Opinion
No. CV 03 0090334S
February 11, 2004
MEMORANDUM OF DECISION
This action arises from a one-car accident in which the passenger was killed. His administrators have sued the minor operator, Kyle Long, the owner of the car, Nancy Long, and the defendant, Tristan Gioia, who is alleged to have provided alcoholic beverages to the minor operator so that he became intoxicated. The claim against Tristan Gioia sounds in negligence and is based upon a violation of C.G.S. Section 30-86. The plaintiff moves to strike the defendant Tristan Gioia's special defense, which alleges negligence by the plaintiff's decedent on the ground that it is insufficient as a matter of law.
General Statutes § 30-86(b) provides in relevant part: "Any person who sells, ships, delivers or gives any [alcoholic] liquors to [a] minor, by any means . . . shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen months or both."
The special defense alleges that the decedent was negligent and a cause of his injuries and death because he allowed himself to be a passenger in the car operated by the minor defendant, Kyle Long, when he knew, or in the exercise of due care should have known, that it was unsafe to do so because Long was intoxicated.
Relying on Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), the plaintiff argues that contributory negligence should not be allowed as a defense in an action alleging negligent service of alcohol to a minor because of Connecticut's strong public policy against serving alcohol to minors. In Ely, the Supreme Court stated that "[i]n 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 an intervening act necessary to break the chain of causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." Id., 95.
Ely involved a minor who was served alcohol by an adult host at a graduation party and then left the party intoxicated and struck and killed another guest.
However, Ely does not stand for the proposition that the comparative negligence of an injured third party would not provide the basis for a valid special defense. In Ely the court cautioned future claimants that the Ely holding did not mean "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 the jury as the parties elect." (Emphasis added.) Id., 97. Thus, contributory negligence is available as a defense to an action by a third party against one who provides alcohol to a minor.
The plaintiff argues in his brief that the holding in Ely should be extended because the decedent was a minor and, in the words of Ely, was ". . . incompetent to assimilate responsibly the effects of alcohol and lack[ed] the legal capacity to do so . . ." Id., 95. Therefore, the plaintiff argues that the decedent would not have had the capacity to make a responsible decision about whether to ride with an intoxicated driver. This presents an interesting issue which does not need to be decided at this time. There is no allegation in the complaint that the decedent was a minor at the time of his death. "Where the legal grounds for [a motion to strike] are dependent upon the underlying facts not alleged in the plaintiff's pleadings, the [moving party] must await the evidence which may be adduced at trial, and the motion should be denied." Lilijedhal Bros., Inc. v. Grigsby, 215 Conn. 345, 348 (1990).
The plaintiff further argues that Gioia's defense is essentially an assumption of risk defense, which has been abolished by General Statutes § 52-572h. "The central purpose of § 52-572h was to abolish the harsh common law rule that the doctrines of contributory negligence, last clear chance and assumption of risk operated as a complete bar to recovery . . . In lieu of these doctrines, subsection (a) of § 52-572h sets forth a single standard: comparative negligence. In determining the relative negligence of each party, however, the factors relevant to the assumption of risk doctrine may be considered by the trier. As long as the jury is properly instructed concerning the doctrine of comparative negligence; General Statutes § 52-572h(b); elements involving the failure of the plaintiff to comprehend a risk may be specially pleaded and weighed by the trier in determining the propriety and totality of the plaintiff's conduct in relation to that of the defendant. When a plaintiff's conduct in assuming a risk is unreasonable, then the [assumption of risk] doctrine overlaps contributory negligence and the principle of comparative negligence embodied in the statute should apply." (Citation omitted; emphasis in original; internal quotation marks omitted.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 797-98, 462 A.2d 1043 (1983).
General Statutes § 52-572h(h)(2)(1) provides in relevant part that "[t]he legal doctrines of last clear chance and assumption of risk in [negligence] actions . . . are abolished."
