Opinion
No. CV09-5013079S
May 6, 2010
MEMORANDUM OF DECISION
This is an action against the corporate owner/backer of a bar and the permittee brought pursuant to the dram shop act and in recklessness. The plaintiffs, passengers in a motor vehicle, allege that the defendants served the driver while he was intoxicated and are liable for the injuries they received when the driver entered onto I-84 East, drove in a westerly direction, and collided head-on with an eastbound tractor trailer truck. The defendants filed three special defenses in which they pled participation, assumption of the risk, and failure to warn the alleged intoxicated person of his erratic and/or illegal driving. Before the court is the plaintiffs' motion to strike the special defenses.
FACTS
The plaintiffs allege in their four-count amended complaint that: (1) between 10:00 p.m. on November 18, 2008, and 1:00 a.m. on November 19, 2008, the defendants sold one Delton Rogers alcoholic liquor while already in an intoxicated state; (2) Rogers subsequently attempted to operate a motor vehicle in which the plaintiffs were passengers and mistakenly entered Interstate 84 eastbound in a westerly direction via the exit 25a off-ramp; (3) whereupon said motor vehicle collided head-on with an eastbound tractor-trailer truck, thereby causing the plaintiffs to sustain multiple and severe injuries.
In their answer, the defendants deny the plaintiffs' material allegations and assert three special defenses claiming that: (1) the plaintiffs' injuries were caused by their own participation in the event and their encouragement of Rogers' consumption of alcohol; (2) the plaintiffs assumed the risk of entering the vehicle driven by the allegedly intoxicated person; and (3) if the plaintiffs were in fact injured in a manner consistent with the allegations of their complaint, then these injuries were caused by their own reckless failure to warn the intoxicated driver of his erratic driving.
The plaintiffs move to strike the defendants' special defenses on the ground that they are legally insufficient.
DISCUSSION
Pursuant to Practice Book § 10-39(a)(5), when a party seeks to contest the "legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." (Emphasis added.) "In . . . ruling on [a] motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50.
In the present case, the plaintiffs argue that neither participation nor assumption of the risk are valid special defenses to a dram shop action, and that contributory recklessness is not a valid special defense to a recklessness claim.
Section 30-102 provides in relevant part: "If any person . . . 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 . . . provided the aggrieved person or persons shall give written notice to such seller of such person's or persons' intention to bring an action under this section . . ." (Emphasis added.) Accordingly, because the above-provision clearly does not qualify or condition a plaintiff's recovery upon membership within any specific class of individual who has suffered personal injury, the court will not infer it. Such a reading of the Dram Shop Act would not only require the court to improperly imply that a provision not contained therein actually exists, but would also contravene the spirit of this legislation — which is to hold purveyors of alcoholic liquors accountable when their service to already-intoxicated patrons causes injury to the person or property of another. See Penn v. Laboy, Superior Court, judicial district of New London, Docket No. 508818 (July 30, 1990, Axelrod, J.) ( 2 Conn. L. Rptr. 165) ("[T]here is nothing in [§]30-102 . . . that allows assumption of risk as a defense. Changes in the express grounds for recovery under [§]30-102 should be a matter for the legislature. Further, there is nothing in [§]30-102 that allows participation as a defense.") See also Jones v. Cross, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176102 (December 8, 2003, Gallagher, J.) ( 36 Conn. L. Rptr. 85). Moreover, "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, Superior Court, judicial district of Middlesex, Docket No. CV04 0104721 (April 15, 2005, Silbert, J.) ( 39 Conn. L. Rptr. 151), see also Jones v. Cross, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176102 (December 8, 2003, Gallagher, J.) ( 36 Conn. L. Rptr. 85) ("the special defense [of assumption of the risk] available to the defendant driver is not available to the purveyor of alcohol in an action brought pursuant to the statute").
The plaintiffs argue that the defendants' third special defense alleging comparative recklessness as to the plaintiffs' recklessness claims is legally insufficient. They cite Rubel v. Wainwright, 86 Conn.App. 728, 862 A.2d 863, cert. denied, 273 Conn. 919, 871 A.2d 1028 (2005), and Buzon v. Ballard Kane, LLC, Superior Court, judicial district of New London, Docket No. 568685 (September 6, 2005, Hurley, J.T.R.) ( 39 Conn. L. Rptr. 909), in support of their argument. As several superior courts have indicated, "[p]ursuant to Connecticut case law, contributory recklessness constitutes a valid defense. Contributory recklessness would constitute a defense to an action based on recklessness . . . Wanton, willful or reckless conduct by [a plaintiff] which naturally increased the probability of injury and contributed thereto would be admissible under the pleadings and would constitute a defense to the claim of recklessness. See Murphy v. Ossola, 124 Conn. 366, 372 (1930)." (Citations omitted); Vanstean-Holland v. Lavigne, Superior Court, judicial district of New London at New London, Docket No. 08-5007959 (Sep. 2, 2009, Martin, J.). However, as Judge Pickard pointed out in Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No. LLI-CV-07-5002709S (Mar. 17, 2008, Pickard, J.) [ 45 Conn. L. Rptr. 200], "while the plaintiff may properly be alleged to be reckless in choosing to accompany a driver that [the plaintiff] knew or should have known to be intoxicated, the plaintiff cannot be held to have contributed to the reckless service of alcoholic liquor to a person known to be intoxicated." Thus, the same reasoning which precludes using "assumption of the risk" as a defense against the purveyor of alcohol applies to the defense of contributory recklessness. It may be a valid defense as to the intoxicated driver. It is not a valid defense as to the defendants here. Accordingly, the motion is granted with respect to the third special defense.
CONCLUSION
For all of the foregoing reasons, the plaintiffs' motion to strike is granted as to the defendants' special defenses.