Opinion
CV166065064S
09-25-2018
Raul OLAVARRIA v. SPORTS HAVEN
UNPUBLISHED OPINION
OPINION
Sybil V. Richards, Judge
The court is presented with the defendant’s motion for summary judgment in which the defendant moves for summary judgment on the grounds that there is no genuine issue of material fact that the plaintiff, operator of a motorcycle, cannot establish that the defendants recklessly served alcohol to a driver whose vehicle collided into the plaintiff’s vehicle and caused injuries to the plaintiff. The defendants argue that they are entitled to judgment as a matter of law as the plaintiff fails to meet the required elements of his recklessness-based claims in his complaint.
In August of 2016, the plaintiff, Raul Olavarria, commenced the present action against the defendants, Sports Haven, Sportech Venues, Inc. d/b/a Sports Haven, Sportech, Inc. d/b/a Sports Haven, and James D. Birney. In his complaint, the plaintiff makes the following allegations. On the night of August 21, 2014, and into the early morning hours of August 22, 2014, the defendants and their agents, servants, and/or employees recklessly furnished alcohol to Michelle Vazquez while she was a patron at Sports Haven, an establishment owned and/or backed by the defendants. The defendants were reckless in that they furnished alcoholic liquor and beverages to Vazquez when she was obviously and visibly very intoxicated with little or no control of her person and faculties, exhibiting physical manifestations of a high degree of intoxication and alcohol impairment including, but not limited to, slurring her words, stumbling, and spilling drinks; they continued to furnish alcoholic liquor and beverages to Vazquez when they knew or should have known of her highly intoxicated state and that it would cause the impairment of her judgment and faculties; and they sold or delivered alcoholic liquor to Vazquez in violation of General Statutes § 30-86(b)(1). On August, 22, 2014, after leaving Sports Haven, Vazquez drove her automobile into the rear of the plaintiff’s motorcycle at approximately 12:48 a.m. while Vazquez and the plaintiff were traveling southbound on I-95 in or near West Haven. The plaintiff was hurled from his motorcycle onto the pavement, and he sustained multiple injuries.
General Statutes § 30-86(b)(1) provides: "Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor or any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113."
In August of 2017, the defendants moved for summary judgment as to the plaintiff’s entire complaint. In support of their motion, the defendants filed a memorandum of law with one exhibit, the affidavit of Sherriann Raffone. On September 1, 2017, the plaintiff filed a memorandum of law in opposition to the defendants’ motion and multiple exhibits: (1) the affidavit of Michelle Vazquez, (2) the police accident report and other related documents, (3) a toxicological analysis by Joel R. Milzoff, a forensic toxicologist, (4) the case detail sheet for the present case, and (5) various Superior Court decisions. On October 3, 2017, the defendants filed a notice of compliance, notifying the court that they had responded to the plaintiff’s interrogatories and requests for production.
The plaintiff’s exhibit B consists of (1) the Connecticut uniform police accident report, (2) the Connecticut department of public safety- investigation report, (3) the uniform arrest report, (4) the criminal appearance bond sheet, (5) the notice of rights- bail sheet, (6) the DWI 24-hour license revocation & return sheet, (7) the officer’s DUI arrest and alcohol test refusal or failure report sheet, and (8) copies of Vazquez’ Breathalyzer test results.
On June 6, 2018, the plaintiff filed a supplemental memorandum of law in opposition and additional exhibits: (1) a report on the subject matter of the present case by Elizabeth Trendowski, a national dram shop/bar operations expert, (2) the affidavit of Kakisha Foster, and (3) the deposition transcript of Sherrian Raffone. On June 12, 2018, the defendants filed a reply to the plaintiff’s memorandum of law in opposition and his supplemental memorandum of law in opposition. The defendants filed two additional exhibits with their reply: (1) an e-filed transaction confirmation page, and (2) excerpts of the deposition transcript of Michelle Vazquez. That same day, the court heard oral argument from both parties regarding the defendants’ motion for summary judgment.
DISCUSSION
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." Practice Book § 17-49. "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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
I
As an initial matter, the plaintiff argues that, pursuant to Practice Book § § 7-17 and 17-44, the court should not consider the defendants’ motion for summary judgment because the defendants failed to file their motion by August 1, 2017, in accordance with the relevant scheduling order (entry no. 107) and have failed to respond to the plaintiff’s discovery and production requests. In opposition, the defendants argue that their motion was timely filed on August 1, as shown by the attached e-filed transaction continuation page.
