Opinion
No. DBD CV06-5001354 S
May 11, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #123
FACTS
This action arises out of a motor vehicle accident in which the plaintiff, Craig Nelsen, was injured while he was a passenger in an automobile that was being driven by the apportionment defendant, Christopher Galan. On December 18, 2006, the plaintiff filed an amended nine-count complaint against four defendants, Apple East of Danbury, Inc. (Apple East), doing business as Applebee's Neighborhood Grill Bar; its permittee, Edwin Scheibel; Benni's II Restaurant, LLC (Benni's II), doing business as Bennigan's; and its permittee, Constantine Gianopoulos.
In counts five and six, the plaintiff alleges that Benni's II and Gianopoulos, respectively, were reckless and wilful in that they, their agents or employees sold alcoholic beverages to Galan when they knew that he was intoxicated. The plaintiff further alleges that this recklessness was a substantial factor in causing the injuries and damages that the plaintiff suffered when Galan lost control of and crashed the motor vehicle he was operating after he consumed the beverages and left the premises.
In counts one through four, the plaintiff alleges that each defendant violated General Statute § 30-102, which is known as the Dram Shop Act. In counts seven and eight, he alleges that Apple East and Scheibel were reckless in serving alcohol to Galan. In count nine, the plaintiff states that he has satisfied the notice requirements for his claims.
On January 4, 2007, Benni's II and Gianopoulos filed a motion to strike (#123) counts five and six on the ground that the plaintiff failed to allege sufficient facts to support claims for recklessness. The defendants filed a memorandum of law in support of their motion. On February 26, 2007, the plaintiff filed an objection to the motion (#136), accompanied by a memorandum of law, in which he argues that he has alleged sufficient facts to support the causes of action. The court heard the parties' oral arguments at the short calendar on March 5, 2007.
The other defendants did not join in this motion. Therefore, the term defendants, as used herein, refers to Benni's II and Gianopoulos.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). In deciding a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assumes] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court reads] the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294.
A motion to strike "does not [however] admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). Therefore, "a motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
The defendants argue that the plaintiff has not alleged sufficient facts to support claims for recklessness in counts five and six in that he merely alleges that the defendants served alcohol to Galan while he was intoxicated. They claim this is insufficient as there must be additional allegations that they served him despite his display of "observable manifestations of intoxication." The plaintiff points out that he has alleged that the defendants were reckless in that they and/or their agents or employees served alcohol to Galan whom they knew to be intoxicated, and contends that such allegations are adequate to support his claims.
In counts five and six, the plaintiff alleges the following. The defendants' agents or employees sold alcoholic beverages to Galan while he was intoxicated. After he consumed the beverages, Galan drove away in his vehicle, and then lost control of it. The vehicle left the road and struck a utility pole and two trees, which resulted in injuries to the plaintiff. According to the plaintiff, the reckless and/or wilful misconduct of the defendants was a substantial factor in causing the accident and his injuries and damages in that they, their agents or employees engaged in the following conduct: "(a) Sold and delivered alcoholic beverages to . . . Galan, who they knew to be intoxicated; (b) Wilfully allowed their employees to serve alcoholic beverages to . . . Galan although they knew he was intoxicated; (c) knew that . . . Galan would be become intoxicated when he consumed the alcoholic beverages served to him (d) served alcoholic beverages to him even though knowing . . . Galan would consumed [them] while intoxicated . . . (d) . . . [and] he would thereafter operate a motor vehicle; and (e) Knew that the operation of a motor vehicle by . . . Galan while intoxicated would constitute an unreasonable risk of injury to others."
"In Kowal v. Hofher, [ 181 Conn. 355, 360-61, 436 A.2d 1 (1980),] [our Supreme Court] held that the plaintiff could bring a cause of action against a restaurant owner and permittee, his agents and employees, for recklessly serving alcoholic beverages to a patron who was already intoxicated and who, thereafter, operated his vehicle in a negligent manner causing the resulting injuries to the plaintiff's decedent. That holding was premised on the court's conclusion that the policy considerations that justify protecting a vendor . . . from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages did not apply with respect to wanton and reckless misconduct." Craig v. Driscoll, 262 Conn. 312, 334, 813 A.2d 1003 (2003).
