Summary
holding that tavern owner had a duty to take "reasonable steps not to injure [plaintiff] or place her in a situation of foreseeable risk of being injured as part of the ejection process"
Summary of this case from Jane Doe v. O.C. Seacrets, Inc.Opinion
No. HHB CV 10 6003848
December 7, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE
This case involves the question of what duty, if any, a retail establishment owes to a patron whom it ejects from its premises. The defendant ODMT, doing business as O'Leary's Digger McDuffs Tavern ("tavern") asserts in its Motion to Strike that the tavern owes no duty to such a patron, and that even if it does owe a duty, the injury that occurred to this ejected patron was too remote to have been foreseeable so that this defendant cannot be liable for her injury.
The facts as alleged in the complaint are these. On the night of January 21, 2009, the plaintiffs' decedent Carol Sinisgalli was a patron at the defendant tavern located in Cromwell, CT. While there, Sinisgalli put down her purse and took off her coat and her shoes. Shortly after her arrival at the tavern, James O'Rourke, also a defendant in this action arrived. At some point, Sinisgalli had an altercation with another patron and the staff of the tavern physically removed Sinisgalli through the front door to the exterior of the building and locked the door behind her. Someone called the local police to report a disturbance at the tavern.
Sinisgalli, outside the tavern without her shoes, coat, or purse, entered O'Rourke's vehicle. O'Rourke began to drive Sinisgalli toward her home in Rocky Hill. Sometime between 11:30 P.M. on January 21, and 12:30 A.M. on January 22, 2009, Carol Sinisgalli left or was caused to leave O'Rourke's vehicle. The outside temperature during all of this period was well below freezing; between 11:30 and 12:30, the temperature was 14 degrees. Sinisgalli was found by a cross-country skier on the afternoon of January 22, 2009, dead from hypothermia, her body in several inches of snow.
The plaintiffs bring this action against O'Rourke and against the tavern, as to the latter alleging that the defendant tavern had a duty not to eject her into the freezing night air, knowing that the outside weather was dangerously cold and knowing that Sinisgalli was without her shoes, coat, and purse (which contained her house keys and a cell phone) and knowing that she was "disoriented, impaired, and unable to care for herself." The plaintiffs allege that the conduct of the tavern in doing so was negligent (Count Three) and was wilful, wanton, and reckless (Count Four). They allege the defendant tavern's conduct caused Sinisgalli's death. The defendant tavern moves to strike. It alleges that the plaintiffs' claims must fail because the injury to Sinisgalli occurred miles away from the tavern; that the negligence and recklessness claims cannot give rise to liability absent a special relationship involving custody and control of the ejected person; and that the situation in which Sinisgalli finally died and the circumstances that led her to that location were too remote — geographically and legally — from the conduct of the defendant tavern to have been reasonably foreseeable.
The court rejects these arguments and permits this civil action against the tavern to proceed as pled.
STANDARD FOR A MOTION TO STRIKE
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The "inextricably bound concepts of proximate causation and duty" are ones that can be challenged by way of a motion to strike. Ganim v. Smith Wesson Corp., 258 Conn. 313, 364, 780 A.2d 98 (2001); Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001); Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998).
THE DUTY OF THE DEFENDANT TAVERN TO ITS BUSINESS INVITEES
The allegations in the complaint make plain that Sinisgalli was on the premises of the defendant as a business invitee. The defendant owed her a duty to conduct activities on the premises in such a way so as not to injure her. Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1978); see also, Conn. Jury Instructions, Civil ( www.jud.state.ct.us/JI/Civil/part3/3.9-4.htm). That duty continued, even as the defendant made a decision to eject her from the premises. That is, the defendant had a duty take reasonable steps not to injure her or place her in a situation of foreseeable risk of being injured as part of the ejection process.
The defendant argues that it is has no duty relative to the activities of persons outside the physical borders of its tavern building, based on case law as it applies to dram shops and intoxicated patrons. See, e.g., Nolan v. Morelli, 152 Conn. 432, 443 (1967). But the defendant misses the point of the plaintiff's complaint. While Sinisgalli's intoxication may be one factor to consider in this case, the plaintiff's allegations could apply equally to any retail or business establishment that owes a duty to its business invitees, not just establishments serving alcohol. Indeed the plaintiff makes no claim regarding negligence in the service of alcohol to anyone involved in this incident. As far as the plaintiff's allegations are concerned, the defendant could be a grocery store or a movie theater, rather than a tavern.
The duty of care for one in control of such a premises is not to conduct the activities on the premises in such a way that the patron is likely to be injured. The likelihood that there will be a risk of injury to the patron will depend on the totality of the circumstances. See discussion of Monk v. Temple George Associates, LLC, infra. To use an extreme example, one could not eject an unruly patron by escorting the patron out of a third floor window. The risk would be obvious. While here the risk might have been less obvious, the complaint alleges circumstances from which a trier of fact could find that the defendant was aware of the risk into which it was placing Sinsigalli, such that the defendant had a duty to alter or adjust its conduct or mitigate the risk in some way.
