Opinion
CV156061566S
09-21-2016
Eileen Remillard, Administratrix v. Rancourt Enterprises, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#106)
A. Susan Peck, Judge Trial Referee.
The plaintiff, Eileen Remillard, Administratrix of the Estate of Coleen Bolduc, has filed this action against the defendants, Rancourt Enterprises, Inc. d/b/a Pappy's Café, Lawrence Barile, and Patricia Rancourt, pursuant to Connecticut's wrongful death statute, General Statutes § 52-555. The decedent, Coleen Bolduc, is the plaintiff's sister. The three-count complaint alleges negligence, recklessness, and gratuitous assumption of duty to act. The defendants have moved to strike all three counts of the plaintiff's complaint, and the second prayer for relief seeking, double, treble, punitive and " exemplary" damages, including attorneys fees.
General Statutes 52-555(a) provides in relevant part: " In any action surviving to or brought by an . . . administrator for injuries resulting in death . . . such . . . administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses . . ."
The complaint alleges the following facts. The defendants are the owners and operators of Pappy's Café (Pappy's), in East Hartford, Connecticut. The plaintiff's decedent was a regular customer at Pappy's, was friends with Barile and Rancourt, and visited Pappy's an average of four to six nights per week over a period of several years. On February 12, 2015, the defendants hosted a birthday party at Pappy's for their son and invited the decedent to attend. On that date, the decedent arrived at the bar at 5:00 p.m. While at the bar, the decedent consumed in excess of ten alcoholic beverages either sold or given to her by the defendants. She became visibly intoxicated, a state obvious to anyone observing her behavior, conduct, countenance, speech, gait and movement. Despite her visible intoxication, the defendants or their agents, servants or employees continued to serve alcohol to the decedent, knowing that the decedent was responsible for driving herself home.
Between 10:15 and 10:30 p.m., Rancourt voluntarily and gratuitously undertook the responsibility of assisting the decedent in her departure from the bar. Rancourt helped the decedent step down from the bar stool, physically took her arm, and supported and guided her as she walked to the front door. Rancourt further assisted the decedent as she walked to her vehicle; helped the decedent navigate around the snow banks, watched the decedent open the driver's door, get into the driver's seat and then drive away.
At approximately 1:45 a.m. on February 13, 2015, the decedent was found in an unconscious state, lying face up in a snow bank in front of her apartment at 54 Chapel Street in East Hartford. She was rushed to St. Francis Hospital emergency room. Emergency resuscitation efforts were undertaken but she was pronounced dead at 5:23 a.m. that morning. As a direct and proximate result of the defendants' negligent conduct, the decedent suffered exposure to sub-freezing temperatures over an extended period of time leading to hypothermia and death. The Medical Examiner's report stated the decedent died of acute alcohol intoxication, complicated by environmental hypothermia.
On February 1, 2016, the defendants filed a motion to strike all three counts of the plaintiff's complaint, as well as the second prayer for relief requesting double, treble, punitive and exemplary damages, including attorneys fees. The defendants argue that count one should be stricken on the ground that there is no common-law duty owed by one who furnishes alcohol to a voluntarily intoxicated person; count two, including the second prayer for relief, should be stricken on the ground that the plaintiff has failed to sufficiently plead reckless conduct; and count three should be stricken on the ground of failure to state a claim upon which relief may be granted.
In her opposition, the plaintiff states that count one alleges a legally cognizable claim and should not be stricken as the defendants' conduct is the proximate cause of the decedent's injuries; (2) count two sufficiently alleges a recklessness claim; and (3) count three properly alleges the gratuitous assumption of duty to act, as the assistance provided to the decedent was negligently performed, ultimately resulting in the decedent's death. At short calendar, the defendants' counsel also argued that the negligence and recklessness claims are nearly identical and that the decedent was never in the defendant's charge.
