Opinion
No. X04-CV-01-0103518S
April 28, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
FACTS AND PROCEDURAL HISTORY
The plaintiff, William Ridgaway, administrator of the estate of William Ridgaway, Jr., commenced this wrongful death action against the defendants, Silk, LLC d/b/a Silk Stockings Bar, Robert Giordano, Norman Costello, Joseph Ruggiero, Adele Dodge and MarNelReed, Inc. d/b/a Cafe Del Mar, for damages alleged to have been sustained as the result of a fatal motor vehicle accident which occurred in the early morning hours of April 16, 2000. It is claimed that Anthony Sulls, the driver of the subject vehicle in which William Ridgaway, Jr. and Frank Sestito, Jr. were passengers, had consumed excessive amounts of alcohol while a patron of the defendants' establishment. Shortly after leaving the bar, his automobile veered off Route 12 in Ledyard and collided with a pole and rock outcropping. Mr. Sulls and plaintiff's decedent died from their injuries.
Plaintiff's original complaint, dated February 5, 2001, alleged reckless conduct and liability pursuant to Section 30-102 of the Connecticut General Statutes, the Dram Shop Act. By motion dated February 24, 2003, based on the recent holding of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the plaintiff moved to amend his complaint to add allegations setting forth claims under the common law for negligent service of alcohol to an intoxicated adult. The defendants objected to the amendment on the grounds that the proposed amendment set forth new causes of action barred by the applicable statute of limitations. In its Memorandum of Decision filed September 12, 2003, the court concluded that the additional allegations proposed an alternative theory of liability for the same set of facts, not new facts, and allowed the amendment [ 35 Conn. L. Rptr. 445]. Issues concerning the retroactivity of the Craig v. Driscoll case and the amendment of the Dram Shop Act were not raised by any of the parties.
"Sec. 30-102. Dram Shop Act; liquor seller liable for damage by intoxicated person. If any person, by himself or his 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 twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section . . ."
This is the language of the statute as it existed at the time the plaintiff commenced this action. The statute was subsequently amended by Public Act 03-91, as will be discussed later.
The most recent scheduling order in this case, dated September 12, 2003, provides that motions to strike are to be filed no later than November 17, 2003. On December 18, 2003 the plaintiff filed its second amended complaint, which is the operative complaint. The defendants filed a motion to strike the first and fourth counts of the second amended complaint on February 2, 2004. In support of that motion, the defendants claim that a plaintiff's substantive rights are fixed at the date upon which the cause of action accrued and that a cause of action for negligent service of alcohol to an adult did not exist pursuant to Connecticut law at that time. The plaintiff claims: (1) the motion is untimely; (2) the holding of Craig v. Driscoll should be applied retroactively to permit plaintiff's claims; and (3) the law of the case precludes revisiting the issue.
A hearing on the motion was held on March 15, 2004. For the reasons set forth below, the court will consider the defendants' motion to strike and finds that the holding of Craig v. Driscoll does not apply retroactively to the facts of this case. Accordingly, the court strikes the first and fourth counts of the plaintiff's second amended complaint.
2. LEGAL STANDARD
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
DISCUSSION Late Filing of Motion to Strike
The court notes that the most recent scheduling order directs any motions to strike to be filed no later than November 17, 2003 and that the defendants filed the subject motion to strike on February 2, 2004, approximately 2 1/2 months later than permitted in the order. The court also notes that a reasonable explanation is given by the defendants for the late filing. On September 26, 2003, the defendants filed a request to revise the plaintiff's complaint dated February 24, 2003, claiming it improperly contained allegations of both negligence and recklessness within the same counts. The court overruled the plaintiff's objection to the request to revise on December 4, 2003 and the plaintiff filed its operative complaint on December 18, 2003. The defendants then moved to strike the negligence counts by motion filed February 2, 2004. Under these circumstances, the court finds the late filing acceptable because the defendants could not properly move to strike the negligence counts until the plaintiff revised the complaint to separate the negligence and recklessness allegations.
Retroactivity of Craig v. Driscoll
The plaintiff does not dispute that his cause of action accrued on April 16, 2000, the date of plaintiff's decedent's death, and that substantive rights are fixed at that time. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989). Plaintiff also does not dispute the fact that Connecticut law did not recognize a cause of action for negligent service of alcohol to an intoxicated adult, who by reason of his intoxication causes injury to another, prior to the Craig v. Driscoll decision on February 4, 2003. Instead, plaintiff claims that the holding of Craig v. Driscoll should be applied retroactively to permit this cause of action in negligence.
In determining whether a case holding should be applied retroactively, the Connecticut Supreme Court has adopted a three-part test:
A common law decision will be applied non-retroactively only if: (1) it establishes a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . .; (2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship.
