Opinion
No. LLI CV 05 4002254S
June 26, 2007
MEMORANDUM OF DECISION
This is the plaintiff's motion to strike (#114) three special defenses. For the reasons given below, the motion is granted as to the first special defense but denied as to the second and third special defenses.
On February 21, 2006, the plaintiff, Robert J. Silk, Administrator of the Estate of Robert J. Silk, Jr., filed a revised three-count complaint against the defendants, William W. Gill, Sharon Gill, Christian Gill and Jennifer Derise. Count one alleges negligent supervision against the defendants, William and Sharon Gill. Count two alleges negligence on the part of Christian Gill. Count three alleges negligent supervision on the part of Jennifer Derise. These allegations arise out of the death of Robert J. Silk, Jr., from an incident wherein Robert J. Silk, Jr. consumed excessive amounts of alcohol in the Gills' home at a social gathering held by Christian Gill. The defendants, William and Sharon Gill, were not home at the time.
The original complaint was filed on April 25, 2005. After a previous motion to strike was granted, however, this revised complaint was filed.
On March 7, 2006, the defendants filed an answer and three special defenses: (1) the wanton and reckless acts of Robert J. Silk, Jr. consuming the alcohol serve as a bar to recovery in this case; (2) Robert J. Silk, Administrator, was negligent and his negligence was the proximate cause of Robert J. Silk, Jr.'s death; and (3) Robert J. Silk, Jr. was negligent and his negligence caused his own death.
On April 21, 2006, the plaintiff filed this motion to strike the three special defenses, accompanied by a memorandum of law, on the grounds that "[t]he asserted defenses are legally insufficient." On May 1, 2006, the defendants filed a memorandum in opposition to the motion to strike the special defenses. Arguments were heard at short calendar. During oral argument, the parties agreed that the third special defense of the decedent's comparative negligence was proper and, as such, the motion to strike as to the third special defense is denied. The motion to strike as to the other two special defenses are discussed below.
DISCUSSION
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "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.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); "Practice Book . . . § 10-39, [however], allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "In ruling on a motion to strike, [however], the court is limited to the facts alleged in the [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. The court should not consider any grounds other than those specified in the motion. See Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
The plaintiff has moved to strike the first two special defenses on the grounds that "[t]he asserted defenses are legally insufficient." In the memorandum of law, the plaintiff argues that: (1) the first special defense is insufficient because the act of a minor consuming alcohol is not a superseding act relieving the defendants from liability; and (2) the second special defense is insufficient because the negligence of another party does not relieve the defendants of liability. The defendants counter that: (1) the first special defense is sufficient because a minor's consumption of alcohol is still a superseding act when the alcohol is not sold to the minor; and (2) the second special defense is valid because comparative negligence of a party is properly pleaded as a special defense.
As to the first special defense, the argument centers around the applicability of Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), in circumstances where the defendants did not sell alcohol to the minor. The plaintiff argues that Ely and subsequent cases have eroded the old common-law rule that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it. See id., 93. Ely changed the common-law rule, finding, "[i]n view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." Id., 95. Thus, the case law has evolved such that when a minor consumes alcohol, that consumption does not automatically act as a bar to liability.
The issue in this special defense is somewhat different from the issue raised by the defendants' previous motion to strike. Here, the issue is not the existence of a duty for the defendants, rather, it is whether the minor decedent's consumption of alcohol can break the causal chain, so as to relieve the defendants of liability. Ely and its progeny reflect the policy that consumption by a minor does not break the causal chain. Id.; see also Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003); Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996); Rangel v. Parkhurst, 64 Conn.App. 372, 779 A.2d 1277 (2001).
See Silk v. Gill, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002254 (September 15, 2005, Bozzuto, J.) [40 Conn. L. Rptr. 14].
The defendants argue that Ely is not applicable to this case because the alcohol was not sold to the minor. This argument, however, misses the mark because the special defense is not whether the defendants owed a duty. The focus here, however, is on the actions of the minor: whether his consumption of alcohol can break the causal chain so as to completely relieve the defendants of liability. Based on the policy expressed in Ely and its progeny, minors lack the capacity to assimilate responsibly the effects of consuming the alcohol. Therefore, regardless of how the minor got the alcohol, a minor's consumption of alcohol is no longer a complete bar to recovery. As such, the plaintiff's motion to strike the first special defense is granted.
Ely and its progeny suggest there may be a difference in the duty owed depending on whether the minor was sold alcohol.
This does not impact or imply that the minor decedent may not have been negligent. As expressed, above, the motion to strike the third special defense regarding the decedent's negligence was denied. The parties are free to show the relative negligence of anyone involved. There is just no unequivocal bar to liability due to the act of consuming alcohol when the person is a minor.
As to the second special defense, the plaintiff has moved to strike on the grounds that it is "legally insufficient," and argues, in the supporting memorandum, that it is insufficient to allege that "another party" was negligent. The defendant counters that the comparative negligence of another party is properly pleaded as a special defense. Since the plaintiff is suing in his capacity as Administrator, it appears that the defendant should have filed an apportionment complaint against him. The issue, however, is whether the plaintiff adequately raised the ground that he was not a "party" to the action and had to be apportioned in within the motion to strike or the supporting memorandum. "Although grounds other than those specified should not be considered by the trial court in passing upon a motion to strike where the trial court sustains a motion to strike on erroneous grounds, if another ground is appropriate, the granting of the motion will be upheld by this court. Of course, the alternative ground must have been alleged in the motion to strike in some form." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
The dispute is not over whether comparative negligence is a proper special defense, but rather, whether the plaintiff has adequately raised the issue that he should have been apportioned in since he was not a party to the action. The plaintiff, for the first time at oral argument, raised the issue of apportionment. It is not raised on the face of the motion or contained within the brief.
There is nothing on the face of the plaintiff's motion that specifies the reason why the second special defense is insufficient. Since there was no objection on that ground, however, the court may look to the memorandum in support of the motion. In the memorandum, the plaintiff argues that "The Second Special Defense is insufficient in that it alleges that the Defendant, [sic] Robert J. Silk, Administrator, was negligent." The plaintiff further argues that the allegation that "another party was also negligent is improperly plead [sic] as a special defense." The plaintiff never specifically raised the issue that he is not a full party to the action. All that is raised in the motion is that the negligence of "another party" is improper as a special defense. Comparative negligence of another party, however, can be pleaded as a special defense. Since the specific issue of Robert J. Silk not being a party to the action has not been raised anywhere in the motion to strike or memorandum in support, the court denies the plaintiff's motion to strike the second special defense.
See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991) ("The defendant's motion to strike simply stated that the plaintiff had `failed to state a claim upon which relief can be granted.' Because the defendant did not specify the distinct reasons for the claimed insufficiency of the plaintiff's complaint in its motion, the motion was `fatally defective' under Practice Book § [10-41] notwithstanding the defendant's inclusion of such reasons in its supporting memorandum . . . We, nevertheless, consider the defendant's motion in the form presented to the trial court due to the plaintiff's failure to object to its form and the nonjurisdictional nature of § [10-41]." (Citation omitted.) Id.; see also Barasso v. Rear Hill Still Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
The court is aware of the potential problems that may arise down the road or at trial from keeping this special defense if Robert J. Silk is not a party to the action. The court, however, can only consider the grounds raised on the face of the motion or contained somewhere in the memorandum.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike the special defenses is granted as to the first special defense and denied as to the second and third special defenses.
CT Page 11349