Opinion
No. LLI-CV-07-5002709S
March 17, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
Before the court is the plaintiff's motion to strike both of the defendants' special defenses. For the reasons that follow, the motion must be granted.
The complaint alleges that on October 7, 2006, at approximately 1:30 a.m., the plaintiff, Heather Waldron, accompanied Brooks Conklin ("Conklin") as a passenger in a motor vehicle he was driving. At or around that time, the vehicle operated by Conklin collided with a vehicle operated by Harley J. Dean ("Dean"). The complaint further alleges that prior to this accident, Conklin and Dean were customers at the Steppin' Stone American Grille where they were sold alcoholic liquor while intoxicated. The defendant, Keith D. Ohler, was the permittee of the Steppin' Stone American Grille and the defendant, KO and SS, LLC, of which Keith Ohler is a member and agent, was the backer. The plaintiff has brought this action pursuant to the Dram Shop Act, General Statutes § 30-102, for injuries resulting from the car accident.
The defendants answered the complaint on December 17, 2007, including the special defenses of contributory recklessness and assumption of the risk. In their special defense for contributory recklessness, the defendants assert that Conklin and Dean intended to engage in automobile racing, that the plaintiff knew of this intent and was aware that Conklin and Dean were intoxicated, and that by driving with Conklin, the plaintiff was reckless. The special defense asserting assumption of the risk relies on the same set of allegations, but contends that by driving in the car with the knowledge that Conklin and Dean were intoxicated and intended to race, the plaintiff assumed the risk.
The plaintiff filed a motion to strike the defendants' special defenses on January 7, 2008, on the grounds that the special defenses of contributory recklessness and assumption of the risk are not available in an action premised upon the Dram Shop Act.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a)(5). "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the [pleading] and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Indeed, pleadings must be construed broadly and realistically, rater than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "It is axiomatic that the purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) New England Retail Properties, Inc. v. Maturo, 102 Conn.App. 476, 489, 925 A.2d 1151, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).
DRAM SHOP ACT
General Statutes § 30-102 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 injures the person or property of another, such seller shall pay just damages to the person injured . . ." "[T]he act covers all sales of liquor that result in an intoxicated person causing injury, irrespective of the bar owner's knowledge or state of mind. The act thereby provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action and without the benefit of the broader scope of recovery permitted under such an action." Craig v. Driscoll, 262 Conn. 312, 328, 813 A.2d 1003 (2003). "The underlying premise of the [act] is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication." Id., 325. "As we explained in [ American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 199, 530 A.2d 171 (1987)], a plaintiff seeking to prevail under the dram shop statute must establish that there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn. 748, 763 n. 15, 882 A.2d 44 (2005).
ASSUMPTION OF RISK
The defendants argue that assumption of the risk is a valid defense to a dram shop action. As the defendant correctly notes, the appellate courts of Connecticut have not yet addressed this issue, and there is a split of authority in the Superior Court. This court is of the opinion that assumption of the risk is not a valid special defense when asserted by the purveyor of the alcoholic liquor. "[General Statutes § 30-102] provides a direct cause of action against a seller of intoxicating beverages to already intoxicated persons, who, in consequence of their intoxication, cause damages to others. To prevail, a plaintiff need not show negligence, recklessness, wilfulness or wantonness on the part of the seller, only that the sale took place under circumstances where the seller knew, or should have known, of the patron's state of intoxication. While a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated, as several cases have held, he can not be held to have `assumed the risk' that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated. General Statutes § 30-102 does not regulate the driver of the vehicle, only the seller of the intoxicating beverage. While a plaintiff may not be a totally `innocent third party' with respect to the principal tortfeasor, he is such with respect to the party who allegedly sold the intoxicating beverage to an already intoxicated person." Rivera v. Miceli, Superior Court, judicial district of Middlesex, Docket No. CV04 0104721 (April 15, 2005, Silbert, J.) ( 39 Conn. L. Rptr. 151), see also Jones v. Cross, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176102 (December 8, 2003, Gallagher, J.) ( 36 Conn. L. Rptr. 85) ("the special defense [of assumption of the risk] available to the defendant driver is not available to the purveyor of alcohol in an action brought pursuant to the statute").
For cases finding that assumption of the risk is a valid defense to a dram shop action, see Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 039650 (September 8, 1994, Skolnick, J.) ( 12 Conn. L. Rptr. 415); Tarver v. De Vito, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 120282 (June 25, 1992, Rush, J.) ( 7 C.S.C.R. 843). For cases holding that assumption of the risk is not a valid defense to a dram shop action, see Buzon v. Ballard Kane, LLC, Superior Court, judicial district of New London, Docket No. CV 04 0568685 (September 6, 2005, Hurley, J.T.R.) ( 39 Conn. L. Rptr. 909), Lepore v. Lavigne, Superior Court, judicial district of Hartford, Docket No. 393695 (February 6, 1992, Hennessey, J.) ( 6 Conn. L. Rptr. 46); Passini v. Decker, Superior Court, judicial district of Litchfield, Docket No. 036061 (September 30, 1983, Pickett, J.) ( 39 Conn.Sup. 20).
CONTRIBUTORY RECKLESSNESS
The defendants further argue that contributory recklessness is a valid special defense to a dram shop claim. For this proposition, the defendant cites to Starkel v. Edward Balf Co., 142 Conn. 336, 114 A.2d 199 (1955). In Starkel, an inspector of special hazards and explosives was killed while witnessing a detonation on the defendant's land. The plaintiff sued as the adminstratrix of the estate on a theory of strict liability for the creation of an absolute nuisance, obtaining judgment against the defendant quarry owner. The defendant appealed the decision, arguing that the court erred in concluding that the facts of the case did not establish assumption of the risk or wanton, wilful and reckless misconduct. The court upheld the determination of the trial court, noting that while the facts did not support a finding of assumption of the risk in that case, "[i]t does not follow . . . that a blaster is liable under all circumstances for personal injuries sustained by another as the result of the blast. Thus, wanton, wilful or reckless misconduct on the part of the injured person which materially increases the probabilities of injury and contributes thereto will defeat his right of recovery." Starkel v. Edward Balf Co., 142 Conn. 336, 341, 114 A.2d 199 (1955). The defendant argues that under this authority, contributory recklessness is a defense to strict liability claims. General Statutes § 30-102 is a strict liability statute. Craig v. Driscoll, supra, 262 Conn. 328.
This line of reasoning suffers from the same flaw as the special defense of assumption of the risk, as laid out above. "While a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated, as several cases have held, he can not be held to have `assumed the risk' that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated." Rivera v. Miceli, supra, 39 Conn. L. Rptr. 151. Similarly, while the plaintiff may properly be alleged to be reckless in choosing to accompany a driver that she knew or should have known to be intoxicated, the plaintiff cannot be held to have contributed to the reckless service of alcoholic liquor to a person known to be intoxicated.
CONCLUSION
As pleaded, the special defenses of assumption of the risk and contributory recklessness are not valid defenses in a dram shop action. Accordingly, the motion to strike the defendant's special defenses is granted.