Opinion
No. CV02 0389474
February 14, 2006
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #136
The defendants Anne L. Smith and Anne L. Smith d/b/a Black Rock Castle have moved for summary judgment on the Third, Fourth, Fifth and Seventh Counts of the plaintiff's Amended Complaint dated February 6, 2003. The Third Count alleges liability against the defendants based on the sales of alcohol to a defendant Frank Ham under the Dram Shop Act, General Statutes § 30-102. As to the Third Count, the defendants contend that the defendant Frank Ham was not served alcohol when he was intoxicated and his intoxication was not the cause of the accident that caused the death of the decedent Benjamin Bero.
The Fourth Count alleges liability against the defendants based on the reckless sales of alcohol to Ham. As to the Fourth Count, the defendants argue that they did not serve alcohol to Ham when he was intoxicated at the Black Rock Castle; he was not manifesting signs of intoxication at the Black Rock Castle, and his consumption of alcohol was not the cause of the accident.
The Fifth Count alleges liability for negligent sales of alcohol to the decedent when the defendants "knew or should have known that the decedent was a minor" thereby causing his impairment and subsequent injuries. Regarding the Fifth Count, the defendants argue that the decedent Bero, a minor, was not intoxicated at the Black Rock Castle; he misrepresented his age to the defendants; and his consumption of alcohol had no causal relationship to the accident that caused his death.
The Seventh Count alleges a cause of action for common law negligence for sales of alcohol to Ham, outside the parameters of the Dram Shop Act. As to the Seventh Count, the defendants argue that Connecticut does not recognize a common-law cause of action for the negligent sale of alcohol to a third-party tortfeasor that subsequently causes injury to another party. As well, the defendants argue that because the defendant Ham was not served alcohol while intoxicated at the defendants' premises, the defendants had no reason to believe he was intoxicated and would operate a motor vehicle. In addition, Ham's consumption of alcohol had no causal relationship to the fatal accident.
I Facts and Procedural Background
A summary of the facts, as alleged by the plaintiffs, reveals that this action involves a fatal motor vehicle accident tat occurred on February 8, 2001 at approximately 3:30 a.m. The plaintiffs William Bero and Joanne Bero have brought this action in their representative capacities as co-administrators of the estate of the decedent, Benjamin Bero, their son. The defendants are Anne L. Smith and Anne L. Smith d/b/a Black Rock Castle, as the owner and operator of the establishment known as the Black Rock Castle in Bridgeport, Connecticut. The plaintiffs allege that the decedent died from multiple injuries when a motor vehicle in which he was a passenger collided with a guardrail and bridge overpass on Route 25/8 in Shelton, Connecticut. The collision caused the decedent to be ejected out of the back window of the motor vehicle and being thrown over the bridge to a road below. The vehicle in which the decedent was a passenger was being operated by Frank Ham, who is also a defendant in this matter.
According to the plaintiffs, on the evening of February 7, 2001, prior to the collision, the decedent, a minor, was a patron at the defendants' establishment, having arrived there in the company of another minor at approximately 6:30 p.m. The minor decedent was not asked for any identification or proof of age. At approximately 8:00 p.m., the defendant Ham joined the decedent and the other minor patron at the defendants' establishment. During the course of the evening the decedent and Ham allegedly purchased and consumed alcoholic beverages from the Black Rock Castle, and allegedly became intoxicated. They left the Black Rock Castle at approximately 1:00 a.m. and proceeded to a private residence, where they remained for approximately one hour. Between 3:00 a.m. and 3:30 a.m., Ham lost control of his motor vehicle, causing the collision with the guardrail and bridge overpass. The decedent was ejected from the car and fell over the bridge to the street below. Ham called a friend to assist him in looking for the decedent. Upon the arrival of the friend, they entered the friend's vehicle and proceeded to locate the decedent's body. A police officer on patrol came upon the parties and discovered the decedent. Ham did not inform the officer that he was involved in the accident, nor did he inform the officer that he knew the decedent.
Subsequently, after a police investigation, Ham was arrested for the collision and the death of the minor decedent. While Ham eventually pleaded guilty, was convicted of second degree manslaughter, and was incarcerated, he was not charged with any alcohol related offenses. In particular, he was not charged with operating under the influence.
