Opinion
No. X04-CV-03-0102444S
January 13, 2005
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE
Plaintiff Daniel Raymond seeks money damages for injuries sustained in a motorcycle accident during an employer-sponsored picnic, alleging that his employers were negligent and reckless in serving alcohol to the intoxicated tortfeasor, the defendant Joseph Duffy. The plaintiff's employers seek to strike these claims, asserting they do not state viable causes of action. First, they state an injured person may not sue his social host for the negligent service of alcohol or for negligent supervision of party guests. Second, they claim there are insufficient allegations of recklessness for an award of punitive damages. The court denies the motions for the reasons set forth in detail below. First, the newly articulated proximate cause analysis set forth in Craig v. Driscoll, 262 Conn. 312, 318, 813 A.2d 1003 (2003), implies that an injured person may sue a social host for the negligent service of alcohol to a visibly intoxicated guest, when that guest subsequently injures the third party or his property. This court so holds. The court also finds that the pleadings adequately state a cause of action for recklessness which can support a claim for punitive damages. The motions to strike are denied.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Daniel Raymond, brought this action against six defendants, Joseph Duffy, Teresa Cylkowski, Terry Cylkowski, David Armando, Able Warehousing Equipment, Inc. and Able Rigging Transfer, Inc., for injuries sustained as the result of a motorcycle accident which occurred on September 22, 2001. The complaint alleges that a company event was being held at 1765 New London Turnpike in Glastonbury on property owned by David Armando. The picnic was sponsored by Terry Cylkowski, Able Warehousing and Able Rigging, the employers of the plaintiff and the defendant Duffy. The plaintiff was operating a motorcycle and, noticing Duffy in the vicinity, either pulled to the side of the trail or slowed down. Duffy, operating a motorcycle owned by Teresa Cylkowski, collided with the plaintiff. The plaintiff suffered serious injuries.
It is further alleged that Terry Cylkowski, Able Warehousing and Able Rigging encouraged its employees to attend these company events, consume alcoholic beverages and operate motorcycles on the property. It is also alleged that these defendants provided and served the alcoholic beverages. Both the plaintiff and Duffy had consumed alcoholic beverages at the event prior to the collision.
There are several counts against each defendant, primarily claiming negligent and reckless conduct. And, as briefly outlined above, the defendants Terry Cylkowski, Able Warehousing and Able Rigging have filed motions to strike, claiming Connecticut courts do not recognize a cause of action for negligent service of alcohol to an adult by a social host or for negligent supervision of party guests. They further claim that plaintiff's complaint fails to set forth a claim of recklessness sufficient to seek punitive damages. Plaintiff objects.
A hearing on the motions was held on September 29, 2004. On October 13, 2004, the court sent notice to counsel requesting briefs on the retroactive effect, if any, of the holding of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), as applied to the facts of this case. The court heard additional argument, addressed to this issue only, on November 5, 2004.
LEGAL STANDARD
"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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, the trial court examines 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). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, CT Page 833 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
DISCUSSION 1. The Common Law and Negligent Service of Alcohol By Social Host
Defendants filed their motions to strike, formulating the crucial legal issue narrowly, claiming that Connecticut courts do not recognize a cause of action for negligent supervision of party guests. Prior to Craig v. Driscoll, the law was clear that no cause of action existed for the negligent supervision of patrons or guests if the basis for that claim was the negligent service of alcohol to an intoxicated person. And it is that latter legal proposition that is at the heart of these motions. "At common law it was the general rule that no tort cause of action lay 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." Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967). The only viable cases for negligent supervision were cases in which the allegations pertained to the negligent supervision of tavern patrons or an employer's negligent supervision of his employees.
Manganella v. HFR Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. CV-98-0416242 (February 26, 1999, Zoarski, JTR); Valle v. Andrew, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-95-0552111 (March 9, 1996 Hennessey, J.); Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. 0115265 (March 21, 1995, Flynn, J.) (14 Conn. L. Rptr 346); Castillo v. Brito, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-91-0394099 (October 28, 1991, Hennessey, J.) ( 5 Conn. L. Rptr. 201).
