Opinion
No. CV 03-0830138
August 13, 2004
MEMORANDUM OF DECISION ON MOTION TO STRIKE
On November 24, 2003, the plaintiff, Curtis Collar, filed a one-count complaint against the defendants, Fernando Da Cruz, Victor Santos, and Crusan, Inc., d/b/a Oak Street Pub and Restaurant in the Superior Court in Hartford. The cause of action stems from events that occurred on October 26, 2002, when the plaintiff was a patron at the Oak Street Pub and Restaurant located in Manchester, Connecticut. (See Plaintiff's Complaint, ¶ 1.) The defendants are the backers, permittees, and/or owners of the Oak Street Pub and Restaurant. (See Plaintiff's Complaint, ¶ 7.) The plaintiff alleges that at approximately one o'clock in the morning on that date, he was assaulted by a fellow patron, Fabian Sanchez, and three of his male companions. (See Plaintiff's Complaint, ¶ 2.) The plaintiff claims that he sustained serious physical and mental injuries for which he has been forced to expend large sums of money. (See Plaintiff's' Complaint, ¶¶ 3-4.) The plaintiff's original complaint alleges a cause of action against the defendants pursuant to General Statutes § 30-102, the "Dram Shop Act," for the sale of alcohol to Sanchez and his companions while they were intoxicated. (See Plaintiff's Complaint, ¶¶ 7-8.)
On December 24, 2003, the plaintiff filed an amended complaint in which he added two counts to his original complaint. In count two, the plaintiff alleges that his injuries were caused by the defendants' careless and negligent failure to provide their patrons with adequate security on the premises. (See Plaintiff's Amended Complaint, Count II, ¶¶ 8-11.) In count three, the plaintiff alleges that the defendants engaged in reckless or wanton misconduct in selling alcohol to Sanchez and his companions in their intoxicated state. (See Plaintiff's Amended Complaint, Count III, ¶ 8.) On April 27, 2004, the defendants filed a motion to strike counts two and three of the plaintiff's amended complaint, and a memorandum in support. The defendants argue that count two should be stricken, because the Dram Shop Act provides the exclusive remedy for negligent service of alcohol to a person twenty-one years of age or older. (See Defendants' Motion to Strike.). The defendants also move to strike count three on the grounds that the plaintiff's allegations of reckless misconduct are mere reassertions of his negligence claims, and are thus legally insufficient. (See Defendants' Motion to Strike.) On May 11, 2004, the plaintiff filed a memorandum in opposition, to which the defendants responded on May 19, 2004. Oral argument on the motion to strike was heard at short calendar on May 24, 2004.
DISCUSSION
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and [it] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). However, "[A motion to strike] does not admit legal conclusions or the truth of accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
A.) Count Two
The defendants move to strike count two of the plaintiff's amended complaint on the grounds that § 30-102, the Dram Shop Act, as amended by Public Acts 2003, No. 03-91 ("P.A. 03-91"), provides the exclusive remedy for the negligent service of alcohol to persons twenty-one years of age or older.
At the time of the plaintiff's alleged attack on October 2, 2002, Connecticut did not recognize a common-law cause of action based on the negligent service of alcohol to an intoxicated adult who thereafter causes injury to a third person. See Quinnett v. Newman, 213 Conn 343, 344, 568 A.2d 786 (1990) (holding that "neither a common-law negligence action nor a public nuisance action against [a] vendor [of alcoholic beverages] exists . . . the legislature having filled this field through the enactment of General Statutes § 30-102). On February 4, 2003, however, the Supreme Court decided Craig v. Driscoll, 262 Conn. 312, 329, 813 A.2d 1003 (2003), in which the court overruled its decision in Quinnett v. Newman, supra, 213 Conn. 343, by holding that the Dram Shop Act does not preclude a common-law negligence action against a purveyor of alcohol. Thereafter, in response to the Craig decision, the General Assembly on June 3, 2003, passed P.A. 03-91 declaring the Dram Shop Act the exclusive remedy for negligent service of alcohol to an adult effective on June 3, 2003.
General Statutes § 30-102, as amended by Public Acts 2003, No. 03-91, 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 . . . Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older.
