Opinion
No. CV 09 5010246
January 25, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [#111]
I FACTS
On January 27, 2009, the plaintiffs, Katherine Stein, as administratrix of the estate of Wayne N. Lecardo, the plaintiffs' decedent, and Katherine Stein, individually, filed a two-count complaint in the present wrongful death action against the defendant, Samuel Gipstein. In their complaint, the plaintiffs allege the following facts. On January 28, 2007, a motor vehicle operated by John J. Geise, III, in which the plaintiffs' decedent was a passenger, collided with a motor vehicle operated by Cameron C. Lee on Flanders Road in Groton, Connecticut. As a result of the accident, the plaintiffs' decedent suffered serious and painful injuries, including death. Prior to the accident, Lee attended a party at the residence of Alexander Lavruk, where Lavruk served and/or permitted the service of intoxicating beverages to minors, including Lee. Lavruk engaged in tortious conduct on the night of the accident in that he provided alcoholic beverages to minors at his residence, and allowed Lee to operate a motor vehicle while under the influence of the alcoholic beverages he consumed while at the party. The defendant aided and abetted Lavruk in his tortious conduct by assisting Lavruk in the planning and execution of the party at Lavruk's residence. Counts one and two allege claims against the defendant for aiding and abetting the tortious conduct of another and loss of consortium, respectively.
On February 26, 2010, the defendant filed a motion for summary judgment as to the plaintiffs' complaint in its entirety on the grounds that there exist no issues of material fact in dispute, and therefore, the defendant is entitled to summary judgment as a matter of law. The defendant filed a memorandum of law in support of his motion, accompanied by copies of excerpts from the depositions of the defendant, Lavruk and Haley York Glas, and Andrew Benitez's police statement. The plaintiffs filed a memorandum in opposition to the defendant's motion on September 17, 2010, adopting and incorporating by reference the memorandum of law filed by Jennifer L. Geise, as administratrix of the estate of John J. Geise, III, and Jennifer L. Geise, individually, on April 26, 2010, in opposition to a motion for summary judgment filed by the defendant in a companion file, Geise v. Gipstein, Docket No. CV 09 5010726. The plaintiffs also presented evidence in opposition to the motion, including copies of an excerpt from Lee's autopsy report, police statements by the defendant and Lavruk and excerpts from the depositions of Lavruk, the defendant, Benitez, Glas, Travis Wenke and Nelson Panganiban.
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).
The evidence submitted by the parties reveals the following. Upon learning that his parents planned to travel out of state and leave him unsupervised for the weekend, Lavruk sought the defendant's assistance in inviting friends to a social gathering he intended to host on January 27, 2007. Benitez and Glas, both guests at the party, testified that prior to attending the gathering, they were under the impression that alcohol would be served that evening. The defendant and Lavruk prepared Lavruk's residence for the party by removing breakable items from shelves, moving plants and bringing a wooden slab upstairs from the basement for use in a drinking game. The defendant knew the name of a student at Stonington High School, "Voots," who could buy alcohol for the party, and provided Lavruk with a phone number for Lavruk to call to obtain the alcohol. The defendant and Lavruk traveled together to procure the alcohol from "Voots." Lavruk testified that he believed that the defendant drove to the meeting, while the defendant testified that he believed that Lavruk drove to the meeting. Only Lavruk's money was used to purchase the alcohol, but it is unclear which party conducted the transaction with "Voots." Lavruk testified that he believed that the defendant handled the transaction, while the defendant testified that he believed that Lavruk handled the transaction. While neither party recalls the exact amount of alcohol they obtained, both the defendant and Lavruk testified that they did not believe that they purchased more than a twelve pack of beer. The beer obtained by the defendant and Lavruk was intended for their own consumption.
