Opinion
No. NNH CV-08-5016583
January 7, 2009
MEMORANDUM OF DECISION
ISSUE
Whether the court should grant the defendants' motion to strike paragraph 8(b) of the first and second counts of the plaintiff's complaint on the ground that the plaintiff fails to allege sufficient facts to support a cause of action.
FACTS
On August 14, 2008, the plaintiff, Earl Potter, Jr., filed a revised three-count complaint against the defendants, the American Legion Post 88 (the American Legion), William F. Cocking and Raymond T. Earley, for personal injuries that he allegedly sustained as the result of negligence on the part of the defendants. Counts one and two are negligence claims against the American Legion and Cocking, in his capacity as an agent, servant or employee of the American Legion, respectively, and are identical in nature. In each of the two counts, the plaintiff alleges the following facts. The plaintiff was a member and business invitee of the American Legion, located in Hamden, Connecticut, on December 10, 2005. On that day, Earley, while intoxicated, caused the plaintiff to trip over a chair leg and fall to the ground. Earley was not a member of the American Legion at the time of the incident. As a result of the fall, the plaintiff sustained permanent injuries and required multiple surgeries. In paragraph 8(b), the plaintiff alleges that his injuries were due to the defendants' negligence and carelessness in that they "served alcohol to Earley who was obviously intoxicated when it was unreasonable to do so and foreseeable that said service would create a danger to Legion members of the premises." In other subsections of paragraph 8, the plaintiff alleges that the defendants were also negligent in allowing Earley to enter and remain on the premises, failing to provide adequate security, failing to keep a proper lookout for non-members and intoxicated individuals and failing to make reasonable use of their senses and faculties to protect its business invitees from foreseeable dangers.
On January 11, 2008, the defendants filed a request to revise the plaintiff's original complaint, seeking, inter alia, the deletion of paragraph 8(b) from the first and second counts for failing to allege a recognizable cause of action. The plaintiff filed an objection on January 23, 2008, arguing that paragraph 8(b) of the first and second counts relate to a claim of general negligence. On August 7, 2008, the court, Skolnick, J., sustained the plaintiff's objection. Counts one and two of the plaintiff's revised complaint include paragraph 8(b)s which are identical to those in his original complaint.
The third count is against Earley who is not a party to this motion. In that count, the plaintiff alleges that Earley was negligent by failing to remain attentive to the individuals around him, failing to control his movements to avoid injury to others and behaving in an "unreasonably aggressive and threatening" manner towards the plaintiff. Hereinafter the term the defendants refers to the American Legion and Cocking, collectively.
On November 10, 2008, the defendants filed a motion to strike paragraph 8(b) from the first and second counts of the plaintiff's complaint on the ground that the plaintiff fails to allege sufficient facts to support a cause of action. The defendants submitted a memorandum of law in support of the motion. The plaintiff filed a memorandum of law in opposition on December 4, 2008, in which he raises substantive and procedural objections to the motion. On December 8, 2008, the defendants filed a reply memorandum of law in further support of their motion.
The court notes that the defendants' motion to strike is technically deficient in that the defendants do not state the specific ground on which their motion is based in the motion itself, and instead do so in their memorandum. Our appellate courts have stated on several occasions that "[m]otions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). Nevertheless, the court considers the merits of the defendants' motion due to the plaintiff's failure to object to it on this basis in that "Practice Book § 10-41 is not jurisdictional in nature." Id.
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). "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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2 1188 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
The defendants move to strike paragraph 8(b) of the first and second counts of the plaintiff's complaint on the ground that they are legally insufficient because Connecticut does not recognize a private cause of action for claims arising out of the negligent service of alcohol to a person twenty-one years of age and older. The defendants argue that such claims are governed exclusively by the Dram Shop Act, General Statutes § 30-102. The plaintiff's substantive argument is that his allegations sound in common-law negligence and do not constitute a claim under the Dram Shop Act.
General Statutes § 30-102 provides in relevant part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars . . . to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person's or persons' intention to bring an action under this section." The plaintiff cites Davenport v. Quinn, 53 Conn.App. 282, 287-88, 730 A.2d 1184 (1999), for the proposition that the Dram Shop Act is not a plaintiff's exclusive remedy against sellers of intoxicating liquors. The Dram Shop Act was amended, however, subsequent to the Davenport decision by Public Acts 2003, No. 03-91, which added the following sentence to the statute: "Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older." Public Act 03-91. "Undoubtedly, Public Act 03-91 eliminated any common-law negligence causes of action by person entitled to recover under the Dram Shop Act." Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002366 (May 19, 2008, Tobin, J.) (45 Conn. L. Rptr. 499, 500). Therefore, in the present case, the plaintiff is precluded from bringing a common law claim against the defendants for the allegedly negligent service of alcohol to Earley, as their claim falls within the parameters of the Dram Shop Act.
