Opinion
KNLCV186033480S
08-23-2019
Amber LAROUX v. BIG NIGHTS VENUES, LLC
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendants, Big Night Venues, LLC and Jason Nichols as Permittee, filed their motion for summary judgment as to counts one, two, and three of the plaintiff’s amended complaint filed February 13, 2019. The motion was supported by a memorandum of law and exhibits. The plaintiff filed her response to the motion supported by an affidavit and exhibits. The court heard argument on the motion for summary judgment on July 15, 2019. After consideration, and for the reasons set forth below, the motion is denied as to count one, but granted as to counts two and three of the plaintiff’s amended complaint.
Hereinafter, Big Night Venues, LLC and Jason Nichols will be referred to collectively as the defendants and individually by name where appropriate.
The plaintiff, Amber Laroux, filed an amended complaint against the defendants, which includes a claim for violation of the Connecticut Dram Shop Act, General Statutes § 30-102, in count one, a claim for reckless and wanton delivery of alcohol, in count two, and, a claim for negligent supervision and security, in count three.
The court briefly summarizes the allegations of the operative complaint. On February 8, 2017, the plaintiff was a patron of the defendants’ nightclub, referred to as Shrine, located at the Foxwoods Resort and Casino. The plaintiff sustained injuries when she was allegedly kicked and knocked to the floor by another patron, Deana Miele. It is alleged that Miele was intoxicated and was served alcohol while intoxicated prior to the incident with the plaintiff.
Miele is a nonappearing defendant in this matter. Counts four through six set forth the plaintiff’s claims of liability and damages against Miele.
DISCUSSION
"Summary judgment is appropriate when 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Lee v. Duncan, 88 Conn.App. 319, 323-24, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005); see also Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "To satisfy [its] 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." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). "Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ..." (Internal quotation marks omitted.) Byrne v. Burke, 112 Conn.App. 262, 267, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009). The court cannot weigh the credibility of witnesses in determining facts on summary judgment, thus, a dispute contingent on the disputed testimony of a witness is clearly a question of fact. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
COUNT ONE
To establish an action under the Dram Shop Act, a plaintiff must prove by a preponderance of the evidence that the defendant sold alcoholic liquor to a person, who was intoxicated at the time of the sale, and as a consequence of that intoxication, injured the plaintiff. See General Statutes § 30-102; see also O’Dell v. Kozee, 307 Conn. 231, 53 A.3d 178 (2012); Wentland v. American Equity Ins. Co., 267 Conn. 592, 603-05, 840 A.2d 1158 (2004). The plaintiff, in this action, has alleged that Miele was visibly or otherwise perceptibly intoxicated when the defendants served her alcohol. On the motion for summary judgment, the defendants claim that there is no evidence that the Big Night Venues, LLC employees served alcohol to Miele or served Miele alcohol while she was intoxicated.
The motion for summary judgment is supported by the deposition of the plaintiff. Pl.’s Memo. in Support of Mot. For Summ. Judgment, Ex. A. The deposition clearly demonstrates that the plaintiff has no evidence regarding service of alcohol by the Big Night Venues, LLC employees to Miele. The plaintiff in her deposition testified that she did not know Miele, that she did not see Miele being served any alcohol at Shrine, that she did not see Miele with a drink, that she had no evidence to support the claim that Miele was served alcohol at Shrine, that aside from a remark by Miele and the subsequent incident, the plaintiff did not observe any conduct that Miele was intoxicated. The plaintiff heard Miele say, as Miele was moving through the crowd on the floor, "you’re in my space." The plaintiff opined that "I don’t think a sober person would say that ‘[y]ou’re in my space.’ I think a sober person would say [e]xcuse me." Id. : Pl.’s Dep. 46: 24-25; 47: 1. This opinion lacks any indicia of evidence of intoxication. The defendants have sustained its burden on the motion for summary judgment.
In response, the plaintiff proffered the affidavit of Miele that she was served eight to ten alcoholic drinks by the Big Night Venues, LLC employees and that she was intoxicated. Pl.’s Memo. in Supp. of Obj. to Mot. for Summ. Judgment, Ex. 1. The defendants contend that the affidavit of Miele should not be considered by the court as it is inadmissible evidence. The defendants claim that the affidavit is hearsay. Practice Book § 17-46, however, provides that the affidavits supporting or opposing a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The court finds that the affidavit complies with Practice Book § 17-46. More specifically, the affiant sets forth facts of which she has personal knowledge. The defendants further claim that Miele’s affidavit lacks credibility because she both states that she does not recall the details of the incident with the plaintiff, but she recalls the amount of drinks that the Big Night Venues, LLC employees served her and that she was intoxicated when served. "When deciding a summary judgment motion, a trial court may not resolve credibility questions raised by affidavits or deposition testimony submitted by the parties." Doe v. West Hartford, 328 Conn. 172, 197, 177 A.3d 1128 (2018). There are genuine issues of material fact, to wit: whether Miele was served alcoholic beverages in Shrine by the Big Night Venues, LLC employees, while she was intoxicated.
COUNT TWO
"To establish liability for a reckless sale of alcohol, plaintiffs must allege and establish facts indicating that the defendants continued to serve a patron despite observable or manifest signs of intoxication or service to an obviously intoxicated individual." (Internal quotation marks omitted.) Wilcox v. McCrory and Pepper, Superior Court, judicial district of New London, Docket No. CV-17-6032587-S (March 18, 2019, Knox, J.). "Proof of sale to an intoxicated person 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 intoxicating liquors, 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 his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be dead-drunk. It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." (Internal quotation marks omitted.) Hayes v. Caspers, Ltd., 90 Conn.App. 781, 801-02, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005), quoting Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985).