The evidence submitted by the parties further reveals the following. While the defendant and Lavruk asserted in their police statements that they intended to have a small gathering at Lavruk's residence, seventy to one hundred underage individuals attended the party. Some of the other guests brought alcohol to the party. The beer purchased by the defendant and Lavruk, and the beer brought to Lavruk's residence by other guests, were stored together in Lavruk's garage. There were approximately 300 beers in Lavruk's garage during the party, in addition to various forms of hard alcohol, cups and ice present in and around Lavruk's house. The defendant helped Lavruk control the party by monitoring guests' behavior and asking certain guests to leave the premises. Pursuant to the varying accounts by the deposed witnesses of his arrival and departure times, Lee attended the party for anywhere from twenty minutes to three hours. Of the parties deposed, only Glas personally witnessed Lee consuming alcohol at the gathering, testifying that Lee took a sip of her beer. Glas also testified that Lee was visibly intoxicated when she spoke with him at Lavruk's residence. Wenke, who accompanied Lee for the majority of the evening, testified that Lee did not consume alcohol before or after attending the party, and that he most likely became intoxicated while at Lavruk's residence. After the party, the defendant assisted Lavruk in cleaning the residence by collecting empty bottles and cans. Lee's autopsy report indicates that at the time of the accident, he had a blood alcohol content of 0.12 percent.
A
The defendant first argues that his motion for summary judgment as to count one of the plaintiffs' complaint should be granted on the grounds that the plaintiffs cannot present evidence indicating that the defendant provided Lee with any alcohol prior to the accident. The plaintiffs counter that the defendant may be held liable in the present case pursuant to a claim for aiding and abetting the tortious conduct of another.
"In Connecticut cases, the tort of aiding and abetting is often used interchangeably with the principles outlined in § 876 of 4 Restatement (Second), Torts." These principles, also collectively referred to as the substantial assistance doctrine, state that a person may be liable for "harm resulting to a third person from the tortious conduct of another . . . if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself . . ." Connecticut National Bank v. Giacomi, 242 Conn. 17, 63 n. 42, 699 A.2d 101 (1997). To determine whether the defendant may be held liable under a theory of aiding and abetting the tortious conduct of another, the court must first address whether Lavruk's actions on the night of the accident constitute tortious conduct.
"The common-law rule regarding social host liability in Connecticut states that no tort cause of action lies 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.
"In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), our Supreme Court recognized this common-law principle; however, the court then proceeded to carve out an exception for circumstances in which alcohol is furnished to a minor. The court noted that the proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors." (Citation omitted; internal quotation marks omitted.) Pike v. Bugbee, 115 Conn.App. 820, 828-29, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009). Ultimately, the Ely court concluded 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." Ely v. Murphy, supra, 207 Conn. 95; see also Bohan v. Last, 236 Conn. 670, 680, 674 A.2d 839 (1996) (holding "it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor").
In Rangel v. Parkhurst, 64 Conn.App. 372, 779 A.2d 1277 (2001), the plaintiffs sought to recover for personal injuries they sustained in a motor vehicle accident against the defendants, the parents of a minor child who caused the accident after consuming beer he had stored in the defendants' refrigerator. Our Appellate Court first noted that "the exception created by the [court in] Ely [ v. Murphy, supra, 207 Conn. 88] . . . left in place the requirement that the host actually purvey or supply the alcohol consumed." Id., 379-80. As a result, in upholding summary judgment in favor of the defendants, our Appellate Court held, "[O]ur case law does not impose liability on parents who know of and acquiesce in their minor child's storage of alcoholic beverages in their home. There is no evidence that the defendants supplied or purveyed beer to [the minor child]. Unlike the defendants in Ely and Bohan [ supra, 236 Conn. 670], the defendants in this case were neither purveyors of alcohol nor social hosts. They owed no legal duty to the plaintiff [and therefore] [t]he plaintiff's claim is unenforceable as a matter of law." Id., 381; see also Vitale v. Kowal, 101 Conn.App. 691, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007) (upholding summary judgment in favor of defendant on negligent service of alcohol claim where individual consuming alcohol was invited guest of defendant's roommate and defendant did not purchase any alcohol or actively encourage individual to drink).
