Opinion
UWYCV176036176S
03-06-2018
Michael TAYLOR v. 550 CHASE, LLC dba The Stadium Sports Bar and Grill et al.
UNPUBLISHED OPINION
Brazzel-Massaro, J.
INTRODUCTION
The plaintiff, Michael Taylor, filed this action on September 15, 2017 naming as defendants The Stadium Sports Bar and Grill, LLC, Michael Edwards the permittee and the backer 550 Chase, LLC. The plaintiff filed an amended complaint on November 15, 2017 because the action was withdrawn as to The Stadium Sports Bar and Grill and the plaintiff was proceeding against 550 Chase, LLC and Michael Edwards. The Amended Complaint consists of two counts. The defendants have filed a motion to strike the first and second counts dated December 4, 2017. The defendant argues that the count alleging negligent service of alcohol is not a recognized common-law action and the recklessness claim is not adequately alleged. Furthermore, the defendants contend that there is no legal duty on the purveyors of alcohol to restrain or prevent a patron from operating a motor vehicle, nor is there a legal basis for imposing liability upon the defendant-permittee, apart from the Dram Shop Act, and thus, such allegations should likewise be stricken. On December 8, 2017, the plaintiff filed his objection. The matter was heard at short calendar on January 2, 2018.
BACKGROUND
The plaintiff Michael Taylor was a patron at the Stadium Sports Bar and Grill on November 23, 2016. The defendant 550 Chase, LLC was doing business as Stadium Sports Bar and Grill. The permittee was Mr. Michael P. Edwards a defendant in this action.
While at the bar, the plaintiff was served and consumed an excessive amount of alcohol which was sold by the defendants. He left the bar at about 1:25 a.m. on this night and drove his car onto the public streets. While operating the car on Lakewood Road, a public highway in Waterbury, the plaintiff lost control and collided with a telephone pole causing him various injuries. No one at the bar attempted to prevent him from leaving the bar or driving his car although at the time he alleges he was visibly intoxicated. The plaintiff alleges that the accident was caused by the defendant’s failure to exercise reasonable care by serving an excessive amount of alcohol to the plaintiff. The plaintiff filed a complaint alleging in counts one and two of the amended complaint that these acts are the basis for negligent service of alcohol and the reckless service of alcohol.
DISCUSSION
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
" In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. " Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the ... pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.)
In their memorandum in support of their motion to strike, the defendants assert that the plaintiff has failed to state legally sufficient claims. With regard to the negligent service of alcohol claim, the defendants assert that the common law of Connecticut does not recognize a cause of action for the negligent service of alcohol to a person who injures himself and that actions regarding the service of alcohol, apart from reckless service claims, are allowed only pursuant to the Dram Shop Act, General. Statute § 30-102. With regard to the reckless service of alcohol claim, the defendants contend that the plaintiff has failed to allege specific conduct sufficient to support such a claim. The defendants further contend that the paragraphs in both counts regarding the failure to prevent the plaintiff from leaving the premises should be stricken. The defendants argue that no such duty exists at common law, and noted at short calendar that as a prior request to revise was denied these paragraphs are in the proper posture to be stricken. Lastly, the defendant asserts that the allegations against the defendant as permittee should be stricken as the only basis for liability against a permittee is pursuant to the Dram Shop Act. In his memorandum in opposition to the motion to strike, the plaintiff contends that recklessness is adequately alleged, as he alleges that he was served an excessive amount of alcohol and the defendants acted recklessly in doing so. With respect to the paragraphs alleging a failure to prevent the plaintiff from leaving, he argues that striking a portion of a pleading is improper if that portion does not state an entire cause of action, and that the allegations, when taken in the context of the complaint, help support causes of action for both negligence and recklessness. Lastly, the plaintiff contends that a permittee can be liable at common law.
A.
THE NEGLIGENT SERVICE OF ALCOHOL
The defendant asserts that an action for the negligent service of alcohol is not recognized in Connecticut. " At common law, there is not cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated." Quinnett v. Newman, 213 Conn. 343, 345, 568 A.2d 786 (1990). In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), our Supreme Court created a common-law cause of action for the negligent service of alcohol against a purveyor of alcohol who negligently serves alcohol to an intoxicated person who subsequently causes injuries to another person. Id., 340. Shortly, thereafter, however, " the legislature passed No. 03-91 of the 2003 Public Acts (P.A. 03-91), abrogating our holding in Craig, at least with respect to intoxicated patrons who are twenty-one years of age or older. See P.A. 03-91, § 1, codified at General Statutes (Rev. to 2005) § 30-102." State v. Peeler, 321 Conn. 375, 455-56 n.14, 140 A.3d 811 (2016) (Zarella, J. dissenting). In so doing the legislature declared the Dram Shop Act " the exclusive remedy for negligent service of alcohol to an adult ..." Collar v. DaCruz, Superior Court, judicial district of Hartford, Docket No. CV-03-0830138-S (August 13, 2004, Booth, J.).
