Opinion
No. KNL-CV-09-50011528
September 29, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 143)
I. Facts
On August 28, 2009, the plaintiff, Vickie Silvia, filed a six-count second revised complaint against the defendants, Alison Wittenberg and Phyllis Grabarek, as administratrix of the estate of Cynthia Grabarek, the decedent, for personal injuries allegedly sustained as the result of a motor vehicle accident. The plaintiff's second revised complaint alleges the following facts. On July 21, 2008, the plaintiff was operating her motor vehicle north-bound on Interstate 95 near exit 57 in Guilford, Connecticut, when a motor vehicle operated by the decedent collided with the rear of the plaintiff's motor vehicle, causing the plaintiff's motor vehicle to leave the lane of travel and strike a jersey median barrier. The plaintiff suffered serious injuries as a result of the collision. Prior to the accident, the defendant had invited the decedent to her residence, and provided the decedent with alcoholic beverages for consumption. The defendant was aware that the decedent was intoxicated when she left the defendant's residence in her motor vehicle. Counts one, two and three are brought against the defendant, alleging claims for a violation of General Statutes § 30-102, the Dram Shop Act, common-law recklessness and negligence, respectively. Counts four, five and six are brought against Phyllis Grabarek, as administratrix of the decedent's estate, alleging claims for negligence, statutory recklessness pursuant to General Statutes § 14-295 and common-law recklessness, respectively.
Phyllis Grabarek is not a party to the present motion. Hereinafter, the term the defendant refers to Wittenberg.
On June 11, 2010, the defendant filed a motion for summary judgment as counts one, two and three of the plaintiff's second revised complaint. The defendant also filed a memorandum of law in support of her motion. On July 9, 2010, the plaintiff filed an objection to the defendant's motion, accompanied by a memorandum of law in support of her motion. The defendant filed a reply to the plaintiff's objection on August 13, 2010. The plaintiff failed to address the defendant's arguments regarding count one in her objection, and at short calendar on August 16, 2010, the plaintiff conceded that the defendant's motion for summary judgment as to this claim could be granted. As a result, the court hereby grants the defendant's motion for summary judgment as to count one of the plaintiff's second revised complaint on these grounds.
II Discussion
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
A Count Two — Common-Law Recklessness
The defendant first argues that her motion for summary judgment as to count two of the plaintiff's second revised complaint should be granted on the grounds that no genuine issue of material fact exists indicating the defendant served the decedent with alcohol on the night of the incident. The plaintiff counters that the defendant's argument improperly narrows the definition of "service" to direct service or offer of alcohol to an individual.
A social host may be held liable by a third party for the reckless and wanton misconduct in the service of alcohol to an individual. Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). Service of alcohol has been defined as "furnished, whether by sale or by gift;" Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383 (1967); and furnished is further defined "[a]s used in the liquor laws . . . to provide in any way . . ." Black's Law Dictionary (6th Ed. 1990). In count two of the complaint, the plaintiff alleges that the defendant invited the decedent to her residence and "provided, supplied, delivered and/or served [the decedent] alcoholic beverages for consumption." The plaintiff also presented the defendant's deposition as evidence to the court, wherein the defendant stated that there was alcohol available to the decedent in her residence on the night of the incident. Moreover, the defendant provides no case law indicating that a claim for reckless service of alcohol requires direct service or offer of alcohol to the intoxicated party. As a result, the court finds that the defendant's motion for summary judgment as to count two of the plaintiff's second revised complaint on these grounds must be denied.
The defendant also argues that her motion for summary judgment as to count two of the plaintiff's second revised complaint should be granted on the grounds that no genuine issue of material fact exists indicating that the decedent exhibited observable signs of intoxication on the night of the incident. The plaintiff counters that she has provided sufficient allegations and evidence indicating a question of fact exists as to whether the defendant knew that the decedent was intoxicated at that time.
Our Supreme Court, in Kowal v. Hofher, supra, 181 Conn. 355, in recognizing a cause of action in wanton and reckless misconduct against a purveyor of alcohol, stated that "[w]anton misconduct is more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action. Wilful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct." Id., 362.
"[I]n order to sustain a cause of action alleging willful, wanton and reckless misconduct in the service of alcohol, the plaintiff must plead facts, and not mere conclusions, which indicate that the defendants knowingly served an intoxicated patron . . . [The plaintiff must] plead facts to demonstrate how the defendant would have known that the individual was intoxicated, as opposed to simply pleading the conclusion . . . An allegation that the server knew that the individual was intoxicated, without more, is insufficient . . . [T]he plaintiff must allege facts which would indicate that the defendants, or their agents, continued to serve a [person] despite observable manifestations of intoxication." (Citations omitted; internal quotation marks omitted.) 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.).
In count two, in support of her claim for reckless service of alcohol, the plaintiff alleges that the defendant invited the decedent to her residence, where she provided the decedent with alcoholic beverages for consumption, the defendant was aware that the decedent was intoxicated when she exited the defendant's residence in her automobile and the defendant served the decedent alcohol at a time when she knew or in the exercise of reasonable care should have known that she was intoxicated. To further support her claim, the plaintiff offers as evidence a report from the office of the chief medical examiner that indicates that the decedent's blood alcohol level at the time of the collision was 0.21 percent. The plaintiff also provided the court with the affidavit of Richard Pinder, Ph.D., in which Dr. Pinder opined that based on the decedent's blood alcohol level at the time of the incident, the decedent was likely visibly intoxicated when she left the defendant's residence. As a result, the court finds that the allegations and the evidence provided by the plaintiff sufficiently set forth facts to support a claim for common-law recklessness by the defendant in the present case. Therefore, the defendant's motion for summary judgment as to count two of the plaintiff's second revised complaint on these grounds must also be denied.