Ham was not arrested at the scene of the accident when the decedent's body was found nearby. Ham denied any knowledge regarding the decedent's death. He was allowed to leave the location where police found the decedent's body. Ham continued to deny involvement until February 14, 2001. At that time a warrant was signed for Ham's arrest charging him with Manslaughter in the Second Degree, General Statutes § 53a-56, False Statement in the Second Degree, General Statutes § 53a-157b, Falsely Reporting an Incident, General Statutes § 53a-180 and Avoiding Responsibility for Giving Assistance-Serious Physical Injury, General Statutes § 14-224(a).
II Summary Judgment
The standard for the consideration of a motion for summary judgment is well-established. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). 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 issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion" Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
"Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
III Third Count: Dram Shop Act
The defendants have moved for summary judgment on the Third Count which alleges a violation of General Statutes § 30-102, which states in relevant part:
If any person, . . . sells any alcoholic liquor to an intoxicated person, an 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 . . .
For Dram Shop liability to attach, the plaintiff must prove that 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).
The defendants argue that they cannot be liable to the plaintiffs pursuant to the provisions of the Dram Shop Act because the defendants did not sell alcohol to the defendant Ham. They contend that the decedent actually purchased the alcohol at the defendants' establishment and provided it to Ham, who was socializing with the decedent at the Black Rock Castle. In addition, the defendants argue that Ham was not intoxicated at the Black Rock Castle, and Ham's consumption of alcohol at the Black Rock Castle had no causal relationship to the fatal accident at approximately 3:30 a.m.
In establishing a violation of the Dram Shop Act, § 30-102, the trier must decide as a question of fact whether there was a sale of intoxicating liquor to an intoxicated person who as a consequence of said intoxication causes injury to the person or property of another. Coble v. Maloney, 34 Conn.App. 655, 662, 643 A.2d 277 (1994). The ultimate question as to whether a person's intoxication resulted from his activities at the defendant's bar and whether the bar violated the Dram Shop Act by continuing to serve an already intoxicated driver is for the jury. See Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 341; see also, Kelehear v. Larcon, 22 Conn.App. 384, 390 (1999).
A review of the documents, transcript copies and sworn affidavits submitted by the parties in support of their respective positions leads the court to conclude that there are genuine issues of material facts as to whether the defendants violated the Dram Shop Act. The plaintiffs have submitted a sworn affidavit from John Scoran who was at the Black Rock castle with both the defendant Ham and the decedent in the hours preceding the fatal accident. According to the affidavit of Scoran, Ham purchased alcoholic beverages at the defendants' establishment from 8:00 p.m. until approximately 1:00 a.m., when Ham, the decedent Bero and Scoran left the bar together. Scoran's affidavit recites that he, Bero and Ham were purchasing and consuming approximately four alcoholic drinks each per hour. Scoran continues, "During the course of drinking at the Black Rock Castle on February 7, 2001 into February 8, 2001, we became visibly intoxicated and we were continued to be served alcoholic beverages.
In addition, while the defendants claim that it was not Ham, but rather, the decedent Bero who purchased the alcoholic drinks at their establishment. This claim is to no legal effect. Use of the word "sell" in the Dram Shop Act is not confined to a sale in the strict sense, but is used in the sense of purvey or furnish. Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606 (1957) appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). The purveying or furnishing of intoxicants for a price to the person or group of two or more obviously in one company constitutes such a sale to each member of the group, regardless of whether he personally ordered or paid for such. Id. at 259. The reasoning in Pierce v. Albanese, supra, has also been applied in several superior court decisions that have found that a "sale" of alcoholic liquor took place, even though the person who caused the injury did not actually pay for the drink. See, Autore v. Kimberly Inn, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0331085 S (July 16, 1998, Nadeau, J.) ( 22 Conn. L. Rptr. 423) (the supplying of free drinks to be consumed on the premises, may qualify as a sale of alcohol); Fusco v. The Packy, Superior Court judicial district of New London at Norwich (November 9, 1999, Burley, J.) (sale of liquor at a package store to two individuals who entered the store together, selected the purchase together, and stepped up to the cash register together to complete the purchase qualified as sale to both, although only one tendered the payment).
Summary judgment as to the Third Count of the plaintiffs' amended complaint is denied.
IV Fourth Count: Reckless Sales of Alcohol
Although there is no common law cause of action for negligent sales of alcohol to an intoxicated patron who causes injury, vendors may be liable for the injurious consequences of wanton and reckless sales of alcoholic beverages to an intoxicated person, who in turn, brings about injuries as a result of intoxication. Kowal v. Hofeher, 181 Conn. 355, 436 A.2d 1 (1980).