In order to determine whether the plaintiff has alleged sufficient facts to support such claims, "[the court looks] 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 [the Supreme Court has] 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 willful, 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." (Internal quotation marks omitted.) Id., 342-43.
Accordingly, "[i]n order to prove that a sale of intoxicating liquor was made in a wilful, wanton and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended 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." (Internal quotation marks omitted.) Coble v. Maloney, 34 Conn.App. 655, 661-62, 643 A.2d 277 (1997). In Coble, the Appellate Court determined that trial court properly instructed the jury that it could determine whether a pub was reckless in serving alcohol to a driver if it found that the pub "served liquor beyond the point when [the driver who collided with the plaintiff] was drunk, and they knew or should have known that [the driver] was already intoxicated." Id., 672. See also Czajkowski v. Snookers Billiards, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000754 (September 16, 2006, Stevens, J.) (allegations that defendant served alcohol to driver when it knew he was impaired and that its policy allowed such service are sufficient to support claim of recklessness).
Pursuant to this authority, the plaintiff has adequately alleged conduct by the defendants that is sufficient to amount to recklessness. Specifically, he alleges that the defendants, their agents or employees served alcoholic beverages to Galan even though they knew he was already intoxicated, that they knew that he would consume these beverages and become further intoxicated, that he would operate a motor vehicle after doing so, and that his operation of a vehicle in his condition would constitute an unreasonable risk of causing injury to others. This conduct is more than mere thoughtlessness or inattention. The plaintiff has alleged that these parties had knowledge of facts that would lead a reasonable person to realize that their conduct created an unreasonable risk of harm to others and a high probability that substantial harm would occur. See Craig v. Driscoll, supra, 262 Conn. 342-43.
The plaintiff does not allege, as the defendants observe, how the defendants knew that Galan was intoxicated. Although several judges of the Superior Court have found that such an allegation is necessary to support a claim of reckless service of alcohol, in Craig v. Driscoll, supra, 262 Conn. 343-44 n. 23, the Supreme Court rejected the defendants' challenge to the plaintiffs' allegations of recklessness on this basis. As the court explained, "[t]he defendants . . . challenge the allegations regarding recklessness on the basis that the plaintiffs failed to allege any predicate for their allegations — for example, precisely how the defendants would have known that [the driver] was intoxicated. Because matters of evidence are not required to be stated in the complaint; see Practice Book § 10-1; we reject the defendants' contention." (Emphasis in original.) Id.
See, e.g., Depics v. Manor Inn, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0162195 (June 19, 2001, Rogers, J.); Defosses v. Blauvelt, Superior Court, judicial district of New Britain, Docket No. CV 00 0500393 (August 25, 2000, Kocay, J.) ( 28 Conn. L. Rptr. 126); and Gumkowski v. U.S.S. Chowder Pot, III, Ltd., Superior Court, judicial district of New Haven, Docket No. CV 94 0361840 (September 20, 1995, Hartmere, J.) Many of these cases were decided before 2003, when Craig v. Driscoll, supra, 262 Conn. 312, was released.
Practice Book § 10-1 provides in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."
Moreover, according to our Supreme Court, the term "intoxication," when used in the related context of claims under the Dram Shop Act "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." Sanders v. Officer's Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Pursuant to this definition, the plaintiff has alleged, in reading the complaint broadly and in favor of the plaintiffs, that Galan was manifesting signs of his condition.
The defendants also contend that count six should be stricken because Gianopoulos cannot be vicariously liable for the reckless provision of alcohol solely on the basis of his status as a permittee. Presumably, the defendants are arguing that the plaintiff must allege that some further connection existed between Gianopoulos and the reckless service of alcohol beyond his role as the person who holds the liquor permit for the establishment where the service occurred. The plaintiff counters that he has alleged sufficient facts to show that he seeks to hold Gianopoulos responsible for the actions of his agents and/or employees.
