Opinion
No. CV05-4005318 S
May 2, 2008
MEMORANDUM OF DECISION
The plaintiff, James Cappello has brought this action for damages for personal injuries pursuant to General Statutes § 30-102, captioned in part, the "Dram Shop Act; liquor seller liable for damages by intoxicated person." The plaintiff alleges that on September 26, 2004, while he was a pedestrian crossing Barnum Avenue in the town of Stratford, he was struck and injured by a motor vehicle operated by Liana Lowman. The plaintiff alleges that Lowman was intoxicated at the time, and that just prior to striking the plaintiff, Lowman was a patron of defendant Barnum Recreation Bowling Lanes, Inc., a/k/a Barnum Duckpin Bowling Lanes and Duckpin Lounge (hereafter "Duckpin Lounge"). The plaintiff further alleges that Lowman was served alcoholic beverages at the Duckpin Lounge while intoxicated. The matter was tried to the court.
The plaintiff filed the original action in 2005 against four defendants: Liana Lowman, Barnum Recreation Bowling Lanes, Inc. a/k/a Barnum Duckpin Bowling Lanes and Duckpin Lounge, Edward F. MacDonald as Permittee, and a Backer, which was later substituted with a different party. Additional claims against the plaintiff's insurance companies for underinsured motorist benefits were resolved prior to trial, as were the plaintiff's claims against Ms. Lowman. A cross complaint by the Permittee MacDonald seeking indemnification against co-defendant Barnum Recreation Bowling Lanes, Inc. was also admitted by that co-defendant. The case thereafter proceeded to a court trial on a revised complaint containing a single-dram shop count with three remaining defendants: Barnum Recreation Bowling Lanes, Inc. a/k/a Barnum Duckpin Bowling Lanes and Duckpin Lounge, Mr. MacDonald as Permittee, and Barnum Recreation Bowling, Inc. as Backer.
The dram shop act provides in relevant part: "If any person, by such person or such person's 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 two hundred fifty thousand dollars to be recovered in an action under this section . . ."
The dram shop act in effect at the time also contained a 60-day notice provision, and a one-year statute of limitations, both of which are omitted from the excerpt above. The court finds that the plaintiff provided the proper statutory notice, and commenced the action within one year of the claimed injuries.
As this matter was tried to the court in the absence of a jury, this court is cognizant of its dual role as both the finder of fact and interpreter, or finder, of law. Toward that end, and with the statute in hand, a review of applicable case law seems a logical place to begin such an inquiry. "The underlying premise of the dram shop statute is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person, who in turn brings about injuries as a result of such intoxication." Kowal v. Hofher, 181 Conn. 355, 358, 436 A.2d 1 (1980). "[T]he act covers all sales of liquor that result in an intoxicated person causing injury, irrespective of the bar owner's knowledge or state of mind. The act thereby provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action, and without the benefit of the broader scope of recovery permitted under such an action." Craig v. Driscoll, 262 Conn. 312, 328, 813 A.2d 1003 (2003).
Accordingly, as a strict liability statute that creates an obligation to the public at large, the dram shop act does not require a plaintiff to prove that the server knew or should have known that the party who later causes injury to him was intoxicated at the time of service. "Factual scenarios are possible under which the party may not manifest any behavior indicating intoxication while being served, yet other facts show that the party was, indeed, intoxicated at the time of service unbeknownst to the server." Coderre v. Gates, Superior Court, judicial district of New London at Norwich, Docket No. CV 05 4102186 (December 23, 2005, Devine, J.).
Had this court charged a jury after hearing the evidence in this case, it would have noted the following: for the plaintiff to prevail in his claim against the defendants, the plaintiff must prove these three facts by a preponderance of the evidence: 1) that Lowman was sold alcoholic liquor at the Duckpin Lounge; 2) that Lowman was intoxicated at the time that liquor was sold to her at the Duckpin Lounge; and 3) that as a result of such intoxication, Lowman caused the personal injuries to the plaintiff.
As applied to the evidence in this case, to be intoxicated 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 alcohol, 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 her manner is unusual or abnormal and is reflected in her walk or conversation, when her ordinary judgment or common sense are disturbed or her usual willpower temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated.
