Stein v. Lee

Full title: KATHLEEN J. STEIN, ADMINISTRATRIX OF THE ESTATE OF WAYNE N. LECARDO v…

Court: Connecticut Superior Court Judicial District of New London at New London

Date published: Jan 25, 2011

2011 Ct. Sup. 3111 (Conn. Super. Ct. 2011)

51 CLR 302

Opinion

No. CV 08 5009444

January 25, 2011

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [#181]

MARTIN, J.

I FACTS

On January 30, 2009, the plaintiffs, Kathleen J. Stein, as administratrix of the estate of Wayne N. Lecardo, the plaintiffs' decedent, and Kathleen J. Stein, individually, filed a twenty-one-count revised complaint in the present wrongful death action against the defendants, David B. Lee, as administrator of the estate of Cameron C. Lee, David B. Lee, individually, Charles Boos, Alexander Lavruk, LeasePlan USA, Inc. (LeasePlan), Hoffman Motors of New London (Hoffman Motors), Volkswagen of America, Inc. d/b/a Audi of America, Inc. (Audi of America) and Jennifer Geise, as administratrix of the estate of John J. Geise, III.¹ 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, Cameron C. Lee attended a party at the defendant's house, where Lavruk, the defendant's stepson, served and/or permitted the service of alcohol to minors, including Cameron C. Lee. The defendant, who was traveling out of state on the night of the party, knew or should have known that he had the ability to control Lavruk, his minor child. The defendant also knew or should have known of the necessity for exercising such control that evening because he was aware that Lavruk invited several friends to his house for a party, he knew or should have known that Lavruk and his friends would hold a party where alcohol would be served and he failed to supervise Lavruk and/or the party. Counts eighteen and nineteen, which are at issue in the present motion, allege claims against the defendant for negligent supervision of a minor child and loss of consortium, respectively.

1 David B. Lee, as administrator of the estate of Cameron C. Lee, David B. Lee, individually, Lavruk, LeasePlan, Hoffman Motors, Audi of America and Geise are not parties to the present motion. Hereinafter, the term the defendant refers to Boos, individually.

On May 14, 2010, the defendant filed a motion for summary judgment as to counts eighteen and nineteen of the plaintiffs' complaint on the grounds that there are 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 Travis E. Wenke, Lavruk, Nelson Panganiban, Haley York Glas, Andrew Bryant Benitez, David B. Lee, and Samuel Gipstein, and the defendant's affidavit. The plaintiffs filed a memorandum of law in opposition to the defendant's motion on July 2, 2010, accompanied by copies of excerpts from Lavruk's deposition and the defendant's police statement. On July 9, 2010, the defendant filed a reply in further support of his motion.

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).

"Summary judgment is appropriate where 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 . . . A material fact is a fact that will make a difference in the result of the case." (Citations omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009).

A

The defendant first argues that his motion for summary judgment as to count eighteen should be granted on the grounds that the defendant cannot be held liable for a negligence claim because the plaintiffs cannot establish facts indicating that the defendant owed a duty to protect the plaintiffs' decedent. The plaintiffs counter that the evidence submitted sufficiently demonstrates that the defendant was negligent in that he knew or should have known that Lavruk would throw a party when the defendant left him home unsupervised for the weekend.²

2 The plaintiffs also argue that the defendant's motion for summary judgment should be denied on the grounds that this issue has already be decided by the court, Martin, J., in its April 16, 2009 memorandum of decision in which the court denied the defendant's motion to strike count eighteen [ 47 Conn. L. Rptr. 558], and therefore, the law of the case doctrine applies. The law of the case doctrine directs that "[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Haggerty v. Williams, 84 Conn.App. 675, 683, 855 A.2d 264 (2004). However, "[a]s the standard for a motion to strike, in which the court takes the facts plead[ed] as true and determines the legal sufficiency of the complaint, differs from that on a motion for summary judgment, the denial of [a] motion to strike does not constitute the law of the case." Weigold v. Patel, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 99 0071743 (July 9, 2002, Sferrazza, J.) ( 32 Conn. L. Rptr. 468, 470 n. 1), cert. denied, 268 Conn. 918, 847 A.2d 314 (2004). As a result, the plaintiffs' argument to deny the defendant's motion for summary judgment on these grounds is unpersuasive.