B Count Three — Negligence
The defendant argues that her motion for summary judgment as to count three of the plaintiff's second revised complaint should be granted on the grounds that a cause of action does not exist for the negligent service of alcohol to an adult by a social host. The plaintiff counters that the common-law rule preventing social hosts from being found liable for the negligent service of alcohol to adults has been eroded by recent Connecticut decisions. The court in Piontkowkski v. Agan, Superior Court, judicial district of Windham, Docket No. CV 08 5003588 (July 7, 2009, Riley, J.) [ 48 Conn. L. Rptr. 209], provided the following thoughtful and comprehensive analysis addressing whether a cause of action exists in this state for the negligent service of alcohol to an adult by a social host.
"`At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it . . . Common-law tort claims against purveyors routinely failed, therefore, because the consumption of the liquor was viewed as an intervening act breaking the chain of causation between the purveyor and the ensuing injury caused by the intoxication.' . . . Craig v. Driscoll, 262 Conn. 312, 322, 813 A.2d 1003 (2003).
"`In Connecticut, as far back as 1872, it came to be felt that the . . . common-law rule [limiting the liability of purveyors of alcohol] was to some extent overly harsh and should be modified by statute . . . The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for "any damage or injury to any other person, or to the property of another" done by the intoxicated person "in consequence" of his intoxication . . . The modern version of this so-called civil damage or dram shop act is General Statutes § 30-102.' . . . Quinnett v. Newman, 213 Conn. 343, 347, 568 A.2d 786 (1990), overruled on other grounds by Craig v. Driscoll, supra, 262 Conn. 312. Connecticut's current dram shop act imposes liability up to a certain amount on "any person, by such person or such person's agent, [who] sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another . . ." General Statutes § 30-102.
"In addition to being modified by statute, the common-law rule limiting the liability of purveyors of alcohol has been modified by the Supreme Court. In Kowal v. Hofher, [ supra, 181 Conn. 355], the Supreme Court held that a cause of action could lay against a purveyor or social host for the reckless sale or service of alcohol to another. It reasoned `that one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent.' Id., 361. In Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988), the Supreme Court held that `[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.' The Supreme Court accordingly held that a purveyor could be held liable for the negligent sale or service of alcohol to a minor. Id. It noted: `This is not to say, however, that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect.' Id., 97.
"More recently, in Craig v. Driscoll, supra, 262 Conn. 312, the Supreme Court modified the common-law rule by recognizing a cause of action against a purveyor who negligently serves alcohol to an adult who, as a result of his intoxication, injures another. In doing so, the Supreme Court held that the dram shop act was not the exclusive remedy for such injuries, and it expressly rejected the reasoning underlying the common-law rule, stating: `[I]t is now time to discontinue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor's negligence is otherwise established.' . . . Id., 340. The legislature responded by amending the dram shop act, effective June 3, 2003, to include the following sentence: `Such injured personal 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.'" See Public Acts 2003, No. 03-91.
"As noted by the court in Raymond v. Duffy, [Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 03 0102444 (January 13, 2005, Quinn, J.) ( 38 Conn. L. Rptr. 562, 565)], `[u]nquestionably the dram shop act, as amended by Public Act. No. 03-91, legislatively overrules Craig as it applies to sellers of alcoholic beverages.' That is, the dram shop act is the exclusive remedy for injuries arising from the sale of alcohol to an intoxicated adult. In all other respects, Craig remains good law. Most notably, its rejection of the presumption `that the ingestion of alcohol by the patron acted as an intervening force sufficient to shift the entire causation element to some entity or entities other than the purveyor.' Craig v. Driscoll, supra, 262 Conn. 333. As the Supreme Court explained: `That presumption . . . runs counter to our proximate cause jurisprudence generally, in which a tortious act by a third party does not act as an intervening force if such acts are within the scope of the risk created.' Id. Moreover, `[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue.' . . . Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 249, 943 A.2d 430 (2008)." (Emphasis in original.) Piontkowkski v. Agan, supra, Docket No. CV 08 5003588 (July 7, 2009, Riley, J.); see also Raymond v. Duffy, supra, 38 Conn. L. Rptr. 565 (denying defendants' motion to strike claim for negligent service of alcohol by social host to intoxicated adult).
Pursuant to the foregoing case law and analysis, and in light of the legal principle that proximate causation generally constitutes a question of fact, this court, like the courts in Piontkowkski and Raymond, holds "that the voluntary consumption of alcohol by the tortfeasor no longer serves to bar" an action against a social host for the negligent service of alcohol to an adult. Raymond v. Duffy, supra, 38 Conn. L. Rptr. 565. Thus, a social host may be held liable for the negligent service of alcohol to an adult under our common law. As a result, a genuine issue of material fact exists regarding the defendant's liability for negligent service of alcohol in the present case, and therefore, the defendant's motion for summary judgment as to count three of the plaintiff's second revised complaint on these grounds must be denied.
CONCLUSION
Based on the foregoing, the court hereby grants the defendant's motion for summary judgment as to count one of the plaintiff's complaint, and hereby denies the defendant's motion for summary judgment as to counts two and three of the plaintiff's complaint.