A person need not be "dead-drunk." It is enough if by the use of intoxicating liquor, she is so affected in her acts or conduct that the public, or any parties coming in contact with her, can readily see and know this is so. See Hayes v. Caspers, LTD., 90 Conn.App. 781, 801-02, 881 A.2d 428 (2005), citing Craig v. Driscoll, supra, 262 Conn. 312, 813 A.2d 1003 (2003) and Sanders v. Officers Club of Connecticut, Inc., CT Page 7335 196 Conn. 341, 493 A.2d 184 (1985). The harm proscribed by the dram shop act "is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relation between the sale and the injury is required." (Citations omitted.) Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 348-49.
The credibility of witnesses is left to the trier of fact. Keeney v. Buccino, 92 Conn.App. 496, 885 A.2d 1239 (2005). This dram shop case against the defendants consists of both direct and circumstantial evidence. The law draws no probative distinction between the two. The court sat as fact finder. It had the opportunity to observe the testimony of the witnesses first hand, and assigns the weight to be accorded each. The question of Lowman's intoxication is one of fact for the finder of facts, not a question of law. See Kelehear v. Larcon, Inc., 22 Conn.App. 384, 390, 577 A.2d 771 (1990); Milano v. Sayers, 6 Conn.App. 491, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). Therefore, the court is wearing its jury hat when assessing the evidence on this issue. "Although a jury cannot base its conclusion upon `mere guess or speculation,' it is entitled to draw reasonable inferences from the evidence before it . . . We cannot, nor should the trial court, rule out the possible inference to be drawn from this evidence that the last drink served to [the driver] before [s]he was shut off was served to [her] while [s]he was intoxicated. The ultimate question of whether a driver's intoxication resulted from [her] 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." (Citations omitted; internal quotation marks omitted.) Kelehear v. Larcon, Inc., 22 Conn.App. 384, 390, 577 A.2d 746 (1990).
The court heard testimony from the plaintiff, James Cappello, and Liana Lowman. It also heard from Joseph Gawron, the bartender employed by the defendants who served Lowman at the Duckpin Lounge. Fernando Oquendo, an eyewitness to Lowman's collision with the plaintiff shortly after Lowman left the Duckpin Lounge also testified. Victoria Mancuso, a friend of Lowman she met up with shortly after the collision testified, as well as investigating officers from the Stratford Police Department who arrested Lowman later that same day.
While there is no evidence in this case that Lowman was "shut off" at the bar on the day in question, there is no dispute that bartender Joseph Gawron served intoxicating liquor to Lowman at the Duckpin Lounge before she struck and injured the plaintiff with her automobile. The defendants do dispute, however, that Lowman was intoxicated when their employee sold the liquor to her. The plaintiff does not need to prove that the bartender knew that Lowman was intoxicated when he sold liquor to her. As to this element, the plaintiff merely has to prove that the defendants' employee sold liquor to Lowman at the Duckpin Lounge while she was intoxicated. This, the second element of a dram shop cause of action, is the genuine issue of material fact at the heart of this case. The inquiry becomes, therefore, whether there is sufficient evidence for the court to find that, as a result of her prior consumption of alcohol, the defendant was affected before the service of the last serving of alcohol to her at the Duckpin Lounge. The court makes the following findings of fact.
On the day and time the plaintiff sustained his injuries, it was a dry, clear sunny Sunday afternoon in September. Fernando Oquendo, an off-duty Bridgeport police officer, was driving west with his family on Barnum Avenue in Stratford near the intersection of Broadbridge Avenue. A traffic light controls traffic at that intersection, which is approximately 200 feet down Barnum Avenue from the location of the Duckpin Lounge at 1465 Barnum Avenue. Shortly before 4 p.m., Oquendo was stopped for a red light on Barnum Avenue, where he was directly behind Lowman's vehicle. He observed a pedestrian crossing the street, traveling on foot across Barnum Avenue from Oquendo's right side to his left, passing directly in front of Lowman's vehicle. This was the plaintiff, who had just left a nearby Burger King restaurant on Barnum Avenue, and was carrying a Burger King bag at the time. The plaintiff had almost reached the double yellow line in the center of the roadway when the light facing Oquendo and Lowman turned green. At that time, plaintiff was standing almost directly in front of Lowman herself as he was standing near the bumper on the driver's side of her car.
