Opinion
No. CV-07-5014334 S
April 9, 2009
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#130)
The defendants, Carl Walters and Side Street Grille, LLC, have moved for summary judgment on the ground that no genuine issues of material fact remain because, as a matter of law, count nine of the complaint fails to allege a legally sufficient claim. The plaintiffs object, and argue that summary judgment is the wrong vehicle within which to challenge the legal sufficiency of the count. For the reasons set forth herein, the court grants the motion for summary judgment as to count nine of the complaint.
FACTS
"On September 18, 2007, the plaintiffs, Deborah R. Welton and Robert M. Welton, co-administrators of the estate of Scott L. Welton, commenced this action by service of process against the defendants, Joseph A. Ferrara individually and as the administrator for the estate of Adrienne Ferrara, Carl Walters and Side Street Grille, LLC. The plaintiffs filed a nine-count complaint in which they allege the following facts. On December 19, 2006, and December 20, 2006, Adrienne Ferrara, a minor, was served alcohol while she was intoxicated while a patron at the Side Street Grille. Ms. Ferrara left the Side Street Grille in an intoxicated state with Scott L. Welton as a passenger in her motor vehicle, when, due to her intoxication, she lost control of the vehicle. The vehicle left the traveled portion of the highway, struck a tree and burst into flames. Mr. Welton was trapped in the burning vehicle and died at the scene." Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV 07 5014334S (March 18, 2008, Bellis, J.) (45 Conn. L. Rptr. 211).
On November 9, 2007, one of the defendants, Joseph A. Ferrara, in both his individual and administrative capacity, moved to strike counts three, four and five of the plaintiffs' complaint. The court, Bellis J., granted Ferrara's motion to strike counts four and five on March 18, 2008.
Of the counts remaining relevant to the current motion, count six alleges dram shop pursuant to General Statutes § 30-102, count seven alleges the negligent furnishing of alcohol, count eight alleges the reckless furnishing of alcohol and count nine alleges "negligence other than in furnishing alcohol" against Side Street Grille, LLC and Carl Walters.
General Statutes § 30-102 provides: "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, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred 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 such person's or persons' intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executory, administrator, conservator or guardian of such person's estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of. 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."
The defendants Side Street Grille, LLC and Carl Walters moved for summary judgment on count nine of the complaint on the ground that "there is no genuine factual question that Count Nine is duplicative of Count Seven and should be dismissed as a matter of law. In particular, although Count Nine is labeled `Negligence Other Than in Furnishing Alcohol,' the allegations contained therein fail to constitute a separate, viable grounds for relief." The plaintiffs filed their memorandum of law in opposition to summary judgment in which they argue that a motion for summary judgment is the improper procedural vehicle to challenge the legal sufficiency of count nine and that count nine is not a duplicative cause of action because it "not predicated on the service of alcohol." Side Street Grille, LLC and Carl Walters responded in a reply brief, arguing that, as a matter of law, count nine states a cause of action that is not recognized in Connecticut. The matter was heard at short calendar on March 23, 2009.
DISCUSSION
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." Practice Book § 17-49. "[I]n 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." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"A material fact is a fact that will make a difference in the outcome of the case." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 294, 830 A.2d 346 (2003). "Once the moving party has met its burden . . . 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 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
I. The Legal Sufficiency of a Claim
In the plaintiffs' memorandum of law in opposition, they first challenge the motion for summary judgment on the ground that it is the improper procedural vehicle to contest the legal sufficiency of a claim. Instead, the plaintiffs' contend that Side Street Grille, LLC and Carl Walters were required to challenge sufficiency with a motion to strike, which they are no longer able to do pursuant to the rules of practice. In response, Side Street Grille, LLC and Carl Walters argue in their reply that "the plaintiffs have not and, in fact, cannot plead the requisite elements of a claim for negligent supervision because the injury and death to Scott L. Welton did not occur on the defendants' business premises. Thus, the only possible liability on the part of the defendants must arise from the furnishing of alcohol. There can be no cause of action against the defendants that is not predicated on the furnishing of alcohol."