Practice Book § 7-17 provides in relevant part: "Except as provided below, a document that is electronically received by the clerk’s office for filing after 5 o’clock in the afternoon on a day on which the clerk’s office is open or that is electronically received by the clerk’s office for filing at any time on a day on which the clerk’s office is closed, shall be deemed filed on the next business day upon which such office is open. If a party is unable to electronically file a document because the court’s electronic filing system is nonoperational for thirty consecutive minutes from 9 o’clock in the forenoon to 3 o’clock in the afternoon or for any period of time from 3 o’clock to 5 o’clock in the afternoon of the day on which the electronic filing is attempted, and such day is the last day for filing the document, the document shall be deemed to be timely filed if received by the clerk’s office on the next business day the electronic system is operational."
Practice Book § 17-44 provides: "In any action, including administrative appeals which are enumerated in Section 14-7(c), any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial. If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order. If no scheduling order exists but the case has been assigned for trial, a party must move for permission of the judicial authority to file a motion for summary judgment. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action. The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge."
"Courts have allowed motions for summary judgment filed after the scheduling order deadline when there is no prejudice to the opposing party. " (Footnote in original). Clawson v. La Valley, Superior Court, judicial district of Tolland, Docket No. CV-17-6011664-S, 2018 WL 1936526, *3 (March 29, 2018, Farley, J.) (66 Conn.L.Rptr. 250). For example, the Superior Court has considered the merits of a plaintiff’s cross motion for summary judgment filed twenty-four days after the filing deadline in the operative scheduling order because "[t]he defendants had ample time to respond to the plaintiff’s motion and did, in fact, file an opposition and a motion to amend their answer," and because "the plaintiff’s motion [would] not interfere with the trial," which was scheduled to begin over seven months later. Id.
"See Theodore v. Lifeline Systems Co., Superior Court, judicial district of Hartford, Docket No. CV-12-6029978-S, [2014 WL 4815506, *13 n .8] (August 19, 2014, Peck J.) (considering cross motions for summary judgment filed three weeks after scheduling order deadline because ‘resolution of all the issues raised by way of these motions will not prejudice any party and will no doubt result in a more efficient trial’)[, aff’d, 173 Conn.App . 291, 163 A.3d 654 (2017) ]; Marjam Supply Co. v. Hartford Steam Boiler Inspection & Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-10-6007706-S, [2012 WL 2477963, *1 n .2] (June 4, 2012, Peck, J.) (considering motion for summary judgment filed five days after scheduling order deadline because plaintiff did not object, both sides had sufficient time to fully brief, and court has sufficient opportunity to consider); contra Taylor v. Barberino, Superior Court, judicial district of Hartford, Docket No. CV-075010769-S, [2013 WL 1406241, *7-8] (March 13, 2013, Schuman, J.) (denying cross motion for summary judgment as untimely because it was filed more than three months after scheduling order deadline and three months prior to trial because ‘the court cannot allow parties to ignore court orders, including scheduling orders, with impunity’)."
In the present case, the e-filed transaction confirmation page shows that the defendants electronically filed their motion for summary judgment on Tuesday, August 1, 2017, at 6:00:41 p.m. Pursuant to Practice Book § 7-17, the court deems the motion to be filed on August 2, 2017 because the defendants electronically filed the motion after 5 p.m. on a day on which the clerk’s office was open. Therefore, the motion for summary judgment was untimely filed. Nevertheless, the plaintiff has not shown that he has been prejudiced by the defendants’ late filing of one day. Indeed, since the defendants filed their motion for summary judgment, both parties have filed supplemental memoranda of law and exhibits and have argued their respective positions well before trial is set to commence on December 3, 2018. Moreover, before the plaintiff filed his supplemental memorandum of law, the defendants responded to his interrogatories and requests for production, as shown by the defendants’ notice of compliance (entry no. 125). Accordingly, the court will consider the defendants’ motion for summary judgment even though it was filed untimely.
See footnote 3.