"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Because duty is an essential element in a negligence action, the plaintiff cannot have an action in negligence unless he shows that the defendant owed a duty to the plaintiff." (Citations omitted; internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . . The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citation omitted; internal quotation marks omitted.) Neal v. Shiels, Inc., 166 Conn. 3, 13, 347 A.2d 102 (1974).

"At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute . . . or by independently negligent behavior on the part of parents." (Citation omitted.) Kamzinski v. Fairfield, 216 Conn. 29, 34, 578 A.2d 1048 (1990). "Thus, absent statutory liability, parents are not liable for the torts of their children unless they themselves are independently negligent, as where they had entrusted a dangerous instrumentality to their children or had failed to restrain their children who they knew possessed dangerous tendencies . . . In recognizing a cause of action for negligent supervision of a minor child by the child's parents, Connecticut trial courts follow the 2 Restatement of Torts, Standard of Conduct, § 316, p. 123 (1965), whereby: A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control." (Internal quotation marks omitted.) 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, 231-32).

The present case involves analogous factual circumstances as those existing in several other Superior Court decisions in which parents were sued for negligence as a result of their children's unsupervised behavior. For example, in 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 moved to strike a negligence claim brought on behalf of a minor decedent who died as the result of acute ethanol intoxication after attending a party hosted at the defendant's house by the defendant's minor son. The defendants were aware of the planned gathering, but unaware that alcohol would be served there. Id. In granting the defendants' motion to strike, the court found that it could not conclude, as a matter of law, that the defendants had a duty to the decedent under the facts alleged where "the plaintiff does not allege that [the defendants] served or provided alcoholic beverages to minor children . . . [and] instead alleges that [the defendants] were negligent in that they allowed minors to consume alcoholic beverages on their property, allowed minor guests to become intoxicated at their residence, allowed alcoholic beverages to be provided to minors, including the decedent and . . . allowed unlimited quantities of alcoholic beverages to be distributed to minors." Id. The court held that the harm alleged was not a reasonably foreseeable result of the defendants' alleged conduct, emphasizing that "Connecticut courts have recognized a distinction between circumstances in which alcoholic beverages are served or provided and when they are not [and] [n]either the Supreme nor the Appellate Court has, as yet, imposed liability for injury on parents whose children, without the parents' knowledge, host a social function at the parents' home where alcohol is consumed when the parents did not even supply the alcoholic beverages." Id.

Additionally, in Forse v. Hebb, Superior Court, judicial district of Hartford, Docket No. CV 07 5011581 (March 22, 2010, Sheldon, J.) ( 49 Conn. L. Rptr. 599), the defendants moved for summary judgment as to a negligence claim brought by the plaintiff, an individual allegedly assaulted at a party hosted by the defendants' daughter at their home while the defendants were out of state with no knowledge that the plaintiff or the alleged assaulters would be present there that evening. In granting the defendants' motion for summary judgment, the court noted that while the plaintiff urged the court to "rely upon a broad assumption that, in this day and age, all parents must reasonably foresee the risk that their own minor children, if left home alone, will throw unsupervised house parties for other minors and young people where alcohol will be consumed . . . such a cynical assumption has never been made by our courts, which invariably require proof that parents have actual or constructive notice of their children's dangerous activities before imposing liability upon them for injuries and losses resulting from such activities." Id., 602.