The question before us, then, is whether those policy considerations which might justify protecting both a vendor and a social host from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages to another also apply when the conduct constitutes wanton and reckless misconduct. We hold that they do not. This conclusion is based primarily on the notion that one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent. See Restatement (Second), 2 Torts 501, comment (a).
Id. at 360-61; see also Craig v. Driscoll, supra, CT Page 3141 262 Conn. 324-26 discussing Kowal v. Hofeher, supra, 181 Conn. 355.
To establish liability for a reckless sales of alcohol, plaintiffs must allege and establish facts indicating that the defendants continued to serve a patron despite observable or manifest signs of intoxication or service to an obviously intoxicated individual. Proof of sale to an intoxicated person requires proof of 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.
(Internal quotation marks omitted.) Hayes v. Caspers, Ltd. 90 Conn.App. 781, 801-02, 881 A.2d 428 (2005), quoting, Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985).
While the defendants have at great length contested the plaintiffs' ability to prove their allegations of Ham's intoxication and the defendants' recklessness in serving alcohol to him, through their argument and documentation in their memorandum of law, a claim of recklessness is ordinarily a fact to be determined by the trier of fact. See Dean v. Nowacki, Superior Court, judicial district of Litchfield, No. CV99 0081044, (January 2, 2001, Cremins, J.), citing Coner v. Chittenden, 116 Conn. 81-82, 163 A. 472 (1932); Reilly v. Panaroni, Superior Court, judicial district of New Haven at New Haven, No. CV00 0439030 (December 3, 2001, Silbert, J.) ( 31 Conn. L. Rptr. 104).
While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that wilful, 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 . . .
Viewing the evidence presented most favorably to the plaintiff, we conclude that the jury reasonably, logically and legally could have found that the defendants had exercised wilful, wanton and reckless misconduct in selling alcohol . . . It is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . .
Coble v. Maloney, 34 Conn.App. 655, 670-71, 643 A.2d 277 (1994).
As to the plaintiffs' Fourth Count of their Amended Complaint, the court finds that there are sufficient genuine issues of material fact as to whether the defendants recklessly served alcohol to Frank Ham, the operator of the motor vehicle in which the decedent was a passenger and as to whether Ham was intoxicated at the time he was allegedly served alcohol by the defendants. Summary judgment as to the Fourth Count is hereby denied.
V Fifth Count: Negligent Service of Alcohol to a Minor
The defendants move for summary judgment as to the Fifth Count because they claim the minor decedent Benjamin Bero was not intoxicated at the Black Rock castle and he misrepresented his age as 21 or over. Additionally, the defendants claim Bero "was not a minor at the time" he consumed alcohol, and his consumption of alcohol had no causal relationship to the accident which caused his death.
The common law rule precluding a claim for the negligent service was further modified in Ely v. Murphy, 207 Conn. 88 (1988). In Ely the court established the rule permitting a minor to sue for injuries sustained as a result of the negligent service of alcohol by social hosts or other purveyors of alcohol to a minor. In rendering its decision the Ely court noted that the changing times required the common law to change.
This growing public awareness, as reflected by the legislature's frequent, recent amendments to the applicable statutes, causes us to conclude that common law precepts in this area also warrant reexamination. Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better . . . The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics . . . We have deemed it appropriate, in other contexts, to depart from common law precedents where we have found compelling reasons and logic for doing so . . . In view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.
(Internal quotation marks omitted.) Id. at 94-95.
Our Supreme Court continues to establish the public policy of prohibiting service of alcohol to minors. "[O]ur state's public policy, as manifested in numerous relevant civil and criminal statutes, "reflect[s] a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 336, 813 A.2d 1003 (2003) "Our courts have determined that minors are not competent to assume the responsibility of consuming alcohol." State v. Springman, 69 Conn.App. 400, 409, 794 A.2d 1071, cert denied, 260 Conn. 934 (2002).
Additionally, General Statutes § 30-86 makes it a criminal offense to sell alcohol to minors and provides in relevant part that: "Any permittee, who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, shall be subject to the penalties of section 30-113. Any person who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen months, or both . . ." See State v. Springman, supra, 69 Conn.App. 420 n. 2.
In the present case it is undisputed that the decedent was 20 years old at the time of his death and should not have been served alcohol at the defendants' establishment. General Statutes § 30-1(12) defines a minor for the purposes of serving alcoholic beverages as an individual under the age of twenty-one (21) years of age. See, Bohn v. Last, 236 Conn. 670 (1996). The decedent was clearly a minor under Connecticut law as it relates to the defendants' ability to sell him alcohol.