The court notes that Side Street Grille, LLC and Carl Walters filed an answer and special defenses on February 15, 2008. "Practice Book . . . [§ 10-6] dictates the order of pleadings in a civil case. A motion to strike a complaint must precede the defendant's answer to that complaint. Pursuant to Practice Book . . . [§ 10-7], `the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.' " Hryniewicz v. Wilson, 51 Conn.App. 440, 445, 722 A.2d 288 (1999). "By operation of Practice Book § [10-7], the filing of [an] answer to [an] amended complaint acts as a waiver of the right to file a motion to strike the amended complaint." Wilson v. Hryniewicz, 38 Conn.App. 715, 719, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).
"[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, [the Supreme Court] can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
Upon consideration of this precedent, the court finds that if Side Street Grille, LLC and Carl Walters' claim that a cause of action for negligent supervision cannot be maintained given the undisputed facts of this case and, if indeed, no other cause of action is recognized in Connecticut for "negligence other than in furnishing alcohol," then count nine cannot not be cured of its deficiencies by repleading. Accordingly, the motion for summary judgment is an acceptable method for challenging the legally sufficiency of count nine in this case.
II. Negligent Supervision
"Connecticut does recognize a cause of action for the negligent supervision of tavern patrons and employees . . . The cause of action for negligent supervision . . . is based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor's negligence in furnishing alcohol." (Citations omitted; emphasis in original; internal quotation marks omitted.) Potter v. American Legion, Superior Court, judicial district of New Haven, Docket No. CV 08 5016583 (January 7, 2009, Cronan, J.), quoting. Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.). "In cases that have recognized such a cause of action, the plaintiffs were injured by other patrons on the premises of the defendant, and the injuries were allegedly caused by the defendants' failure to supervise the other patrons and provide a safe business environment." (Internal quotation marks omitted.) Widdows v. Crown Street Bar Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 07 5009467S (January 14, 2008, Zoarski, J.T.R.), quoting, Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. 0115265 (March 21, 1995, Flynn, J.) (14 Conn. L. Rptr. 346).
"[A] patron or business visitor of an establishment, who sustains an injury in person or property as a consequence of negligent supervision, may have a cause of action against the establishment . . . however, that cause of action has only been allowed in cases where the establishment served alcohol to one patron who subsequently assaulted another patron in the same establishment . . ." (Internal quotation marks omitted.) Jensen v. DePaolo, Superior Court, judicial district of New Haven, Docket No. CV 01 0277460S (March 8, 2004, Wiese, J.) (36 Conn. L. Rptr. 665), quoting, Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 039650S (July 23, 1993, Jones, J.) (8 C.S.C.R. 997) [9 Conn. L. Rptr. 518). When it is uncontroverted, however, that the injuries suffered by a plaintiff occurred in a location other than on a defendant's premises, then the plaintiff has failed to allege negligent supervision, as a matter of law. Jensen v. DePaolo, supra, 36 Conn. L. Rptr. 665.
The undisputed facts of this case establish that the automobile accident which resulted in the death of Scott L. Welton occurred on route 40, a public road. Accordingly, the court finds that count nine of the complaint fails to plead a cause of action sounding in negligent supervision. If count nine is to survive this motion for summary judgment, the duty of care it alleges must come from an alternative place in our jurisprudence.
III. Duty of Care
At short calendar, on March 23, 2009, the plaintiffs' counsel made clear that the plaintiffs have not conceded that count nine of their complaint alleged negligent supervision. Rather, counsel claimed that the bartender owed a duty of care to the patrons of Side Street Grille, LLC to provide an alternative means of transportation to those who could not drive themselves, regardless of whether or not the bartender had furnished them alcohol. Side Street Grille, LLC and Carl Walters contend that this duty, as a matter of law, does not exist in Connecticut and therefore, their motion for summary judgment should be granted.
Generally, "[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). Nevertheless, "[t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 478-79, 822 A.2d 1202 (2003). Thus, "[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.) Soares v. George A. Tomasso Construction Corp., 66 Conn.App. 466, n. 2, 784 A.2d 1041 (2001).
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004); see also CT Page 6687 OG Industries, Inc. v. New Milford, 29 Conn.App. 783, 790, 617 A.2d 938, aff'd, 229 Conn. 303, 640 A.2d 110 (1994).
