MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

ROBINSON, JUDGE.

The plaintiffs assert in their Third Revised Complaint that for all relevant times pursuant to said complaint, Gregory Hills was sixteen (16) years old and therefore it was against Connecticut law for others to provide, sell or give him alcoholic beverages.

On or about October 22, 1999, Hills drove to the Amston Liquor Shoppe, Inc., and was sold alcohol by the defendant Amston Liquor.

Upon leaving Amston Liquor Hills got into his truck and went to a party at a house owned by Edwin G. Emmons and Christine G. Emmons. Hills brought the alcohol that had been sold to him by the defendant Amston Liquor to the aforementioned party. The party had been hosted by the Emmons' son Derek Emmons.

Hills drank alcohol at the party and became intoxicated. He then left the Emmons' residence and went to a party at a house owned by the defendants Eric Heath and Mildred Heath.

Hills brought the alcohol that he had purchased earlier to the Heath residence. The party at the Heath residence was hosted by the Heath's son Eric Reginald Heath.

Hills drank more alcohol at the Heath residence and became more intoxicated.

Hills left the Heath residence and got involved in a motor vehicle accident thus allegedly caused the plaintiffs' injuries and losses.

On June 3, 2003, the defendants, Eric Richard Heath and Mildred Heath filed The instant Motion for Summary Judgment, 35 Conn. L. Rptr. 231. The motion provides in part that the moving parties desire to adopt the co-defendants' Edwin, Christine and Derek Emmons' arguments and reasoning that were used in a memorandum of law in support of a motion for summary judgment that was filed with this court on February 14, 1993.

On June 30, 2003, a coordinate judge of the Superior Court (Cohn, J.) issued a Memorandum of Decision granting the co-defendants' motion for summary judgment in part. Specifically summary judgment was granted as to the defendants Edwin and Christine Emmons (the parents/homeowners) and denied as to the defendant Derek Emmons (son/host).

On September 10, 2003, the plaintiffs filed an objection to the defendants' motion for summary judgment asserting that genuine issues of material fact are in existence. Specifically that the defendants "Eric Heath, Sr. Mildred Heath failed to supervise or monitor use of their home by neglecting to have any adult inspect the premises during their absence effectively precluding any opportunity to control or supervise the conduct of their son; 2) Eric Heath, Sr. and Mildred Heath knew or should have known their son intended to host a party at there (sic) home providing minors to consume alcohol away from adult supervision." The plaintiff further asserts that the defendant Eric Reginald Heath: 1) "failed to supervise or exercise reasonable control over the party at the home of his parents by allowing minors to consume alcohol"; and 2) "He permitted one Greg Hills to consume alcohol, become intoxicated and leave his parent's home and drive a motor vehicle"; 3) "He failed to supervise a party where he provided alcohol, and permitted one Greg Hills to become intoxicated and injure a third party."

Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:

A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.

Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted.

Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).

QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).

The defendants assert that it is undisputed that Eric Heath Sr., and Mildred Heath had no prior knowledge of their son's party and that there was no alcohol at the home when they left for the evening.

The defendants filed an affidavit of Eric Richard Heath in support of their motion for summary judgment. The affidavit provides in pertinent part that:

7. On October 22, 1999, my wife, Mildred B. Heath and I left our residence at 2:00 p.m. and returned home on October 23, 1999 at 4:00 a.m.

8. I did not give Eric Reginald Heath permission to host a party on October 22, 1999 or at any time while my wife and I were out of town.

9. When we left, there was no alcohol in the house or on the premise.

10. At no time did I have knowledge that Eric Reginald Heath intended to host a party, nor did I anticipate that Eric would host a party while my wife and I were out of town.

11. Prior to October 22, 1999, I had no knowledge of Eric Reginald Heath ever having hosted an unsupervised party at our residence. CT Page 11366

12. I did not have alcohol in the house on October 22, 1999.

13. Eric Reginald Heath was given permission to have three (3) friends at the residence.

14. I advised Eric Reginald Heath there was to be no drinking of alcohol and no parties.

15. On October 22 and 23, 1999, I did not furnish, provide, supply, purvey or serve alcohol to any minor.

The defendants also filed an affidavit of Mildred B. Heath in support of their motion for summary judgment. The affidavit provides in pertinent part that:

6. On October 22, 1999, my wife, Mildred B. Heath and I left our residence at 2:00 p.m. and returned home on October 23, 1999 at 4:00 a.m.

7. I did not give Eric Reginald Heath permission to host a party on October 22, 1999 or at any time while my husband and I were out of town.

8. At no time did I have knowledge that Eric Reginald Heath intended to host a party, nor did I anticipate that Eric would host a party while my husband and I were out of town.

9. Prior to October 22, 1999, I had no knowledge of Eric Reginald Heath ever having hosted an unsupervised party at our residence.