The plaintiff also argues that his allegations in paragraph 8(b) do not fall under the Dram Shop Act because he has not alleged that the defendants "sold" Earley alcohol. The defendants counter that the plaintiff's allegations that Earley was "served" alcohol by the defendants are sufficient to bring paragraph 8(b) within the parameters of the Dram Shop Act. The Connecticut Supreme Court has stated that, "viewing the statute as essentially remedial and consequently giving it a liberal construction, we can assume the legislature, by its use of the word `sell' . . . meant `purvey' or `furnish' rather than a sale in the strict sense of the term." Pierce v. Albanese, 144 Conn. 241, 258, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957); see also Autore v. Kimberly Inn, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0331085 (December 3, 1998, Nadeau, J.) (23 Conn. L. Rptr. 469, 470) (finding definition of "sale" under Dram Shop Act included free provision of alcohol). Based on the broad judicial interpretation of a sale under the statute, it is submitted that the plaintiff's allegations that the defendants "served" Earley alcohol constitutes an allegation that they furnished liquor to him and brings paragraph 8(b) within the Dram Shop Act, and the plaintiff's argument that the defendants' motion to strike should be denied on this ground fails.
The plaintiff also argues that his allegations in paragraph 8(b) do not fall within the parameters of the Dram Shop Act because they are based on negligent supervision, rather than the negligent service of alcohol. "Connecticut does recognize a cause of action for the negligent supervision of tavern patrons and employees. See Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967); see also Castillo v. Brito, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91394099 (October 28, 1991, [Hennessey, J.) (5 Conn. L. Rptr. 201). The cause of action for negligent supervision . . . is based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor's negligence in furnishing alcohol." (Emphasis added; internal quotation marks omitted.) Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.).
In Collar v. Da Cruz, the plaintiff's claim for negligent supervision also included a paragraph in which he alleged that the defendants were negligent in serving alcohol to a patron of their establishment. Id. The court granted the defendants' motion to strike as to that paragraph on the basis that the plaintiff's exclusive remedy was under the Dram Shop Act, but denied the motion as to the remaining allegations "which sufficiently allege a casue of action based on negligent security." Id. Similarly, in the present case, paragraph 8(b) of the plaintiff's first and second counts alleges that the defendants were negligent in that they served alcohol to Early, who was obviously intoxicated, when it was unreasonable to do so, while the remaining allegations in the two counts relate to the defendants' failure to exercise reasonable care in the supervision of its premises. Therefore paragraph 8(b) of the first and second counts is related to the defendants' negligent service of alcohol, rather than their negligent supervision, and the plaintiff's argument that the defendants' motion to strike should be denied on this ground fails.
The plaintiff's first procedural contention is that paragraph 8(b) may not be stricken because it does constitute an independent cause of action. The defendants counter that paragraph 8(b) does not relate to the other paragraphs in the complaint or support any other cause of action and therefore may be stricken. "Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action." (Internal quotation marks omitted.) Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 065007079 (May 21, 2007, Tanzer, J.) (43 Conn. L. Rptr. 458, 458). A cause of action is defined as a "single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129, 788 A.2d 83 (2002). In Collar v. Da Cruz, supra, Superior Court, Docket No. CV 03 0830138, the court held that because "the plaintiff, in paragraph 8(I), alleges that the defendants were negligent in serving alcohol to an intoxicated adult within the parameters of the Dram Shop Act, paragraph 8(I) purports to allege an entire cause of action." Similarly, in the present case, in paragraph 8(b) of the first and second counts the plaintiff alleges that the defendants were negligent in serving alcohol to Early, which brings the allegations within the Dram Shop Act. Therefore paragraph 8(b) purports to allege an entire cause of action, and the plaintiff's argument that the defendants' motion to strike should be denied on this ground fails.
The plaintiff's second procedural argument is that the motion to strike should be denied because previously, in ruling on the defendants' request to revise, the court, Skolnick, J., sustained the plaintiff's objection to the defendant's request that paragraph 8(b) be deleted from the first and second counts. The defendants counter that a request to revise and a motion to strike differ in function and, therefore, the court's ruling on the request to revise has no bearing on the motion to strike.
"The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified . . . Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete otherwise improper allegations from a complaint . . . The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted." (Internal quotation marks omitted.) Melfi v. Danbury, 70 Conn.App. 679, 683-84, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002). In Hartley v. Boyd, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 030402974 (January 12, 2004, Doherty, J.), the court held that where "the deletion of certain counts of the plaintiffs' complaint alleging unknown causes of action challenges the legal sufficiency of the plaintiffs' complaint, the proper method for such a challenge is to make a motion to strike and not a request to revise." In the present case, the defendants improperly attempted to utilize a request to revise to challenge the legal sufficiency of paragraph 8(b) of the first and second counts, and, therefore, the plaintiff's objection was properly sustained. This ruling does not, however, preclude the defendants from properly challenging the legal sufficiency of this portion of the plaintiff's complaint with a motion to strike.
CONCLUSION
The court grants the defendants' motion to strike paragraph 8(b) of the first and second counts of the plaintiff's complaint on the ground that it constitutes a cause of action for negligent service of alcohol that is exclusively governed by § 30-102, the Dram Shop Act.