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Murdock v. Croughwell, supra, 268 Conn. 566.
"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 . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature that suffered was likely to result?" (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008), quoting Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997).
"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for [courts] recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results . . .
"In Jaworski, [the Supreme Court] recognized four factors to be considered in determining the extent of a legal duty as a matter of policy: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging continued vigorous participation in the activity, while protecting the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 756-57, 792 A.2d 752 (2002). Furthermore, courts "are not required to address the first prong as to foreseeability if [they] determine, based on the public policy prong, that no duty of care existed." Neuhaus v. Decholnoky, 280 Conn. 190, 218, 905 A.2d 1135 (2006). The court, therefore, will first make a public policy determination by examining each of these four factors individually. Only if public policy supports the finding of a duty, will it then consider foreseeability.
A. Societal Expectations
The court will first consider the normal expectations of individuals in the context of a bar owner-patron relationship. It is clear that, under the common-law, purveyors of alcohol are expected to refrain from negligently serving minors alcohol. See Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003); Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996); Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988). In addition, it is expected that a seller of alcoholic liquor not sell alcohol to a purchaser if said purchaser is intoxicated at the time of purchase. General Statutes § 30-102. Count nine, however, alleges that purveyors of alcohol are expected to actively provide safeguards to determine which patrons intend to drive upon leaving the premises, should prevent these patrons from leaving their establishment and must arrange safe transportation for intoxicated patrons, regardless of whether or not they furnished alcohol to them.
In their complaint, the plaintiffs claim that Side Street Grille, LLC and Carl Walters "allowed Adrienne Ferrara to leave their establishment and drive in an intoxicated state with her judgment and ability to drive impaired when they knew or should have known her doing so posed an unreasonable risk of injury to others," "failed to take reasonable steps or to implement appropriate safeguards to determine whether patrons such as Adrienne Ferrara were leaving their establishment in an intoxicated state intending to drive," and "failed to arrange for the safe transportation of their intoxicated patrons."
"With respect to the second inquiry, namely the policy analysis, there generally is no duty that obligates one party to aid or to protect another party." (Citation omitted. Internal quotation marks omitted.) Murdock v. Croughwell, supra, 268 Conn. 365; see also Bohan v. Last, supra, 236 Conn. 679 ("the common law imposes no duty to act as a good Samaritan"); W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56, pp. 375 ("[b]ecause of [the] reluctance to countenance `nonfeasance' as a basis of liability, the law has persistently refused to impose on a stranger the moral obligation of common humanity to go to the aid of another human being who is in danger"). Count nine claims that Side Street Grille, LLC and Carl Walters are negligent because of their nonfeasance. The plaintiffs' theory of recovery is that Side Street Grille, LLC failed to act and is thus liable. Nowhere in count nine do the plaintiffs allege an affirmative act, such as the furnishment of alcohol, which Side Street Grille, LLC negligently performed.
Liability for nonfeasance has been slow to receive recognition in the law because the "[t]he highly individualistic philosophy of the older common law has no great difficulty in working out restraints upon the commission of affirmative acts of harm, but shrank from converting the courts into an agency for forcing men to help one another . . . During the last century, liability for nonfeasance has been extended still further to a limited group of relations, in which custom, public sentiment and views of social policy have led the courts to find a duty of affirmative action. In such relationships the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiffs welfare . . . [F]or nonfeasance it is necessary to find some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act." W. Prosser W. Keeton, supra, § 56, pp. 373-74. Keeping this history in mind, it is the role of the judiciary to render "sensible reform" as our society's expectations evolve based on its "changing attitudes and needs." Craig v. Driscoll, supra, 262 Conn. 339. Thus, the court must examine the expectations in our society based on the relationship between Side Street Grille, LLC, Carl Walters and Adrienne Ferrara.