Oquendo testified that when the light turned green, Lowman stepped on the gas and struck the plaintiff. The plaintiff toppled over upon impact with the front driver's side of Lowman's car and hit the roadway head first. Lowman momentarily stopped her car right next to where the plaintiff was lying there on the pavement and looked at him. Then Lowman again stepped on the gas and took off very quickly at a high rate of speed, leaving the scene immediately by making a left turn off Barnum Avenue onto Broadbridge Avenue. She never returned and never reported the incident. At no time did Lowman get out of her car to render aid to the plaintiff nor did she call for medical assistance or provide her license and insurance information.
Oquendo had obtained the marker number of Lowman's car before she fled the scene, and he called 911 to report the incident. He also left his car parked there in the middle of Barnum Avenue and got out to help the plaintiff, who was staggering and bleeding profusely from his head. He appeared dazed and kept falling down when he tried to stand up. Oquendo remained on scene with the plaintiff until the Stratford police arrived. The plaintiff later lapsed into a coma for several days. He was determined to have sustained numerous injuries, including a fractured neck vertebrae.
Mr. Oquendo was followed on the stand by Liana Lowman. In contrast to the testimony of Oquendo, the court finds that Lowman was not a credible witness in many respects. Much of her testimony was ambiguous or equivocal. She claimed not to recall many specifics, at one point indicating she found the questioning "disturbing," and was trying to "move on." She seemed to minimize her involvement in this entire episode, as if that were possible as the principal tortfeasor. She actually lied to the police, denying any involvement when questioned by them that evening. She also appeared to be attempting to minimize the amount of alcohol she had consumed at the Duckpin Lounge before striking the plaintiff. This is especially so when considered in light of the testimony and observations of Lowman's obviously intoxicated condition by her close friend, a friend who spent much of the next several hours in her company shortly after she had left the Duckpin Lounge and struck the plaintiff.
"Human nature being what human experience shows it to be, people rarely admit they are under the influence of liquor or that they violate the law." Pierce v. Albanese, 144 Conn. 241, 255-56, 129 A.2d 606 (1957).
Lowman testified that she had gone to the Duckpin Lounge that Sunday afternoon to see if her ex-husband was there. Lowman gave conflicting accounts at trial and in her earlier deposition of the actual time she arrived at the Duckpin Lounge. She provided estimates ranging from as early as noon, to, in response to a question by counsel, conceding it might have been as late as four p.m., "give or take," before finally admitting at trial that she did not really recall. She testified that she sat at the bar in the Duckpin Lounge for approximately two hours, and that the only alcohol she consumed that day was purchased by her at the Duckpin Lounge. She indicated that her alcohol consumption was two beers, followed by a shot of liquor. The bartender, Joseph Gawron, testified he did not have a specific recollection of what he served Lowman that day.
As to what happened to the plaintiff at the intersection of Barnum and Broadbridge, Lowman claimed a faulty memory as to the specifics, only "vaguely" remembering striking a pedestrian with her car. Lowman had previously made plans to meet her friend Victoria Mancuso later that day around three or four p.m. at a gas station located at an exit off the Connecticut Turnpike, Interstate 95 in Milford. Lowman testified she drove directly from the Duckpin Lounge to the gas station, which took approximately 10 or 15 minutes.
Mancuso testified when she saw Lowman, she appeared intoxicated and displayed the mannerisms of someone under the influence. Mancuso was concerned enough about Lowman's condition that she decided not to let Lowman continue to drive her own car, as she was "worried about her getting hurt or her hurting somebody" in short, Mancuso felt that Lowman was drunk and in no condition to drive. This condition persisted for several hours while Lowman was in Mancuso's company, and Mancuso ended up arranging to drive Lowman's car home and escorting Lowman herself to Lowman's apartment in New Canaan. Police officers who interviewed Lowman that evening, several hours after she struck the plaintiff, also detected an odor of alcohol on her breath.