It is also clear that the defendants did not request any age identification of the decedent on the eve of the fatal accident. The defendants excuse this by stating that he had been there on prior occasions with a false identification, and they were familiar with him, therefore, they did not request identification on the date in question. The decedent on a date prior to the evening in question had also requested from the permittee, defendant Smith, that he be allowed to celebrate his twenty-first birthday at the Black Rock Castle, thereby providing the defendant establishment with notice that he was under the age of twenty-one. The defendant Smith has also confirmed that the decedent was a customer at the bar on the night of his death, although Smith herself, was not present.
The defendants further argue that the decedent Bero was not intoxicated on the evening in question, however, the sworn affidavit of Jonathan Scoran, a companion of the decedent who was present with the decedent that night, claims that he and Bero, along with the defendant Ham were at the Black Rock Castle consuming alcoholic beverages for over five hours. Scoran states that Bero was served alcohol while he was intoxicated.
The defendants further claim that they are not liable for serving the minor decedent because the decedent was not operating a motor vehicle. The defendants note that while Ely v. Murphy, supra, 207 Conn. 88 (1988), states that while "minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury. Id. at 95. The Ely court also noted that "This is not to say, however, that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect." Id. at 97.
While this court finds that there are questions of genuine material fact regarding the defendants' knowledge that the decedent was a minor, that he was intoxicated, and that the defendants sold him alcohol while he was intoxicated, the court must continue further and determine whether the decedent's intoxication was the proximate cause and cause in fact of his own death.
The two recognized appellate authorities concerning exceptions to the common law rule for service of alcohol to minors involved claims by innocent third parties who were injured by the intoxicated minor as a result of affirmative negligent conduct by the minor. See, Bohn v. Last, supra, 236 Conn. 670; Ely v. Murphy, supra, 207 Conn. 88. In other words, not only was the minor intoxicated, thus providing a causal link and exception to the common law principles against such actions, but that the intoxicated minor injured another innocent third party, not the minor himself, through affirmative conduct. Id.
The defendants argue that the minor decedent Bero's consumption of alcohol has nothing to do with his death because he wasn't driving the vehicle involved in the fatal accident. He was a passenger in the vehicle. The defendants state that they are unaware of any authority recognizing causation in this circumstance, where the allegedly intoxicated patron was injured through no conduct of his own. Thus there is no substantial causal relationship between any negligent service of alcohol to Bero and the injuries that occurred as a result of Bero's intoxication. Craig v. Driscoll, supra, 262 Conn. 336. Thus, it is argued that the defendants' alleged conduct in serving alcohol to the intoxicated minor Bero was not a "substantial factor" in producing his death. Id. at 331.
The plaintiffs argue that contrary to the defendants' claim that they are not liable for serving the minor decedent because the minor was not driving, a person who has become intoxicated and is injured may maintain an action for his own injuries. The plaintiffs cite Lee v. Splash Pacific Rim Grille, Superior Court, judicial district of New Haven at New Haven, Docket No. CV97 0399683 (March 3, 1999, Moran J.) ( 24 Conn. L. Rptr. 233), as holding that a cause of action outside a claim of negligence for the serving of alcohol to an intoxicated individual is not limited to innocent third parties.
In Lee, the plaintiff, filed a two-count complaint. The first count, directed against Splash Pacific only, alleged that the plaintiff was injured in a one-automobile accident after leaving Splash Pacific, a restaurant and bar, in an intoxicated state. The plaintiff contended that Splash Pacific negligently supervised and trained its employees because its employees served her alcohol when she was already intoxicated, and as a result, Splash Pacific is liable for Lee's injuries. The second count alleges that Splash Pacific and an additional defendant Falci, recklessly continued to serve her alcohol when she was already intoxicated. Splash Pacific and Falci filed a motion to strike the complaint on February 26, 1998.
The court (Moran, J.) noted that at common law there is no cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated, citing Quinnett v. Newman, 213 Conn. 343, 345-46, 568 A.2d 786 (1990). The court refused to recognize such cause of action "because doing so would conflict with Quinnett v. Newman, supra, 213 Conn. 343." Id. The court did, however, allow the plaintiff to maintain an action against Splash Pacific for the reckless service of alcohol.
The plaintiffs also cite the decision in Candelora v. Lulu, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV04 0485530 S (October 26, 2004, Licari, J.) (38 Conn L. Rptr. 123), wherein the court found liability to the intoxicated person himself for his own injuries for reckless service to him by the defendant establishment.