10. When we left there was no alcohol in the house or on the premises on October 22, 1999.

11. Eric Reginald Heath was given permission to have three (3) friends at the residence.

12. I advised Eric Reginald Heath there was to be no drinking of alcohol and no parties.

13. On October 22 and 23, 1999, I did not furnish, provide, supply, purvey or serve alcohol to any minor.

The defendants additionally filed an affidavit of Eric Reginald Heath in support if their motion for summary judgment. It should be noted that Eric Reginald Heath states in said affidavit that he is over the age of eighteen at the time that it was taken. The affidavit provides in pertinent part that:

5. On October 22, 1999, my parents left our residence at 2:00 p.m. and indicated that they would be home around 1:00 a.m. — 2:00 a.m.

6. Before October 22, 1999 my parents never left me alone in the house overnight.

7. I did not invite Gregory Hills to my residence.

8. I was told by my parents that there was to be no drinking of alcohol and I was not to have a party.

9. I was given permission by my parents to have three (3) friends at the residence.

10. I did not have alcohol in the house or on the premises when my parents left.

11. People started arriving at our residence 375 Paper Mill Road, Hebron, Connecticut at 7:00 p.m.

12. I never saw Gregory Hills at the residence on October 22, 1999.

13. I did not know that Gregory Hills was at our residence until months later.

14. On October 22 and 23, 1999, I did not furnish, provide, supply, purvey or serve alcohol to Gregory Hills.

The plaintiffs did not file any affidavits in support of their objection to the motion for summary judgment, but did cite a portion of a transcript of a July 25, 2003 deposition. The plaintiffs assert that the cited portion of the transcript shows that "the defendant Eric Heath Sr. admitted to having knowledge that his son, although below the age of 21 was consuming alcohol and that it was foreseeable that during the time that Eric Heath Sr. was out of the family home his son would consume alcohol, so he had a duty to supervise him and prevent the use of his home as a venue for underage drinking."

The moving parties have incorporated the arguments of the codefendants Emmons' Motion for Summary Judgment, into their own Motion for Summary Judgment. A coordinate judge of the Superior Court has already granted said motion in part.

This court notes that the plaintiffs assert that the law of the case doctrine should be applied to the defendant Eric Heath Jr., but are silent as to whether the doctrine should be applied to the defendants Eric Richard Heath and Mildred Heath.

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 . . . [I]t expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . 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; emphasis added.) Breen v. Phelps, supra, 186 Conn. 99.

Southington v. Commercial Union Insurance Company, 71 Conn. App. 715, 737 (2002).

In the instant action Judge Cohn granted the similar situated co-defendants' Motion for Summary Judgment, holding that:

In Rangel v. Parkhurst, 64 Conn. App. 373 (2001), the parents of a minor who "engaged in a course of drinking and driving that cumulated in the collision involving the plaintiff's automobile" were sued for their negligence in assisting their son in his illegal conduct. They had allowed their son to store alcohol that he had purchased for his own use in a basement refrigerator. The Appellate Court affirmed the trial court's granting of the parent's motion for summary judgment. "[P]arents are not liable to third persons even though they know of and acquiesce in their minor child's storage of alcoholic beverages in their home." Id. at 383-84.

In light of this precedent and the materials presented to the court in this case, summary judgment is appropriate for Edwin and Christine Emmons. There is no indication that they knew or should have known that Derek would hold a party while they were away or that alcohol would be served. There was no prior indication that their son was a person engaged in any dangerous enterprise, or to drink, or to have parties without parental permission . . . In addition, without more evidence, there is no lack of proper supervision in leaving seventeen-year old and twenty-year old children alone in a house for a short period of time.

Summary judgment is proper because, under the facts presented, the parents owed no legal duty to the plaintiff . . .

Belinda Pegan et al. v. Amston Liquor, Shoppe et al., CV 01 05144 S, Memorandum of Decision at page 4 (June 30, 2003, Cohn, J.) ( 35 Conn. L. Rptr. 231).

Based on the materials submitted in support of and in objection to the motion for summary judgment, this court finds that there is no indication that the defendants Eric and Mildred Heath knew or should have known that their son Eric Reginald Heath would hold a party while they were away, or that alcohol would be served. In fact the undisputed evidence is to the contrary. The moving parties introduced evidence via three affidavits that there was no alcohol on the subject premises when the parents left. The plaintiffs have not introduced any evidence to refute this evidence. Furthermore, the plaintiffs have not provided any evidence to show that the moving parties provided any alcohol to the defendant Gregory Hills.

The defendants Eric Richard Heath and Mildred Heath specifically instructed their nineteen-year-old son that he was not to have alcohol in the house and he was not to have any parties in their short absence. The plaintiffs did not offer any affidavits or other evidence to contradict this evidence.

As to the issue raised by the plaintiffs that Eric Richard Heath knew that his son had imbibed alcohol in the past, there is no mention at all that Mildred Heath had any such knowledge. Therefore summary judgment is clearly appropriate as to this defendant.

In addition to the foregoing, the plaintiffs do not cite any case law or other legal authority to show that such knowledge creates an affirmative duty on behalf of a parent under the current fact pattern.

In light of the foregoing this Court finds that granting of the motion for summary judgment for the similarly situated defendants was correct. This court applies the law of the case doctrine to the defendants Eric Richard Heath and Mildred Heath. Therefore the instant Motion for Summary Judgment should be, and is granted for these moving parties.