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
I
Count One: Negligence
In support of their motion to strike count one, the defendants argue that there is no common-law duty owed by one who furnishes alcohol to a voluntarily intoxicated person. In Craig v. Driscoll, 262 Conn. 312, 322, 813 A.2d 1003 (2003), the Connecticut Supreme Court overruled the holding in Quinnett v. Newman that the Dram Shop Act (the Act), General Statutes § 30-102, precluded " a common-law negligence action against a purveyor for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another." Craig v. Driscoll, supra, 262 Conn. 326. In so doing, the Supreme Court clarified that the Act did not " occupy the field" so as to preclude such common-law negligence actions. The decision also reaffirmed " the judicial recognition of the substantial causal relationship between the negligent service of alcoholic beverages and the injuries that occur as the result of drunkenness . . . [noting] " we expressly reject the claim that a purveyor who provides alcoholic beverages to an already intoxicated patron or patron known to him to be an alcoholic cannot, as a matter of law, be the proximate cause of subsequent injuries caused by the intoxicated patron." (Citation omitted; emphasis original.) Id., 334.
213 Conn. 343, 568 A.2d 786 (1990).
It is true that four months after Craig v. Driscoll was issued, the General Assembly amended the Act, raising the limit of liability for such claims to $250,000 and making claims under the Act the exclusive remedy against a seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older. The Act specifies that it is limited to the sale of alcohol to " an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another . . ." (Emphasis added.) General Statutes 30-102, as amended by Public Act 03-91. Although the Act, as amended, provides an exclusive remedy for injuries to third parties over the age of twenty-one, it makes no mention of common-law negligence actions against a seller by an intoxicated patron who causes subsequent injury to himself, as a result of the purchaser's own intoxication. See Caciopoli v. Lebowitz, 309 Conn. 62, 70, 68 A.3d 1150 (2013) (statutes in derogation of common law must be strictly construed). Accordingly, to the extent that Public Act 03-91 modified Craig v. Driscoll, it did not preclude a common-law negligence action such as the present one. Whether, under the circumstances, the negligence of the defendants was a substantial factor in producing the plaintiff's injury is ordinarily a question of fact. See Craig v. Driscoll, supra, 262 Conn. 335. Viewing the allegations of the complaint broadly as the court is required to do when considering a motion to strike, the plaintiff has sufficiently alleged negligent acts on the part of the defendants and the requisite proximate cause to satisfy the substantial factor test as defined in Craig v. Driscoll. Id., 331. Accordingly, the motion to strike is denied.
In Craig v. Driscoll, supra, 262 Conn. 329 n.14, the Supreme Court noted that it did not directly address whether to recognize an action at common law on behalf of an intoxicated person again a seller of alcoholic liquor stating that its holding that the Dram Shop Act did not preclude a common-law action in negligence did not turn on a distinction between common-law actions brought on behalf of third parties or those brought on behalf of the intoxicated person himself. Here, the only ground stated in support of the defendants' motion to strike count one is that there is no common-law duty owed to a voluntarily intoxicated person, citing Craig v. Driscoll for this principle of law. A full reading of Craig v. Driscoll, however, reveals no such holding. Thus, whether an intoxicated person has a right to bring an action for injuries suffered to himself remains an open question that this court is not required to resolve based on the ground relied upon in defendants' motion to strike.
II
Count Two: Recklessness
" To determine whether the . . . complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Craig v. Driscoll, supra, 262 Conn. 342-43.
" '[Willful], ' 'wanton, ' or 'reckless' conduct tends to take on the aspect of 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 simply inattention." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 382-83, 119 A.3d 462 (2015).
" There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on . . . One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him . . ." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 64 Conn.App. 699, 721, 781 A.2d 440 (2001), aff'd, 262 Conn. 312, 813 A.2d 1003 (2003).