In Candelora, the plaintiff administrators alleged that the decedent while intoxicated as a result of service from the defendants was fatally struck by a vehicle. There was no claim against the operator of that vehicle. The plaintiffs sought damages for the reckless and wanton service of alcohol to the decedent alleged alcoholic. The despositive issue is whether or not an intoxicated person can maintain a cause of action for his own injuries upon a theory of reckless purveyance to him. Id.
The court (Licari, J.) noted the following:
At the outset it is significant to note what is not in issue here. There is no claim of negligent service. The applicability or retroactivity of Craig v. Driscoll, 262 Conn. 312 (2003) and the new Dram Shop Act legislation it spawned, PA03-091, is not implicated. Nor is there any claim of legislative preemption by virtue of that or any other legislation. The issue presented is purely a matter of common law placing this court in the position of having to assess the Connecticut Supreme Court's past, present and future common-law jurisprudence on proximate cause in alcohol-related cases. The precise issue presented has not been directly addressed by our Supreme Court.
Under that common law the traditional view was that an intoxicated person cannot sue for his own injuries which are deemed to be a result of his own indulgence. The rationale behind this restriction was that a person's own consumption was the proximate cause of his injuries. Nolan v. Morelli, 154 Conn. 432 (1967), Bohan v. Last, 236 Conn. 670 (1996). However, the legal landscape has changed.
In Howal v. Hofher, 181 Conn. 355 (1980), the Supreme Court extended the scope of proximate cause by permitting an innocent third party to maintain an action outside the Dram Shop Act, Connecticut General Statutes § 30-102, against a server who recklessly served an intoxicated tortfeasor. While Howal did not involve a claim by the intoxicated person himself the court's discussion of the fluid concept of proximate cause informs the decision here.
The court in Candelora, then stated that the "concept of enlarged responsibility for reckless conduct is no less applicable here and liability to the intoxicated person himself for his own injuries for reckless service to him is within the scope of responsibility recognized in Kowal . . . The extension of liability for reckless service to claims by the intoxicated person himself implicitly recognized in Kowal was further acknowledged in Boehm v. Kish, 201 Conn. 385 (1986)." Id.
While the court agrees with the decisions in Lee v. Splash Pacific Rim Grille, supra, and Candelora v. Lulu, Inc., supra, the court notes that each of these cases were based on allegations of reckless service of alcohol to an intoxicated person. The court has within the present decision has already denied summary judgment as to the plaintiffs' Fourth Count finding there are sufficient genuine issues of material fact as to whether the defendants recklessly served alcohol to Frank Ham, the operator of the motor vehicle in which the decedent was a passenger and as to whether Ham was intoxicated at the time he was allegedly served alcohol by the defendants. However, the plaintiffs' Fifth Count, which is the relevant subject alleges negligent service of alcohol to the minor decedent.
The plaintiffs further argue that by serving the minor decedent, the defendants impaired him and prevented him from making a proper judgment in getting into a car being driven by an intoxicated driver, Ham, who was also served alcohol by the defendants. They argue it was reasonably foreseeable that the decedent, incompetent to assimilate responsibly the effects of alcohol would be injured and killed by riding with another intoxicated individual. See, Ely v. Murphy, supra, 207, Conn. 95.
While the court agrees with the defendants that the decedent was a passenger and as a passenger, he did not cause the accident, it may have been foreseeable that he would be a passenger in Ham's automobile. There are sufficient issues of material fact that (1) the defendants knew or should have known that the decedent was a minor; (2) that he and Ham were socializing together at the decedents establishment for hours; (3) that both were intoxicated; (4) that the defendants continued to serve them alcohol while they were in an intoxicated state. It is not unreasonable to conclude that it was also foreseeable that Ham and the decedent, in an intoxicated state would leave the premises in a motor vehicle together, and that an injury of the type suffered, could occur to the decedent.
The court also realizes in accordance with Ely v. Murphy, supra, 207 Conn. 97, that the defendants are not deemed absolutely liable to the minor served and thereafter injured. Rather it is up to the trier of fact to determine whether or not that by serving the minor decedent, the defendants impaired him and prevented him from making a proper judgment in getting into a car being driven by an intoxicated driver, Ham, who was also served alcohol by the defendants, and whether or not this was a substantial factor and a proximate cause of the decedent's injuries and death. Id. at 97; see also, Wu v. Fairfield, 204 Conn. 435, 438-39, 528 A.2d 364 (1987); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383-84, 441 A.2d 620 (1982); see Merhi v. Becker, 164 Conn. 516, 521-22, 325 A.2d 270.