Seguro v. Cummiskey, 82 Conn.App. 186, 844 A.2d 224 (2004).
The history of the rule is instructive. In Connecticut, the common-law rule was modified as early as 1872 by Connecticut's first Dram Shop Act. As it evolved, the statute imposes liability up to a specified amount upon sellers of alcoholic beverages to an intoxicated person who, as a result of such intoxication, injures the person or property of another. Recovery is limited to the innocent third party victims. Nolan, id., 438-40.
Our Supreme Court subsequently modified the rule and held that the policy considerations which protect a seller and social host from negligent conduct in the furnishing of alcoholic beverages to an intoxicated person who injures another do not apply when the seller or social host engages in wanton and reckless misconduct. "This conclusion is based primarily on the notion that one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent." Kowal v. Hofher, 181 Conn. 355, 360-61, 436 A.2d 1 (1980).
The common-law rule was further modified in the case of Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), permitting a minor to sue for injuries sustained as a result of the negligent service of alcohol by social hosts or other purveyors of alcohol to a minor. In that case, the court noted that changing times required the common law to change.
This growing public awareness, as reflected by the legislature's frequent, recent amendments to the applicable statutes, causes us to conclude that common law precepts in this area also warrant reexamination: Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better . . . The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics . . . We have deemed it appropriate, in other contexts, to depart from common law precedents where we have found compelling reasons and logic for doing so . . . In 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.
(Citations omitted; internal quotation marks omitted.) Id., 94-95.
2. Proximate Cause Analysis in Craig v. Driscoll
As previously noted, the most recent Connecticut Supreme Court decision addressing the liability of one who negligently serves alcohol to an intoxicated individual is the case of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). In Craig, "the Supreme Court abandoned the rule that consumption [of alcohol] by the [intoxicated] person broke the chain of proximate cause so as to permit a common law cause of action by an innocent third party." That case can be said to have swallowed up the common law concerning the negligent service of alcohol. As defendants point out Craig's precise legal holding is that Connecticut's Dram Shop Act "does not occupy the field so as to preclude a common-law action in negligence against a purveyor of alcoholic beverages for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another." Id., 330. The Craig v. Driscoll decision was issued on February 4, 2003, and for the first time in Connecticut permitted two things; first, an injured party could sue a seller of alcoholic beverages for negligent service of alcohol, and; second, the recoverable damages for the resulting personal injuries were not constrained by the monetary limits set by the Dram Shop Act.
Candelora v. Lulu, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV04-0485530 S (October 26, 2004, Licari, J.) ( 38 Conn. L. Rptr. 123).
Only four months later, the legislature acted. It amended the Dram Shop Act in two material respects with the passage of Public Act No. 03-91, effective June 3, 2003. First, with direct reference to the Craig decision, it added the sentence: "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." Second, it increased the limit of liability from $20,000 per injured person and $50,000 as an aggregate amount for injured persons to $250,000 per person and $250,000 as an aggregate amount. By its action, it made clear that a cause of action for a seller's negligent service of alcohol to an adult was not recognized prior to February 4, 2003 and will not be recognized after June 3, 2003.
This case, however, involves the dispensing of alcohol by a social host rather than a seller or commercial vendor and the issue becomes the applicability, if any, of the Craig v. Driscoll holding to the facts of this case. Unquestionably the Dram Shop Act, as amended by Public Act No. 03-91, legislatively overrules Craig as it applies to sellers of alcoholic beverages. But Craig v. Driscoll remains good law in all other respects. Given the issues raised in the case before the court, a careful examination of Craig's legal underpinnings is required.
The Craig v. Driscoll Court begins its analysis with an overview of the law in this area. It recites the common-law rule, set forth in Nolan v. Morelli, supra, and the rationale that the voluntary consumption of alcohol was deemed an intervening act breaking the chain of causation between the provider of the alcohol and the injury caused by the intoxication. Id., 322. However, a common-law rule "may be subject to both legislative and judicial modification." (Citation omitted; internal quotation marks omitted.) Id., 323.
