Opinion
No. MMX CV09 500 6961 S
February 2, 2010
MEMORANDUM OF DECISION
On December 9, 2009, the plaintiff filed a fourth amended complaint containing allegations of negligent service of alcohol to Robert R. Kochuk, on March 25 and 26, 2009, when he was nineteen years old; reckless service of alcohol; negligent hiring and supervision; violation of the Connecticut Unfair Trade Practices Act; and negligent failure to provide security.
On December 18, 2009, the defendants filed an amended answer, and a special defense as follows:
FIRST SPECIAL DEFENSE AS TO ALL COUNTS
1. Any injuries or damages sustained by Plaintiff were caused in whole or in part by Plaintiff's decedent's own negligent or careless conduct in that:
a. Plaintiff's decedent produced identification that indicated he was of lawful age to purchase alcohol and was intended to induce Dalton's Pub, its agents, servants and/or employees to serve him alcohol when he knew, or should have known, that is was illegal for him to purchase alcohol at his age of nineteen years old;
b. Plaintiff's decedent arrived home safely in the early morning hours of March 26, 2009, after leaving Dalton's Pub;
c. Plaintiff's decedent left his home . . . approximately thirty minutes after arriving home safely on March 26, 2009, when there was no emergency making it necessary to do so and began driving a 2002 Chevy Pickup truck (hereinafter the "Vehicle") in the direction of [Dalton's Pub];
d. Plaintiff's decedent drove the Vehicle at a very high rate of speed in the direction of [Dalton's Pub], well in excess of the speed limit, and thereafter lost control of the Vehicle causing a collision and his fatal injuries;
e. Plaintiff's decedent failed to stay home . . . after safely arriving there in the early morning hours of March 26, 2009;
f. Plaintiff's decedent failed to make reasonable and proper use of his senses and of his faculties;
g. Plaintiff's decedent failed to take the necessary and proper precautions to observe the conditions then and there existing;
h. Plaintiff's decedent failed to be watchful of his surroundings; and
i. Plaintiff's decedent failed to use reasonable care for his safety commensurate with the existing circumstances and conditions.
2. Pursuant to Conn. Gen. Stat. § 52-572h(b) the Plaintiff's damages, if any, shall be barred and/or comparatively diminished by the percentage of negligence attributable to the Plaintiff's decedent.
WHEREFORE, the Defendants, Catherine Lynch and Camric, LLC pray that the Plaintiff, Janel Kochuk, Administrator of The Estate of Robert R. Kochuk take nothing by reason of her alleged cause of action, and that the Defendants, Catherine Lynch and Camric, LLC, have judgment for their costs and disbursements as allowed by law or equity.
On December 29, 2009, the plaintiff filed a motion to strike as follows:
The Plaintiff, JANEL KOCHUK, ADMINISTRATOR OF THE ESTATE OF ROBERT R. KOCHUK ("Plaintiff"), hereby moves to strike, pursuant to Practice Book Sec. 10-39(a), Defendants' First Special Defense which is set forth in Defendant's Amended Answer dated December 18, 2009.
The Plaintiff asserts that Defendants' Special Defense is legally insufficient to support such claim. The reasons that support this Motion to Strike are more fully set forth in the accompanying Memorandum of Law.
The plaintiff's motion to strike was based on the Supreme Court's decision in Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988). In Pike v. Bugbee, 115 Conn.App. 820, 828-29, 974 A.2d 743 (2009), the Appellate Court discussed the Ely decision in the context of a case where the defendants' child provided liquor to minors when such defendants were not present:
The plaintiff next argues that the court improperly concluded that although the harm to him was foreseeable, liability in this situation does not extend to adults who took no active part in the procurement or purveyance of alcohol. We disagree.
The common-law rule regarding social host liability in Connecticut states that "no tort cause of action [lies] against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it." (Internal quotation marks omitted.) Rangel v. Parkhurst, 64 Conn.App. 372, 379, 779 A.2d 1277 (2001).