As stated in Craig v. Driscoll, supra, 262 Conn. 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 support of its motion to strike count two, the defendants argue that the plaintiff has failed to set forth sufficient facts to state a claim of common-law recklessness. The court disagrees. Viewing the facts contained in count two, which incorporates the first sixteen paragraphs of count one, they sufficiently allege conduct on the part of the defendants, which if supported by evidence, may be found to constitute an extreme departure from ordinary care reflecting a reckless disregard for the decedent's safety. Specifically, the plaintiff alleges that the decedent consumed in excess of ten alcoholic beverages, either sold or given to her by the defendants, that she became visibly intoxicated, a state obvious to anyone observing her behavior, conduct, countenance, speech, gait and movement, and, despite her visible intoxication, the defendants, their agents, servants or employees continued to serve alcohol to the decedent, knowing that decedent was responsible for driving herself home. Despite the defendants' assertion that the negligence and recklessness counts of the plaintiff's complaint " mirror" one another, the court concludes that the plaintiff's allegations of negligence were overinclusive. Id., 344 n.22. Therefore, count two states a legally sufficient cause of action. Accordingly, the defendants' motion to strike as to count two is denied.
III
Count Three: Gratuitous Assumption of Duty to Act
" One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him." Restatement (Second), Torts § 324 (1965), comment (a) . The distinguishing element of § 324 is that the plaintiff is in a helpless condition. Id., comment (a).
" One who gratuitously undertakes a service that he has no duty to perform must act with reasonable care in completing the task assumed." Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 282, 748 A.2d 875 (2000) (appeal withdrawn March 30, 2001). " [T]here generally is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person." (Emphasis in original; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 539-40, 51 A.3d 367 (2012).
In the present case, the complaint alleges that the decedent was a friend of the defendants, and was a regular customer at Pappy's, visiting the establishment approximately four to six nights per week for several years. The complaint further alleges that the decedent engaged in conversation with the defendants, consumed ten alcoholic beverages during the course of the evening; that her intoxication was obvious to anyone observing her behavior, conduct, countenance, speech, gait and movement; and that the decedent's intoxication rendered her helpless, therefore lacking the capacity to fully understand the risks associated with leaving the bar. The complaint further alleges that the defendants assisted the decedent to her vehicle, and then allowed her to drive away knowing that she was in a compromised state. Thus, having voluntarily and gratuitously assisted the plaintiff in her departure, failed to do so in a reasonable manner by allowing the decedent to drive herself home; failing to warn the decedent that she was incapable of safely transporting herself home; failing to provide the plaintiff with safe transportation; and, failing to escort the decedent to her home.
In their motion to strike, the defendants argue that the plaintiff's allegations in this count rest upon the premise that the defendants assumed a duty to get the decedent home to her apartment safely, and failed to do so. The defendants further argue that the decedent did arrive home safely. The plaintiff counters that in assisting the decedent's exit from the bar, after having served her over ten drinks during the course of the evening, the defendants failed to perform this task in a reasonable manner, and that the defendants' " negligent acts and/or omissions" were the cause of the decedent's fatal injuries. In their reply, the defendants counter that the decedent was not helpless, unconscious or semi-conscious, and that the plaintiff seeks to extend the gratuitous duty rule to unforeseeable outcomes.
In the present case, while the complaint alleges that the decedent was " incapable of taking adequate care of herself, " the facts alleged to do not support the assertion that the decedent was helpless, to the extent that she was in an unconscious or semi-conscious state. See Marek v. Going, 66 Conn.App. 557, 561-62, 785 A.2d 248 (2001), cert. denied, 259 Conn. 909, 789 A.2d 995 (2002); Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 277. Rather, the facts as alleged reflect that the plaintiff only became helpless after she arrived home and parked her vehicle. Although the complaint does allege that Rancourt assisted the decedent's exit from Pappy's, it does not contain allegations that the defendants made any attempt to take charge of the decedent, or that she was within their custody or control, or that the assistance given by Rancourt was required because the decedent was incapable of exiting on her own. Finally, count three includes allegations that the defendants failed to warn, and failed to take precautionary measures on the decedent's behalf. " Claims that a defendant failed to take protective measures do not suffice." Pawlowski v. Delta Sigma Phi, Superior Court, judicial district of New Haven, Docket No. CV-03-0484661-S (January 23, 2009, Lager, J.) (47 Conn.L.Rptr. 132, 134, ). For these reasons, count three fails to state a claim upon which relief can be granted. Therefore, the defendants' motion to strike as to count three is granted.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendants' motion to strike counts one and two, and the second prayer for relief of the plaintiff's complaint, is hereby denied, and the defendants' motion to strike count three is hereby granted.