In Kowal v. Hofher, 181 Conn. 355, [360-61,] 436 A.2d 1 (1980), our Supreme Court held that vendors and social hosts may be held liable for the injurious consequences resulting from their reckless sale of alcohol to others. Our Appellate Court subsequently held that the sale of alcohol to an individual who is obviously intoxicated is sufficient to establish reckless and wanton misconduct. See Futterleib v. Mr. Happy’s, Inc., 16 Conn.App. 497, 509, 548 A.2d 728 (1988) ("[the] defendant’s conduct of continuing to serve alcohol to [a patron], who was already obviously intoxicated, was sufficient for the jury to find reckless and wanton misconduct by the defendant"); Coble v. Maloney, 34 Conn.App. 655, [671-73], 643 A.2d 277 (1994) (upholding trial court’s instruction that jury could find employees acted recklessly and wantonly if they continued to serve alcohol to a patron when they knew or should have known that he was already intoxicated)." Estate of Keeney v. Horsley, Superior Court, judicial district of New Haven, Docket No. CV-09-5029198-S (April 2, 2013, Wilson, J.).
There is no evidence that the Big Night Venues, LLC employees continued to serve Miele despite observable or manifest signs of intoxication. While Miele’s affidavit raises a question with regard to her intoxication, it is silent as to any manifestations of her acts or conduct at the time of service. As there is no evidence that the Big Night Venues, LLC employees served Miele, while she was an obviously intoxicated person, the defendants have sustained its burden on count two. The motion for summary judgment as to count two is granted.
COUNT THREE
Connecticut recognizes a cause of action for the negligent supervision of tavern patrons and employees. See Nolan v. Morelli, 154 Conn. 432, 440-41, 226 A.2d 383 (1967). "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.) Turner v. Dry Dock Bar & Grill, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-17-6033298-S (June 6, 2018, Jacobs, J.). The defendants rely on the deposition testimony of the plaintiff that she did not know Miele and the alleged kick and fall occurred suddenly and without warning. The plaintiff’s deposition testimony further provides that security personnel were present at the nightclub, and that the security personnel responded to the incident within ten seconds of the incident. In her objection, the plaintiff relies on her deposition testimony that the nightclub was crowded and rowdy and the affidavit of Miele that she was served alcohol.
The Superior Court cases, Deedon v. Friends of Jasper McLevy’s, Superior Court, judicial district of Fairfield, Docket No. CV-00-0372489-S (January 8, 2003, Wolven, J.) and Navarro v. Santiago, Superior Court, judicial district of Windham, Docket No. CV-12-6005750S (October 8, 2014, Boland, J.) have addressed the issue of an establishment’s liability in regards to a claim of negligent conduct. The facts in Deedon arose out of an action involving an injury to a bar patron, who was struck and knocked off his chair by an unidentified person. See Deedon v. Friends of Jasper McLevy’s, supra, Docket No. CV-00-0372489-S. The defendants, the registered backer of the bar and the permittee, moved for summary judgment as to the plaintiff’s counts against them, which included the plaintiff’s count alleging negligent supervision. See id. The court held that the plaintiff’s claim for negligent supervision failed as a matter of law because the plaintiff lacked evidence as to the assailant’s demeanor and condition prior to the alleged assault, or the length of time the perpetrator was on the premises, or whether the alleged assailant was a patron of the establishment, thus, making it impossible to ascribe a duty of care by the defendants to the plaintiff. See id. Additionally, the court held that "without some evidence describing one defendant’s conduct and/or sobriety, any connection between the actions and/or omissions of the defendants to the plaintiff’s injuries is based solely upon conjecture and surmise." See id.
In Navarro, the Superior Court addressed a motion for summary judgment as to a plaintiff’s count alleging that liability was assigned to the defendant for the alleged failure to maintain its establishment in a reasonable and safe condition. See Navarro v. Santiago, supra, Superior Court, Docket No. CV-12-6005750-S. The plaintiff’s action in Navarro arose out of a stabbing that occurred at a business named Tony’s Pub. See id. The court held that the defendant, Tony’s Pub, Inc., must establish the lack of any material fact indicating that the defendant’s actions were within the scope of the risk created by any acts or omissions of its part, and that the defendant did not unreasonably create or increase the risk of injury from the assailant’s actions when it knew or had reasons to know from past experience that there was a likelihood of conduct dangerous to the plaintiff’s safety on the date in question. See id. The court concluded that the defendant succeeded in showing the absence of a genuine issue of material fact that the defendant failed in any legal duty to the plaintiff because (1) the defendant succeeded in adducing sufficient proof that it had no prior notice of any propensity towards violence on the assailant’s part on the day of the incident or any prior occasion, (2) that the defendant had no history of being a place subject to any general concern about danger to its patrons, and (3) the incident was sudden and unforeseeable, but suppressed within about two minutes or less by the security personnel present. See id.
Similarly, in the present case, the plaintiff has alleged but failed to demonstrate any facts that the defendant breached its duty to keep the premises safe. First, there is no evidence that the defendants continued to serve Miele despite observable or manifest signs of intoxication. Second, the plaintiff has offered no evidence the defendant failed to provide adequate security or safety. While the plaintiff claims the supervision and security was somehow inadequate, the only evidence presented was the testimony of the plaintiff that security personnel responded to the incident within 10 seconds. The plaintiff presented no evidence as to the nature or quantity of the security personnel that was present in the facility at the time of the incident. The plaintiff presented no evidence as to the nature or quantity of supervision that was reasonable under the circumstances. Third, the sudden and unexpected conduct of Miele alone fails to demonstrate any genuine issue as to the material facts in count three, which, under applicable principles of substantive law, entitle the defendant to a judgment as a matter of law. The motion is granted as to count three.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is denied as to count one, but granted as to counts two and three of the plaintiff’s amended complaint.