Accordingly, the motion for summary judgment as to the Fifth Count is hereby denied.
VI Seventh Count: Negligent Sales of Alcohol
The defendants argue that the court should grant summary judgment on the Seventh First Count that alleges a negligent sale of alcohol to Frank Ham base upon Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990).
The decedent died on February 8, 2001. At that time, outside of the provisions of the Dram Shop Act, General Statutes § 30-102, Connecticut did not recognize a cause of action for common law negligence against a defendant that sold alcohol to an intoxicated adult who thereafter causes injury or death. Quinnett v. Newman, supra, 214 Conn. 343.
The plaintiffs initiated this action by way of a return date of January 22, 2002. The original complaint contained six counts. During the pendency of this action the Connecticut Supreme Court overruled Quinnett, and permitted common-law negligence action against a seller, outside the provisions of the Dram Shop Act. Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). The decision in Craig was officially released February 4, 2003. On February 6, 2003, the plaintiffs amended the complaint to add this Seventh Count. Following the decision in Craig, the legislature, by way of Public Act 03-91, amended the Dram Shop Act to prohibit common law causes of action for negligence against purveyors of alcohol to an intoxicated adult who causes injury. The amendment to General Statutes § 30-102, by way of Public Act 03-91, was effective upon its passage, which was June 3, 2003.
The plaintiff's action bears a return date of March 25, 2003. The writ, summons and complaint were signed on February 6, 2003.
See text of Public Act 03-91, which is reproduced herein at n. 3.
In Connecticut, the substantive rights of plaintiffs are fixed at the time the cause of action accrues or when they suffer actionable harm, not when the legal proceedings are initiated. Champagne v. Raybestos Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989). In this instance, the date of the decedent's death and the accident which resulted in his death occurred in the early morning hours of February 8, 2001. Therefore, at the time the plaintiffs' action accrued or the date the decedent suffered his fatal injuries, Quinnett v. Newman, supra, had not been overruled by Craig v. Driscoll, supra. The only argument, therefore, that the plaintiffs have available to them would involve retroactive application of Craig v. Driscoll, supra, from that decision was released on February 4, 2003 back to the date of the decedent's injuries and death on February 8, 2001.
Neither the Connecticut Supreme Court or the Appellate Court has addressed this issue of whether trial courts should apply Craig v. Driscoll, supra, retroactively, and there is a split of opinion among the judges of the superior court. The majority opinion in the superior court favors non-retroactivity. See for example, Guillotin v. Karaoke, Superior Court, judicial district of New Britain at New Britain No CV02-0515784S (July 7, 2005, Berger, J.); Stavola v. Costa, Superior Court, judicial district of Danbury, Docket No. CV03-0350462 S (January 18, 2005, Moraghan, J.) ( 38 Conn. L. Rptr. 530) Estate of Ridgaway v. Silk, Superior Court, complex litigation docket at Middlesex, Docket No. CV 01 0103518 (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872); Collar v. DaCruz, Superior Court, judicial district of Hartford at Hartford, No. CV03-0830138 (August 13, 2004, Booth, J.); Rossitto v. Ernie's Place Café, Superior Court, judicial district of Middlesex at Middletown, No. CV03 0101052 (June 29, 2004, Silbert, J.) ( 37 Conn. L. Rptr. 341). For superior court decisions favoring retroactivity see Shorrt v. Senor Panchos, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 044000928 (May 17, 2005, Gallagher J.); CT Page 3151 Blackwell v. Barone's Sporting Cafe Inc., Superior Court, judicial district of Waterbury at Waterbury, No. (X02) CV02 4000570S (January 10, 2005, Schuman, J.) ( 38 Conn. L. Rptr. 636); Garbo v. Great Oaks, Superior Court, judicial district of New Britain at New Britain, No. CV04 0528318 (June 28, 2005, R. Robinson, J.); Raposa v. Lynam, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV01 0182731 (December 3, 2003, D'Andrea, J.) ( 36 Conn. L. Rptr. 174).
Upon a review of the above-cited cases, this court has determined that it agrees with the reasoning contained in the majority decisions and will not apply the Supreme Court's holding in Craig v. Driscoll, supra, 262 Conn. 312, retroactively. Therefore the court grants summary judgment as to the Seventh Count of the plaintiffs' Amended Complaint.
V Orders
The motion for summary judgment is granted as to the Seventh Count of the Amended Complaint, and it is denied as to the Third, Fourth, and Fifth Counts of the plaintiffs' Amended Complaint.