Opinion
No. CV 08 5008363
January 25, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [#131]
I FACTS
On December 16, 2009, the plaintiffs, Jennifer L. Geise, as administratrix of the estate of John J. Geise, III, the plaintiffs' decedent, Jennifer L. Geise, individually, Jennifer L. Geise, ppa, Mary Hope Geise, and Jennifer L. Geise, ppa, John James Geise, filed a fifteen-count amended complaint in the present wrongful death action against the defendants, David B. Lee, as administrator of the estate of Cameron Lee, David B. Lee, individually, Alexander Lavruk and Safeco Insurance Company of Illinois (Safeco). In their complaint, the plaintiffs allege the following facts. On January 28, 2007, a motor vehicle operated by the plaintiffs' decedent collided with a motor vehicle operated by Cameron Lee on Flanders Road in Groton, Connecticut. As a result of the accident, the plaintiffs' decedent suffered serious and painful injuries, including death. Prior to the accident, Cameron Lee attended a social gathering at the defendant's residence, where he consumed alcoholic beverages that were served, provided and/or made available to him by the defendant. Counts six through nine, which are at issue in the present motion, allege claims against the defendant for negligent service of alcohol to a minor and loss of consortium on behalf of Jennifer L. Geise, individually, Jennifer L. Geise, ppa, Mary Hope Geise, and Jennifer L. Geise, ppa, John James Geise, respectively.
David B. Lee, as administrator of the estate of Cameron Lee, David B. Lee, individually, and Safeco are not parties to the present motion. Hereinafter, the term the defendant refers to Lavruk, individually.
On April 30, 2010, the defendant filed a motion for summary judgment as to counts six through nine of the plaintiffs' complaint on the grounds that there exist no issues of material fact in dispute, and therefore, the defendant is entitled to summary judgment as a matter of law. The defendant filed a memorandum of law in support of his motion, accompanied by copies of excerpts from the depositions of Travis E. Wenke, the defendant, Samuel Gipstein and Haley York Glas. The plaintiffs filed an objection to the defendant's motion on June 23, 2010, accompanied by a memorandum of law in support of their objection and copies of an excerpt from Cameron Lee's autopsy report, excerpts from the depositions of the defendant, Gipstein, Andrew Benitez, Glas, Wenke, and Nelson Panganiban and police statements by Gipstein, the defendant, Brittany M. Goulet and Matthew Scagliarini.
II DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"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 such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The evidence submitted by the parties reveals the following. Upon learning that his parents planned to travel out of state and leave him unsupervised for the weekend, the defendant sought Gipstein's assistance in inviting friends to a social gathering he intended to host on January 27, 2007. Benitez and Glas, both guests at the party, testified that prior to attending the gathering, they were under the impression that alcohol would be served that evening. Gipstein and the defendant prepared the defendant's residence for the party by removing breakable items from shelves, moving plants and bringing a wooden slab upstairs from the basement for use in a drinking game. During the afternoon before the party, the defendant and Gipstein obtained beer from "Voots," a student at Stonington High School. While neither party recalls the exact amount of alcohol they obtained, both the defendant and Gipstein testified that they did not believe that they purchased more than a twelve pack of beer. The beer obtained by the defendant and Gipstein was intended for their own consumption.
The evidence submitted by the parties further reveals the following. While the defendant and Gipstein asserted in their police statements that they intended to have a small gathering at the defendant's residence, seventy to one hundred underage individuals attended the party. Some of the other guests brought alcohol to the defendant's residence. The beer purchased by the defendant and Gipstein, and the alcohol brought to the defendant's residence by other guests, were stored together in the defendant's garage. There were approximately 300 beers in the defendant's garage during the party, in addition to various forms of hard alcohol, cups and ice present in and around the defendant's residence. Pursuant to the varying accounts by the deposed witnesses of his arrival and departure times, Cameron Lee attended the defendant's party for anywhere from twenty minutes to three hours. Of the parties deposed, only Glas personally witnessed Cameron Lee consuming alcohol at the defendant's residence, testifying that he took a sip of her beer. Glas also testified that Cameron Lee was visibly intoxicated when she spoke with him at the defendant's residence. Wenke, who accompanied Cameron Lee for the majority of the evening, testified that Cameron Lee did not consume alcohol before or after attending the defendant's party, and that he most likely became intoxicated while at the defendant's residence. Cameron Lee's autopsy report indicates that at the time of the accident, he had a blood alcohol content of 0.12 percent.
