Opinion
No. CV 04 4002527 S
June 24, 2005
MEMORANDUM OF DECISION RE MOTION #103A MOTION TO STRIKE
The plaintiff alleges in his Complaint that on or about December 28, 2002 he was traveling as a passenger in an automobile owned and operated by the defendant Sean Bonetti. The automobile went off the roadway and struck a utility pole thereby causing the plaintiff to be injured.
The plaintiff alleges in the third count of the complaint that prior to the accident the defendant Bonetti had consumed liquor at a bar owned and operated by the defendant Chute Gates, LLC. He further alleges that the defendant's agents, servants and or employees served alcohol to the defendant Bonetti even though said individuals knew or should have known that the Bonetti was intoxicated at the time.
The plaintiff alleges in the fourth count of the complaint that the defendant Chutes Gates' agents, servants and or employees served alcohol to the defendant in reckless disregard of the visible intoxication of Mr. Bonetti and that his injuries were caused by the reckless, willful and wanton misconduct of the defendant Chute Gates, LLC.
The defendant Chute Gates, LLC has moved to strike the third count of the complaint on the grounds that the date of the accident was December 28, 2002 and that as of that date Connecticut law did not recognize a claim for negligent service of alcohol.
The defendant Chute Gates moves to strike the fourth count for reason the allegations in said count are insufficient to support a claim for recklessness.
Whereas the defendant has filed a motion to strike, a brief review of recent case law concerning the motions to strike is warranted:
A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. We take the facts to be those alleged in the complaint that has been stricken and we construe 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." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).
Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002).
As to the Third Count
The third count of the plaintiff's complaint sounds in the negligent service of alcohol to an adult. "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, (1967).
Until recently there were three recognized exceptions to the common-law rule: 1) the Dram Shop Act; and 2) the service of alcohol or intoxicating liquor to minors; and 3) recklessness service of alcohol. However, until recently an individual seeking redress for injuries caused by the negligent service of alcohol to an adult, could only obtain said redress through the Dram Shop Act.
Section 30-102 C.G.S.
In February of 2003 the Connecticut Supreme Court addressed the issue of whether the Dram Shop Act was the exclusive remedy for an individual who was injured as the result of the negligent service of alcohol to an intoxicated adult. See Craig v. Driscoll, 262 Conn. 312 (2003) ( 35 Conn. L. Rptr. 308). The Court in Craig held that the Dram Shop Act was not the exclusive remedy for individuals who suffer damages as the result of the negligent service of alcohol to an intoxicated adult. See Id. at 330.
There is a split among the Superior Court Judges as to the issue of whether Craig is to be retroactively applied. Although there is a disagreement as to the conclusion, the Courts have tended to use similar reasoning to reach their conclusions. Most of the Superior Court Judges have used the "Chevron Test" to determine whether or not there should be retroactive application of the Craig holding.
The Chevron Test is a three-factor test established in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Chevron, the United States Supreme Court chose not to apply a judicial decision retroactively because the decision overruled clear precedent on which the complaining party was entitled to rely.
In Neyland v. Board of Education, 195 Conn. 174, 179, 487 A.2d 181 (1985), the Connecticut Supreme Court adopted the three-part test set out in Chevron for determining whether a decision must be applied prospectively only. According to the test there are three issues to be taken into account in determining whether a judicial decision should be retroactively applied: (1) Does the decision establish 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.
As was noted by Judge Moragan in Stavola v. Costa, Superior Court, judicial District of Danbury, Docket Number. CV 03-0350462 S (Jan. 18, 2005, Moragan J.) ( 38 Conn. L. Rptr. 530). "Cases on both sides of the retroactivity issue agree that the first prong of the Chevron Test is met since Craig v. Driscoll overturned clear precedent that had been followed for decades. They disagree, however, as to whether the second and third prongs are met." For example in Estate of Ridgaway v. Silk, Superior Count judicial district of Waterbury, Docket Number CV-01-01035185 (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872), Judge Quinn found that: ". . . [T]he second and third parts of the [Chevron test] do not support the retroactive application of a case which has only been legally viable for four months. As our Supreme Court noted in Quinnett, at page 347, `[t]o the extent that the General Assembly sees fit to articulate public policy through specific legislation, we are bound to honor the means by which it addresses the public policy in question.' The legislature has done just that, making it clear that common-law actions for the negligent service of alcohol to an adult are preempted by the Act and raising the limits of liability. To allow the retroactive application of Craig v. Driscoll goes directly contrary to the stated intent of the legislature. Thus, in analyzing `the prior history, purpose and effect' of the rule, it becomes clear that furtherance of the rule as set forth in Craig v. Driscoll would significantly frustrate the objectives of our legislature and would be contrary to the public policy of this state."
However in Blackwell v. Barone's Sports Cafe, Superior Court, judicial district of Waterbury Docket Number CV 02-4000570 (Jan 10, 2005, Schuman, J.) ( 38 Conn. L. Rptr. 636), Judge Schuman held that Craig v. Driscoll should be applied retroactively, stating that: "This court, however, disagrees with the ultimate application of the second prong of the Chevron Oil test in Estate of Ridgaway. The question is whether retroactive application of the rule would retard the rule's operation, not whether it would conflict with statutes or other public policy. Although it may be rare that retroactive application of a new rule would retard its own operation, the test is an important one and should be applied as stated. The purpose of the Craig decision was to `provide an avenue to recover full compensation, but only upon establishing the requisite culpability and causation.' Craig, supra, 262 Conn. 328. It would decidedly further this purpose to hold Craig retroactive, since doing so would allow victims, upon proof that the excessive sale of alcohol caused their injuries, to recover full compensation, unlimited by the dram shop act. Thus, the defendants cannot prove that retroactive treatment of Craig would retard its operation."
This Court agrees with Judge Schuman's holding in Blackwell, Id., and the line of reasoning that the application of the Chevron Oil Test requires that the holding in Craig be retroactively applied. The motion to strike the third count of the complaint is therefore denied.
As to the Fourth Count
The Fourth Count of the complaint essentially realleges the allegations of the third count and adds language that alleges that "[t]he Defendant Chute Gates, LLC by its agents, servants and/or employees, served alcohol to the Defendant Sean Bonetti in reckless disregard of the visible intoxication of said Defendant." The count further alleges that the plaintiff's injuries were caused by the reckless, willful and wanton misconduct of the Defendant Chute Gates, LLC.
To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of willful, 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 . . .
While we have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that 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. (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, supra, 64 Conn.App. 720-21.
Craig v. Driscoll, 262 Conn. 312, 342 (2003) ( 35 Conn. L. Rptr. 308).
This Court has reviewed the allegations of wrongful conduct cited by the plaintiffs in the fourth counts of the operative complaint and finds that it is legally insufficient to maintain a cause of action sounding in recklessness.
For the foregoing reasons, the Motion to Strike the third count is denied, the motion to strike the fourth count is granted.
So ordered.
Richard A. Robinson, J.