After first concluding that the Dram Shop Act did not preempt the field so as to preclude a common-law action in negligence against the seller of alcohol to an intoxicated person, the Court next determined that such a cause of action should be recognized in the state of Connecticut despite the well-established common-law rule.
Indeed, historically, a claim in negligence against the purveyor has failed on the theory that the injury was proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage [brought] about intoxication and the subsequent injury . . . In other words, we effectively presumed, by ruling as a matter of law, that the ingestion of alcohol by the patron acted as an intervening force sufficient to shift the entire causation element to some entity or entities other than the purveyor. That presumption, however, runs counter to our proximate cause jurisprudence generally, in which a tortious act by a third party does not act as an intervening force if such acts are within the scope of the risk created."
(Emphasis in original.) (Citation omitted; internal quotation marks omitted.) Id., 333.
The Court quoted with approval the remarks of Justice Bogdanski in his dissenting opinion in the case of Slicer v. Quigley, 180 Conn. 252, 267, 429 A.2d 855 (1980): "It is clear that the furnishing of an alcoholic beverage to an intoxicated person may be the proximate cause of injuries inflicted by that individual upon a third person. If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and the injury-producing conduct are foreseeable intervening causes, or at least the injury-producing conduct is one of the hazards which make such furnishing negligent."
Public policy considerations were highly relevant to the Craig v. Driscoll Court, in addition to the proximate cause analysis set forth above. The Court observed that when the common-law rule was adopted, most people walked and there were some horses and carriages. With motor vehicle travel as it exists today, the Court concluded that the rule should be modified to reflect the changing needs of society. Significantly, the Court stated: "It seems self-evident that the serving of alcoholic beverages to an obviously intoxicated person by one who knows or reasonably should know that such intoxicated person intends to operate a motor vehicle creates a reasonably foreseeable risk of injury to those on the roadways. Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care and therefore may be held liable in negligence." (Emphasis added.) Id., 339-40.
Even though the specific holding in Craig v. Driscoll applies to purveyors of alcohol, its reasoning also encompasses the social host situation. Indeed, as emphasized in the above quotations, the Court speaks to the serving of alcohol. Based upon the Craig Court's criticism of its previous decisions in this area as they related to proximate cause and intervening acts, and given its strong language about policy considerations in our changing society, this court concludes there is no legally relevant distinction between whether alcohol is provided to an obviously intoxicated individual for financial gain or is furnished by a social host gratuitously. The court concludes that Craig impliedly recognizes an injured person's right to sue a social host if that host negligently served alcohol to an obviously intoxicated person and such guest consequently caused injury to another. The court therefore concludes that our law recognizes such a cause of action under the common law and that the voluntary consumption of alcohol by the tortfeasor no longer serves to bar the action.
It appears that this is a matter of first impression in Connecticut, it has been over thirty years since a California court permitted an injured adult to sue the tortfeasor's social host for negligence, relying on a similar common-law proximate cause analysis. See Vesley v. Sager, 3 Cal.3d 153, 486 P.2d 151 (1971). Later, such liability in California was abrogated by statute, as it has been in other states as well. See Ann: Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 ALR 4th 16, (1988); and Ann: Intoxicating Liquors: Employer's liability for furnishing or permitting liquor on social occasion, 51 ALR 4th 1048 (1987).
Additional support for permitting the complaint to withstand a motion to strike and concluding a cause of action is permitted is provided by the facts of this case. As previously noted, the complaint alleges that the defendant employers encouraged employees to attend this event, consume alcohol and operate motorcycles on the property. There is the further allegation that the employers made participation in these activities a condition or factor in advancement at the company. See Seguro v. Cummiskey, 82 Conn.App. 186, 844 A.2d 224 (2004), where the appellate court held that an employer has a duty to supervise an employee, to prevent such employee from drinking alcohol, becoming intoxicated and then, after leaving work in an intoxicated condition, injuring a third party.
