Opinion
No. CV 04 0528318 S
June 28, 2005
MEMORANDUM OF DECISION RE MOTION #103A MOTION TO STRIKE
The plaintiff alleges in his Complaint that on or about July 20, 2002 at approximately 2:00 a.m. she was a passenger in a car operated by Anetta Boksz. At that date and time the tortfeasor Andrew Neill was operating his vehicle and exiting from a private driveway at 1433 East Street in New Britain, Connecticut when he struck the driver's side and rear of the vehicle in which the plaintiff was traveling.
The plaintiff further alleges that Neill was operating his vehicle while under the influence of alcohol in violation of § 14-227a C.G.S.
The plaintiff also alleges that prior to the accident the defendant was served alcoholic beverages at an establishment called "Elmer's Place." The defendant Great Oaks, Inc. was "the Backer" and the defendant Diane Corner was the Permittee of Elmer's Place.
The plaintiff alleges that Neill was served alcohol while he was intoxicated and the defendants knew or should have known that Neill intended to operate a motor vehicle.
On January 20, 2005, the defendants filed a motion to strike Count One and Count Two of the Complaint. The defendants assert that Count One alleges a common-law cause of action in negligence against the sellers of alcoholic liquor and that Connecticut does not recognize such a cause of action. The defendant also asserts that Count Two of the Complaint should be stricken for reason that said Count is insufficient to state a cause of action sounding in recklessness for reason that it merely reiterates the exact allegations of the negligence count.
The defendant Chute Gates moves to strike the fourth count for reason the allegations in said count are insufficient to support a claim for recklessness.
Whereas the defendant has filed a motion to strike, a brief review of recent case law concerning the motions to strike is warranted:
A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take the facts to be those alleged in the complaint that has been stricken and we construe 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.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).
Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002).
As to Count One
Count One of the plaintiff's complaint sounds in the negligent service of alcohol to an adult. "At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee." Nolan v. Morelli, 154 Conn. 432, 436-37, (1967).
Until recently there were three recognized exceptions to the common law rule: 1) the Dram Shop Act; and 2) the service of alcohol or intoxicating liquor to minors; and 3) reckless service of alcohol. However, until recently an individual seeking redress for injuries caused by the negligent service of alcohol to an adult could only obtain said redress through the Dram Shop Act.
Section 30-102 C.G.S.
In February of 2003 the Connecticut Supreme Court addressed the issue of whether the Dram Shop Act was the exclusive remedy for an individual who was injured as the result of the negligent service of alcohol to an intoxicated adult. See Craig v. Driscoll, 262 Conn. 312 (2003). The Court in Craig held that the Dram Shop Act was not the exclusive remedy for individuals who suffer damages as the result of the negligent service of alcohol to an intoxicated adult. See id. at 330.
There is a split among the Superior Court Judges as to the issue of whether Craig is to be retroactively applied. Although there is a disagreement as to the conclusion, the Courts have tended to use similar reasoning to reach their conclusions. Most of the Superior Court Judges have used the " Chevron Test" to determine whether or not there should be retroactive application of the Craig holding.
The Chevron test is a three-factor test that was established in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Chevron, the United States Supreme Court chose not to apply a judicial decision retroactively because the decision overruled clear precedent on which the complaining party was entitled to rely.
In Neyland v. Board of Education, 195 Conn. 174, 179, 487 A.2d 181 (1985), the Connecticut Supreme Court adopted the three-part test set out in Chevron for determining whether a decision must be applied prospectively only. According to the test there are three issues to be taken into account in determining whether a judicial decision should be retroactively applied: (1) Does the decision establish a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . . (2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship.
As was noted by Judge Moraghan in Stavola v. Costa, Superior Court, judicial District of Danbury, Docket Number CV 03-0350462 S (Jan. 18, 2005, Moragan, J.) ( 38 Conn. L. Rptr. 530), "cases on both sides of the retroactivity issue agree that the first prong of the Chevron Test is met since Craig v. Driscoll overturned clear precedent that had been followed for decades. They disagree, however, as to whether the second and third prongs are met." For example in Estate of Ridgaway v. Silk, Superior Count judicial district of Waterbury, Docket Number CV-01-0103518S (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872), Judge Quinn found that: ". . . [T]he second and third parts of the [ Chevron test] do not support the retroactive application of a case which has only been legally viable for four months. As our Supreme Court noted in Quinnett, at page 347, `[t]o the extent that the General Assembly sees fit to articulate public policy through specific legislation, we are bound to honor the means by which it addresses the public policy in question.' The legislature has done just that, making it clear that common-law actions for the negligent service of alcohol to an adult are preempted by the Act and raising the limits of liability. To allow the retroactive application of Craig v. Driscoll goes directly contrary to the stated intent of the legislature. Thus, in analyzing `the prior history, purpose and effect' of the rule, it becomes clear that furtherance of the rule as set forth in Craig v. Driscoll would significantly frustrate the objectives of our legislature and would be contrary to the public policy of this state."
