Opinion
No. CV 07-5012087 S
October 15, 2008
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTIONS TO STRIKE (#s 134, 135, 136) AND DEFENDANTS' OBJECTIONS THERETO (#s 139,140)
These motions come before the court as nonarguable matters. The court has reviewed all legal memoranda. Familiarity with all applicable law recited by the parties is presumed and it need be generally repeated.
The court notes that #134 and #136 are the same motion to strike. Oracle's claim that these motions are procedurally deficient because they are not accompanied by an appropriate memorandum of law is without merit. Oracle exalts form over substance. The body of these motions incorporates the plaintiff's necessary legal memorandum.
Substantially this court rules as follows:
Motions #134 and #136 directed to Oracle First Special Defense
When read in the light most favorable to Oracle this defense alleges participation not assumption of risk. This court is persuaded by that line of cases recognizing such defense in dram shop cases. See e.g., Breen v. Brother Bones Dave, Inc., 12 Conn. L. Rptr. 518 (1994). If these allegations are proven the plaintiff's decedent is no innocent third party.
Denied.
Second Special Defense
Oracle alleges assumption of risk to the dram shop claim in count one. Again, based on the fact that here it is the estate of the intoxicated person, as opposed to an innocent third party, making claim those cases such as Breen, Id., are persuasive.
Denied.
Third Special Defense
There is no objection.
Granted.
Fourth Special Defense
Again, where as here contributory recklessness is alleged against the estate of the intoxicated driver himself and not an innocent third party, this court is persuaded by these cases allowing such defense to the reckless claim in count three. See e.g., Sego v. Debco, Inc., 12 Conn. L. Rptr. 415 (1994).
Wylie v. Trio's Bar Grill, 43 Conn. L. Rptr. 275 (2007) is distinguishable. The claimant there was a passenger not the intoxicated driver. Moreover that court found inadequate allegations of recklessness in the challenged special defense. There is no such claim here.
Denied.
Motion #135 directed to Hopkins First Special Defense
When read in the light most favorable to Hopkins this special defense fairly sounds in comparative negligence directed to the plaintiff's negligence claims in counts four and seven.
Moreover, as noted in Wendland v. Sidgefield Construction Services, Inc., 190 Conn. 791, 797-98 (1983) factors relevant to the assumption of risk doctrine may also be considered pursuant to a comparative negligence defense. There is no bright line distinction.
Denied.
Second Special Defense
The court addressed this same issue above with respect to Oracle's fourth special defense. That same reasoning applies here.
Moreover, as with comparative negligence under Wendland, Id., the allegations here may be construed as allegations of reckless conduct.
Denied.
So ordered in accordance with the foregoing.