Opinion
No. CV01 0277460-S
March 8, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #150
I PROCEDURAL HISTORY
On April 22, 2003, the plaintiff, David Jensen, Jr., filed an eight-count amended complaint against the defendants, William DePaolo and Brian Badorek d/b/a Sam the Clam's, Robert Newman as the permittee of Sam the Clam's, Joseph Barbino, George Fenn, Mary Cantone d/b/a Manor Inn and Manor Inn, Inc., as the permittee. Counts four and six, a claim for negligent service of alcohol and negligent supervision of patrons, respectively are against Cantone and Manor Inn.
On October 2, 2003, Robert Newman filed a motion for summary judgment and memorandum of law in support as to count one of the amended complaint asserting that Connecticut does not recognize a cause of action for negligent service of alcohol to an intoxicated adult. That motion is currently pending. On June 8, 2003. DePaolo and Badorek also moved for summary judgment as to count one of the amended complaint. They submitted a memorandum of law making the same argument as Newman. That motion also is pending. In addition, on November 25, 2003, DePaolo and Badorek filed a motion for summary judgment on the first and third counts, negligent service of alcohol and negligent supervision of patrons.
The following facts have been alleged therein. On June 27, 1999 while patronizing the Manor Inn in Southington, Connecticut, Barbino and Fenn purchased alcoholic beverages from Cantone, her employees or agents. Barbino and Fenn became intoxicated at the Manor Inn. They were sold additional alcoholic beverages and allowed to leave the Manor Inn without either Cantone or the Manor Inn apprising the local law enforcement authorities of their intoxication. Barbino and Fenn proceeded to Sam the Clam's, also in Southington, where between 11 p.m. and 12 a.m. they continued to drink alcoholic beverages causing them to become more intoxicated. It is alleged that as a direct and proximate cause of their intoxication, they assaulted and battered the plaintiff, another patron at Sam the Clam's, causing him to suffer numerous injuries and damages.
On November 10, 2003, Cantone and the Manor Inn moved for summary judgment on counts four and six and submitted a memorandum of law in support of the motion, which does not contain documentary evidence or affidavits. The plaintiff filed a memorandum of law in opposition on November 13, 2003. The memorandum, however, only addresses the claim in count four of his amended complaint. The motion was heard on the short calendar on November 24, 2003.
After the hearing on the various motions for summary judgment on the short calendar in November 2003, and in response to Newman's motion for summary judgment dated December 10, 2003, which now moved for judgment on counts one and three, the plaintiff filed a memorandum of law in opposition to Newman's motion. Therein, the plaintiff addressed the issue of negligent supervision of patrons at Sam the Clam's. To this date, the plaintiff has not responded to Cantone and Manor Inn's motion for summary judgment on count six of the amended complaint.
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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003).
"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). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[T]he party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "It is not enough for the opposing party merely to assert the existence of . . . 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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Id., 252-53. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46.
Cantone and the Manor Inn move for summary judgment on the ground that there is no genuine issue of material fact as to counts four and six, negligent service of alcohol to an intoxicated adult and negligent supervision of patrons, respectively, and, thus, they are entitled to judgment as a matter of law. In their memorandum of law, they argue that the enactment of Public Act 03-91 clarifying the holding in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), is to be applied retroactively, and, therefore, count four fails to state a legally sufficient cause of action for negligent service of alcohol. They further argue that as to count six, "there is no cause of action for negligent supervision of patrons, where the harm . . . occurred at a different establishment under supervision of the co-defendants Sam the Clam's some time after the alleged intoxicated person had left the Manor Inn and where the plaintiff was not a patron." The plaintiff, in opposition, filed a memorandum of law accompanied by some of the legislative history for P.A. 03-91 and the Dram Shop Act. The plaintiff argues that P.A. 03-91 was intended to change the substantive rights and applies prospectively to allow a cause of action for negligent service of alcohol.
General Statutes § 30-102, as amended by P.A. 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."
Craig v. Driscoll overruled Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990), and held that the Dram Shop Act, General Statutes § 30-102 does not preclude "a common-law negligence action against a purveyor for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another." Craig v. Driscoll, supra, 329. On remand the Superior Court denied the defendants' motion to strike the counts alleging negligent service of alcohol to a person twenty-one years or older on the ground that PA 03-91 is prospective in its application. Craig v. Driscoll, Superior Court, judicial district of Litchfield, Docket No. CV 98 0075654 (August 28, 2003, Bryant, J.) ( 35 Conn.L.Rptr. 308).
"As an initial matter, it is noted that a motion to strike, rather than a motion for summary judgment, is ordinarily the proper procedural vehicle for challenging the legal sufficiency of a complaint. See Practice Book § 10-39(a); see also Galgano v. Metropolitan Property Casualty Ins. Co., 64 Conn. App. 25, 27-28 n. 3, 779 A.2d 229 (2001)." Soto v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0268007 (August 19, 2003, Wiese, J.). "Our appellate case law does not clearly establish whether a motion for summary judgment may also be used to challenge the legal sufficiency of the allegations of a complaint." Id.
"There is a split of authority in the Superior Court regarding whether a motion for summary judgment may also be used to test the legal sufficiency of a complaint. Some judges have concluded that a motion for summary judgment may not be used to challenge the sufficiency of a complaint. See, e.g., Czahur v. Koeller, Superior Court, judicial district of New Haven, Docket No. CV 01 0456412 (February 14, 2003, Harper, J.); Pinson v. Citizens Bank of Connecticut, Superior Court, judicial district of Hartford Docket No. CV 99 0594735 (March 21, 2001, Wagner, J.T.R.). Others . . . have determined that a motion for summary judgment may be used for that purpose. See, e.g., Lewczyk v. Dept. of Public Health, Superior Court, judicial district of Hartford, Docket No. CV 00 0596677 (December 10, 2002, Hennessey, J.) ( 33 Conn. L. Rptr. 681, 683); Moss v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 0407351 (August 8, 2001, Fracasse, J.)." Id.