Count nine of the plaintiffs' complaint alleges "negligence other than in furnishing alcohol." As previously discussed, if societal expectations foster a duty of care between these two parties, it has to arise because of a special relationship. If the furnishing of alcohol is not to be considered in this count, the court must consider possible alternative relationships. Essentially, Ferrara was a patron at a place of business that served alcohol. Although driving while intoxicated is a serious problem in our society and has received much attention over the past decade, the Connecticut 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. See e.g. Kupec v. Classic Rock Cafe, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5005586S (November 28, 2007, Alvord, J.) (44 Conn. L. Rptr. 574); Federico v. Caruso, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 0053808S (April 18, 2002, Sequino, J.); Pepin v. Cacchillo, Superior Court, judicial district of New Haven, Docket No. CV 94 0364290 (April 29, 1999, Pittman, J.) (24 Conn. L. Rptr. 415); Sego v. Debco, Inc., supra, 8 C.S.C.R. 997; Bioski v. Castelano, supra, 14 Conn. L. Rptr. 346.
During argument, the plaintiffs' counsel suggested that this line of precedent is limited in applicability because all of those decisions relied heavily on Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990), which has since been overturned by Craig v. Driscoll, supra, 262 Conn. 312. In Quinnett, the Supreme Court held that a person's decision to consume an alcoholic beverage was an intervening act for the purposes of the proximate cause determination. Essentially, after Quinnett, it was clear that the negligent furnishing of alcohol to an adult was not a common-law tort in Connecticut because that act could not constitute a proximate cause for later damages. It was during this time period, between Quinnett and Driscoll, that several of these cases were decided.
This fact, however, contrary to the plaintiffs' claims, does not render the analyses in those cases irrelevant. In those cases, the courts were confronted with causes of action that, much like count nine in this case, attempted to allege a tort against a bar or restaurant that did not involve the negligent furnishing of alcohol because that tort was not recognized at the time. Whether it was called negligent supervision, gross negligence, or the negligent failure of the defendant to prevent an intoxicated person from driving, the courts all held that such causes of action either do not exist or are, in fact, merely disguised attempts to plead the negligent furnishing of alcohol. It was only after those courts concluded that the alleged cause of action was, regardless of what it was called in the complaint, a negligent furnishing of alcohol claim, that they then applied the now overturned Quinnett case to strike the count.
The Driscoll decision, therefore, has no effect on the first step of the reasoning in those cases. When a plaintiff's complaint alleges negligence "other than the furnishing of alcohol," precedent makes clear that this cause of action does not independently exist and therefore, courts interpret this cause of action as the negligent furnishing of alcohol. Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001) (courts may "look beyond the language used in the complaint to determine what the plaintiff really seeks. Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender"). Otherwise, no cause of action would have existed in those cases because "[t]he common law simply does not recognize a duty to prevent a person from causing harm." Federico v. Caruso, supra, Superior Court, Docket No. CV 96 0053808S.
The plaintiffs propose that the Supreme Court's dicta in Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967), supports the finding of liability for nonfeasance between a purveyor of alcohol and a patron. In Nolan, the Supreme Court suggested that, "a cause of action predicated on negligence in the failure of the proprietor of a restaurant, or his servants or agents, to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment would be unaffected by the common-law rule, whether they were or were not intoxicated and, if intoxicated, regardless of when, where, or how they became intoxicated. In such a situation, a patron or business visitor of the establishment who sustained an injury in person or property as a consequence of such negligence in supervision might have a common-law cause of action . . ." (Emphasis added.) Id., 440-41. The plaintiffs, however, fail to present the court with a single decision within the forty-two years since this decision or in the six years since Driscoll, in which a court in Connecticut has interpreted the language of Nolan to support such a duty of care.