II
The defendants move for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff is unable to establish that the defendants recklessly served alcohol to Vazquez on August 21, 2014 and contend that they are, therefore, entitled to judgment as a matter of law. Specifically, the defendants argue that the facts fail to show that they engaged in highly unreasonable conduct that involved an extreme departure from ordinary care because there were no patrons, including Vazquez, who were obviously, readily, or plainly intoxicated at Sports Haven on August 21, 2014. Additionally, the defendants argue that, even if the evidence establishes that the defendants served alcohol to Vazquez while she was intoxicated, no facts demonstrate that Sports Haven continued to serve her despite obvious manifestations of intoxication; in other words, the evidence establishes no more than negligence as a matter of law, and such claim is barred by General Statutes § 30-102.
General Statutes § 30-102 provides: "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, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person’s or persons’ intention to bring an action under this section. Such notice shall be given (1) within one hundred twenty days of the occurrence of such injury to person or property, or (2) in the case of the death or incapacity of any aggrieved person, within one hundred eighty days of the occurrence of such injury to person or property. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of. 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."
In opposition, the plaintiff argues that the defendants have not met their burden to show the nonexistence of any material fact because the only evidence they have offered is Raffone’s affidavit, in which she states that she did not see or serve anyone who appeared obviously, readily, or plainly intoxicated. According to the plaintiff, Raffone’s affidavit was made almost three years after the night in question and, thus, is insufficient on its own to meet the defendant’s burden of proof on summary judgment. The plaintiff argues further that, even if the court decides that Raffone’s affidavit is sufficient to shift the burden of proof to the plaintiff, Raffone’s affidavit is contradicted by evidence that Vazquez was served alcoholic beverages at Sports Haven while she was obviously drunk and thereafter injured the plaintiff as a result of her intoxication.
In their reply, the defendants argue that even if the court finds the affidavits submitted by the plaintiff to be credible and that Vazquez was slurring her words, speaking loudly or unclearly, walking unsteadily or stumbling, and spilling some of her drink, this behavior did not rise to the level of obvious intoxication. Furthermore, the defendants argue that, even if the court determines that Vazquez was displaying obvious signs of intoxication, no facts establish that the defendants affirmatively observed any of her obvious signs of intoxication and continued to serve her in spite of such observation.
A
Insofar as the defendants’ motion is an attack on the legal sufficiency of the plaintiff’s recklessness claim because it amounts to no more than a claim of negligence, the court addresses this argument first. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236, 116 A.3d 297 (2015). "To establish a claim for reckless service of alcohol, a plaintiff must allege (1) that [the patron] was intoxicated, (2) that [the patron’s] intoxicated state was readily apparent to anyone observing or in contact with him, and (3) that the defendant continued to serve alcoholic beverages to [the patron] while he was obviously intoxicated." (Internal quotation marks omitted.) Taylor v. 550 Chase, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-17-6036176-S, 2018 WL 165961, *4 (March 6, 2018, Brazzel-Massaro, J.) (66 Conn.L.Rptr. 64), quoting Futterleib v. Mr. Happy’s, Inc., 16 Conn.App. 497, 510, 548 A.2d 728 (1988).
The plaintiff’s allegations sufficiently set forth a claim of reckless service of alcohol as the plaintiff alleges that the defendants were reckless in that they furnished alcoholic liquor and beverages to Vazquez when she was obviously and visibly very intoxicated with little or no control of her person and faculties, exhibiting physical manifestations of a high degree of intoxication and alcohol impairment including, but not limited to, slurring her words, stumbling, and spilling drinks; and they continued to furnish alcoholic liquor and beverages to Vazquez when they knew or should have known of her highly intoxicated state and that it would cause the impairment of her judgment and faculties. Compare Ellison v. Gerrity, Superior Court, judicial district of New London, Docket No. CV-14-6021916-S, 2015 WL 5132896 (June 30, 2015, Cole-Chu, J.) (denying motion to strike because plaintiff alleged bar, by its agents or employees, willfully continued to serve alcoholic beverages to patron despite his manifest signs of intoxication and knowledge of his intoxication) with Taylor v. 550 Chase, LLC, supra, 66 Conn.L.Rptr. 64) (granting motion to strike where plaintiff failed to allege defendants knowingly served defendant alcohol while he was in clearly intoxicated state). Such allegations constitute more than a negligence claim.
B
The court turns next to the defendants’ contention that they were not reckless because the evidence fails to show that any patrons, including Vazquez, were obviously, readily, or plainly intoxicated at Sports Haven on August 21, 2014. "In KowaI 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, 672-73, 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, 2013 WL 1800392 (April 2, 2013, Wilson, J.).