The court is tasked with assessing Lowman's condition at a certain time and place, to wit: when she was served her last drink at the bar in the Duckpin Lounge. The weight to which a fact finder should assign evidence of intoxication, direct or circumstantial, is affected by a number of factors. "In a civil case, proof of a material fact, by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produce in the mind of a trier a reasonable belief in the probability of the existence of a material fact." Pierce v. Albanese, 144 Conn. 241, 256 129 A.2d 606 (1957).
Lowman left the Duckpin Lounge after being there for a couple of hours, got into her car and struck the plaintiff at a location approximately 200 feet from the parking lot of the Duckpin Lounge. The court heard a sequence of events starting from Lowman being served drinks at the Duckpin Lounge, to her leaving the bar and driving off to her fleeing the scene at the intersection so close by, to her meeting with Mancuso, and Mancuso's observations of her, to her being placed into custody by the police. As was noted by our Supreme Court many years ago, in an observation that has only become more of a sad truism with the passage of time, the "condition of intoxication and its common accompaniments are a matter of general knowledge." State v. Jones, 124 Conn. 664, 667, 2 A.2d 374 (1938); cited in State v. Perkins, 271 Conn. 218, 248 856 A.2d 917 (2004). State v. Perkins involved an appeal from a criminal conviction for manslaughter in the second degree with a motor vehicle, misconduct with a motor vehicle, and evading responsibility. The defendant driver's passenger was killed in an accident, and one of the contested issues in Perkins was whether the evidence presented was sufficient to warrant an inference of intoxication. Finding that the state had met its burden of proof as to this issue, the court stated, "A determination of a person's intoxication based solely on observation and not on an interpretation of sobriety tests is within the general knowledge of the jury." (Emphasis in original.) Id., 266. If observations of intoxication alone can constitute proof beyond a reasonable doubt in the appropriate criminal case, such a principle can only have greater application here in the civil context, where the court is evaluating the evidence in this case using an even lower standard of proof.
The period of time within which the events unfolded in this case is not so attenuated as to prevent the drawing of certain inferences. Common sense will tell you that the inferences that may be drawn from a chain of circumstantial evidence are often stronger and more compelling than the testimony of witnesses. That principle holds true in this case. Lowman's conduct, and the circumstances surrounding the injuries she inflicted on the plaintiff immediately upon leaving the Duckpin Lounge and a mere two hundred feet or so from its parking lot, warrant the inference that she was intoxicated at the time she was served. The court finds that the plaintiff has sustained his burden of proving that Liana Lowman was served alcohol at the Duckpin Lounge while intoxicated.
JUDGMENT
The court finds that the plaintiff has proven by a preponderance of the evidence that, 1) Lowman was sold liquor at the Duckpin Lounge; 2) She was intoxicated at the time that the liquor was sold to her; and 3) As a result of the intoxication, she caused injury to the plaintiff. The Court therefore renders a verdict for the plaintiff.
With those findings, the court now has occasion to consider the subject of economic damages and non-economic damages. In matters tried to the court, the determination of whether damages should be awarded and, if so, the amount of damages so awarded are solely the function of the court. Plaintiff has met his burden of proving by a fair preponderance of the evidence his entitlement to recover reasonable economic and non-economic damages, damages that were proximately caused by Lowman's intoxication.
The Court finds that the plaintiff has suffered the following impairments:
15% Permanent partial impairment rating to the brain due to traumatic brain injury
20% Permanent partial impairment rating to the neck due to a nondisplaced fracture of the cervical spine, herniated disc syndrome, and soft tissue injuries.
10% Permanent partial impairment of the whole person due to post traumatic anxiety disorder.
The court awards to James Cappello $88,696.14 in economic damages, finding that this represents the reasonable value of the expenses for medical care for injuries relating to this incident. This amount is to be allocated in accordance with plaintiff's exhibit number one. As a result of his injuries, the Court finds that the plaintiff has been unable to resume many of his normal activities, and in light of the cap on damages provided for in § 30-102, the court awards $160,000 in non-economic damages. Therefore, judgment shall enter in favor of the plaintiff James Cappello, and against the defendants Barnum Recreation Bowling Lanes, Inc. a/k/a Barnum Duckpin Bowling Lanes and Duckpin Lounge, Edward MacDonald as Permittee, and Barnum Recreation Bowling, Inc. as Backer for a total amount of $248,696.14.
So ordered this 2nd day of May 2008.