Furthermore, in Nolan, the Supreme Court additionally provided that, "the second specification predicates liability on the part of the defendants for allowing the decedent to leave the premises after they had served him with intoxicating liquors although they knew, or in the exercise of reasonable care should have known, that he would be operating an automobile when he was in no condition physically or mentally so to do. If it is assumed, as is alleged in the complaint, that the operation of the car by the decedent while he was intoxicated was the immediate cause of his death, it is of course unfortunate, from the vantage point of hindsight, that the defendants did not contrive to dissuade or prevent him from operating his car. But the plaintiff has pointed to no common-law duty resting on these defendants, as sellers, proprietors or otherwise, to go to that extent, or otherwise to guard against injuries sustained at unknown distances from the defendant's premises and at places and under circumstances wholly outside the defendant's knowledge or control. It is hardly necessary to point out the difference between the present case and such cases . . . where it was alleged that the defendant proprietor actively assisted an intoxicated person in getting his motor car out of the parking lot and onto the public highway. In such a case, liability, if any, is predicated, not on any negligence in any duty of supervision of the premises, but on active negligence existing irrespective of any sales of intoxicating liquor or other conduct causing the intoxication." (Citation omitted; emphasis added.) Nolan v. Morelli, supra, 154 Conn. 442-43. After Nolan, therefore, it is clear that there is no common-law cause of action when a purveyor of alcohol fails to prevent an intoxicated patron from driving an automobile off of its premises, so long as it did not affirmatively act to aid the driver in his action.
In addition, the court notes the Supreme Court's emphasis on nonfeasance and the location of the accident in Nolan. This reasoning suggests that if the accident would have occurred on the business premises or if the business had assisted the driver in any affirmative way, there would have been common-law liability. The facts of this case, however, are similar to the facts of Nolan. Side Street Grille, LLC did nothing to aid Ferrara in driving and the accident which killed Welton occurred off of the business property. The court, therefore, follows the Supreme Court's logic and holds that given these factual circumstances, there is no precedent that supports an expectation that a business must prevent a patron from driving.
Finally, this court also notes that, in Nolan, the Supreme Court reinterpreted the plaintiff's count as essentially alleging a negligent furnishing of alcohol claim, similar to the methodology used in the aforementioned Superior Court cases. Nolan v. Morelli, supra, 154 Conn. 443 ("[m]oreover, paragraph 3 of the second count of the complaint, although somewhat lacking in clarity, fairly indicates that the plaintiff is relying on the liability of the defendants as sellers of intoxicating liquor, and that the foregoing two specifications refer to claimed causes of action springing from the sales. If this is so, they are within the scope or area of operation of the common-law rule that it was not the sale of the liquor, but its consumption, which was the proximate cause of the decedent's intoxication and his claimed result death"). For these reasons, the court finds that, contrary to the plaintiffs' claims, Nolan actually further supports the court's acceptance of the previously cited Superior Court decisions, instead of establishing the plaintiffs' nonexistent cause of action.
The plaintiffs contend that, under our case law, an occupier — invitee relationship can cultivate these expectations. Specifically, in their memorandum in opposition, the plaintiffs propose that, "it cannot be disputed that a proprietor has the duty to exercise reasonable care over its patrons to prevent injury to third parties." In support of their claim, the plaintiffs cite the Supreme Court case Merhi v. Becker, CT Page 6690 164 Conn. 516, 325 A.2d 270 (1973). In Merhi, the plaintiff was injured when an intoxicated man named Becker hit him with an automobile at a picnic. Unlike the case at hand, the defendant in that case, Local 1010, was in control of the grounds upon which the accident occurred and had also furnished alcohol to its invitees, including Becker. The Supreme Court held that, "Local 1010 had failed to perform its duty to provide adequate police protection or otherwise to control the activities of its beer drinking guests, especially after the earlier outbreak of fisticuffs." Id., 520. Although this broad language, at first, may seemingly support the plaintiffs' argument, this case has been subsequently interpreted as an early pronouncement of the tort of negligent supervision, which, for the reasons discussed in the previous subsection, is unavailable to the plaintiffs in this case. See, e.g., Coon v. Seven RS, LLC, Superior Court, judicial district of Windham, Docket No. CV 05 4002888S (March 18, 2007, Calmar, J.). The facts of Merhi are thus distinguishable because all of the relevant events occurred on the premises controlled by Local 1010, exposing it to liability for negligent supervision. Merhi v. Becker, supra, 164 Conn. 519.
To find that society supports the broad expectation that the plaintiffs articulate would be to say that if an intoxicated person wandered into delicatessen or a grocery store, the owner would be expected to prevent the patron from leaving the store. Alternatively, a clothing store would be expected to call a taxi for a customer who appeared inebriated, rather than letting that customer leave the store on his own accord. To the contrary, as these simple hypothetical scenarios illustrate, without the service of alcohol, our society has no expectation that an occupier of land must affirmatively act to prevent an intoxicated invitee from leaving its premises and driving.