The defendants' argument centers on its claim that Connecticut courts do not recognize a cause of action for negligent supervision of party guests and have therefore moved to strike the relevant counts of the plaintiff's complaint. Prior to Craig v. Driscoll, the plaintiff in this case would have had to allege that his social hosts failed to exercise reasonable care in the supervision of their guests rather than negligence in the serving of the alcohol to their guests in order to be a viable cause of action. Rivera v. Ramirez, Superior Court, judicial district of Danbury, Docket No. CV-01-0343235 (July 16, 2002, White, J.) ( 32 Conn. L. Rptr. 522). Such causes of action were recognized and indeed, our Supreme Court recognized liability for negligent supervision of invitees to a union sponsored picnic decades ago. Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973). Subsequent to Craig v. Driscoll, this court concludes such allegations, even when premised on the negligent service of alcohol, state viable causes of action.
Arguably, it may be unfair to expose social hosts to a greater liability than businesses which are protected by the provisions of the Dram Shop Act, as amended by Public Act No. 03-9. First, the court notes that both purveyors of alcohol and social hosts have been exposed to such liability for the service of alcohol to intoxicated minors since 1988, see Ely v. Murphy, supra. In the years since the Supreme Court decided Ely, there has been no great public outcry against the modification of the common-law rule to extend liability to social hosts in such circumstances. Certainly, it is the case that businesses, unlike social hosts, profit from the sale of alcoholic beverages. They also possess employees trained to recognize impaired individuals, and most have liability insurance to protect them financially from negligent service. Whatever may be one's conclusions about the disparity between the potential legal liability of social hosts and businesses covered by the Dram Shop Act, the present state of our case law makes no allowances for these factors and it is within the province of the legislature to make such allowances, should it choose to do so.
In this case, the plaintiff's basis for his claim of negligent supervision is the negligent service of alcohol. Given the language in Craig v. Driscoll and given the case law on employer liability under such circumstances, however, this court finds that the plaintiff has stated a viable cause of action against these defendants for negligent supervision of party guests, premised upon the negligent service of alcohol to intoxicated persons.
3. Retroactive Application of Craig v. Driscoll
Defendants have also argued that there should be no retroactive application of Craig to this case. The Craig v. Driscoll decision was issued on February 4, 2003. The motorcycle accident in the present case occurred on September 22, 2001. The plaintiff does not dispute that his cause of action accrued on September 22, 2001, the date of the accident, and that substantive rights are fixed at that time. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989). The defendants argue that if Craig v. Driscoll recognizes a new cause of action for negligent service of alcohol, it should not be applied retroactively to permit the challenged counts in negligence.
The plaintiff claims that it is the logic and reasoning in Craig v. Driscoll which supports his position that he has pleaded valid causes of action, not the application of the specific holding recognizing a seller's liability to third parties for its negligent service of alcohol to an intoxicated individual. Further, the plaintiff notes that the Craig v. Driscoll Court concluded that its previous decisions in this area were "counter to our proximate cause jurisprudence generally." Id., 332. The plaintiff argues that the Court recognized its prior presumption concerning proximate cause under these circumstances was erroneous, when one considered well-established negligence principles, and therefore would be the type of decision that must be applied retroactively.
The court agrees. "There is abundant authority to support the proposition that where a court overrules a previous decision the effect is not to make a change in the law but to recognize that the court was mistaken in its first declaration of it and to establish that the law always was as stated in the later decision." Mickel v. New England Coal Coke Co., 132 Conn. 671, 676, 47 A.2d 187 (1946). "As a rule, judicial decisions apply retroactively. Robinson v. Neil, 409 U.S. 505, 507-08, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity." (Citation omitted; internal quotation marks omitted.) State v. Ryerson, 201 Conn 333, 339, 514 A.2d 337 (1986). And, indeed, the Craig v. Driscoll decision itself was applied retroactively to the parties in that case without discussion.