In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), our Supreme Court recognized this common-law principle; however, the court then proceeded to carve out an exception for circumstances in which alcohol is furnished to a minor. The court noted that the "proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors." Id., 93. The court then recognized various legislative enactments that were indicative of "a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol." Id., 94. Ultimately, the court concluded that "[i]n view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." Id., 95.
The plaintiff argues in support of its motion to strike that "Connecticut statutes have consistently and continually differentiated between minors and adults, particularly in the context of alcohol procurement and consumption . . ." and that the General Assembly has "recognized the difference between the acts of minors as opposed to the acts of adults, and has enacted laws to protect minors from their own incompetence as well as the incompetence of others." The plaintiff concludes that "[t]he clear underlying message of those laws is that minors are a protected class of individuals and should not be held to the same standards as adults in a variety of contexts."
The plaintiff next argues that "[p]ublic policy mandates that a minor cannot be held to the same standard of reasonableness as an adult in the context of alcohol." The plaintiff refers to the allegations in the special defense and asserts that "[t]he common theme that the Defendants present in looking at the allegations as a whole is that Robert Kochuk, despite being a minor and despite being intoxicated, should have exercised the same amount of care as a reasonable non-intoxicated adult to prevent his injuries and subsequent death. However, this is in direct contradiction with public policy set forth in Connecticut's statutes and precedent case law. `Our courts have determined that minors are not competent to assume the responsibility of consuming alcohol' and therefore need to be protected. State v. Springmann, 69 Conn.App. 400, 409, 794 A.2d 1071 (2002), aff'd 260 Conn. 934, 802 A.2d 89 (2002), citing Ely . . ."
The plaintiff concludes her argument by stating that "[i]t is misleading to assume that Robert Kochuk, an intoxicated nineteen year old, would be able to make the conscious and reasonable decisions of a non-intoxicated adult under the circumstances of that evening. Rather, expecting Plaintiff's young decedent to fully understand the risks associated with his consumption of alcohol would be an overestimation of his capacity as a youth."
As noted by the defendants, the plaintiff does not cite to any decision where any Connecticut court has determined that the special defense setting forth the minor's negligence and careless conduct, also described by the defendants as the minor's comparative negligence, is legally insufficient.
On January 7, 2010, the defendants objected to the plaintiff's motion to strike. The defendants acknowledged that Ely determined that a minor's consumption of alcohol was not as a matter of law an intervening cause that insulated a provider of liquor from liability, but they also asserted that the Ely decision did not require this court to hold that a comparative or contributory negligence defense was legally insufficient. In support of their position the defendants cited Hayes v. Caspers, Ltd, 90 Conn.App. 781, 801, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005); Silk v. Gill, 2007 Ct.Sup. 11345, 43 Conn. L. Rptr. 672, No. LLI CV 05 4002254S, Superior Court, Judicial District of Litchfield at Litchfield, (Pickard, J., June 26, 2007); Butler v. Long, 2004 Ct.Sup. 3536, Conn. L. Rptr. 513, Superior Court, Judicial District of Litchfield, No. CV 03 0090334 (February 11, 2004, Pickard, J.); Pepin v. Cacchillo, 1998 Ct.Sup. 8993, 22 Conn. L. Rptr. 630, No. CV 94 0364290 S, Superior Court, Judicial District of New Haven at New Haven (Zoarski, J., August 4, 1998); and Manzione v. AMF Bowling Centers, Inc., 1992 Ct.Sup. 10964, 8 CSCR 69, No. 320878, Superior Court, Judicial District of New Haven (Fracasse, J., December 11, 1992) [ 8 Conn. L. Rptr. 662].
In Hayes v. Caspers, Ltd., supra, 90 Conn.App. at 783, the Appellate Court noted that in addition to denying liability, the defendant tavern filed a special defense alleging that the minor decedent was contributorily negligent in connection with his death.