The plaintiff's allegations are sufficient to form a basis for a finding that the defendant had a duty to Sinisgalli, the same duty owed to any other business invitee: a duty of reasonable care. Whether the defendant breached that duty, that is, whether the tavern's conduct is found to be reasonable or unreasonable under the circumstances is a question for the trier of fact.
FORESEBABILITY AND PROXIMATE CAUSE
The plaintiff argues that the intervening conduct of O'Rourke in placing Sinisgalli in his vehicle and beginning the process of transporting her toward her home breaks the chain of causation and precludes liability from attaching to the tavern as a matter of law. However, the fact that O'Rourke's negligent actions also may have been a proximate cause of Sinisgalli's death does not relieve the defendant of its responsibility, 2 Restatement (Second), Torts § 302A (1965), as "[m]ore than one proximate cause may result in any harm suffered." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982); Fleming v. Garnett, 231 Conn. 77, 85-86, 646 A.2d 1308 (1994).
Section 442B of the Restatement (Second) of Torts provides:
Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm . . . is not within the scope of the risk created by the actor's conduct.
2 Restatement (Second), Torts § 442B (1965).
When there is an intervening force between the defendant's action and the plaintiff's injuries, the test for determining proximate cause is whether the defendant's negligence was a substantial factor in causing the plaintiff's injuries and "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . ." Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989), overruled in part, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995); Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).
The court well understands the argument of the defendant that Sinisgalli did not suffer her mortal injury just outside its door or in the vicinity of its premises. That much is true; but the injury to which she succumbed was the precise injury into which she was thrust by the defendant's conduct: the risk of hypothermia to an impaired, inadequately clothed woman, at night, in freezing degree weather.
THE "UNIQUENESS" ARGUMENT
As to both the duty of the defendant and the foreseeability of the injury to the plaintiff, the defendant makes an argument that the uniqueness of this incident militates against finding either component of liability fulfilled. A similar argument was advanced in the case of Monk v. Temple George Associates, LLC, 273 Conn. 108, 869 A.2d 179 (2005). In that case the plaintiff parked her car for the evening in a parking lot that was dimly lit, unsupervised, and unattended by any security personnel. Upon returning to her car from a nearby nightclub, the plaintiff was assaulted by a person whom she knew, who had followed her to her car.
The defendant parking lot owner claimed that it owed no duty regarding the plaintiff's safety on the parking lot premises because of the uncommon way the injury occurred: it was not a random act nor a crime of opportunity based on the conditions at the defendant's parking lot, but rather an intentional, planned assault by someone known to the plaintiff.
The Supreme Court rejected that argument, in analyzing a grant of summary judgment no less. The court held that even in those uncommon circumstances, with a known attacker essentially targeting this particular victim, the duty of the defendant was nonetheless to exercise reasonable care. The court analyzed both the existing law and the public policy underlying the imposition of a duty of care, with particular attention to the source of the injury in Monk. The court held that neither law nor policy was offended by allowing the case to proceed to the trier of fact. As to the former, the plaintiff still had the burden of proving that the defendant had breached its duty to use reasonable care under the totality of the circumstances, as well as the burden of showing the requisite causal connection between the incident and the injury. Id., 117-18. As to the latter, none of the public policy factors involved in extending a duty of care from the defendant to the plaintiff weighed so strongly against the imposition of liability as to prevent such an action from proceeding. Id., 118-20.
The factors to be considered are 1) the normal expectations of the participants in the activity under review; 2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; 3) the avoidance of increased litigation; and 4) the decisions of other jurisdictions. Murillo v. Seymour Ambulance Assoc., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003). Analyzing those factors here, as in Monk, supra, this court finds no reason why the duty to use reasonable care should not apply to the defendant tavern in the circumstances of this case.
Adding the issue of scope of the risk to the analysis, the outcome does not change. The inquiry fundamental to all proximate cause questions is whether the harm that occurred was of the same general nature as the foreseeable risk created by the defendant's negligence. Label Systems Corp v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004). When the defendant's negligent conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the negligent actor is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct. Craig v. Driscoll, 262 Conn. 312, 332, 813 A.2d 1003 (2003), citing 2 Restatement (Second) Torts § 442B (1965).
Sinisgalli was ejected from the defendant's premises into 14 degree weather, without coat, shoes, keys, or phone. She succumbed several hours later from the 14 degree weather, without coat, shoes, keys, or phone. The uniqueness of the circumstances that led to Sinsigalli's death do not, as a matter of law, relieve the defendant tavern from liability.
CONCLUSION
The allegations of the plaintiff sufficiently set forth all of the necessary components of both a negligence claim and a recklessness claim, based on a duty owed to Sinisgalli by the defendant tavern and the foreseeability of her injury. The Motion to Strike is denied.