Thereafter, in Futterleib v. Mr. Happy’s, Inc., 16 Conn.App. 497, 508, 548 A.2d 728 (1988), the Appellate Court affirmed the trial court’s decision to deny a defendant’s motion for a directed verdict on the grounds that the evidence was insufficient as to the driver’s intoxication and as to the defendant’s wanton and reckless misconduct. The Appellate Court concluded, inter alia, that the jury reasonably could have inferred that the driver was obviously intoxicated because the driver testified that he was at the bar drinking shots of tequila that the bartender was serving him, the bartender bought him a shot, and he could not remember how many shots he consumed because he was intoxicated; and because the testimony of the driver’s friend established that the driver was swaying, was having difficulty standing, was staggering, and was "biting the bar." (Internal quotation marks omitted.) Id., 509.
Some years later, in Coble v. Maloney, 34 Conn.App. 655, 670, 643 A.2d 277 (1994), the Appellate Court again affirmed the trial court’s decision to deny a defendants’ motion for a directed verdict with regard to a plaintiff’s recklessness claim. According to the court, the jury reasonably could have found that the driver manifested signs of intoxication and could have determined that the defendants recklessly sold alcohol to the driver because the driver testified regarding his intent to become intoxicated that night, the number of drinks he had consumed, his opinion that he was intoxicated upon his return to the first bar, and the failure of his memory after having another White Russian when he returned to the first bar. Id., 671.
Notably, in Coble, the Appellate Court also held that the trial court correctly stated the law in its instructions to the jury with respect to the plaintiff’s recklessness claim. Id., 673. "The pertinent section of the [trial] court’s instruction to the jury ... [was] as follows: ‘Recklessness involves highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is present. Recklessness requires a conscious choice of a course of action, either with knowledge that it would involve serious injury to other, or with knowledge of facts which would disclose the danger to any reasonable man. Reckless or wanton misconduct is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequence of actions. Therefore, if you find [that the bar] served liquor beyond the point when [the driver] was drunk, and they knew or should have known that [the driver] was already intoxicated, you may determine whether or not they did conduct themselves in a reckless, wanton and willful way." (Emphasis added; internal quotation marks omitted.) Id., 672.
Thereafter, in O’Dell v. Kozee, 307 Conn. 231, 271-72, 53 A.3d 178 (2012), our Supreme Court quoted favorably a discussion by the Minnesota Supreme Court of what it means to be "intoxicated" and "obviously intoxicated" under different versions of Minnesota’s dram shop act. Quoting the Minnesota Supreme Court, our Supreme Court stated, in part: "We recognize that the various stages of intoxication cannot be defined precisely because individuals react differently to the influence of liquor depending upon the circumstances of consumption, among other things. However, the words ‘obviously intoxicated’ evoke a concept substantially different from that elicited by the simple word ‘intoxicated.’ While both states of intoxication must be manifest in the subject’s behavior, the state of ‘obvious’ intoxication would be readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice ." (Emphasis added; internal quotation marks omitted.) Id., 272.
According to our Supreme Court, the Minnesota Supreme Court stated in full: "The statutory prohibition upon sales of intoxicating liquor to persons already intoxicated ... applies only if the intoxication is observable in the appearance or behavior of the person to whom the intoxicating liquor is furnished ... [F]or a person to be intoxicated there must be such outward manifestation of intoxication that a person using his reasonable powers of observation can see or should see that such person has become intoxicated ... [W]hen intoxicating liquor has affected the user’s reason or his faculties, or has rendered him incoherent of speech or has caused him to lose control of his actions or the motions of his body, he is intoxicated. These manifestations would be observable ...
The following year, in Estate of Keeney v. Horsley, Superior Court, judicial district of New Haven, Docket No. CV-09-5029198-S, 2013 WL 1800392, *10 (April 2, 2013, Wilson, J.), the Superior Court denied a motion for summary judgment with respect to a plaintiff’s recklessness claim. The court concluded that, even without considering the affidavits of two friends of the plaintiff’s decedent, the unchallenged conclusions in the toxicological report regarding the blood alcohol concentration of the plaintiff’s decedent at the time she was last served by the defendants and the likelihood that she would be displaying physical signs, clearly indicative of intoxication, created genuine issues of material fact as to whether the defendants perceived or should have perceived the plaintiff’s decedent to be intoxicated. Id., *9.