"In between those two ends of the spectrum is a third group of judges, who have concluded that a motion for summary judgment may be used to challenge the sufficiency of the complaint, but that the motion should be granted only if it meets the standard for a motion for summary judgment, not for a motion to strike. See, e.g., Arnone v. Connecticut Light Power Co., Superior Court, complex litigation docket at Waterbury, Docket No. CV 98 0168276 (March 22, 2002, Hodgson, J.) ( 32 Conn.L.Rptr. 58, 60); Truglio v. Hayes Construction Co., Superior Court, judicial district of Ansonia-Milford [at Milford], Docket No. 98 0064191 (May 29, 2001, Nadeau, J.) ( 29 Conn.L.Rptr. 540, 541 n. 1) [aff'd, 66 Conn. App. 681, 785 A.2d 1153 (2001)]." (Citation omitted: internal quotation marks omitted.) Id. This court adopts the latter approach.
In the present action, Cantone and the Manor Inn have not supported their motion for summary judgment as required with any affidavits or other supporting documentation. See Practice Book § 17-45. They have failed to submit any admissible evidence demonstrating that there are no genuine issues of material fact as to the fourth count of the plaintiff's amended complaint.
Even if Cantone and the Manor Inn had submitted supporting documentation and affidavits, the court finds that their argument fails as a matter of law. The issue of whether PA 03-91, enacted in response to Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), was intended by the legislature to be curative and apply prospectively or clarifying and apply retroactively, was recently addressed by two trial courts, both of which held that PA 03-91 was intended to be curative. See 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, supra, Superior Court, Docket No. CV 98 0075654.
"Statutory laws are presumed to operate prospectively: The principles that govern retroactive application of legislative enactments are well established. Except as to amending statutes that are procedural in their impact, there is a general presumption that legislation is intended to operate prospectively . . ." (Citations omitted.) Craig v. Driscoll, supra, Superior Court, Docket No. CV 98 0075654. "Because the plaintiff['s] cause of action arose prior to June 3, 2003, and Public Act 03-91 does not clarify existing law, but rather, substantively changes the existing law as of June 3, 2003, [ P.A. 03-91] does not bar the plaintiff's claim." Id. Accordingly, Cantone's and the Manor Inn's motion for summary judgment as to count four is denied.
As to count six, Cantone and the Manor Inn argue it is uncontroverted that at the time of the assault on the plaintiff, he was not a patron at the Manor Inn, and, therefore, Cantone and the Manor Inn, as a matter of law, owed him no duty of care. They further argue that they owed the plaintiff no duty to have prevented Barbino and Fenn, who allegedly became intoxicated at the Manor Inn, from having left there on the evening of June 27, 1999.
Count six contains the following allegations: "Caused or allowed and permitted the obviously drunken, violent noisy and unruly patrons to leave said premises, without alerting proper law enforcement agencies or alerting a family member of . . . Barbino and . . . Fenn; [k]new or should have known that said premises had an insufficient number of employees to control said patrons when it was foreseeable that their patrons who drink may become uncontrollable; [and] [t]hey failed to warn the plaintiff when it was foreseeable that he could have been harmed by an individual who was consuming alcohol and then leaving said premises."
To prevail on a count of negligent supervision of patrons, Cantone and Manor Inn must meet their burden of demonstrating that there is no genuine issue of material fact and they are entitled to judgment as a matter of law. "Connecticut has recognized a cause of action for the negligent supervision of tavern patrons and employees." Castillo v. Brito, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 394099 (October 28, 1991, Hennessey, J.) ( 5 Conn. L. Rptr. 201); see Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967). "The cause of action for negligent supervision, however, 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.) CT Page 3197 Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. 115265 (March 21, 1995, Flynn, J.) ( 14 Conn.L.Rptr. 346); see also Nolan v. Morelli, supra, 440-41. "In cases that have recognized such a cause of action, the plaintiffs were injured by other patrons on the premises of the defendant, and the injuries were allegedly caused by the defendants' failure to supervise the other patrons and provide a safe business environment." Bioski v. Castelano, supra, 14 Conn.L.Rptr. 346 (court granted motion to strike the plaintiff's negligent supervision claims after concluding that the gravamen of these counts is that the defendants failed to take reasonable measures to avoid likely injuries caused by its patron's intoxication, failed to enact sufficient procedures to monitor the amount of alcohol served to her and failed to prevent her from driving after serving her excessive quantities of alcohol).
"[A] patron or business visitor of an establishment, who sustains an injury in person or property as a consequence of negligent supervision, may have a cause of action against the establishment . . . however, that cause of action has only been allowed in cases where the establishment served alcohol to one patron who subsequently assaulted another patron in the same establishment . . ." (Citations omitted.) Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 92 039650 (July 23, 1993, Jones, J.) ( 9 Conn. L. Rptr. 518); see also Nolan v. Morelli, supra, 441. It is uncontroverted that the alleged injuries to the plaintiff occurred at a location other than the premises of Manor Inn.
Cantone and the Manor Inn have met their burden of showing the absence of any genuine issue of material fact. The plaintiff has failed to demonstrate the existence of a disputed issue of fact. Accordingly, the motion for summary judgment as to count six is granted.
III CONCLUSION
The motion for summary judgment as to count six is granted. It is denied as to all other counts.
So ordered.
BY THE COURT
Peter Emmett Wiese, Judge