The defendants argue that the test set forth in Ostrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997) should be applied to the facts of this case. In footnote 18, the Court noted that in Neyland v. Board of Education, 195 Conn. 174, 179, 487 A.2d 181 (1985), it had adopted the three-part test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), for determining whether a decision must be applied prospectively only.
A common law decision will be applied nonretroactively only if: (1) it establishes a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . .;(2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship.
(Citations omitted; internal quotation marks omitted.) Ostrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997).
In Neyland, supra, the Court actually declined to utilize the more flexible approach to nonretroactivity taken in Chevron Oil. Because the issue was one of jurisdiction, the Court noted that a jurisdictional ruling is never made prospective only. Another reason it declined to apply the Chevron Oil holding, however, was the fact that no new rule of law had been created. In Craig v. Driscoll, the court concluded that the common-law rule placing responsibility on the voluntary intervening act of the intoxicated individual who imprudently consumed the alcohol "runs counter to our proximate cause jurisprudence generally." The argument can thus certainly be made that the Craig Court was correcting its previous decisions and was not creating new law. This court agrees with that analysis and therefore need not reach the issue of Craig's retroactive application.
Nonetheless, even if Craig v. Driscoll is seen to establish a new principle of law and that therefore the first criterion in Ostrowski v. Avery, supra, is satisfied, the court finds that the defendants have not satisfied the other two criteria. No persuasive authority has been provided indicating that retroactive application of Craig v. Driscoll would "retard its operation" or produce "substantial inequitable results, injustice or hardship." Ostrowski v. Avery, supra, 377 n. 18. For these reasons, the court concludes that the logic and reasoning of Craig v. Driscoll is to be applied to the facts of this case.
Although this court declined to apply the holding of Craig v. Driscoll retroactively in the case of Ridgaway v. Silk, LLC, Superior Court, judicial district of Middlesex at Middletown, Docket No. (X04)-CV-01-0103518-S (April 28, 2004) ( 36 Conn. L. Rptr. 872), the facts were significantly different in that case. The defendant was a seller of alcohol and the holding of Craig v. Driscoll, rather than just the reasoning and logic of the case, was directly applicable. However, Public Act 03-91 was passed four months after the issuance of the Craig v. Driscoll decision, amending the Dram Shop Act and making it clear that an injured party "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." This court then declined to give retroactive effect to a decision which was premised on a factor which was no longer the case. Our legislature has not addressed the social host situation such as the one presently before this court.
4. Recklessness
The defendants claim that the recklessness counts against them should be stricken because the plaintiff failed to set forth claims of reckless conduct sufficient to seek punitive damages. The court disagrees. To plead a viable cause of action in recklessness, the conduct alleged must be "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 64 Conn.App. 699, 720-21, 781 A.2d 440 (2001).
However, as noted in the Supreme Court decision of Craig v. Driscoll, supra, 343, "[a]lthough there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." In the present case, the plaintiff alleges that the defendant employers "encouraged, at said gatherings, the consumption of intoxicating liquors, and/or the operation of motorcycles and/or motor vehicles by persons who had consumed intoxicating liquors"; that they "encouraged the defendant [Duffy] to operate a motorcycle while he was in an intoxicated state," that they "served . . . intoxicating liquors to the defendant [Duffy] while he was in an intoxicated state and/or while they knew, or should have known, that he was in an intoxicated state," and that they "expressly or impliedly made participation in the dangerous activities of the company gatherings a condition or factor in advancement at the company."
Construing the allegations of the complaint in the light most favorable to the plaintiff, as the court must do in considering a motion to strike, sufficient facts have been pleaded to state a viable cause of action in recklessness.
CONCLUSION
The plaintiff has alleged sufficient facts to set forth causes of action for negligent service of alcohol to an adult by an employer social host, negligent supervision of party guests and reckless conduct. Accordingly, the defendants' motions to strike are denied.
BY THE COURT
BARBARA M. QUINN, Judge