Opinion
No. CV03-0350462 S
January 18, 2005
MEMORANDUM OF DECISION
On May 3, 2002, one of the defendants, Angelica Costa, was driving a car owned by Mario Costa. She was intoxicated and collided with a vehicle in which the plaintiff, Jennifer Stavola, was a passenger. As a result of the collision, the plaintiff suffered numerous injuries.
In counts one and two of her amended four-count complaint, the plaintiff brings claims against the Costas for negligence and recklessness under § 14-295 of the General Statutes. In count three, the plaintiff alleges the other two defendants, Corner Pub, Inc. and its owner, Barbara McCarthy, were negligent in that they "maintained an alcohol service policy with regard to Angelica C. Costa in particular in which [she] would not be refused service of alcohol even when intoxicated . . ." Although the fourth count is labeled as a claim for double and treble damages under § 14-295, the plaintiff alleges therein that the accident was caused by Corner Pub, Inc. and Barbara McCarthy's willful and reckless conduct in that they continued to serve alcohol to Costa when they knew she was intoxicated and would later be driving.
On December 5, 2003, McCarthy and Corner Pub, Inc. filed a motion to strike the third and fourth counts of the plaintiff's complaint. They moved to strike count three on the ground that, at the time of the accident, Connecticut did not recognize a common-law claim for negligent service of alcohol to an adult; and count four on the ground that in order for a plaintiff to receive double or treble damages under § 14-295, the plaintiff must allege that the defendants violated one of the statutes enumerated in § 14-295, which she did not. On September 2, 2004, the plaintiff filed an objection to the defendants' motion to strike.
The defendants' December 5, 2003 motion to strike was accompanied by a memorandum in support. On December 8, 2003, the plaintiff filed a request to amend the complaint, along with an amended complaint. The defendants did not file an objection to the plaintiff's request, therefore, pursuant to § 10-60 of the Practice Book, the amended complaint is the operative complaint. On June 22, 2004, the defendants filed a motion to strike the amended complaint, with no memorandum attached. The court is constrained to rely on the December 5, 2003 motion, and the memorandum attached thereto.
The Costas did not file a motion to strike. Accordingly, the use of "defendants" herein refers only to Corner Pub, Inc. and Barbara McCarthy.
"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 (2003). "The role of the trial court [is] to examine 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 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).
"At common law there is no cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated." Quinnett v. Newman, 213 Conn. 343, 345 (1990), overruled in part, Craig v. Driscoll, 262 Conn. 312 (2003). In 1872, Connecticut enacted legislation which "gave a [statutory] cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for any damage or injury to any other person, or to the property of another done by the intoxicated person in consequence of his intoxication. Thus, this act, in situations where it was applicable, displaced the common-law rule that the proximate cause of intoxication was not the furnishing of the liquor but its consumption . . . The modern version of this so-called civil damage or dram shop act is [found in § 30-102 of the General Statutes]." For many years after the Dram Shop Act was enacted, our courts concluded that it was the exclusive remedy available to plaintiffs who alleged that they had been injured as a result of a defendant's negligent sale of alcohol to an intoxicated adult.
The Supreme Court overruled Quinnett on February 4, 2003, in Craig v. Driscoll, supra, which held that the 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. Effective June 3, 2003, the General Assembly reversed Craig by enacting Public Act Number 03-91 of the 2003 Public Acts, wherein the legislature added new language that specifies that an "injured person shall have no cause of action against [a] seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older." Public Acts 2003, No. 03-91, § 1. "Thus, it is clear that a cause of action for negligent service of alcohol to an adult was not recognized prior to February 4, 2003 and will not be recognized after June 3, 2003." Ridgaway v. Silk, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 01 0103518 (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872).
In the present case, the plaintiff's cause of action accrued and her substantive rights were therefore established on the date of the accident, that is, May 2, 2002. See Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21 (1989). This was several months before Craig v. Driscoll was decided. Nevertheless, the plaintiff argues that Craig should be applied retroactively, allowing her to pursue a common-law claim in negligence Although the defendants acknowledge that Craig v. Driscoll overturns Quinnett, they emphasize that Craig was not decided until ten months after the date that the plaintiff's cause of action accrued. Further, they note that effective June 3, 2003, Craig was overturned by Public Act 03-91; just four months after Craig was decided. The defendants contend that Public Act 03-91 prohibits any cause of action sounding in common-law negligence against a liquor seller in the sale of alcoholic liquor to a person aged twenty-one or older, and therefore that Craig should not be applied retroactively.
It should be noted that the plaintiff has not asserted a claim against the defendants under the Dram Shop Act.
The Connecticut appellate courts have not addressed whether Craig v. Driscoll can be applied retroactively, and there is a split in the lower courts on this issue. Decisions on both sides of the issue have relied on Ostrowski v. Avey, 243 Conn. 355 (1997), for guidance.
