Opinion
No. 4002020
May 30, 2006
MEMORANDUM OF DECISION
January 24, 2005, the plaintiff, Daniel Pont, filed a two-count complaint against the defendants, Goodtimes Cafe, LLC (Cafe) and Wendy Barker individually, as backer and permittee of the Cafe. The plaintiff alleges that he suffered injuries while a passenger in a motor vehicle driven by Jason Stedman who was intoxicated after the defendants served Stedman alcoholic beverages while he was intoxicated. In count one of the complaint, the plaintiff seeks recovery pursuant to General Statutes § 30-102, the Dram Shop Act. In count two, the plaintiff alleges that the Cafe engaged in wanton and reckless conduct in serving alcoholic beverages to Stedman.
On February 9, 2005, the defendants filed an answer and three special defenses. On June 27, 2005, the plaintiff moved to strike the defendants' three special defenses of contributory negligence, participation, and assumption of the risk on the grounds that the special defenses raised by the defendants are legally insufficient. Specifically, the plaintiff argues that contributory negligence is not a proper defense to a dram shop suit and the trend in Connecticut trial courts is to disallow participation and assumption of risk defenses in claims made pursuant to General Statutes § 30-102. The defendants filed an opposition to the plaintiff's motion to strike on July 6, 2005. The essence of the defendants' position in their opposition brief is that Rhode Island law should govern the special defenses in this case, not Connecticut law. Oral argument was heard on January 30, 2006.
On March 8, 2005, the defendants filed an answer with special defenses in response to the plaintiff's request to revise the special defenses filed on February 14, 2005.
DISCUSSION
A motion to strike a special defense is a proper vehicle for the purpose of testing the legal sufficiency of the allegations of a special defense. Nowak v. Nowak, 175 Conn. 112, 116, CT Page 10201 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). In ruling on a motion to strike, the court has an obligation 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).
As a threshold procedural matter, this court must decide whether the choice of law issue raised by the defendants in their opposition brief is properly before this court. Practice Book § 10-3 provides in relevant part: "A party to an action who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this state shall give notice in his or her pleadings or other reasonable written notice."
In ruling on a motion to strike, the trial court is limited to the facts alleged in the pleadings. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). There is no allegation in the defendants' answer and special defenses that a choice of law exists between Connecticut and Rhode Island law. While the defendants' opposition brief and the oral argument in this matter contained claims concerning the appropriate choice of law, no notice of the choice of law issue is contained within the pleadings. In the present case, the only allegations contained in the pleadings that are relevant to the choice of law analysis are those stating that the accident occurred in Rhode Island and that the defendant Cafe is a Connecticut corporation located in Pawcatuck, Connecticut. Additionally, the summons lists a Rhode Island address for the plaintiff. There appear to be additional factors which may be relevant to a choice of law analysis, but any such facts are not contained in the pleadings. In any event, the court finds that it cannot consider Rhode Island law where no claim was made by the defendants in their answer and special defenses that the substantive law of Rhode Island should govern the merits of this case.
A.
In their first special defense, the defendants raise the claim of contributory negligence. In his motion to strike, the plaintiff argues that contributory negligence is not a proper defense to an action brought pursuant to the Dram Shop Act. It is clear that contributory negligence is not a defense to a dram shop claim. "[B]y the laws of this state, contributory negligence is not a valid defense to a Dram Shop Act suit." Sanders v. Officer's Club of Connecticut, Inc., 196 Conn. 341, 352, 493 A.2d 184 (1985). See also Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 512, 603 A.2d 1173 (1992) (reiterating the holding of the Sanders court).
Accordingly, the motion to strike the defendants' first special defense is granted.
B.
The defendants raise the claims of participation and assumption of the risk in their second and third special defenses. The plaintiff moves to strike these special defenses on the grounds that the defenses of participation and assumption of the risk are not valid defenses to the Dram Shop Act.
Participation
There have been no Connecticut appellate level decisions addressing the issue of the validity of the defense of participation to an action based on the Dram Shop Act. A split of authority on the issue exists at the Superior Court level. Jacocks v. Monahan's Shamrock, Superior Court, judicial district of New Haven, Docket No. CV 92 0330268 (October 13, 1993, Zoarski, J.).
Several Superior Court decisions have held that participation is not a defense in a Dram Shop Act suit. See Jacocks v. Monbhan's Shamrock, Superior Court, judicial district of New Haven, Docket No. CV 92 0330268 (October 13, 1993, Zoarski, J.); 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); Stowe v. Margaritas of Branford, Inc., Superior Court, judicial district of New Haven, Docket No. CV 940367595 (September 11, 1996, Zoarski, J.). Following the reasoning of Judge Zoarski in Monahan's Shamrock, this court agrees that to allow a defense of participation by a vendor of liquor would defeat by judicial amendment the legislative purpose in enacting the Dram Shop Act statute. "[A] vendor of liquor should bear the loss for damages to third persons as a result of sales to intoxicated persons . . . those decisions allowing a participation defense rely upon the rationale that as a participant in the consumption of alcohol with the intoxicated person, the participant is not innocent of the intoxication of the intoxicated person, and thus is not entitled to relief from the act . . . This rationale fails to recognize that the participant could not be able to participate in the consumption of alcohol with the intoxicated person without the vendor selling him or her the alcohol being consumed . . . The legislature has placed the onus on the vendor for selling alcohol to the intoxicated persons . . . Reading a requirement of innocence into the statute does not comport with the public policy prompting its passage or its express language." (Citations omitted; internal quotation marks omitted.) Jacocks v. Monahan's Shamrock, supra, Superior Court, Docket No. CV 92 0330268.
This court holds with the line of cases that does not recognize the defense of participation in a dram shop action. Accordingly, the motion to strike the defendants' second special defense is granted.
Assumption of the Risk
This court recently addressed the issue of whether assumption of the risk is a valid defense to a dram shop claim in Buzon v. Ballard Kane, Superior Court, judicial district of New London, Docket No. CV 04 0568685 (September 6, 2005, Hurley, J.T.R.) ( 39 Conn. L. Rptr. 909). Persuaded by Judge Silbert's reasoning in Rivera v. Miceli, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 040104721 (April 15, 2005, Silbert, J.) ( 39 Conn. L. Rptr. 151), this court found that assumption of the risk is not a valid defense to a dram shop claim in Connecticut. "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." Buzon v. Ballard Kane, supra, 39 Conn. L. Rptr. 910. Accordingly, the motion to strike the defendants' third special defense is granted.
CONCLUSION
For the foregoing reasons, this court grants the plaintiff's motion to strike the defendants' three special defenses.