Several Superior Court judges have allowed defendants to assert special defenses that include factors relevant to the assumption of risk doctrine when the defendant alleges that the plaintiff [or the plaintiff's decedent] was negligent in entering the defendant's vehicle. Perry v. Tomany, Superior Court, judicial district of New London, Docket No. CV 01 0557538 (August 28, 2001, Martin, J.) ( 30 Conn. L. Rptr. 324); see Maulucci v. Canevari, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 368663 (February 26, 1993, Hennessey, J.) ( 8 Conn. L. Rptr. 438) ( 8 C.S.C.R. 293) (plaintiff's motion for summary judgment denied where a special defense alleged that the plaintiff "knew or should have known of the condition of the driver, yet he voluntarily and willingly rode with him as a passenger in a motor vehicle"); Orr v. Maheux, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 438927 (December 10, 1990, Aronson, J.) ( 3 Conn. L. Rptr. 87) (motion to strike a special defense was denied where the special defense alleged that the plaintiff was negligent by voluntarily being a passenger when she believed the defendant was intoxicated); Wood v. Rich, Superior Court, judicial district of New Haven, Docket No. 398946 (December 15, 1997, Levin, J.) (motion to strike a special defense was denied where the special defense alleged that the plaintiff watched the defendant consume large quantities of alcohol and was negligent by being a passenger in an automobile driven by the defendant); Benoit v. Travelers Ins. Co., Superior Court, judicial district of New London at Norwich, Docket No. 105293 (March 14, 1996, Hendel, J.) (court denied motion to strike a special defense which alleged that the plaintiff's decedent knew or should have known he was riding in a vehicle with a driver who was intoxicated); Anastasio v. Ladd, Superior Court, judicial district of Waterbury, Docket No. CV 000160470 (January 29, 2001, Doherty, J.).
The defendant in the present case alleges that the plaintiff's decedent was negligent and was a cause of his injuries and death because he rode as a passenger in a vehicle operated by Long when he knew or should have known that Long was intoxicated. Because the defendant has alleged that the plaintiff's decedent was negligent in allowing himself to be a passenger in Long's vehicle, and not merely asserted an assumption of risk defense, the motion to strike can not be granted based on the plaintiff's argument that General Statutes § 52-572h has abolished the assumption of risk doctrine.
Next, the plaintiff argues that the defendant's special defense should be stricken because participation and assumption of risk are not allowable defenses to actions based on a violation of General Statutes § 30-86, which is a statute designed to protect the public. The plaintiff relies on L'Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), holding that assumption of risk is not a defense to a cause of action for personal injuries caused by housing code violations. The plaintiff likens that situation to the present case in that the housing code and Section 30-86 are both statutes enacted to protect the public. Id., 358; see McCormack v. Sedlak, Superior Court, judicial district of Waterbury, Docket No. 099914 (June 23, 1992, McDonald, J.) ( 6 Conn. L. Rptr. 594); see also Schereschewsky v. Lynch, Superior Court, judicial district of Litchfield, Docket No. 052140 (January 2, 1991, Pickett, J.) ( 3 Conn. L. Rptr. 83) (court struck defendant's special defense in a negligence action involving a one-car collision where plaintiff was passenger in car driven by defendant because assumption of risk has been abolished under Connecticut law); Passini v. Decker, 39 Conn. Sup. 20, 21, 25-27, 467 A.2d 442 (1983).
But, as discussed above, the special defense in this case is not phrased as an assumption of the risk defense, but as comparative negligence. For this reason, the reasoning of L'Heureux v. Hurley and cases following it does not apply here. Again, the plaintiff relies upon Wendland v. Ridgefield Construction Services, Inc., supra, 190 Conn. 791, which holds that factors relevant to assumption of risk may be raised as part of a comparative negligence defense. Further, in Anastasio v. Ladd, supra, Superior Court, Docket No. CV 000160470, the court rejected the L'Heureux v. Hurley approach, concluding that it was "inapposite to the instant case because several of these cases were decided before Tort Reform II was enacted by the legislature . . . In addition, many Superior Court cases . . . finding that assumption of the risk is not a defense to an action based on a statutory violation when the statute was enacted to create an obligation to the public at large are dram shop actions, not mere negligence and recklessness actions." (Citation omitted; internal quotation marks omitted.) Anastasio v. Ladd, supra, Superior Court, Docket No. CV 000160470. As stated earlier, the defendant in the present case specifically alleged negligence in his special defense. Therefore, the plaintiff's argument that assumption of the risk is not a defense to statutes enacted to protect the public must fail based on the reasoning of Anastasio v. Ladd, supra, Superior Court, Docket No. CV 000160470, and the holding of Wendland v. Ridgefield Construction Services, Inc., supra, 190 Conn. 791.
Anastasio involved a plaintiff passenger who, after the defendant's car collided with several objects and rolled over, brought a negligence and recklessness suit against the defendant driver alleging that he was driving while impaired by the consumption of alcohol and/or drugs in violation of General Statutes § 14-227a. The court granted the motion to strike, but did so only because the defendant did not specifically plead comparative negligence in his special defense.
For the reasons set forth above, the plaintiff's motion to strike the defendant's special defense is denied.
BY THE COURT,
John W. Pickard