may be granted as to the fifth special defense.
Accordingly, for the reasons stated herein, the motion to strike filed by Buzon is hereby granted.
D. Michael Hurley, JTR