In a subsequent Superior Court case, Reynolds v. McAvoy, Superior Court, judicial district of Danbury, Docket No. CV 02 0346701 (November 4, 2004, Nadeau, J.), the defendant moved for summary judgment on the plaintiff's social host liability claim, alleging that pursuant to the submitted evidence, the defendant did not serve or provide alcohol that he had purchased to anyone in his residence. The court distinguished its factual circumstances from those in the Rangel decision, noting that "[a]lthough liability may not result from an adult's mere knowledge that alcohol is stored in a refrigerator, liability may be imposed when a person is a social host to minors and a causal connection exists between tolerated or served consumption and the damages resulting from the minor's consumption." Id. The court found that "[i]nasmuch as Ely [ v. Murphy, supra, 207 Conn. 88] and Bohan [v . Last, supra, 236 Conn. 670] do not require the defendant to be an intentional, but only a negligent, purveyor of alcohol, whether [the minor] consumed the alcohol stored in the house or the alcohol brought from outside the premises, [the defendant], as a social host, must be deemed to have a degree of duty for accommodating widespread underage drinking and providing a venue for it." Id. As a result, the court denied the defendant's motion for summary judgment, finding that "a genuine issue of material fact exists regarding whether [the defendant] knowingly or negligently provided a place for his guests to consume or overindulge with alcohol." Id. The court further held that "[a]s the social host of a party that involved underage drinking, a duty of care exists, and a jury is permitted to determine whether that duty was breached . . ." Id.
Additionally, in Pagan v. Amston Liquor Shoppe, Superior Court, judicial district of New Britain, Docket No. CV 01 0511544 (June 30, 2003, Cohn, J.) ( 35 Conn. L. Rptr. 231), the court denied the defendant's motion for summary judgment brought on similar grounds, despite the plaintiffs' admission that the minor did not drink alcohol provided by the defendant, noting that "[w]hile a host has no general duty to police the conduct of his guests, even if they are minors . . . the host should have a duty to supervise the minor properly when the host has actively encouraged the consumption of alcohol by the minor." (Citation omitted.) Id., 232. The court held that the defendant may still be found liable as a social host because, pursuant to the facts alleged, the defendant informed the minor of the party, the minor went to the defendant's house because alcohol was being served and alcohol was served to other minor guests. Id., 233. As a result, the court found that the defendant's "premises were, through his actions, `alcohol-infused," and "[a]s alleged, [the defendant's] actions actively encouraged [the minor] to drink, and therefore the trial may proceed to determine if he should be held liable for the eventual consequences." Id.
In the present case, the evidence submitted indicates that Lavruk planned and hosted a social gathering at his residence where he permitted alcohol to be consumed by his underage guests. The presented evidence further reveals that Lavruk purchased an unknown quantity of beer, which was stored in his garage with additional alcohol brought into Lavruk's residence by other party guests. Unlike the defendants in Rangel v. Parkhurst, supra, 64 Conn.App. 372, and Vitale v. Kowal, supra, 101 Conn.App. 691, Lavruk served as a social host to minor guests. Pursuant to the case law discussed herein, a duty of care exists on behalf of the social host of a party where underage drinking is encouraged, regardless of whether the intoxicated minor consumed alcohol purchased by the social host, or alcohol brought from outside the premises. Whether that duty of care was breached in the present case, and the defendant knowingly or negligently provided a venue for his minor guests to consume alcohol, constitutes a genuine issue of material fact, and the court cannot conclude as a matter of law that Lavruk did not exhibit tortious conduct on the night of the accident.
The court must next address whether the defendant substantially assisted Lavruk's alleged tortious conduct on the night of the accident. "[W]hether there was `substantial assistance' must be resolved by the trier of fact." Cowart v. Grimaldi, 46 Conn.Sup. 248, 252, 746 A.2d 833 [ 18 Conn. L. Rptr. 682] (1997).
In the present case, the evidence submitted demonstrates that the defendant advertised Lavruk's party to potential guests, assisted Lavruk in procuring alcohol for the event and helped Lavruk prepare his residence for the party by removing breakable items and setting up the necessary equipment for a drinking game. The presented evidence further indicates that the defendant helped Lavruk both during and after the party by removing guests and subsequently cleaning the premises. As noted by the court in Cowart v. Grimaldi, supra, 46 Conn.Sup. 252, whether substantial assistance occurred "must be resolved by the trier of fact." The court finds that whether the defendant's actions aided and abetted the tortious conduct of another constitutes a genuine issue of material fact, and as a result, the defendant is not entitled to judgment as a matter of law. Therefore, the defendant's motion for summary judgment as to count one of the plaintiffs' complaint on these grounds must be denied.
B
The defendant further argues that his motion for summary judgment as to count one of the plaintiffs' complaint should be granted on the grounds that the defendant cannot be held liable as a social host because he was an eighteen-year-old minor at the time of the party, and minors cannot be held liable as social hosts under Connecticut law. The plaintiffs counter that the defendant's status as a minor does not shield him from social host liability.