In McGeever v. Mulready, Superior Court, judicial district of Waterbury, Docket No. CV-126012741-S, 2013 WL 3970249, *4 (July 18, 2013, Roche, J.), the Superior Court also denied another defendant’s motion for summary judgment as to a plaintiff’s recklessness claims. The court reasoned that the self-serving testimony of the defendant’s employees that they did not recall or remember the driver from the night in question did not trump the evidence submitted by the plaintiff that the driver had consumed alcohol prior to his arrival at the defendant’s bar, that he bumped into patrons, that he ate food off of the floor shortly after being served a mixed drink, and that toxicological analysis indicated that he would have been exhibiting visible signs of intoxication prior to be served at the defendant’s bar. Id., *3.
With the foregoing case law in mind, the court turns to the lone affidavit submitted by the defendants in the present case. In her affidavit, Raffone states that she was the only bartender on shift between the hours of 5 p.m. and 11 p.m. on August 21, 2014. Raffone also states that, on August 21, 2014, no patron was obviously, readily, or plainly intoxicated, and no patron was slurring their words, stumbling, or spilling drinks due to intoxication. Raffone states further that she did not serve alcoholic liquor or beverages to any patron who was obviously, readily, or plainly intoxicated that night. According to Raffone, she did not serve an excessive amount of alcoholic liquor or beverages to any patron that night, and she has never served alcoholic liquor or beverages to a patron who looked, acted or showed any indicator of intoxication or who was drinking too much or too fast. Finally, Raffone states that she was "TIPS (Training for Intervention Procedures) certified" at the time and has been trained to identify when patrons look, act, or show any indicator of intoxication.
Reading the complaint in the light most favorable to the nonmovant, the plaintiff’s allegations reasonably imply that Vazquez remained a patron at Sports Haven into the early morning hours of August 22, 2014, and that, during that time, Vazquez was exhibiting physical manifestations of a high degree of intoxication. Raffone’s affidavit fails to account for this period of time. Thus, the court concludes that genuine issues of material fact remain with respect to whether the defendants knew or should have known that Vazquez was intoxicated when she was served alcohol at Sports Haven.
Nevertheless, assuming arguendo that the defendants have satisfied their initial burden of proof, the court will review the evidence submitted by the plaintiff. First, in her affidavit, Vazquez makes the following relevant statements. Vazquez stands approximately five feet, one inch tall and weighs 126 pounds. On August 21, 2014, at approximately 5 p.m. or 6 p.m., Vazquez went to the home of her cousin, Marybel Carballo, and consumed at least five or six twelve-ounce bottles of Miller beer. At approximately 10 p.m., Vazquez, Carballo, and Carballo’s friend, Keisha Foster, left Carballo’s house and went to Sports Haven. They spent at least one hour and a half at Sports Haven. While at Sports Haven, Vazquez purchased alcoholic drinks at the bar for the trio and paid with cash. Vazquez consumed at least one apple martini, if not two, making at least two trips to and from the bar. Vazquez believes she was served by a bartender named Sherry. Vazquez believes she was speaking loudly, slurring her words, and walking unsteadily to and from the bar. Vazquez also recalls spilling some her own drinks each time she returned from the bar. After leaving Sports Haven, they went back to Carballo’s house. Shortly thereafter, Vazquez left Carballo’s house to return to her home in West Haven.
Additionally, the police accident report and the investigative report show that Vazquez’ automobile collided with the plaintiff’s motorcycle closer to 12:25 a.m. and that her blood alcohol concentration was nearly three times the legal limit almost three hours after leaving Sports Haven . Specifically, the investigative report states that Vazquez eventually provided two proper breath samples, resulting in blood alcohol concentrations of 0.2326 percent at 2:16 a.m. and 0.2171 percent at 2:48 a.m.
See footnote 2.
In her affidavit, Vazquez also states that, after colliding with the plaintiff’s motorcycle, she was arrested and performed two Breathalyzer tests with the following results: 0.2326 percent at 2:16 a.m. and 0.2171 percent at 2:48 a.m.
