Opinion
No. CV06-5000828S
August 6, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #113
FACTS
The plaintiff, Christina Lindsay, as administratrix of the estate of her husband, Robert Lindsay, brings this action against the Benevolent Protective Order of the Elks, Lodge #967, its permittee, and its manager. Specifically, the complaint alleges that on January 25, 2005, the defendants recklessly served alcohol to Robert Lindsay, a known alcoholic and fellow fraternal member of the Elks, who then left the establishment, and, shortly thereafter, hanged himself in his home.
The defendants move to strike all three counts of the plaintiff's complaint on the grounds that (1) the decedent's suicide was not a foreseeable result of the defendants' acts and (2) there is no right to recovery for an imbiber injured as a result of his own intoxication.
The grounds for the motion are stated only in the defendant's brief and not on the face of the motion as is necessary under Practice Book § 10-41, rendering it "fatally defective." See Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001) ("that Practice Book § [10-42] . . . requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself"). The court may, however, entertain the motion if the opposing party has not objected on this basis because the requirement is not jurisdictional in nature. Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991). Since the present plaintiff has not so objected, the court will consider the merits of the motion.
DISCUSSION
"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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The role of the trial court [in ruling on a motion to strike is] to examine 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). "In ruling on a motion to strike, 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." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendants argue that the decedent's suicide was an intentional act that was not a foreseeable consequence of the defendants' alleged misconduct, and, therefore, recovery is precluded. The defendants further argue that Connecticut does not recognize a right to recovery for an imbiber injured as a result of his own intoxication.
The court first examines the issue of whether Connecticut recognizes a right of recovery for an imbiber injured as a result of his/her own intoxication. In Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), the Supreme Court held that the Dram Shop Act, General Statutes § 30-102, did not preclude a plaintiff from bringing a common law recklessness claim against the defendant alcohol vendor or social host. Id., 362. The Supreme Court did not limit this ruling to innocent third party plaintiffs or expressly preclude recovery for imbibers who caused injury to themselves. In fact, the court in Kowal relied on two cases where the injured plaintiff was the imbiber himself. The first, Nally v. Blandford, 291 S.W.2d 832 (Ky. 1956), permitted a cause of action in recklessness by the decedent's administratrix where the decedent died after the defendant served him an entire quart of whiskey knowing that he intended to drink the entire quart to win a bet at the bar. Id., 833-34. The second, Grasser v. Fleming, 74 Mich.App. 338, 253 N.W.2d 757 (1977), also permitted a cause of action in gross negligence and wilful, wanton and intentional misconduct where the defendant served alcohol to the decedent, a known alcoholic who was already intoxicated, and the decedent subsequently left the establishment and fell off a bridge, causing fatal injuries. Id., 340. This court believes that the Supreme Court's reliance on these two cases shows that the court did not intend to preclude a cause of action in the imbiber himself.
Additionally, in Boehm v. Kish, 201 Conn. 385, 517 A.2d 624 (1986), the Supreme Court entertained a case involving the reckless service of alcohol to a plaintiff who subsequently crashed his car and sued the bartender and vendor for his injuries. Id., 386. The Supreme Court did not preclude the claim, but rather, the court found that the plaintiff failed to meet the burden of proof on the issue of causation at trial. Id., 394.
Furthermore, a number of Superior Courts in Connecticut have permitted the imbiber to bring a cause of action for his own injuries. See Candelora v. Lulu, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0485530 (October 26, 2004, Licari, J.) (38 Conn. L. Rptr. 123, 124) (holding that a cause of action by the plaintiff imbiber "is consistent with the Supreme Court's evolving standard of proximate cause to meet the acknowledged danger upon our highways caused by intoxication"); Lee v. The Splash Pacific Rim Grille, Superior Court, judicial district of New Haven, Docket No. CV 97 0399683 (March 3, 1999, Moran, J.) (24 Conn. L. Rptr. 233, 234) (holding that Kowal "is not limited to innocent third parties . . . because that case based its decision on two out-of-state cases where the intoxicated plaintiff successfully sued liquor vendors for the reckless and willful service of alcohol"); Vichiola v. Aitken, Superior Court, judicial district of Bridgeport, Docket No. CV 93 0308350 (July 21, 1994, Freedman, J.) (9 C.S.C.R. 865) (permitting a cause of action by a plaintiff injured in a motorcycle accident as result of his own intoxication).