General Statutes § 30-102, the Dram Shop Act, provides in relevant part: " If any person, by such person or such person’s agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injuries the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars ... Such injured person 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 ." (Emphasis added.) Jillson v. Willis, Superior Court, judicial district of New Haven, Docket No. CV 10-6010685-S (December 21, 2010, Fischer, J.) (51 Conn.L.Rptr. 206, 208).
" [T]he General Assembly ... has remained constant in limiting the statutory right of recovery to persons other than the intoxicated person himself." Nolan v. Morelli, 154 Conn. 432, 438, 236 A.2d 383 (1967). " It is clear that [the Dram Shop Act] is the only modification of the common-law rule which the General Assembly has ever intended to make. Nothing in the history of the statute or the case law of Connecticut suggests that the intoxicated person over the age of twenty-one has [a common-law] cause of action in negligence against the alcohol purveyor for injuries resulting from their own intoxication." Kupee v. Classic Rock Care, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07-5005586-S (November 28, 2007, Alvord, J.) (44 Conn.L.Rptr. 574, 575). See Boucher v. Lebanon Restaurant, LLC, Superior Court, judicial district of Windham, Docket No. CV-17-6011553-S (October 11, 2017, Calmar, J.) (negligent service of alcohol to adult that injures himself not a valid cause of action). Mikenas v. Jamele, Superior Court, judicial district of Waterbury, Docket No. CV-146024266-S (January 13, 2015, Roraback, J.) (same); Keeney v. Horsley, Superior Court, judicial district of New Haven, Docket No. CV-0905029198-S (January 28, 2010, Wilson, J.).
Accordingly, the Dram Shop Act provides an exception to the common-law rule for third parties injured by intoxicated persons. There is no statutory equivalent for intoxicated persons who injure themselves. The Act is one of " three recognized exceptions to the common-law rule" ; the other two are " the service of alcohol or intoxicating liquor to minors" and the " reckless service of alcohol." Resulovski v. Ipek, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-07-5002218-S (July 10, 2007, Robinson, J.). See also Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988) (common-law cause of action exists for negligent service of alcohol to minors); Kowal v. Hofher, 181 Conn. 355, 359-62, 436 A.2d 1 (1980) (reversing trial court’s grant of motion to strike count sounding in " wanton and reckless misconduct" where plaintiff was administrator of estate of intoxicated person who died in motor vehicle collision).
In the present case, the plaintiff’s claim for the negligent service of alcohol cannot remain. In the first count of his complaint, the plaintiff alleges that he injured himself, as opposed to a third party, in an accident that occurred away from the defendant’s premises. After Craig v. Driscoll, pronouncements of our state legislature and the holdings of our trial courts have been clear; the negligent service of alcohol for a person that injures himself is not a valid cause of action in Connecticut. See, e.g. Mikenas v. Jamele, supra, Superior Court, Docket No. CV 14-6024266-S; Keeney v. Horsley, supra, Superior Court, Docket No. CV-09-5029198, Kupec v. Classic Rock Café, Inc., supra, Superior Court, Docket No. CV-07-5005586-S. Thus, these allegations are legally insufficient, and the defendants’ motion to strike the first count of the plaintiff’s complaint is granted.
The plaintiff cites to Henderson v. Dolan, Superior Court, judicial district of New Haven, Docket No. CV-94-9361459-S (February 17, 1995, Hodgson, J.) (13 Conn.L.Rptr. 504), for the proposition that at least one judge of the Superior Court has recognized a common-law claim for the negligent service of alcohol. Subsequent opinions, however have criticized Henderson for the purportedly violating principles of stare decisis, and holding in direct conflict with Supreme Court precedent at the time. See Gumkowski v. U.S.S. Chowder Pot, Ltd., Superior Court, judicial district of New Haven, Docket No. CV-94-036-1840-S (September 19, 1995, Hartmere, J.). Furthermore, the developments in law noted in the body of this memorandum of decision since have rendered Henderson even less persuasive. The vast majority of courts have since held that a cause of action for the negligent service of alcohol is not a valid cause of action in Connecticut; this court holds the same.