On the basis of the foregoing and his education, training, and experience as a forensic toxicologist, Dr. Milzoff states the following in his toxicological analysis: "Most individuals are visibly intoxicated with blood concentrations of [0].10 [percent] or higher and the great majority of people (96 [percent] ) are visibly intoxicated at blood alcohol concentrations over 0.20 [percent]. This is consistent with ... Vazquez’s description of herself at Sports Haven, that is she was speaking loudly, slurring her words, walking unsteadily and spilling some of her own drinks. Based on a reasonable degree of toxicological certainty, if ... Vazquez left Sports Haven about [two] or more hours before her first breath alcohol test and had not absorbed any of the [one] or [two] alcoholic drinks she consumed at Sports Haven her blood alcohol concentration at Sports Haven would have been approximately 0.23 [percent] and thus she would have appeared visibly intoxicated at Sports Haven ." (Emphasis added, footnotes omitted.)
Foster’s affidavit supports Dr. Milzoff’s conclusion that Vazquez would have appeared visibly intoxicated at Sports Haven. In her affidavit, Foster makes the following relevant statements. After drinking beer at Carballo’s house, Foster, Carballo, and Vazquez went to Sports Haven sometime after 10 p.m. Vazquez was more than "tipsy" when they first arrived. Vazquez had at least two drinks at Sports Haven, which Foster believes were some kind of martini. Vazquez spent a lot of time at the bar, and she was talking to the bartender and other people at the bar. Vazquez became "wasted" at Sports Haven; she was not speaking clearly and was slurring her words. Shortly before they left Sports Haven, Vazquez walked over to their high-top table and was stumbling. Foster and Carballo had to help Vazquez walk out of Sports Haven and back to her car by holding Vazquez under her arms. Vazquez tried to walk to the driver side door, but Foster and Carballo put her in the passenger seat because she was too "wasted" to drive. Foster drove everyone back to Carballo’s house, and Vazquez waited there to sober up before she drove home.
In consideration of the evidence submitted by the plaintiff, the court further concludes that the plaintiff has created genuine issues of material fact with respect to whether Vazquez was obviously intoxicated when the defendants served her alcohol at Sports Haven. Specifically, the statements made by Vazquez and Foster in their affidavits, the information contained in the police accident report and the investigative report, and Dr. Milzoff’s toxicological analysis and conclusions directly contradict the statements made by Raffone in her affidavit with respect to Vazquez’ level of intoxication at Sports Haven, calling into question the defendants’ contention that no patron being served alcohol, including Vazquez, was obviously, readily, or plainly intoxicated at Sports Haven on August 21, 2014.
Moreover, Vazquez’ deposition testimony, which the defendants submitted with their reply, only serves to further support the conclusion that genuine issues of material fact remain because her testimony demonstrates that, at the time of her deposition, she did not recall much of what happened that night. Likewise, Raffone’s deposition testimony leaves the court with more questions than answers regarding whether she perceived or should have perceived Vazquez to be intoxicated, as she did not recall, at the time of her deposition, whether Vazquez was at Sports Haven that evening or whether she made any apple martinis for her.
Finally, the court notes that the relevant case law establishes that the plaintiff does not need to prove, at the summary judgment stage or otherwise, that the defendants affirmatively observed Vazquez’ intoxicated state. Rather, assuming the burden of proof has shifted to the plaintiff at the summary judgment stage, the plaintiff must establish, inter alia, that genuine issues of material fact exist with respect to whether the. defendants knew or should have known that Vazquez was intoxicated when they served her alcohol.
CONCLUSION
For all of the foregoing reasons, the court denies the defendants’ motion for summary judgment.
"[T]here may be a broad spectrum of behavior ranging from a minimal loss of control of mental or bodily function which would be observable to the reasonably prudent man making an affirmative effort of observation, to a state of intoxication so obvious as to be inescapably evident to anyone with functioning senses. We recognize that the various stages of intoxication cannot be defined precisely because individuals react differently to the influence of liquor depending upon the circumstances of consumption, among other things. However, the words ‘obviously intoxicated’ evoke a concept substantially different from that elicited by the simple word ‘intoxicated.’ While both states of intoxication must be manifest in the subject’s behavior, the state of ‘obvious’ intoxication would be readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice. Although a person is not ‘obviously intoxicated,’ the fact that he is ‘intoxicated’ would be discoverable by reasonably active observation of his appearance, breath, speech, and actions ... This may require the supplier of liquor to engage the prospective purchaser in conversation, to note specifically the details of the purchaser’s physical appearance, to observe the purchaser’s conduct during the course of his drinking at the supplier’s establishment, or to scrutinize the actions of the prospective customer in other ways by which the supplier may detect intoxication which is observable even though not obvious." (Internal quotation marks omitted.) O’Dell v. Kozee, supra, 307 Conn. 271-72.