Opinion
No. X04 CV 03 4001301 S
May 22, 2006
RULING ON MOTION FOR SUMMARY JUDGMENT
The defendant Richard Rushford has moved for summary judgment as to the third and fourth counts. The third count incorporates the allegations of the first count, which states a negligence action against the VFW Post and adds an allegation that Rushford was the permittee of the Post and "responsible for its operation and negligent service to [the decedent]." The fourth count realleges the allegations of the third count and concludes that Rushford was the permittee and "responsible for its wanton and reckless conduct to [the decedent]." There are no allegations that Rushford engaged in any conduct of any kind, nor is it alleged that Rushford was the employer or liable because of acts of his employees, agents or servants. Rather, he appears to be sued solely in a vicarious capacity as permittee.
I find that summary judgment ought to enter in Rushford's favor as to the third count. The allegations are solely based on negligence, and Rushford's affidavit states that he acted solely as a volunteer for an eligible organization, the Veterans of Foreign Wars. Any liability will be borne by the VFW. Rushford's assertion that he is protected from personal liability by the Volunteer Protection Act, 42 U.S.C. §§ 14501 et seq. appears ironclad. The federal act creates no exception for situations involving alcohol. Although the plaintiff, in her materials in opposition, suggests that Rushford may not have been acting solely "within the scope of the volunteer's responsibility in the nonprofit organization . . . at the time of the act or omission"; 42 U.S.C. § 14503(a); that suggestion and accompanying facts do not create a genuine issue of fact, because the complaint alleges liability only by virtue of vicarious responsibility as permittee. It is uncontroverted that the role of permittee is perforce included in the scope of his volunteer responsibilities.
One cannot recover, of course, on a theory not pled.
The decision as to the fourth count is not as clear cut. The fourth count realleges the factual allegations against the Post and adds that Rushford is liable for reckless provision of alcohol to a minor. The federal Volunteer Protection Act does not, of course, provide immunity from liability for reckless conduct. Rushford, however, relies on Superior Court cases for the proposition that permittees are not vicariously liable for actions of other employees of licensed facilities. Those cases do not involve facts which allege vicarious responsibility of permittees for reckless service of liquor; rather, they involve fights or other behavior on the part of employees.
Vasudevan v. Pragosa, 2006 WL 328367 (Keller, J.) (2006) (40 Conn. L. Rtpr. 617); Kendrick v. Daniels, Inc., 1992 WL 83795 (Wagner, J.) (1992).
The plaintiff cites Swift v. My Brother's Place, 1995 Ct.Sup. 7371 (Aurigemma, J.) (1995) ( 14 Conn. L. Rptr. 317), in which Judge Aurigemma squarely held that a permittee was vicariously liable for the willful misconduct of an employee who sold alcoholic beverages to an intoxicated customer. This decision was based in part on language appearing in Pierce v. Albanese, 144 Conn. 241, 252 (1957), to the effect that a permittee assumes of necessity the risk of a great variety of situations which could impose liability upon him. The language in Pierce, however, is squarely in the context of discussion of liability under the Dram Shop Act, currently codified as General Statutes § 30-102. The Dram Shop Act expressly provides for vicarious liability: "[i]f any person, by such person or such person's agent . . ." There is no express statutory imposition of vicarious liability for the common-law tort of reckless provision of alcohol.
I respectfully disagree with Judge Aurigemma and agree with the reasoning of Judges Keller and Wagner. Permittees of course are responsible in the regulatory arena for acts of the establishment's agents and employees. The Liquor Control Commission requires an individual to be responsible for the activities of the licensee. The reckless provision of alcohol is, however, a common-law tort, and no common-law motion imposes vicarious liability on a permittee solely by virtue of being a permittee. Nor is there a statutory provision imposing vicarious liability, as there appears to be in the context of the Dram Shop Act. I do not find that a permittee, sued only in the capacity of permittee, is personally liable for the establishment's reckless behavior.
Again, the plaintiff has listed a number of facts in her materials in opposition to summary judgment which might indicate some personal involvement by Rushford. The difficulty, again, is that only vicarious liability by virtue of being permittee is alleged. Unlike the situation in Vasudevan, there is no allegation that the persons actually serving the decedent were the agents, servants or employees of Rushford.
The motion for summary judgment is granted.
The motion was argued on Friday, May 19, 2006. Jury selection is scheduled for Monday, May 22, 2006. This memorandum is being written during the intervening weekend. If counsel provides persuasive appellate authority contrary to this ruling, I will reconsider to the extent possible in the circumstances.