The plaintiff argues that count two does not set forth a cause of action for negligent service of alcohol to an adult, but rather states a claim for negligent security, which is separate and distinct from a claim brought pursuant to the Dram Shop Act. The plaintiff is correct that our courts have long recognized a cause of action for the negligent supervision of tavern patrons and employees. See Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967); see also Castillo v. Brito, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 394099 (October 28, 1991, Hennessey, J.) ( 5 Conn. L. Rptr. 201). "The cause of action for negligent supervision . . . is based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor's negligence in furnishing alcohol." (Internal quotation marks omitted.) Jensen v. DePaolo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277460 (March 8, 2004, Wiese, J.) ( 36 Conn. L. Rptr. 665).
The defendants do not dispute that a claim for negligent security, or supervision, is a valid cause of action in Connecticut that is separate and distinct from a claim brought under the Dram Shop Act. The defendants argue that the plaintiff includes language in count two of his amended complaint that expressly falls within the Dram Shop Act. Specifically, the defendants challenge paragraph 8(i) of count two in which the plaintiff alleges that the defendants were careless and negligent "in that they sold alcoholic liquor to an obviously intoxicated person when they knew or reasonably should have known that said person was likely to assault persons while in an intoxicated condition, if sold the alcoholic liquor." (Plaintiff's Amended Complaint, Count II, ¶ 8(i).) The defendants maintain that since P.A. 03-91 established the Dram Shop Act as the exclusive remedy for claims involving the negligent service of alcohol, paragraph 8(i) renders count two legally insufficient. (See Defendants' Memorandum of Law in Support of Motion to Strike, p. 4-6.)
Although the plaintiff argues that § 30-102 as amended by PA 03-91 controls, it might be more accurate to argue that § 30-102 alone controls since the court finds PA 03-91 is not retroactive and its $250,000 limit is not retroactive.
The court finds that P.A. 03-91 established the Dram Shop Act as the exclusive remedy for claims involving the negligent service of alcohol to those persons twenty-one years of age or older, and thus overruled Craig v. Driscoll, supra, 262 Conn. 312. The effect of the public act, however, is irrelevant to the resolution of the present dispute if it is not retroactive in application, for the "[s]ubstantive rights of the parties are fixed at the date upon which the cause of action accrued . . . In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm . . . Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury." (Citations omitted; internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989). Recent Superior Court decisions interpreting P.A. 03-91 have all held that the amendment is substantive in nature, and thus does not apply retroactively. See Jensen v. DePaolo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277460 (March 8, 2004, Wiese, J.); Gorman v. Szewczak, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166633 (January 23, 2004, Alvord, J.); Esposito v. Farricielli, Superior Court, judicial district of New Haven, Docket No. CV 03 0479996 (December 9, 2003, Licari, J.) ( 36 Conn. L. Rptr. 148); Craig v. Driscoll, Superior Court, judicial district of Litchfield, Docket No. CV 98 0075654 (August 28, 2003, Bryant, J.) ( 35 Conn. L. Rptr. 308). This conclusion, however, does not resolve the present dispute, for the relevant inquiry now becomes whether Craig v. Driscoll, supra, 262 Conn. 312, is retroactive in application. If it is not, a separate common-law negligence action is not viable, since such a claim was not recognized when the assault occurred on October 26, 2002, pursuant to the holding in Quinnett v. Newman, supra, 213 Conn. 343.
Although no appellate court has decided whether Craig v. Driscoll, supra, 262 Conn. 312, is retroactive in application, two recent Superior Court decisions have held that the decision is not retroactive. See Rossitto, Administratrix 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); 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); but see Raposa v. Lynam, Superior Court, judicial district of Stanford-Norwalk at Stamford, Docket No. CV 01 0182731 (December 3, 2003, D'Andrea, J.T.R.) ( 36 Conn. L. Rptr. 174). With the absence of any appellate court authority, this court will follow the well-reasoned decisions set forth in Rossitto and Ridgaway, and find that Craig v. Driscoll, supra, 262 Conn. 312, is not retroactive in application. At the time of the plaintiff's attack, therefore, the Dram Shop Act provided the exclusive remedy against a negligent purveyor of alcohol, and thus renders paragraph 8(i) legally insufficient.