A
The defendant first argues that his motion for summary judgment as to count six of the plaintiffs' complaint should be granted on the grounds that the plaintiffs cannot present evidence establishing that the defendant provided Cameron Lee with any alcohol on the night of the accident. The plaintiffs counter that the defendant may be held liable under a claim for negligent service of alcohol to a minor because the evidence presented indicates that the defendant planned and hosted a party where the consumption of alcohol by minors was strongly encouraged.
"The common-law rule regarding social host liability in Connecticut states that no tort cause of action lies 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. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it."
"In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), our Supreme Court recognized this common-law principle; however, the court then proceeded to carve out an exception for circumstances in which alcohol is furnished to a minor. The court noted that the proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors." (Citation omitted; internal quotation marks omitted.) Pike v. Bugbee, 115 Conn.App. 820, 828-29, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009). Ultimately, the Ely court concluded 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 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." Ely v. Murphy, supra, 207 Conn. 95; see also Bohan v. Last, 236 Conn. 670, 680, 674 A.2d 839 (1996) (holding "it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor").
According to the defendant's argument in favor of granting summary judgment in the present case, the defendant may not be held liable as a purveyor or supplier of alcohol to a minor because he only purchased a small quantity of beer for the party, and there is no evidence that Cameron Lee consumed the beer that he purchased. In support of his argument, the defendant cites Rangel v. Parkhurst, 64 Conn.App. 372, 779 A.2d 1277 (2001), wherein the plaintiffs sought to recover for personal injuries they sustained in a motor vehicle accident against the defendants, the parents of a minor child who caused the accident after consuming beer he had stored in the defendants' refrigerator. Our Appellate Court first noted that "the exception created by the [court in] Ely [ v. Murphy, supra, 207 Conn. 88] . . . left in place the requirement that the host actually purvey or supply the alcohol consumed." Id., 379-80. As a result, in upholding summary judgment in favor of the defendants, our Appellate Court held: "[O]ur case law does not impose liability on parents who know of and acquiesce in their minor child's storage of alcoholic beverages in their home. There is no evidence that the defendants supplied or purveyed beer to [the minor child]. Unlike the defendants in Ely and Bohan [ supra, 236 Conn. 670], the defendants in this case were neither purveyors of alcohol nor social hosts. They owed no legal duty to the plaintiff [and therefore] [t]he plaintiff's claim is unenforceable as a matter of law." Id., 381; see also Vitale v. Kowal, 101 Conn.App. 691, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007) (upholding summary judgment in favor of defendant on negligent service of alcohol claim where individual consuming alcohol was invited guest of defendant's roommate and defendant did not purchase any alcohol or actively encourage individual to drink).
The plaintiffs, in turn, claim that the defendant may be held liable as a purveyor or supplier of alcohol for purposes of their social host liability claim, citing Reynolds v. McAvoy, Superior Court, judicial district of Danbury, Docket No. CV 02 0346701 (November 4, 2004, Nadeau, J.), in support of their argument, wherein the defendant moved for summary judgment on the plaintiff's social host liability claim, alleging that pursuant to the submitted evidence, the defendant did not serve or provide alcohol that he had purchased to anyone in his residence. The court distinguished its factual circumstances from those in the Rangel decision, noting that "[a]lthough liability may not result from an adult's mere knowledge that alcohol is stored in a refrigerator, liability may be imposed when a person is a social host to minors and a causal connection exists between tolerated or served consumption and the damages resulting from the minor's consumption." Id. The court found that "[i]nasmuch as Ely [ v. Murphy, supra, 207 Conn. 88] and Bohan [ v. Last, supra, 236 Conn. 670] do not require the defendant to be an intentional, but only a negligent, purveyor of alcohol, whether [the minor] consumed the alcohol stored in the house or the alcohol brought from outside the premises, [the defendant], as a social host, must be deemed to have a degree of duty for accommodating widespread underage drinking and providing a venue for it." Id. As a result, the court denied the defendant's motion for summary judgment, finding that "a genuine issue of material fact exists regarding whether [the defendant] knowingly or negligently provided a place for his guests to consume or overindulge with alcohol." Id. The court further held that "[a]s the social host of a party that involved underage drinking, a duty of care exists, and a jury is permitted to determine whether that duty was breached . . ." Id.