B
RECKLESSNESS
The defendant next moves to strike the plaintiff’s reckless service of alcohol claim on the basis that it is not adequately pleaded.
Our Supreme Court has held that an individual may be liable for the injurious consequences of his wanton or reckless conduct in furnishing alcoholic beverages to another. See Kowal v. Hofher, supra, 181 Conn. 362. " [A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty of a defendant, who was under such a duty, was deliberate, wanton and reckless, the plaintiff must prove ... the existence of a state of consciousness with reference to the consequences of one’s acts ... [Such conduct] is more than negligence, more than gross negligence ... [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citation omitted; internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698-99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
To establish a claim for reckless service of alcohol, a plaintiff must allege " (1) that [the patron] was intoxicated, (2) that [the patron’s] intoxicated state was readily apparent to anyone observing or in contact with him, and (3) that the defendant continued to serve alcoholic beverages to [the patron] while he was obviously intoxicated." Futterleib v. Mr. Happy, Inc., 16 Conn.App. 497, 510, 548 A.2d 728 (1988).
Courts have generally noted that in 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 conclusion, which indicate that the defendants knowingly served an intoxicated patron ... [He must] plead facts to demonstrate how the defendant would have known that the individual was intoxicated' as opposed to simply pleading the conclusion ... [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; emphasis added; internal quotation marks omitted.) Gumkowski v. U.S.S. Chowder Pot III, Superior Court, judicial district of New Haven at New Haven, Docket No. CV-94-0361840-S (September 20, 1995, Hartmere, J.). " [I]t is necessary to plead and prove facts which would indicate that the defendants, or their agents continued to serve a patron despite observable manifestations of intoxication in order to support a cause of action for reckless service of alcohol." (Citation omitted; internal quotation marks omitted.) Johnson v. Raffy’s Café I, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No., CV-10-6002069-S (August 23, 2010, Fischer, J.). See Ellison v. Gerrity, Superior Court, judicial district of New London, Docket No. CV-14-6021916-S (June 30, 2015, Cole-Chu, J.) (reckless service of alcohol claim stated where plaintiff made allegation that defendant’s agents served alcohol despite manifest signs of intoxication and despite knowledge of that intoxication); Estate of LaFlamme v. Phaneuf, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6010036-S (May 27, 2014, Matasavage, J.) (same); Collar v. Da Cruz, supra, Superior Court, Docket No. CV-03-0830138-S (serving alcohol to obviously intoxicated individual sufficient to state claim for reckless service of alcohol).
In the present case, the plaintiff’s amended complaint does not adequately allege recklessness. The plaintiff’s allegations are that the defendants sold and served an excess amount of alcohol, allowed him to leave the premises while intoxicated and failed to exercise reasonably prudent care in doing so. To state a claim sounding in recklessness there must be a degree of knowledge imputed to the defendant’s actions. Indeed, the plaintiff must allege " the existence of a state of consciousness with reference to the consequences of one’s acts." Vitale v. Kowal, supra, 101 Conn.App. 699. There is no allegation here that the defendants knowingly served the defendant alcohol while he was in a clear state of intoxication. Instead, these allegations are more akin to negligence, and are nearly identical to those found in the plaintiff’s negligence count. Negligent service of alcohol is not recognized in Connecticut, and, as noted, recklessness requires a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct. See Scheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45-46, 492 A.2d 219 (1985). Accordingly, the defendants’ motion to strike the second count of the plaintiff’s complaint is granted.
C.
ALLEGATIONS REGARDING PROPRIETY OF ALLOWING INTOXICATED PATRON TO LEAVE
The defendants move to strike specific paragraphs of the plaintiff’s complaint that allege, as the basis for negligent and reckless conduct, that the defendants allowed the plaintiff to leave their establishment and drive his car while he was intoxicated.
As a threshold issue the court shall address the propriety of striking a single paragraph of a complaint that does not state an independent cause of action. A minority of Superior Court judges have allowed the striking of a paragraph on the basis of changes to the language of the practice book. Such holdings flow from the rationale that " [u]nder prior case law and earlier versions of the Practice Book, it was generally improper to demur to a paragraph of a complaint unless the paragraph purported to state a separate cause of action ... Since 1978, however, the Practice Book has not contained such a constraint." (Citation omitted.) Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 297 n.1). See Smith v. Bridgeport Futures Initiative, Inc., Superior Court, judicial district of Fairfield, Docket No. 326697 (August 16, 1996, Levin, J.) (17 Conn.L.Rptr. 412, 416, n.2) (noting and comparing changes in practice book).