The parties agree that the appellate courts have not directly addressed this issue. As the defendants correctly note, in Shafer v. Sullivan, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 03 4001301 (May 22, 2006, Beach, J.) ( 41 Conn. L. Rptr. 403, 404), the court declined to find "that a permittee, sued only in the capacity of permittee, is personally liable for the establishment's reckless behavior [in serving alcohol to the decedent]." The court expressly noted, however, that in the complaint at issue "only vicarious liability by virtue of being a permittee is alleged . . . [T]here is no allegation that the persons actually serving the decedent were the agents, servants or employees of [the permittee]. (Emphasis added.) Id., 404 n. 3. On the other hand, in Swift v. My Brother's Place, Superior Court, judicial district of Middlesex, Docket No. CV 92 0065595 (June 12, 1995, Aurigemma, J.) ( 14 Conn. L. Rptr. 317, 320), the court denied the defendant's motion to set aside a verdict in which the jury found that a permittee was liable for the reckless actions of his employees. In Swift, unlike Shafer, the plaintiff's allegations against the permittee were not based solely on his status as a permittee, but rather, were premised on service of alcohol to someone whom the permittee's employee knew was intoxicated. As the court noted, in light of the statutory scheme regulating the sale of alcohol, "it appears clear that a permittee may be held liable at common law for the wilful, wanton and reckless conduct of his employees in serving liquor to an intoxicated person." Swift v. My Brother's Place, supra, 14 Conn. L. Rptr. 320.
While neither Swift (motion to set aside verdict) nor Shafer (motion for summary judgment) dealt with a motion to strike, the factual similarity and underlying legal issue in both cases is sufficiently similar to the instant case to be of significant use and guidance on the motion and issue presently before the court.
In the present case, the allegations against Gianopoulos are not premised solely on his status as a permittee, as in Shafer, but instead, like those in Swift, on the conduct of Gianopoulos' agents, servants or employees in serving and selling alcohol to Galan, whom they knew to be intoxicated. Thus, the plaintiff's claim of recklessness against Gianopoulos in count six is not inadequate on the ground argued by the defendants.
The Appellate Court addressed another aspect of the connection required between an owner/permittee and reckless service of alcohol in Belanger v. Village Pub, I, Inc., 26 Conn.App 509, 603 A.2d 1173 (1992). In Belanger, the defendants, including Cimino, who was both the permittee and owner of bar that served alcohol to the plaintiff's decedent, appealed from a jury verdict finding them liable for reckless misconduct in dispensing alcoholic beverages to the decedent. The defendants argued that the trial court's charge to the jury on the issue of respondeat superior was deficient in that it stated that "to hold the employer liable, the employee must have been acting within the scope of employment in furtherance of the employer's business," and did not add that the plaintiff was required to prove that the barmaid, in serving the decedent, was obeying express orders or directions from Cimino. Id., 519-20.
The Appellate Court determined that the defendants were not entitled to such an instruction under the principles of respondeat superior, which is a form of vicarious liability. Pursuant to the doctrine, the court explained, "[i]t has long been recognized that [a] master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business . . . The doctrine of respondeat superior focuses on the employee's conduct rather than on the employer's knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of the employer's business, the employer's consent or ratification is irrelevant . . . even an innocent employer must compensate an injured party . . . Therefore, the defendants' requested instruction that the employee's failure to follow the employer's orders relieved the employer from liability for the employee's action was an incorrect statement of the law. The trial court properly refused to instruct the jury as requested by the defendants." (Citations omitted; internal quotation marks omitted.) Id., 520.
CONCLUSION
For the foregoing reasons, the motion of the defendants Benni's II and Gianopoulos to strike counts five and six of the plaintiff's amended complaint is denied.