Additionally, in Pagan v. Amston Liquor Shoppe, Superior Court, judicial district of New Britain, Docket No. CV 01 0511544 (June 30, 2003, Cohn, J.) ( 35 Conn. L. Rptr. 231), the court denied the defendant's motion for summary judgment brought on similar grounds, despite the plaintiffs' admission that the minor did not drink alcohol provided by the defendant, noting that "[w]hile a host has no general duty to police the conduct of his guests, even if they are minors . . . the host should have a duty to supervise the minor properly when the host has actively encouraged the consumption of alcohol by the minor." (Citation omitted.) Id., 232. The court held that the defendant may still be found liable as a social host because, pursuant to the facts alleged, the defendant informed the minor of the party, the minor went to the defendant's house because alcohol was being served and alcohol was served to other minor guests. Id., 233. As a result, the court found that the defendant's "premises were, through his actions, `alcohol-infused," and "[a]s alleged, [the defendant's] actions actively encouraged [the minor] to drink, and therefore the trial may proceed to determine if he should be held liable for the eventual consequences." Id.
In the present case, the evidence submitted indicates that the defendant planned and hosted a social gathering at his residence where he permitted alcohol to be consumed by his underage guests. The presented evidence further reveals that the defendant purchased an unknown quantity of beer, which was stored in his garage with additional alcohol brought into the defendant's residence by other party guests. Unlike the defendants in Rangel v. Parkhurst, supra, 64 Conn.App. 372, and Vitale v. Kowal, supra, 101 Conn.App. 691, the defendant in the present case served as a social host to minor guests. Pursuant to the case law discussed herein, a duty of care exists on behalf of the social host of a party where underage drinking is encouraged, regardless of whether the intoxicated minor consumed alcohol purchased by the social host, or alcohol brought from outside the premises. Whether that duty of care was breached in the present case, and the defendant knowingly or negligently provided a venue for his minor guests to consume alcohol, constitutes a genuine issue of material fact. As a result, the defendant's motion for summary judgment as to count six of the plaintiffs' complaint on these grounds must be denied.
B
The defendant next argues that his motion for summary judgment as to count six of the plaintiffs' complaint should be granted on the grounds that the plaintiffs cannot establish a causal connection between the defendant's hosting of the party and the subsequent motor vehicle accident. The plaintiffs counter that the defendant's conduct as a social host was a contributing cause to the subsequent motor vehicle accident.
"[A] social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured, if a court or a jury finds, as a matter of fact, a proximate cause relationship between the service of alcohol and the damages ensuing from the minor's consumption of alcohol." Bohan v. Last, supra, 236 Conn. 677. "[T]he 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." Ely v. Murphy, supra, 207 Conn 97.
In the present case, the evidence submitted indicates that Cameron Lee did not consume alcohol before or after attending the defendant's party, and he was visibly intoxicated when he left the defendant's residence. Furthermore, the autopsy report indicates that Cameron Lee had a blood alcohol content of 0.12 percent at the time of the accident. Pursuant to the presented evidence and the applicable case law, whether a proximate cause relationship exists between the defendant's hosting of the party and the plaintiffs' damages resulting from Cameron Lee's intoxication constitutes an issue of fact that is not proper for determination on summary judgment. Therefore, the defendant's motion for summary judgment as to count six of the plaintiffs' complaint on these grounds must be denied.
C
The defendant further argues that his motion for summary judgment as to count six should be granted on the grounds that the defendant cannot be held liable as a social host because he was a sixteen-year-old minor at the time of the party, and minors cannot be held liable as social hosts under Connecticut law. The plaintiffs counter that the defendant's status as a minor does not shield him from social host liability.
Our appellate courts have not yet addressed this issue and there exists a split of authority among the Superior Courts. In support of the proposition that a minor may not be held liable as a social host, the defendant cites Carlson v. Sabat, Superior Court, judicial district of Tolland, Docket No. CV 95 0057122 (July 21, 1995, Klaczak, J.) ( 14 Conn. L. Rptr. 491), a case in which the court, in reliance on our Supreme Court's decision to allow a cause of action by an injured third party against an adult who served alcohol to a minor in Ely v. Murphy, supra, 207 Conn. 88, found that a minor may not be held liable for serving alcohol to another minor on the grounds that "[t]he minor supplying the alcohol was just as incapable of responsibly assimilating the effects of alcohol . . . [as] the minor consuming the alcohol." Id., 492.