In the following cases, the court determined that Craig v. Driscoll does not apply retroactively: Wills v. Hine, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 079162 (October 20, 2004, Shluger, J.); Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.); Rossitto v. Ernie's Place Café, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0101052 (June 29, 2004, Silbert, J.) ( 37 Conn. L. Rptr. 341); Ridgaway v. Silk, supra. The court determined that the decision does not apply retroactively in Arnato v. Randall's Restaurant, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 02 0079868 (August 9, 2004, Robinson, J.) and Raposa v. Lynam, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182731 (December 3, 2003, D'Andrea, J.T.R.) ( 36 Conn. L. Rptr. 174).
In support of her contention that Craig should be applied retroactively, the plaintiff argues that judgments are presumed retroactive unless limited by their express terms. Marone v. Waterbury, 244 Conn. 1 (1998) The plaintiff cites several cases, none of which represent the unique situation presented here: a party requesting the court to retroactively apply a case that has been statutorily reversed. Among others, the plaintiff cites State v. Ryerson, 201 Conn. 333 (1986), which held that "a legal system based on precedent has a built-in presumption of retroactivity . . . [A] "[c]omplete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials." (Citations omitted; internal quotation marks omitted.) Id., 339. In the present case, the Craig decision does not implicate any of the plaintiff's constitutional guarantees, but is a reversal of previous court rulings.
In Ostrowski v. Avey, the court used the following three-factor "Chevron Test," to determine whether judicial decisions should be limited to prospective application. The court looks to whether: "(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." (Citation omitted; internal quotation marks omitted.) Id., 377-78 n. 18.
This three-factor test was established in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). There, the court chose not to apply the judicial decision retroactively because the decision overruled clear precedent on which the complaining party was entitled to rely.
Cases on both aides of the 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. See Nolan v. Morelli, 154 Conn. 432, 436 (1967). This suggests that Craig should only be applied prospectively. They disagree, however, as to whether the second and third prongs are met. "[T]he second and third parts of the test quoted in Ostrowski v. Avery, do not support the retroactive application of a case which has only been legally viable for four months . . . To allow retroactive application of the decision goes directly contrary to the stated intent of the legislature . . . and would be contrary to the public policy of this state." Ridgaway v. Silk, supra, 36 Conn. L. Rptr. 872. Another court, citing to Ridgaway v. Silk, stated that "[c]oncerning the third factor, whether retroactive application would produce substantial inequitable results, injustice or hardship, the court noted the inequity of allowing a negligence claim within that four-month period whereas the majority of plaintiffs with identical fact situations are precluded from maintaining such actions. The court also noted the hardship imposed on [t]he owners of the establishments who purchased insurance and trained employees under the law as it existed prior to Craig v. Driscoll, . . . and subsequent to the passage of Public Act 03-91." (Internal quotation marks omitted.) Rossitto v. Ernie's Place Café, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0101052 (June 29, 2004, Silbert, J.) ( 37 Conn. L. Rptr. 341). Moreover, as the Supreme Court noted in another context, "we see no reason why, after the legislature clarified what it felt was an inappropriate decision by this court, that our decision would nevertheless, still be applicable . . ." Bhinder v. Sun Co., 263 Conn. 358, 377 (2003).
"[W]hen a party has significantly relied upon a clear and established doctrine, and the retrospective application of a newly declared doctrine would upset that justifiable reliance to his substantial injury, considerations of justice and fairness require that the new rule apply prospectively only." Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 496, 88 S. Ct 2224, 20 L.Ed.2d 1231 (1968).
One decision held that these prongs were not met because the defendants did not cite authority for their arguments. Raposa v. Lynam, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182731 (December 3, 2003, D Andrea, J.T.R.) ( 36 Conn. L. Rptr. 174).
In fact, the court was careful to note, in deciding Craig v. Driscoll, that "there is nothing in the act to suggest that the legislature intended to occupy the field, either in its language or its legislative history." Craig v. Driscoll, supra, 326. Later the act was amend to do just so.
The court agrees with the decisions that have determined that Craig v. Driscoll should not be given retroactive effect. Therefore, the defendants' motion to strike the third count is granted, as it does not sufficiently allege a cognizable cause of action.
As to the fourth count, the defendants argue that it is legally insufficient because the plaintiff does not allege that the defendants violated any of the "rules of the road" listed in General Statutes § 14-295. The plaintiff did not respond to this argument in her objection to defendants' motion to strike. It is apparent, however, that although the plaintiff labeled the fourth count as a claim under § 14-295, she actually alleges a cause of action against these defendants for reckless service of alcohol. See Dufficy v. Mohring, Superior Court, judicial district of Danbury, Docket No. 311091 (December 7, 1993, Moraghan, J.) ( 10 Conn. L. Rptr. 457) (recognizing a common-law claim for gross negligence in the service of alcohol to an intoxicated person). This court will look past the label a party affixes to a cause of action, to the substance of the allegations. See Middlesex Mutual Assurance v. Favreau, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 396760 (September 17, 2003, Dewey, J.). Because the fourth count is not premised on § 14-295, the court denies the defendants' motion to strike the fourth count.
Moraghan, J.