In Candelora, the "decedent while intoxicated as a result of the service from the defendants was fatally struck by a vehicle." Candelora v. Lulu, Inc., supra, 38 Conn. L. Rptr. 123. The court stated that "[c]onsumption is no longer an artificial barrier to proximate cause in alcohol cases. It can no longer be argued that serving alcohol to an intoxicated alcoholic does not create a reasonable foreseeability that he may not only injure others but also himself because of his intoxication . . . Consumption by the claimant himself would as a matter of policy no longer break the chain of proximate cause. Otherwise a reckless purveyor of alcohol would be allowed to escape the reasonably foreseeable consequences of his own reckless conduct contrary to Kowal." Id., 124-25. The Candelora court also cited the "willingness [of the Supreme Court] to adopt the common law to changing times" to further support its holding. Id., 124.
The court joins the holdings of these Superior Court cases in finding that an intoxicated person can recover for his/her own injuries on a theory of reckless service of alcohol.
This court must next decide the issue of whether suicide was a foreseeable consequence of the defendants' actions in the present case. The Supreme Court addressed the issue of whether suicide was a foreseeable consequence of a tortfeasor's negligence in Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997), a medical malpractice case where the decedent, known to suffer from depression and alcohol abuse, overdosed on antidepressant pills prescribed by her doctor. The issue before the court was whether the decedent's suicide was an act that broke the chain of causation. Noting that "[a]s a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act which precludes a finding that a given defendant, in fact, is responsible for the harm, the Edwards court held that suicide will not break the chain of causation if it was a foreseeable result of the defendant's tortious act." (Emphasis added.) Id., 615-16. The court held that "a physician may be liable for a patient's suicide when the physician knew or reasonably should have known of the risk of suicide and the physician's failure to render adequate care and treatment proximately causes the patient's suicide." Id., 618. In so holding, the court noted that Connecticut has recently adopted the standard set forth in § 442B of the Restatement [(Second) of Torts] that "[w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct." Id., 617.
Although Edwards was a medical malpractice case and dealt with claims of negligence rather than recklessness, the court finds compelling reasons to apply the Connecticut Supreme Court's analysis to the instant case inasmuch as the Edwards decision was based on the knowledge the tortfeasor had concerning the plaintiff's decedent's suicidal tendencies.
The complaint in this case states that the defendants were members of the same fraternal order as the decedent, and they knew that he was an alcoholic. According to the complaint, the defendants, knowing that the decedent could not control his consumption of alcohol, served him when he was in a highly and visibly intoxicated state and had little or no control of his senses or faculties. The plaintiff also alleges that it was reasonably foreseeable to the defendants that injuries might result to the plaintiff's decedent as a consequence of the service of alcohol to a known alcoholic, especially in light of the fact that the defendant knew that the plaintiff's decedent would be leaving the premises alone thereafter.
If the complaint alleged that plaintiff's decedent, instead of committing suicide had been hit by a car while crossing the street, it would survive a motion to strike based on the allegations of what the defendants knew. However, the plaintiff here does not allege in the complaint that the defendants had any knowledge that the decedent was depressed or that they were aware of any suicidal thoughts or tendencies of the decedent.
According to the allegations in the complaint and the inferences which may be reasonably drawn therefrom, the plaintiff's decedent intentionally hanged himself. Allegations that he was highly intoxicated and not in control of his faculties is not sufficient to alert the defendants that there was a risk of suicide.
CONCLUSION
Based on the foregoing, the motion to strike the plaintiff's complaint is granted because, although an imbiber is not precluded from recovering for injuries resulting from his own intoxication, the complaint does not contain any allegation that the defendants knew that the decedent was depressed or even that the decedent was in fact depressed. Without such an allegation, the decedent's suicide cannot be said to be a foreseeable risk created by the actor's conduct.