Moreover, "[i]n order for a plaintiff in a negligent supervision action to argue that there is a disputed factual issue about what a defendant parent `should have known,' a court must have a factual basis based upon what has been presented by the parties in order to conclude that a defendant parent could have been able to anticipate the incident that is the subject of the action. See, e.g., Kitchens v. Kramer, Superior Court, judicial district of New Haven, Docket No. CV 04 0287229 (January 26, 2006, Shlugher, J.) (factual dispute over whether plaintiff's injury from fight at party hosted by minor daughter was foreseeable existed where defendant parents' agent had witnessed another fight during party earlier that evening); Burke v. Fitzgerald, Superior Court, judicial district of Fairfield, Docket No. CV 95 0322083 (September 22, 1997, Melville, J.) (factual dispute over what defendant parents should have known existed where defendant minor stated that they `were aware that she drank alcohol' due to past `trouble'). Without such a factual basis, summary judgment is proper. See, e.g., Latronica v. Powers, Superior Court, judicial district of Middlesex, Docket No. CV 06 5000699 (July 16, 2007, McWeeny, J.) ( 43 Conn. L. Rptr. 776, 778) (court looked to `facts presented' in granted summary judgment motion when it concluded that `the defendants did not know or have reason to know the need to exercise control over [their minor son] to keep him from holding a party'); Pagan v. Amston Liquor Shoppe, supra, 35 Conn. L. Rptr. 232." Doe v. McGugan, Superior Court, judicial district of New London, Docket No. CV 09 5012047 (February 4, 2010, Cosgrove, J.) ( 49 Conn. L. Rptr. 283, 285).

The evidence submitted in the present case reveals that the defendant was out of state on the evening of the party, and that the weekend during which the party occurred was the first time that the defendant left Lavruk unsupervised overnight. The defendant permitted Lavruk to have a few friends over the house, but specifically told him that he could not have any parties during the weekend. The plaintiffs urge this court to deny the defendant's motion on the grounds that the defendant knew or should have known that Lavruk would host a party when left alone for the weekend pursuant to the presented evidence indicating that Lavruk was a teenager at the time of the party, Lavruk's parents were going out of town for the weekend and leaving him home alone, it was the end of the semester and the defendant specifically told Lavruk that he could not host a party during the weekend. As noted by the court in Forse v. Hebb, supra, 49 Conn. L. Rptr. 602, however, "the mere notion that parents should in general be aware that their minor children might throw parties where alcohol might be served in their absence is insufficient as a matter of law to pass a foreseeability test." (Emphasis in original). Id.

In the present case, the facts presented establish that the defendant did not know, or have reason to know, of a need to exercise control over Lavruk to keep him from holding a party on the night of the accident. Lavruk had never been left home alone, and the defendant had no knowledge that Lavruk had ever hosted such a party before. Thus, there is no factual basis for the court to conclude that the defendant could have been able to anticipate that his stepson would host a party on the night in question. Furthermore, the defendant did not supply any alcoholic beverages that were consumed at the party. As a result, the court cannot conclude, as a matter of law, that the harm alleged was a reasonably foreseeable result of the defendant's conduct, or that the defendant owed a duty to the plaintiffs under the facts established. Therefore, the defendant's motion for summary judgment as to count eighteen on these grounds must be granted, and the court need not address the defendant's additional arguments in favor of granting the motion.

B

The defendant further argues that his motion for summary judgment as to count nineteen of the plaintiffs' complaint for loss of consortium must be granted on the grounds that the allegations in the claim are based solely upon the facts alleged in count eighteen of the plaintiffs' complaint. A loss of consortium claim is derivative of the injured spouse's cause of action and is no longer viable when the injured spouse's claims are nullified. Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). "[I]f an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." Musorofiti v. Vleck, 65 Conn.App. 365, 376, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). In the present case, the court granted summary judgment in favor of the defendant as to count eighteen of the plaintiffs' complaint, and as a result, the plaintiffs' claim for loss of consortium is no longer viable. Therefore, the defendant's motion for summary judgment as to count nineteen of the plaintiffs' complaint must be granted.

III CONCLUSION

Based on the foregoing, the court hereby grants the defendant's motion for summary judgment as to counts eighteen and nineteen of the plaintiffs' complaint.

On January 30, 2009, the plaintiffs, Katherine J. Stein, as administratrix of the estate of Wayne N. Lecardo, the plaintiffs' decedent, and Kathleen J. Stein, individually, filed a twenty-one-count revised complaint in the present wrongful death action against the defendants, David B. Lee, as administrator of the estate of Cameron C. Lee, David B. Lee, individually, Charles Boos, Alexander Lavruk, LeasePlan USA, Inc. (LeasePlan), Hoffman Motors of New London (Hoffman Motors), Volkswagen of America, Inc. d/b/a Audi of America, Inc. (Audi of America) and Jennifer Geise, as administratrix of the estate of John J. Geise, III.^1a 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, Cameron C. Lee attended a social gathering at the defendant's residence, where the defendant served and/or permitted the service of alcohol to minors, including Cameron C. Lee. Counts twenty and twenty-one, which are at issue in the present motion, allege claims against the defendant for social host liability and loss of consortium, respectively.

1a David B. Lee, as administrator of the estate of Cameron C. Lee, David B. Lee, individually, Boos, LeasePlan, Hoffman Motors, Audi of America and Geise are not parties to the present motion. Hereinafter, the term the defendant refers to Lavruk, individually.

On May 6, 2010, the defendant filed a motion for summary judgment as to counts twenty and twenty-one of the plaintiffs' complaint 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 Travis E. Wenke, the defendant, Samuel Gipstein and Haley York Glas. The plaintiffs filed a memorandum in opposition to the defendant's motion on July 6, 2010, adopting and incorporating by reference the memorandum of law filed by Geise on April 26, 2010, in opposition to a motion for summary judgment filed by Gipstein in a companion file, Geise v. Gipstein, Docket No. CV 09 5010726. The plaintiffs also presented evidence in support of their memorandum, including copies of an excerpt from Cameron C. Lee's autopsy report, police statements by Gipstein and the defendant and excerpts from the depositions of the defendant, Gipstein, Andrew Benitez, Glas, 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, the defendant sought Gipstein'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. Gipstein and the defendant prepared the defendant'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. During the afternoon before the party, the defendant and Gipstein obtained beer from "Voots," a student at Stonington High School. While neither party recalls the exact amount of alcohol they obtained, both the defendant and Gipstein testified that they did not believe that they purchased more than a twelve pack of beer. The beer obtained by the defendant and Gipstein was intended for their own consumption.

The evidence submitted by the parties further reveals the following. While the defendant and Gipstein asserted in their police statements that they intended to have a small gathering at the defendant's residence, seventy to one hundred underage individuals attended the party. Some of the other guests brought alcohol to the defendant's residence. The beer purchased by the defendant and Gipstein, and the alcohol brought to the defendant's residence by other guests, were stored together in the defendant's garage. There were approximately 300 beers in the defendant's garage during the party, in addition to various forms of hard alcohol, cups and ice present in and around the defendant's residence. Pursuant to the varying accounts by the deposed witnesses of his arrival and departure times, Cameron C. Lee attended the defendant's party for anywhere from twenty minutes to three hours. Of the parties deposed, only Glas personally witnessed Cameron C. Lee consuming alcohol at the defendant's residence, testifying that he took a sip of her beer. Glas also testified that Cameron C. Lee was visibly intoxicated when she spoke with him at the defendant's residence. Wenke, who accompanied Cameron C. Lee for the majority of the evening, testified that Cameron C. Lee did not consume alcohol before or after attending the defendant's party, and that he most likely became intoxicated while at the defendant's residence. Cameron C. 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 twenty of the plaintiffs' complaint should be granted on the grounds that the plaintiffs cannot present evidence indicating that the defendant provided Cameron C. Lee with any alcohol prior to the accident. The plaintiffs counter that they are not required to demonstrate in-hand service of alcohol to Cameron C. Lee for purposes of their social host liability claim, and further, that the defendant may be held liable because the evidence presented indicates that he intended for numerous minor guests to consume intoxicating beverages at his residence.

"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, CT Page 3121 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").

According to the defendant's argument in favor of granting summary judgment in the present case, the defendant may not be held liable as a purveyor or supplier of alcohol to a minor because he only purchased a small quantity of beer for the party, and there is no evidence that Cameron C. Lee consumed the beer that he purchased. In support of his argument, the defendant cites Rangel v. Parkhurt, 64 Conn.App. 372, 779 A.2d 1277 (2001), wherein 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 plaintiffs' 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).

The plaintiffs, in turn, claim that the defendant may be held liable as a purveyor or supplier of alcohol for purposes of their social host liability claim, citing Reynolds v. McAvoy, Superior Court, judicial district of Danbury, Docket No. CV 02 0346701 (November 4, 2004, Nadeau, J.), in support of their argument, wherein the defendant moved for summary judgment on the plaintiffs' 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 the defendant 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 the defendant purchased an unknown quantity of beer, which was stored in his garage with additional alcohol brought into the defendant'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, the defendant in the present case 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. As a result, the defendant's motion for summary judgment as to count twenty of the plaintiffs' complaint on these grounds must be denied.

B

The defendant next argues that his motion for summary judgment as to count twenty should be granted on the grounds that the plaintiffs cannot establish a causal connection between the defendant's hosting of the party and the subsequent motor vehicle accident. The plaintiffs counter that the defendant's conduct as a social host was a contributing cause to the subsequent motor vehicle accident.

"[A] social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured, if a court or a jury finds, as a matter of fact, a proximate cause relationship between the service of alcohol and the damages ensuing from the minor's consumption of alcohol." Bohan v. Last, supra, 236 Conn. 677. "[T]he 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." Ely v. Murphy, supra, 207 Conn 97.

In the present case, the evidence submitted indicates that Cameron C. Lee did not consume alcohol before or after attending the defendant's party, and he was visibly intoxicated when he left the defendant's residence. Furthermore, the autopsy report indicates that Cameron C. Lee had a blood alcohol content of 0.12 percent at the time of the accident. Pursuant to the presented evidence and the applicable case law, whether a proximate cause relationship exists between the defendant's hosting of the party and the plaintiffs' damages resulting from Cameron C. Lee's intoxication constitutes an issue of fact that is not proper for determination on summary judgment. Therefore, the defendant's motion for summary judgment as to count twenty of the plaintiffs' complaint on these grounds must be denied.

C

The defendant further argues that his motion for summary judgment as to count twenty should be granted on the grounds that the defendant cannot be held liable as a social host because he was a sixteen-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.^2a 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).

2a 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."

The defendant correctly notes that the aforecited courts' reliance on § 1-1d does not apply to the present case because the defendant was sixteen years old at the time of the party, and therefore, also constitutes a minor under the statute for liability purposes. Other Superior Court decisions, however, have also upheld claims for social host liability against individuals under eighteen years of age who served alcohol to a minor. In Murphy v. LaChapell, Superior Court, judicial district of Waterbury, Docket No. CV 97 0142410 (May 26, 1999, Pellegrino, J.) ( 24 Conn. L. Rptr. 567), the defendant, a minor under the age of eighteen, moved to strike the plaintiff's social host liability claim on the grounds that the defendant could not be held liable for the negligent service of alcohol to another minor. The court noted "that it was difficult to fathom the concept `violate the law by drinking underage, provide another underage individual with alcohol, and do not worry about the result of those activities — you are exempt from liability because you are not [twenty-one].'" Id., 570. As a result, the court denied the defendant's motion, holding that "[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." Id.; 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).

In the present case, pursuant to the case law discussed herein, the court finds that the defendant, a sixteen-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, CT Page 3126 supra, 24 Conn. L. Rptr. 568, whether the defendant had the maturity to know that his actions were likely to cause Cameron C. 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 twenty of the plaintiffs' complaint on these grounds must be denied.

D

Count twenty of the plaintiffs' complaint for social host liability survives the defendant's motion for summary judgment, and therefore, the defendant's motion for summary judgment as to count twenty-one 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 counts twenty and twenty-one of the plaintiffs' complaint.