Opinion
No. CV 03 0080800 S
September 10, 2003
MEMORANDUM OF DECISION
The plaintiff seeks a prejudgment remedy (PJR) attaching real estate owned by Francesca Strong in the amount of $500,000.
The plaintiff sustained serious physical injuries on May 25, 2002 at approximately 4:00 a.m. when the vehicle he was driving in the westbound lanes of I-84 in East Hartford was struck in the rear by a vehicle operated by Jonathan Paula. He alleges that the bartender at the Tobacco Shed located in Windsor served Paula a large quantity of alcohol causing his intoxication and continued to serve him alcohol when his intoxicated condition was evident.
The Tobacco Shed was allegedly an establishment owned and operated by The Tobacco Shed, Inc., a Connecticut Corporation. It is alleged that Grandma's LLC is a limited liability company registered in Connecticut and is the successor in interest to the Tobacco Shed, Inc. for its assets and liabilities. Francesca Strong was the permittee of The Tobacco Shed, Inc.
The complaint is in three counts. The first count alleges Dram Shop Liability pursuant to Connecticut General Statutes § 30-102. The second count alleges Paula was negligently served excessive amounts of alcohol while he was visibly intoxicated. The third count alleges the defendants recklessly and wantonly served excessive amounts of alcohol to Paula under the circumstances of his obvious intoxication.
The standard for issuance of a PJR is "Probable Cause" that judgment will be rendered for the plaintiff in the amount equal to or greater than the amount of the PJR, taking into account all defenses, counterclaims, or set-offs. Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693 (2002).
Applying this standard to the facts of this case the Court will discuss the counts of the complaint in inverse order.
A. Third Count — Wanton and Reckless Misconduct:
Wanton and reckless misconduct has been defined as more than negligence or even gross negligence. It is conduct which indicates a reckless disregard of the just rights or safety of others. Kowal v. Hofher, 181 Conn. 355, 360-61 (1980).
The evidence proffered by the plaintiff to substantiate his request for a PJR consists primarily of the deposition of the defendant driver, Paula, and the direct testimony of Dr. James O'Brien, a recognized expert on the effects of alcohol on a person's behavior. Paula is not a Connecticut resident therefore a deposition was taken from him on December 13, 2002.
Paula stated that after work on the evening prior to the 4:00 a.m. accident he went out with the intention of getting drunk. His first stop was the Cloverleaf Bar in Enfield at about 8:30 p.m. Between 8:30 and 10:15 he had five or six Bud Light beers and perhaps one Jack Daniels and Coke. He did not believe he exhibited any overt signs of intoxication although he felt a bit intoxicated and light-headed.
From the Cloverleaf he went to the Tobacco Shed in Windsor, arriving at about 10:30. He stayed at the Tobacco Shed until the 2:00 a.m. closing. When he arrived at 10:30 he had a Bud Light beer, (12 oz.) followed by about six Jack Daniels with Coke. He states he was intoxicated while at the Tobacco Shed and possibly grazed against a wall walking into the bathroom. He was shooting pool for the entire time he was there. He recalled both the bartender and the permittee who were there, including jewelry one was wearing and the hair color of the permittee. No other witnesses testified directly as to his condition at the Tobacco Shed, thus the only direct testimony was Paula's that he was intoxicated and my have grazed a wall going to the bathroom.
This contrasts with the evidence in one of the cases relied on by the plaintiff. In Swift v. My Brother's Place, 14 Conn.L.Rptr. 317, 1995 WL 360936 (Conn.Super., Aurigemma, J., 1995), there was evidence of the driver's overt indicia of intoxication, that he was loud, belligerent and staggering at the bar.
Koble v. Maloney, 34 Conn. App. 655 (1994), more closely resembles the facts (at least as presented to this point). In Koble, there was evidence of the bar where the driver was served and the number of drinks with extrapolation back from the past accident BAC readings to show the degree of his intoxication at the bar.
In his deposition Paula said after he left the Tobacco Shed at 2:00 a.m. he drove to Willimantic where he stopped at a bar, but found it closed, and then went to an apartment in Columbia where he had once resided, in order to get some personal belongings out of a barn there. From there he drove to East Hartford where the accident occurred.
When the state trooper arrived at the scene Paula exhibited overt signs of intoxication and failed the field sobriety tests including heel-to-toe walk and one-foot balance. He was stumbling and swaying and smelled of alcohol. Paula subsequently consented to a breath test (Intoxilyzer 5000) with the following results:
0528 hours .185 BAQ
0607 hours .173 BAQ
At the scene Paula told Trooper Anduaga he had a couple of light beers at the Tobacco Shed and a couple more at the Cedarwood Lounges in Willimantic (which is inconsistent with his deposition that he found the bar in Willimantic to be closed and inconsistent with his deposition as to what he drank at the Tobacco Shed).
Admittedly, the discrepancies in Paula's statements will present problems of proof for the plaintiff, but we are not dealing now with proof by a preponderance of the evidence but with the lesser standard of probability as would lead a reasonably prudent person to entertain that belief. Dufrainwell v. CHRO, 236 Conn. 250, 261 (1996).
Using this standard and comparing the facts of this case to those in Koble, supra, the Court finds that Paula was intoxicated at the Tobacco Shed and was served alcohol there while in that condition. The question of scienter was established through the testimony of Dr. O'Brien who extrapolated from the breath test readings that Paula's BAC just prior to the 2:00 a.m. closing would have been .19 to .21. After a BAC of .15 he would have probably exhibited overt signs of intoxication such as staggering, lack of coordination and unsteadiness. In effect, Paula's actions at the bar would be very similar to the way be acted when the trooper saw him at the accident when he was obviously intoxicated. And significantly, even if Paula had a few beers (as he said to the trooper) after leaving the Tobacco Shed, his BAC at the Tobacco Shed would still have been at least .16, and he would still be overtly intoxicated.
The same reasoning supports granting a PJR under the second count. See Craig v. Driscoll, 262 Conn. 312 (2003), as well as under the then existing Dram Shop Act, Connecticut General Statutes § 30-102.
The same standard of proof (probable cause) is applicable to the amount of damages which must be shown. The plaintiff sustained very serious injuries in this collision. He wore a halo device which was bolted to his head for over three months. Several of his vertebras were surgically fused. He was in great pain, required extensive rehabilitation and is left with 38% permanent partial disability of the neck. As a man now in his mid-twenties he no longer has the mobility he had and his activity is limited. He still complains of daily painful spasms in his right leg and arm. This is not intended to be a complete recitation of the extent of his injuries, pain and suffering, which were significant.
He has settled with the Paula insurance carrier for the policy limit of $45,000 and received $30,000 from his mother's UIM carrier. His medical bills of $17,000 were reimbursed to the State of Connecticut out of these proceeds.
The defendant's claim that the permittee is not responsible in negligence does not accord with our case law. There are a number of reported cases where permittees have been held liable for damages caused by an agent provider of alcohol both under the clear language of the Dram Shop Act and in the Craig case which held both against the owner and the permittee under a theory of negligence.
The Court will however weigh the plaintiff's comparative negligence under the negligence count but will also consider the probability of exemplary damages under the reckless and wanton count.
With these considerations the plaintiff's request for a PJR is granted in the amount of $225,000.
Klaczak, JTR