(Citations omitted; internal quotation marks omitted.) Ostrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997). The first part of the test is clearly met. Craig v. Driscoll overruled the case of Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990), which expressly held that neither a common-law negligence action nor a public nuisance action exists against the seller of alcohol to an adult who thereafter injures another by reason of his intoxication. The Court in Quinnett concluded that the Dram Shop Act preempted the field. The Craig v. Driscoll Court reached the opposite conclusion, stating that the Dram Shop Act is not the exclusive remedy under such circumstances because "there is nothing in the act to suggest that the legislature intended to occupy the field, either in its language or legislative history." Id., 326.
Shortly after the Craig v. Driscoll decision, the legislature amended the Dram Shop Act in two material respects. First, it increased the limit of liability from $20,000 per injured person and $50,000 as an aggregate amount for injured persons to $250,000 per person and $250,000 as an aggregate amount. Second, it added the sentence: "Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older." Thus, it is clear that a cause of action for negligent service of alcohol to an adult was not recognized prior to February 4, 2003 and will not be recognized after June 3, 2003. The issue is whether Craig v. Driscoll should be applied retroactively to allow the plaintiff to proceed with his negligence claim because he moved to amend his complaint within that four-month window. This court declines to do so.
The Craig v. Driscoll decision was issued on February 4, 2003. Public Act No. 03-91, effective from passage, was approved June 3, 2003, four months later.
The legislature has made it exceedingly clear with the passage of Public Act 03-91 that the Dram Shop Act preempts the field under these circumstances. In overruling the Quinnett case, the Craig v. Driscoll Court relied heavily upon the fact that the legislature gave no indication of its intent to preempt the field under the previous statute. To give retroactive effect to a decision which is premised on a factor which is no longer the case is contrary to logic and common sense.
Moreover, the second and third parts of the test quoted in Ostrowski v. Avery, supra, do not support the retroactive application of a case which has only been legally viable for four months. As our Supreme Court noted in Quinnett, at page 347, "[t]o the extent that the General Assembly sees fit to articulate public policy through specific legislation, we are bound to honor the means by which it addresses the public policy in question." The legislature has done just that, making it clear that common-law actions for the negligent service of alcohol to an adult are preempted by the Act and raising the limits of liability. To allow the retroactive application of Craig v. Driscoll goes directly contrary to the stated intent of the legislature. Thus, in analyzing "the prior history, purpose and effect" of the rule, it becomes clear that furtherance of the rule as set forth in Craig v. Driscoll would significantly frustrate the objectives of our legislature and would be contrary to the public policy of this state.
Further, the court questions the "fairness" of allowing a plaintiff to maintain a cause of action in negligence because he amended his complaint within the four-month viability period of Craig v. Driscoll whereas the majority of plaintiffs with identical fact situations are precluded from maintaining such actions. The owners of the establishments who purchased insurance and trained employees under the law as it existed prior to Craig v. Driscoll and subsequent to the passage of Public Act 03-91 should not be subject to the unexpected liability which was deemed to be in existence for that four-month period of time.
For these reasons, the court finds that the holding of Craig v. Driscoll should not be applied retroactively to permit causes of action for the negligent service of alcohol to an adult who thereafter injures another by reason of his intoxication.
Law of the Case
The plaintiff further argues that the court's previous decision in this case, wherein it allowed the amendment of plaintiff's complaint to add allegations of negligent service of alcohol, is the law of this case and should not be revisited. The court's prior decision, dated September 12, 2003, was predicated on the facts and arguments presented to the court at that time. The defendants objected to the amendment on the grounds that the proposed amendment contained facts which alleged a new cause of action and would be barred by the applicable statute of limitations. That was the only issue before the court at that time.
The law of the case doctrine applies to subsequent proceedings in the same case. Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 481, 784 A.2d 1024 (2001). The doctrine would, therefore, apply to the present case.
The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.
(Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 71 Conn. App. 550, 560, 802 A.2d 916 (2002).
In its previous decision, the court did not decide the issue of the retroactive application of the Craig v. Driscoll decision to the facts of this case. While the court acknowledges that its decision on the motion to amend might imply that retroactivity would be given to Craig v. Driscoll, as has been noted in other contexts, "a foolish consistency is the hobgoblin of small minds." Given the issue now presented, and taking into account the legislature's intent as expressed in the newly amended Dram Shop Act, the court declines to apply the law of the case doctrine under these circumstances.
The actual quote is "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Ralph Waldo Emerson, Essays. First Series. Self Reliance (1841).
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to strike the first and fourth counts of the plaintiff's second amended complaint dated December 18, 2003.
BY THE COURT
BARBARA M. QUINN, Judge.