More recent Superior Court decisions, however, have found that a cause of action for social host liability may lie against an individual under the age of twenty-one who serves alcohol to a minor. Some of the cases have reached this determination by finding that, pursuant to General Statutes § 1-1d, individuals who are eighteen years of age and older are not minors for purposes of such a claim. See Pepin v. Cacchillo, Superior Court, judicial district of New Haven, Docket No. CV 94 0364290 (August 4, 1998, Zoarski, J.) ( 22 Conn. L. Rptr. 630) (holding nineteen-year-old defendant is adult for purposes of liability for negligent service of alcohol to minor claim); Marinaccio v. Zaczynski, Superior Court, judicial district of New Britain, Docket No. CV 96 0565991 (May 14, 1998, Hennessey, J.) ( 22 Conn. L. Rptr. 159) (finding eighteen-year-old defendant constitutes adult in determining liability for social host liability claim); Madigan v. Kerrigan, Superior Court, judicial district of Waterbury, Docket No. CV 96 0132101 (September 2, 1997, Handy, J.) ( 20 Conn. L. Rptr. 350) (holding twenty-year-old defendant may be liable as adult social host).
General Statutes § 1-1d provides: "Except as otherwise provided by statute, on and after October 1, 1972, the terms `minor, `infant' and `infancy' shall be deemed to refer to a person under the age of eighteen years and any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and age of majority' shall be deemed to be eighteen years."
The defendant correctly notes that the aforecited courts' reliance on § 1-1d does not apply to the present case because the defendant was sixteen years old at the time of the party, and therefore, also constitutes a minor under the statute for liability purposes. Other Superior Court decisions, however, have also upheld claims for social host liability against individuals under eighteen years of age who served alcohol to a minor. In Murphy v. LaChapell, Superior Court, judicial district of Waterbury, Docket No. CV 97 0142410 (May 26, 1999, Pellegrino, J.) ( 24 Conn. L. Rptr. 567), the defendant, a minor under the age of eighteen, moved to strike the plaintiff's social host liability claim on the grounds that the defendant could not be held liable for the negligent service of alcohol to another minor. The court noted "that it was difficult to fathom the concept `violate the law by drinking underage, provide another underage individual with alcohol, and do not worry about the result of those activities — you are exempt from liability because you are not [twenty-one].'" Id., 570. As a result, the court denied the defendant's motion, holding that "[w]hether [the defendant] had the maturity to know that [her] actions were likely to cause the [minor] to become intoxicated and to do what he did do is a question of fact for the jury." Id.; see also Pagan v. Amston Liquor Shoppe, supra, 35 Conn. L. Rptr. 231 (relying on Murphy decision in finding seventeen-year-old defendant may be held liable in negligence to third party for serving alcohol to minor).
In the present case, pursuant to the case law discussed herein, the court finds that the defendant, a sixteen-year-old minor, may be held liable for a social host liability claim by an injured third party based on his service of alcohol to another minor. This court is unwilling to extend the limited common-law exception established by our Supreme Court in Ely v. Murphy, supra, 207 Conn. 88, as a means of denying all negligent service of alcohol claims brought against minor social hosts based on the rationale that a minor providing alcohol is as incapable of "responsibly assimilating the effects of alcohol" as a minor consuming alcohol. Carlson v. Sabat, supra, 14 Conn. L. Rptr. 492. As noted in Murphy v. LaChapell, supra, 24 Conn. L. Rptr. 568, whether the defendant had the maturity to know that his actions were likely to cause Cameron Lee to become intoxicated and to subsequently injure the plaintiffs constitutes a genuine issue of material fact. Therefore, the defendant's motion for summary judgment as to count six of the plaintiffs' complaint on these grounds must be denied.
D
Count six of the plaintiffs' complaint for negligent service of alcohol to a minor survives the defendant's motion for summary judgment, and therefore, the defendant's motion for summary judgment as to counts seven through nine of the plaintiffs' complaint for loss of consortium must also be denied. See Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979).
CONCLUSION
Based on the foregoing, the court hereby denies the defendant's motion for summary judgment as to counts six through nine of the plaintiffs' complaint.