However in Blackwell v. Barone's Sports Cafe, Superior Court, judicial district of Waterbury, Docket Number CV 02-4000570 (Jan 10, 2005, Schuman, J.) ( 38 Conn. L. Rptr. 636), Judge Schuman held that Craig v. Driscoll should be applied retroactively, stating that: "This court, however, disagrees with the ultimate application of the second prong of the Chevron Oil test in Estate of Ridgaway. The question is whether retroactive application of the rule would retard the rule's operation, not whether it would conflict with statutes or other public policy. Although it may be rare that retroactive application of a new rule would retard its own operation, the test is an important one and should be applied as stated. The purpose of the Craig decision was to `provide an avenue to recover full compensation, but only upon establishing the requisite culpability and causation.' Craig, supra, 262 Conn. 328. It would decidedly further this purpose to hold Craig retroactive, since doing so would allow victims, upon proof that the excessive sale of alcohol caused their injuries, to recover full compensation, unlimited by the dram shop act. Thus, the defendants cannot prove that retroactive treatment of Craig would retard its operation."
This Court agrees with Judge Schuman's holding in Blackwell, id., and the line of reasoning that the application of the Chevron Oil test requires that the holding in Craig be retroactively applied. The motion to strike the third count of the complaint is therefore denied.
The Court notes however that subparagraphs 12b, 12d, 12e, and 12f do not allege that the defendants served liquor to an intoxicated person. Subparagraphs 12b, 12d allege that the defendants served alcohol to an "impaired" person, while subparagraphs 12e and 12f merely allege that the defendants served alcohol to the tortfeasor and this in turn caused the tortfeasor's ability to operate his vehicle to become impaired or in the alternative caused him to be unable to "properly" operate his motor vehicle. The exception to the common-law rule that was carved out in Craig concerns the negligence service of alcohol to "an intoxicated person" and does not recognize a cause of action for any of the situations alleged by the plaintiff in the aforementioned subparagraphs. The Court therefore deems these subparagraphs to be legally insufficient even with the retroactive application of Craig and the motion to strike is granted as to these subparagraphs.
As to the Second Count
The Fourth Count of the complaint essentially realleges the allegations of the First Count and adds language that alleges that "The injuries sustained by the plaintiff were due to the recklessness of the defendants in one or more of the following ways."
The plaintiff then merely references its allegations of negligence in subparagraphs 12a-12f of the First Count and paragraphs 13 through 14 of the First Count.
The plaintiff alleges as follows:
12. The injuries sustained by the plaintiff were due to the negligence and carelessness of the defendants in one or more of the following ways.
a. IN THAT the defendants sold alcohol to an intoxicated person, ANDREW NEILL, when they knew or should have known that he intended to operate a motor vehicle.
b. IN THAT the defendants sold alcohol to an impaired person, ANDREW NEILL, when they knew or should have known that he intended to operate a motor vehicle.
c. IN THAT the defendants failed to use reasonable care when they sold alcohol to an intoxicated person, ANDREW NEILL, prior to his use of a motor vehicle.
d. IN THAT the defendants failed to use reasonable care when they sold alcohol to an impaired person, ANDREW NEILL, prior to his use of a motor vehicle.
e. IN THAT the defendants sold alcohol to ANDREW NEILL, which in turn caused his ability to operate his motor vehicle to become impaired.
f. IN THAT the defendants sold alcohol to ANDREW NEILL, which in turn caused him to be unable to properly operate his motor vehicle.
13. After consuming alcohol sold by the defendants ANDREW NEILL, drove his vehicle and caused the above described accident.
14. The conduct of the defendants caused the accident and plaintiff's resulting injuries as before set forth, and the plaintiff seeks to recover damages from the defendants for such injuries and losses.
To determine whether the plaintiffs' . . . complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is 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 . . .
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." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, supra, 64 Conn.App. 720-21.
Craig v. Driscoll, 262 Conn. 312, 342 (2003).
This Court has reviewed the allegations of wrongful conduct cited by the plaintiffs in the second count of the operative complaint and finds that it is legally insufficient to maintain a cause of action sounding in recklessness.
For the foregoing reasons, the Motion to Strike is granted as to subparagraphs 12b, 12d, 12e, and 12f of Count One and denied as to the remaining portions of Count One. The motion to strike the Count Two is granted. So ordered.
Richard A. Robinson, J.