Our appellate courts have not yet addressed this issue and there exists a split of authority among the Superior Courts. In support of the proposition that a minor may not be held liable as a social host, the defendant cites Carlson v. Sabat, Superior Court, judicial district of Tolland, Docket No. CV 95 0057122 (July 21, 1995, Klaczak, J.) ( 14 Conn. L. Rptr. 491), a case in which the court, in reliance on our Supreme Court's decision to allow a cause of action by an injured third party against an adult who served alcohol to a minor in Ely v. Murphy, supra, 207 Conn. 88, found that a minor may not be held liable for serving alcohol to another minor on the grounds that "[t]he minor supplying the alcohol was just as incapable of responsibly assimilating the effects of alcohol . . . [as] the minor consuming the alcohol." Id., 492.
More recent Superior Court decisions, however, have found that a cause of action for social host liability may lie against an individual under the age of twenty-one who serves alcohol to a minor. Some of the cases have reached this determination by finding that, pursuant to General Statutes § 1-1d, individuals who are eighteen years of age and older are not minors for purposes of such a claim. See Pepin v. Cacchillo, Superior Court, judicial district of New Haven, Docket No. CV 94 0364290 (August 4, 1998, Zoarski, J.) ( 22 Conn. L. Rptr. 630) (holding nineteen-year-old defendant is adult for purposes of liability for negligent service of alcohol to minor claim); Marinaccio v. Zaczynski, Superior Court, judicial district of New Britain, Docket No. CV 96 0565991 (May 14, 1998, Hennessey, J.) ( 22 Conn. L. Rptr. 159) (finding eighteen-year-old defendant constitutes adult in determining liability for social host liability claim); Madigan v. Kerrigan, Superior Court, judicial district of Waterbury, Docket No. CV 96 0132101 (September 2, 1997, Handy, J.) ( 20 Conn. L. Rptr. 350) (holding twenty-year-old defendant may be liable as adult social host). Another Superior Court decision upheld a claim for social host liability against an individual under eighteen years of age who served alcohol to a minor, noting "[w]hether [the defendant] had the maturity to know that [her] actions were likely to cause the [minor] to become intoxicated and to do what he did do is a question of fact for the jury." Murphy v. LaChapell, Superior Court, judicial district of Waterbury, Docket No. CV 97 0142410 (May 26, 1999, Pellegrino, J.) ( 24 Conn. L. Rptr. 567); see also Pagan v. Amston Liquor Shoppe, supra, 35 Conn. L. Rptr. 231 (relying on Murphy decision in finding seventeen-year-old defendant may be held liable in negligence to third party for serving alcohol to minor).
General Statutes § 1-1d provides: "Except as otherwise provided by statute, on and after October 1, 1972, the terms `minor,' `infant' and `infancy' shall be deemed to refer to a person under the age of eighteen years and any person eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and `age of majority' shall be deemed to be eighteen years."
In the present case, pursuant to the case law discussed herein, the court finds that the defendant, an eighteen-year-old minor, may be held liable for a social host liability claim by an injured third party based on his service of alcohol to another minor. This court is unwilling to extend the limited common-law exception established by our Supreme Court in Ely v. Murphy, supra, 207 Conn. 88, as a means of denying all negligent service of alcohol claims brought against minor social hosts based on the rationale that a minor providing alcohol is as incapable of "responsibly assimilating the effects of alcohol" as a minor consuming alcohol. Carlson v. Sabat, supra, 14 Conn. L. Rptr. 492. As noted in Murphy v. LaChapell, supra, 24 Conn. L. Rptr. 568, whether the defendant had the maturity to know that his actions were likely to cause Lee to become intoxicated and to subsequently injure the plaintiffs constitutes a genuine issue of material fact. Therefore, the defendant's motion for summary judgment as to count one of the plaintiffs' complaint on these grounds must be denied.
C
Count one of the plaintiffs' complaint for aiding and abetting the tortious conduct of another survives the defendant's motion for summary judgment, and therefore, the defendant's motion for summary judgment as to count two of the plaintiffs' complaint for loss of consortium must also be denied. See Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979).
III CONCLUSION
Based on the foregoing, the court hereby denies the defendant's motion for summary judgment as to the plaintiffs' complaint.