B. Encouraging Continued Vigorous Participation
Having concluded that society's expectations do not support the finding of a duty of care in this case, the court now turns to the second factor, the public policy of encouraging continued vigorous participation in the activity. Regarding public policy, courts "are mindful of the horrors that result from drinking and driving, horrors to which we unfortunately have grown more accustomed." Craig v. Driscoll, supra, 262 Conn. 337. Finding a duty of care, as the plaintiffs suggest in this case, may reduce the incidence of drunk driving because more people and businesses could be liable for failing to provide the intoxicated person with alternative transportation. It is for this very forceful reason that such a rule may appear attractive. The court recognizes, however, the practical concerns that such a requirement could also generate. For instance, what would be the result if a business identifies an intoxicated person, but that person wishes to leave the store premises? Is the store owner to detain that person against his or her will? Should the store owner be required to use force if the intoxicated person refuses to be assisted? Although public policy arguments favor the deterrence of drunk driving, they also favor the deterrence of detention and the use of force.
In addition, there is a public interest in providing an avenue which allows the plaintiff to recover full compensation for all damages suffered. Craig v. Driscoll, supra, 262 Conn. 328. Our tort law, however, already permits plaintiffs, such as the ones in this case, to receive damages for the cost of their injuries. Generally, the tort of negligent furnishing of alcohol to a minor captures damages for the death of a third party in a subsequent car accident. Ely v. Murphy, supra, 207 Conn. 88. Recently, the Supreme Court "expressly reject[ed] the claim that a purveyor who provides alcoholic beverages to an already intoxicated patron or a patron known to him to be an alcoholic cannot, as a matter of law, be the proximate cause of subsequent injuries caused by the intoxicated patron," including deaths from automobile accidents. Craig v. Driscoll, supra 262 Conn. 334. Plaintiffs, therefore, are already provided with a means to recover for their injuries. Accordingly, the court finds that the combination of these public policy interests do not overwhelmingly support the duty of care that the plaintiffs wish the court to find in this case.
C. Increased Litigation
Next, the court will consider whether finding the existence of the duty of care that the plaintiffs propose will increase litigation. Without the requirement of an affirmative action, this duty of care could require a seemingly large number of people to act. Depending on the facts of any one case, several occupiers of land may owe an intoxicated person this duty of care if said person is an invitee. Surely, the number of lawsuits, as well as the number of named defendants and the costs of discovery, would increase. This factor, therefore, weighs against finding that Side Street Grille, LLC and Carl Walters owed the plaintiffs the duty alleged in count nine of the complaint.
D. The Law of Other Jurisdictions
Finally, the court must consider the decisions of other jurisdictions. In their memorandum in opposition, the plaintiffs cite a recent New Jersey Appellate Division case for the proposition that a bar has the duty to insure that a patron not drive in an intoxicated state, even if that bar did not knowingly furnish alcohol to the patron. Bauer v. Nesbitt, 399 N.J. Super. 71, 85, 942 A.2d 882, cert. granted, 196 N.J. 85, 951 A.2d 1038 (2008). Several other state courts, however, have held, to the contrary, that there is no duty to prevent an intoxicated person from driving without the existence of a special relationship. McGee v. Chalfant, 248 Kan. 434, 441, 806 P.2d 980 (1991) (defendants did not assume a duty to prevent the plaintiff from driving when they agreed to take him to his automobile and knew that he was intoxicated); Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 355 (Iowa 1991) (bartender did not breach a legally recognized duty when he ordered underage patrons, who were intoxicated as a result of the off-premises consumption of alcohol, to leave the parking lot); Lather v. Berg, 519 N.E.2d 755 (Ind.Ct.App. 1988) (social host not liable for ordering an intoxicated person off the premises because there was no special relationship); Blocker v. WJA Realty Ltd. Partnership, 559 So.2d 291, 15 Fla.L.Weekly D 833 (Fla.Dist.Ct.App 2d Dist. 1990) (no duty to prevent an intoxicated person from driving without the existence of a special relationship); Andrews v. