Opinion
No. CV 00 0438055 S
May 8, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS
On April 25, 2000, the plaintiffs, Christian Armando Reyes (Reyes) and Carlos Ramon Trinidad (Trinidad) filed an eight-count complaint against the defendants, Infante D. Henrique Portugese American Community Center, Inc., Albino Nunez and Latino Productions, Inc. In their complaint, the plaintiffs allege the following relevant facts. The plaintiffs were passengers in a motor vehicle driven by Carmen Corona (Corona) and were injured as a result of Corona losing control of the vehicle and colliding with jersey barriers on the side of the road. Corona became intoxicated, before the accident, while drinking alcohol at an event sponsored by Latino Productions. In counts five and seven, the plaintiffs each claim that Latino Production is liable for violations of the Dram Shop Act, General Statutes § 30-102. In counts six and eight, the plaintiffs each claim that they sustained injuries as a result of Latino Productions' reckless conduct.
On August 27, 2002, Latino Productions filed a motion for summary judgment as to counts five, six, seven and eight of the plaintiffs' complaint on the ground that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. In support of its motion for summary judgment Latino Productions submits a memorandum of law and the certified deposition testimony of Reyes and Trinidad. Latino Productions argues that the plaintiffs have not provided any evidence demonstrating that it served Corona alcoholic beverages while he was intoxicated. As a result, Latino Productions argues that it is entitled to summary judgment as a matter of law.
The plaintiffs, in response, filed a memorandum in opposition to Latino Productions' motion for summary judgment. In support of their opposition to Latino Productions' motion for summary judgment, the plaintiffs submit: (1) numerous New Haven police reports from the investigation into Corona's motor vehicle accident; (2) an application for an arrest warrant; and (3) uncertified excerpts from their deposition testimony. The plaintiffs argue that, based on these pieces of evidence, there is sufficient evidence indicating that Latino Productions served Corona alcoholic beverages while he was intoxicated and thus there is a genuine issue of material fact.
On January 1, 2003, Latino Productions filed a reply to the plaintiffs' objection and reiterated its argument that the plaintiffs cannot offer evidence indicating that Corona was intoxicated or that it sold alcohol to Corona while he was intoxicated. Latino Productions also objects to the consideration of Corona's blood alcohol level, found in the application for arrest warrant submitted by the plaintiffs, on the ground that it is inadmissable hearsay evidence that may not be considered for summary judgment purposes.
The court agrees with Latino Productions that the result of Corona's blood alcohol level found in the application for arrest warrant is inadmissable hearsay evidence. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). Evidence "identified . . . as hearsay . . . [is] inadmissible for the purpose of defeating [a] motion for summary judgment." Id., 437. Accordingly, the court will not consider it for the purposes of deciding the motion for summary judgment now before the court.
DISCUSSION
"Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ., and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002).
"[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
A. Dram Shop Act (Counts Five and Seven)
Latino Productions argues that there is no genuine issue of material fact as to the fifth and seventh counts of the plaintiffs' complaint and it is entitled to judgment as a matter of law because there is no evidence to support the plaintiffs' claims under the Dram Shop Act. Latino Productions argues that there is no evidence indicating that it served Corona intoxicating liquor while he was in an intoxicated state. In response, the plaintiffs argue that there is sufficient evidence to demonstrate that there exists a genuine issue of material fact with regard to whether Latino Productions served Corona alcohol while he was intoxicated.
General Statutes § 30-102 provides, in pertinent part: "If any person, by himself or his 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 twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of 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 within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section . . ." "In each case . . . the trier must decide as a question of fact: whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another." Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985).
"To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be `dead-drunk.' It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349-50.
In support of its motion for summary judgment, Latino Productions submits the certified deposition testimony of Trinidad and Reyes. In his deposition testimony, Trinidad states that he never saw Corona drink alcoholic beverages at the club. (Latino Productions' Memorandum of Law in Support of its Motion for Summary Judgment, Exhibit A: Trinidad Deposition, p. 28.) Trinidad further states that Corona did not appear drunk while he was at the club. (Trinidad Deposition, p. 29.) Trinidad also states, however, that he saw beer pitchers at Corona's table in the club and that he realized Corona was drunk when they left the club together. (Trinidad Deposition, pp. 28, 33.)
Reyes stated, in his deposition testimony, that Corona and his friend offered him a drink while they were in the club together. (Latino Productions' Memorandum, Exhibit B: Reyes Deposition, p. 36.) Reyes further stated that both times he interacted with Corona in the club, Corona did not appear intoxicated. (Reyes Deposition, pp. 38-39.) Reyes also stated that he observed Corona drinking beer while at the club. (Reyes Deposition, p. 28.) Finally, Reyes stated that the first time he noticed that Corona appeared intoxicated was while Corona was involved in an altercation outside of the club. (Reyes Deposition, p. 44.)
Latino Productions argues that, based on the plaintiffs' interpretations of Corona's behavior inside the club, there is no genuine issue of material fact that Corona was not intoxicated at the club. Latino Productions asserts that "[i]t is the plaintiffs' burden to prove that the [Latino Productions] sold alcohol to an intoxicated person." (Latino Productions' Reply Memorandum, p. 4.) Latino Productions further argues that because the plaintiffs cannot prove that Corona was intoxicated, as evidenced by their statements, then Corona could not have been intoxicated. Latino Productions, however, misplaces the burden with regard to summary judgment. " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) Gaynor v. Payne, supra, 261 Conn. 590-91.
Because Latino Productions is the party seeking summary judgment, it is not the burden of the plaintiffs, the nonmovants, to provide evidence proving that Latino Productions sold alcohol to Corona while Corona was in an intoxicated state. Instead, the burden rests with Latino Productions. Latino Productions erroneously relies on the plaintiffs' alleged lack of evidence for summary judgment purposes. Latino Productions, however, has failed to provide any evidence establishing that Corona was not intoxicated or that he was not sold alcohol. Thus, a genuine issue of material fact exists with regard to whether Latino Productions violated the Dram Shop Act.
B. Recklessness (Counts Six and Eight)
Latino Productions asserts that there is no evidence to support the plaintiffs' claims of recklessness, and, as a result, Latino Productions is entitled to summary judgment as to counts six and eight. Latino Productions argues that the plaintiffs have not provided evidence indicating that it served great quantities of liquor to Corona, that Corona was visibly intoxicated when he was served alcohol and that it knew Corona was going to drive and failed to prevent him from driving. The plaintiffs, in response, argue that there is sufficient evidence to support their recklessness claims.
"In order to prove that a sale of intoxicating liquor was made in a willful, wanton and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended 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." (Internal quotation marks omitted.) Coble v. Maloney, 34 Conn. App. 655, 661, 643 A.2d 277 (1994). "[A] claim of recklessness usually presents a question of fact, unsuitable for summary judgment, unless no reasonable mind can differ as to the conclusion." Reilly v. Panaroni, Superior Court, judicial district of New Haven, Docket No. CV 00 0439030 (December 3, 2001, Silbert, J.) ( 31 Conn.L.Rptr. 104, 111).
Latino Productions, relying on the plaintiffs' same deposition testimony as above argues that the plaintiffs cannot prove that Latino Productions acted in a reckless manner with regard to serving Corona alcohol. As discussed above, however, Latino Productions has mischaracterized the summary judgment burden. Latino Productions, as the movant, has the burden of proving that there is no genuine issue of material fact as to whether Corona was intoxicated, and if he was intoxicated, whether Latino Productions sold him alcohol in a reckless manner. See Gaynor v. Payne, supra, 261 Conn. 590-91. Latino Productions argues that an absence of evidence on the part of the plaintiffs leads the court to render summary judgment in its favor, yet Latino Productions has not provided any evidence to indicate that there is no genuine issue of material fact with regard to whether it served Corona alcoholic beverages in a reckless manner. Furthermore, "a claim of recklessness usually presents a question of fact, unsuitable for summary judgment, unless no reasonable mind can differ as to the conclusion." Reilly v. Panaroni, supra, 31 Conn.L.Rptr. 111. As a result, Latino Productions has failed to meet its initial burden as the movant.
For the forgoing reasons, Latino Productions' motion for summary judgment as to counts five, six, seven and eight of the plaintiffs' complaint is denied.
Harper, J.