Opinion
No. CV 040569269
February 4, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE CIVIL ACTION FOR INJURIES CAUSED BY NEGLIGENT SALE OF ALCOHOL
The plaintiff brings this action for damages for injuries which he allegedly suffered at the Y-Knot Cafe, one of the named defendants in this case. The Y-Knot Cafe is owned by defendant Y-Knot, Incorporated. The permittee of Y-Knot Cafe is Barbara J. Hayes, who also is named as a defendant.
The plaintiff's complaint is set out in three counts. The First and Third Count are in negligence. In the First Count the plaintiff claims that the bartenders at the Y-Knot Cafe served too much alcohol to him. He alleges that the defendants had a duty to monitor his drinking, as well as to supervise and train its staff so as to prevent the service of excess alcohol to him. The plaintiff contends that he was served and consumed so much alcoholic liquor that he was unable to rise from the bar stool correctly and he entangled his legs in the brass rail of the bar stool, causing him to fall and suffer substantial painful injuries. The plaintiff complains that treatment for his injuries required surgery and to the implementation of surgical hardware to the bones of his leg.
The Second Count is characterized as one asserted under the Dram Shop Act, C.G.S. Sec. 30-102. In this count the plaintiff alleges that the defendant Y-Knot, Inc. violated Connecticut General Statutes Sec. 30-102 in that it provided alcohol to an intoxicated person (namely himself), thus causing him to sustain the injuries set out in the First and Third Counts and incorporated in this count.
Sec. 30-102. Dram Shop Act; liquor seller liable for damage by intoxicated person. ** Update notice: this section has been amended by P.A. 03-91.
If any person, by himself or his 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, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section.
The Third Count, directed to defendant Barbara Hayes, the permittee and owner of Y-Knot Cafe, essentially is a restatement of the allegations of negligence set out in the First Count.
Motion to Strike
The defendants have filed a Motion to Strike the entirety of the plaintiff's complaint. The defendants challenge the First and Third Counts by claiming that the common law in Connecticut does not recognize negligence as an action from the facts alleged. The defendants also argue that the Second Count, founded on the Dram Shop Act, provides relief to a person who is injured by an intoxicated person, but not as in this case, to the person who is intoxicated.
First and Third Counts: Negligence
It is clear that Connecticut observed the common-law rule prohibiting a cause of action against a person who furnishes liquor by sale or gift to another who voluntarily becomes intoxicated and injures himself or another person. "At common law it was the general rule that no tort cause of action lay 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." Nolan v. Morelli, 154 Conn. 432, 436-37 (1967).
It was not until the passage of the dram shop act in 1872 that Connecticut created a cause of action for third parties who were injured by the actions of an intoxicated person who was or became intoxicated from liquor sold to him. The dram shop act authorized such injured third parties to sue the seller of the intoxicating liquor to seek compensation for his injuries. See Conn. Gen. Stat. Sec. 30-102 and its history. See also Sanders v. Officers Club of Connecticut, Inc. 35 Conn.Sup. 91, 93 (1978).
The Supreme Court on February 4, 2003 issued a watershed opinion in this area in the case of Craig v. Driscoll, 262 Conn. 312, by recognizing for the first time in Connecticut jurisprudence the existence of a common-law cause of action for a third person injured by a person who was or became intoxicated by the service of alcohol to him. Although not fully factually analogous to the plaintiff's case, the plaintiff contends that the proximate cause analysis of the Supreme Court in Craig buttresses his cause of action for negligence by recognizing that the hazard of injury is a foreseeable risk from the furnishing of alcohol to an intoxicated person.
On June 3, 2003, the Connecticut Legislature amended the dram shop act by passing Public Act 03-91. This public act increased the damages limit from $50,000 to $250,000 for persons injured in dram shop situations. The Public Act also added the following language: "such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person 21 years of age or older." (Emphasis added). Public Act 03-91 became effective on the date of its passage, June 3, 2003.
The plaintiff claims that his injury at the Y-Knot Cafe occurred on May 5, 2003 approximately three months after the Supreme Court in Craig, supra recognized his common-law negligence action, and approximately a month prior to the effective date of Public Act 03-91, which invalidated any such right.
A review of the legislative history of Public Act 03-91 reveals that the legislature in passing this amendment intended to respond to the Craig case. Senator Roraback while addressing the body on May 15, 2003, specifically referred to the case of Craig v. Driscoll (Senate Proceedings, page 209). Senator McDonald also opined:
I believe it is the specific intent of this legislation to preclude a claim for a simple negligence against an individual if the person is 21 years of age or older and I believe this legislation would preclude such a cause of action.
Senate Proceedings, May 15, 2003, page 212
The defendants cite the case of Bhinder v. Sun Company, 262 Conn. 358 (2003), as support for their position that Public Act 03-91 is the legislature's interpretation or clarification of the Dram Shop Act in response to the Craig decision," and therefore it should be applied retroactively. In Bhinder the Supreme Court stated, inter alia, that ". . . we see no reason why after the legislature clarified what it felt was an inappropriate decision by this court, that our decision would, nevertheless, still be applicable to the defendant here, whose case was pending at the time the statute was amended." Id. 377. This court agrees that Public Act 03-91 is a clarification and retroactively applies to the plaintiff's case. See also Enfield Federal Savings Loan Association v. Bissell, 184 Conn. 569, 574 (1981).
Second Count: Dram Shop Act
The court agrees with the defendant that the Dram Shop Act is not designed to provide a cause of action for a person, such as the plaintiff, who was intoxicated at the time of being served alcohol. See Nolan v. Morelli, 154 Conn. 432, 434 (1967).
Conclusion
For the foregoing reasons, the defendant's Motion to Strike the First, Second and Third Counts of the Complaint is granted.
The court notes that the plaintiff filed an Objection to Defendant's Motion to Strike and Request for Leave to amend Complaint. Included in that document is a section entitled "Amendment of Complaint — Recklessness." Clearly the plaintiff is entitled, pursuant to Sec. 10-44 of the Rules, to file a Substitute Pleading within 15 days of the granting of this Motion to Strike. If he decides to do so, he should include all of his causes of action in that pleading.
Clarance J. Jones, Judge