"Although a motion to strike ordinarily attacks the legal sufficiency of an entire complaint, count or counterclaim, one or more paragraphs of a complaint or count may be attacked if a separate cause of action is attempted to be stated therein." (Internal quotation marks omitted.) Andrews v. Caron Brothers, Inc., Superior Court, judicial district of Tolland at Rockviile, Docket No. 9245136 (March 26, 1992, McWeeny, J.) ( 6 Conn. L. Rptr. 709). Since the plaintiff, in paragraph 8(i), alleges that the defendants were negligent in serving alcohol to an intoxicated adult within the parameters of the Dram Shop Act, paragraph 8(i) purports to allege an entire cause of action. Therefore, the court grants the defendants' motion to strike in regards to paragraph 8(i), but denies the motion as to the remaining allegations in count two which sufficiently allege a cause of action based on negligent security.
B.) Count Three
The defendants move to strike count three of the plaintiff's amended complaint on the grounds that the plaintiff has failed to allege facts that support a cause of action for recklessness. Our court has defined "recklessness" as "a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003).
Specifically, the defendants argue that count three is legally insufficient, because the plaintiff has merely alleged facts that are identical to his negligence claims, but "with the exception of the inclusion of the words reckless and wanton." (Defendants' Memorandum of Law in Support of Motion to Strike, p. 6.) Our Supreme Court has held that "an individual may be liable for the injurious consequences of his wanton or reckless conduct in furnishing alcoholic beverages to another." Kowal v. Hofher, 181 Conn. 355, 355, 436 A.2d 1 (1980). "To state a sufficient claim for wanton or reckless conduct in the sale of liquor to an intoxicated person, the plaintiff must at least allege some elements which go beyond the mere conclusion that the defendants served an intoxicated person . . . An allegation that [the] defendants knew the individual was intoxicated, without more, is insufficient." (Citation omitted; internal quotation marks omitted.) Carbone v. Wanda's Spirit Spirit Shop, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 98 061548 (July 1, 1998, Flynn, J.). "[T]he plaintiff must allege facts which would indicate that the defendants, or their agents, continued to serve a patron despite `observable manifestations of intoxication.' " Gumkowski v. U.S.S. Chowder Pot, III, Superior Court, judicial district of New Haven, Docket No. CV 940361840 (September 20, 1995, Hartmere, J.). For example, in Castillo v. Brito, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0394099 (October 28, 1991, Hennessey, J.) ( 5 Conn. L. Rptr. 201), the court found that the plaintiff had sufficiently pleaded a cause of action for recklessness by alleging that the defendant served alcohol to a visibly intoxicated individual who was "loud and boisterous and also argumentative and/or prone to violent proclivities." Similarly, in Coble v. Maloney, Superior Court, judicial district of Waterbury, Docket No. CV 90089843 (November 16, 1990, McWeeny, J.) ( 2 Conn. L. Rptr. 751), the court held that the plaintiff's allegation that the defendants served liquor to an "obviously intoxicated" individual, was sufficient to constitute a claim for recklessness.
Based on this authority, the plaintiff in this case has alleged sufficient facts to support a cause of action for reckless service of alcohol to an intoxicated person. The plaintiff alleges not only that the defendants served alcohol to Sanchez and his companions when they were intoxicated, but also that they "were very loud, obnoxious, stumbling, staggering, falling and slurring their words and Sanchez was known to be associated with a notorious gang and known to be a convicted felonious vicious assailant." (Plaintiff's Amended Complaint, Count III, ¶ 8.) The facts alleged satisfy the requisite "observable manifestations of intoxication" standard, and thus survive the defendants' motion to strike.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike count two of the plaintiff's complaint is granted in regards to paragraph 8(i), but denied as to the remaining allegations, because the plaintiff has alleged sufficient facts to support a cause of action for negligent security. The court denies the defendants' motion to strike count three since the plaintiff has sufficiently pleaded a claim for reckless service of alcohol to a person twenty-one years of age or older.
BY THE COURT
Kevin E. Booth, J.