The practice book now provides that " [a] motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ..." (Emphasis added.) Practice Book § 10-39(a). See Law Office of Norman Voog, LLC v. Stevens, Superior Court, judicial district of Danbury, Docket No. CV-02-0347140-S (December 17, 2004, Shay, J.) (39 Conn.L.Rptr. 433, 434) (striking a paragraph because " the court sees no logical reason why the rule only applies where the stricken paragraph contains an entire cause of action when, in most instances, most complaints set forth a cause of action in multiple paragraphs).
In Cook v. Stendar, Superior Court, judicial district of Middletown, Docket No. CV-04-0104110 (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439), the court opined that prior law and rules " ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid." See also Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011) (citing Cook and Nordling with approval).
Accordingly, portions and paragraphs of a complaint may properly be stricken under the proper circumstances. See Hartford Underwriter Insurance Company v. Rottjer Renovation Company, LLC, Superior Court, judicial district of Hartford, Docket No. CV 15-6063454-S (April 24, 2017, Noble, J.) (striking a paragraph as " [a] rule against striking a legally insufficient paragraph or sub-paragraph which does not state an independent cause of action may result in the consideration of an unrecognized claim as a basis for liability or oblige a court to somehow withhold the insufficient claim from inclusion in the adjudication of the remaining issues. There is no set procedural device for the latter course and the former is a proposition antithetical to the administration of justice" ); Southern New England Telephone Co. v. Lifecycle Management, LLC, Superior Court, judicial district of New Haven, Docket No. CV 11-6017167-S (April 20, 2012, Gold, J.) (striking paragraphs purportedly claiming attorneys fees that did not otherwise state claims); Slater v. Judson Construction, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 08-5003794-S (March 9, 2009, Pickard, J.) (striking paragraphs that stated independent negligent acts); Law Office of Norman Voog, LLC v. Stevens, supra, 38 Conn.L.Rptr. 434 (striking paragraphs after previously sustaining an objection to request to revise). The court finds the reasoning of these cases persuasive for the matter before it, and hence addresses the sufficiency of the allegations themselves.
With regard to the duties of purveyors of alcohol, " courts have never found that society expects such a business to restrain intoxicated patrons or provide alternative means of transportation for them upon leaving their property." Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV 07-5014334-S (April 9, 2009, Keegan, J.) (47 Conn.L.Rptr. 655, 659). See e.g. Boucher v. Lebanon Restaurant, LLC, supra ., Superior Court, Docket No CV-17-6011553-S; Kupec v. Classic Rock Café, Inc., supra, Superior Court, Docket No. CV-07-5005586-S; Federico v. Caruso, Superior Court, judicial district of Ansonia-Milford Docket No. CV-96-0053808-S (April 18, 2002, Sequino, J.); Pepin v. Cacchillo, Superior Court, judicial district of New Haven, Docket No. CV-94-0364290-S (April 29, 1999, Pittman, J.) (24 Conn.L.Rptr. 415).
In the present case, as a prior request to revise was denied and as the irrelevancy of these allegations is now clear the court finds that these allegations may properly be stricken. See Law Office of Norman Voog, LLC v. Stevens, Superior Court, supra., 38 Conn. L. Rptr. 434. No duty exists on the part of a bar owner requiring them to keep an intoxicated person from leaving their premises. See Boucher v. Lebanon Restaurant, supra, Superior Court, Docket No. CV-07-5014334-S (striking negligence cause of action that alleged as basis for liability that defendant allowed the plaintiff to leave premises while intoxicated). While this allegation could arguably go to recklessness, if it was done knowingly; Vitale v. Kowal, supra, 101 Conn.App. 699; such an allegation is absent here. As pleaded these allegations are essentially irrelevant, and should not remain within the complaint indefinitely. See Hartford Underwriters Insurance Company v. Rottjer Renovation Company, LLC, supra, Superior Court, Docket No CV-15-6063454-S. Accordingly, the motion to strike these paragraphs from both counts is granted.
D.