As to the defendant Eric Reginald Heath, the defendants make an extremely passionate and somewhat over the top argument that the court's decision concerning the defendant Derek Emmon's motion for summary judgment was incorrect:

In its decision, the Court also denies summary judgment on the claim against Emmons' son Derek on facts similar to, yet distinguishable from, those pertaining to the Heath's son, Eric Reginald. As addressed in greater detail infra, defendants herein respectfully assert that the Court's decision as to Derek Emmons' potential liability is unsupported, even by the cases relied upon in the June 30, decision. Regardless, there are undisputed factual distinctions between the conduct of Eric Reginald Heath and Derek Emmons that render the Court's analysis pertaining to Derek Emmons' potential liability inapplicable to Eric Reginald Heath.

In denying summary judgment to Derek Emmons, the Court essentially found that the facts viewed in the light most favorable to the plaintiff suggest that Derek may have "actively encouraged" the consumption of alcohol by the minor tortfeasor, by inviting him to a party where alcohol was to be furnished, and providing a place where he could consume alcohol, if not actually supplying the alcohol which the tortfeasor consumed . . .

For the Court to rule that Eric Reginald Heath bears potential liability for "actively encouraging" the consumption of alcohol by Mr. Hills, therefore, it will have to find that social hosts are responsible for the conduct of trespassers who arrive unannounced and uninvited, after service of alcohol services ceases, and leave without having been seen, only to cause injury to third parties thereafter. Such reasoning would produce absurd results.

See Supplemental Memorandum in Support of Motion for Summary Judgment at page 2.

The defendant essentially argues that the court's (Cohn, J.) holding "overextends Ely v. Murphy, 207 Conn. 88 (1988), and Bohan v. Last, 236 Conn. 680 (1996)." Our Appellate Court gave a useful synopsis of this line of cases in Rangel v. Parkhurst, 64 Conn. App. 372 (2001).

The Ely court created a limited exception to the common-law rule that no cause of action in negligence arises from the furnishing of alcohol to intoxicated adults by holding that the consumption of alcohol by a minor does not 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. In breaking with the common-law rule, the exception created by the Ely court left in place the requirement that the host actually purvey or supply the alcohol consumed. It did not, however, carve out an exception for adults who were not social hosts and who did not purvey the alcohol.

In Bohan, the patrons of a bar bought alcohol for a minor who was present at the bar. The alcohol purveyed by the patrons caused the minor to become intoxicated. Bohan v. Last, supra, 236 Conn. 675. The minor subsequently drove a car, while still intoxicated, resulting in a collision and the death of his passenger. Id. Our Supreme Court reaffirmed the principle of Ely by stating that "[i]n appropriate circumstances, a purveyor of alcohol to a minor is liable not because he has custodial control over, or a special relationship with, the minor, but because he has negligently [supplied] the minor with alcohol." (Emphasis added.) Id., 679. The court held that "it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor." Id., 680. It further concluded that "[i]n appropriate circumstances, adults have a duty to refrain from negligently or intentionally supplying alcohol to minors, whether such adults act as social hosts in their homes or as purveyors in a bar, because minors are presumed not to have the capacity to understand fully the risks associated with intoxication."

In the present case, it is undisputed that Michael purchased the beer that he consumed on the date of the accident. Moreover, as the court determined in its memorandum of decision, there was uncontroverted evidence that the defendants "had neither stored and made available alcoholic beverages to their minor son nor delivered and gave alcohol to" him. (Internal quotation marks omitted.) Even if we assume arguendo that the defendants knew that their son was storing beer in the family refrigerator, that fact is of no consequence because our case law does not impose liability on parents who know of and acquiesce in their minor child's storage of alcoholic beverages in their home. There is no evidence that the defendants supplied or purveyed beer to Michael. Unlike the defendants in Ely and Bohan, the defendants in this case were neither purveyors of alcohol nor social hosts. They owed no legal duty to the plaintiff. The plaintiff's claim is unenforceable as a matter of law. The court, therefore, properly rendered summary judgment in favor of the defendants on those facts.

Rangel v. Parkhurst, 64 Conn. App. 372, 379 (2001) (emphasis added, footnotes omitted).

It is undisputed that the defendant Eric Reginald Heath did not invite the defendant Gregory Hills to the Heath house. It is also undisputed that the defendant Eric Reginald Heath did not purchase or otherwise obtain any alcohol that was consumed by or furnished to the defendant Gregory Hills. It is furthermore undisputed that the defendant Eric Reginald Heath did not serve any alcohol to the defendant Gregory Hills. Finally, it is undisputed that the defendant Eric Reginald Heath was not even aware of Gregory Hills' presence in the Heath house until months after the accident in question.

Even upon viewing the evidence in the uncontradicted evidence in the plaintiffs' best light this court comes to the conclusion that the defendant Gregory Hills owed no duty to the plaintiffs under the current circumstances and summary judgment must therefore be granted.

For all of the foregoing reasons, the defendants, Eric Richard Heath, Mildred Heath and Eric Reginald Heath's motion for summary judgment is granted. So ordered.

Richard Allan Robinson, J.

October 12, 2003