In Silk v. Gill, supra, 2007 Ct.Sup. at 11345, the parties agreed that the defendants' third special defense that the decedent was negligent and his negligence caused his own death "was proper" and Judge Pickard denied the plaintiff's motion to strike that defense:
On March 7, 2006, the defendants filed an answer and three special defenses: (1) the wanton and reckless acts of Robert J. Silk, Jr. consuming the alcohol serve as a bar to recovery in this case; (2) Robert J. Silk, Administrator, was negligent and his negligence was the proximate cause of Robert J. Silk, Jr.'s death; and (3) Robert J. Silk, Jr. was negligent and his negligence caused his own death.
On April 21, 2006, the plaintiff filed this motion to strike the three special defenses, accompanied by a memorandum of law, on the grounds that "[t]he asserted defenses are legally insufficient." On May 1, 2006, the defendants filed a memorandum in opposition to the motion to strike the special defenses. Arguments were heard at short calendar. During oral argument, the parties agreed that the third special defense of the decedent's comparative negligence was proper and, as such, the motion to strike as to the third special defense is denied.
In Butler v. Long, supra, 2004 Ct.Sup. at 3536-37 (footnote omitted), Judge Pickard held that Ely did not preclude a special defense of contributory negligence to a claim by a third-party plaintiff (e. g., the victim of an allegedly intoxicated driver):
Relying on Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), the plaintiff argues that contributory negligence should not be allowed as a defense in an action alleging negligent service of alcohol to a minor because of Connecticut's strong public policy against serving alcohol to minors. In Ely, the Supreme Court stated that "[i]n view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute an intervening act necessary to break the chain of causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." Id., 95.
However, Ely does not stand for the proposition that the comparative negligence of an injured third party would not provide the basis for a valid special defense. In Ely the court cautioned future claimants that the Ely holding did not mean "that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or the jury as the parties elect." (Emphasis added.) Id., 97. Thus, contributory negligence is available as a defense to an action by a third party against one who provides alcohol to a minor.
In Pepin v. Cacchillo, supra, 1998 Ct.Sup. at 8993, Judge Zoarski noted that there was no objection to the defendant's special defense of negligence by the plaintiff:
The defendant filed a second amended answer and special defenses on June 26, 1998, to which no objection was filed. The first amended special defense asserts that the plaintiff was negligent in operating his vehicle.
In Manzione v. AMF Bowling Centers, Inc., supra, 1992 Ct.Sup. at 10965, 10967, Judge Fracasse denied a motion to strike a special defense that any alleged injuries or damages were caused by the voluntary consumption of alcohol by the decedent:
The fourth special defense alleges, as to each count, that "[a]ny injuries or damages as alleged were caused by the voluntary consumption of alcohol by the decedent." The plaintiff argues, relying on Ely v. Murphy, 207 Conn. 88, 95, a case involving the tort liability of a social host to an innocent victim, that voluntary consumption of intoxicating liquors is not a defense in an action involving service of intoxicating liquor to a minor. This court does not agree with that claim.
It is the opinion of this court that, in accordance with the principles established in Ely, it is a question of fact whether or not, the furnishing of intoxicating liquor to a minor, the voluntary consumption of said liquor by the minor or any other factor is the proximate cause of intoxication or any damage therefrom.
Therefore, the motion to strike the fourth special defense should be denied because said special defense alleges a viable defense to be determined by the trier of fact.
See also Pike v. Bugbee, supra, 115 Conn.App. at 829-31.
Practice Book § 10-39 provides in relevant part as follows:
(a) Whenever any party wishes to contest . . . (5) 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.
In Sovereign Bank v. 2D Family, LLC, 2010 Ct.Sup. 1406, 1407-08, No. CV 09 5012519, Superior Court, Judicial District of New London at New London (Devine, J., December 21, 2009), the court set forth the applicable law concerning a motion to strike a special defense:
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 2006 Conn. 766, 771, 802 A.2d 44 (2002). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Under our rules of practice, a motion to strike is the appropriate vehicle for challenging the legal sufficiency of a special defense. See Practice Book § 10-39(a); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995); Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978) . . .
The plaintiff did not establish that the defendants' special defense is legally insufficient. The plaintiff's motion to strike the special defense is denied.