PERMITTEE LIABILITY
One last dispute pertains to the propriety of allegations against the defendant-permittee. The defendants asserts that in a cause of action against a permittee may lie, apart from liability pursuant to the Dram Shop Act, as the duties of the permittee are owed exclusively pursuant to the Liquor Control Act, and do not present a basis for liability.
Generally, a permittee’s basis for liability lies with the Dram Shop Act, or through liquor control provisions or regulations, but such regulations do not give rise to a private right of action. Indeed, " the enforcement of the Liquor Control Act is vested exclusively within the department [of Consumer Protection] and ... no private right of action to enforce its provisions exists." Eder Bros, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 370, 880 A.2d 138 (2005). This notwithstanding, courts have found that causes of action may lie against a permittee on the basis of vicarious liability for certain common-law torts.
Some courts have allowed causes of action against permittee on the basis of vicarious liability solely by virtue of their status as a permittee, and premise such a holding upon language in Pierce v. Lebanese, 144 Conn. 241, 252, 129 A.2d 606 (1957), which provides that " [i]f one desires to engage in the liquor business and secures upon his own application a permit to do so, he assumes of necessity the risk of great variety of situations which could impose liability upon him." As noted by the court in Shafer v. Sullivan, Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X 04-CV-03400101-S (May 22, 2006, Beach, J.) (41 Conn.L.Rptr. 403, 404), however the holding in Pierce was provided in the context of liability under the Dram Shop Act, which expressly provides for vicarious liability by " any person, by such person or such person’s agent ..." General Statutes § 30-102. The court in Shafer further observed that " [t]he reckless provision of alcohol is ... a common law tort, and no common law motion imposes vicarious liability on a permittee solely by virtue of being a permittee." Shafer v. Sullivan, supra, 41 Conn.L.Rptr. 404. The court further stated that a cause of action against a permittee may lie, however, for the reckless service of alcohol if there is an adequate allegation of vicarious liability; specifically if it was alleged that the persons recklessly serving the plaintiff were the agents, servants or employees of the permittee. Id., n. 3. Other courts have noted the same. See Geib v. Sheraton Stamford Hotel, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X09-05000466-S (November 18, 2008, Jennings, J.) (" If a permittee is to be found vicariously liable for the common-law recklessness of any other tortfeasors, then the plaintiff must allege and prove facts consistent with a recognized common-law theory of vicarious liability such as respondeat superior, agency, or joint tortfeasor).
Accordingly, allegations against a permittee have been allowed to lie if a permittee’s vicarious liability for the reckless service of alcohol is sufficiently pleaded in a basis at common law, not simply by being a permittee. See DeCarlo v. Dupuis, Superior Court, judicial district of New Haven, Docket No. CV 12-6032268 (October 14, 2014, Nazarro, J.) (50 Conn.L.Rptr. 81, 85-86) (denying motion to strike where basis of permittee’s liability was alleged as vicarious responsibility for its agents that served the plaintiff excessive alcohol); Eaton v. Ruggles, Superior Court, judicial district of New London, Docket No. CV 11-6010411-S (March 9, 2012, Martin, J.) (same); Nelson v. Apple East of Danbury, Inc., Superior Court, judicial district of Danbury, Docket No. CV 06-5001354-S (43 Conn.L.Rptr. 438).
In deciding whether vicarious liability exists, the doctrine of respondeat superior impose liability if an employee’s action were undertaken within the scope of the employment. See Blanger v. Village Pub I, Inc., 26 Conn.App. 509, 520, 603 A.2d 1173 (1992). " An employee is acting within the scope of his/her employment, when his/her conduct: (1) occurred primarily within [the employer’s] authorized time and space limits for its employees; (2) was of the type that [the employee] was employed to perform; and (3) was motivated, at least partially by a purpose to serve [the employer]." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004).
In the present case, although the allegations are sparse and simple, they are sufficient to allege a basis for vicarious liability. The plaintiff alleges that the permittee was the owner and backer of the bar' and that the collective defendants’ agents, servants, or employees served him alcohol. Construing the pleadings broadly, but realistically, the court finds that vicarious liability is adequately pleaded. From the plaintiff’s amended complaint the court can infer that the service of alcohol was in furtherance of the defendants’ business, the service to plaintiff occurred during business hours, and the service of alcohol was the type of service they performed and was motivated by a purpose to serve the defendant. Accordingly, the allegations against the permittee are allowed to remain in part; as to negligence they are stricken, as no such cause of action exists, as to recklessness they are permitted if the plaintiff chooses to re-plead.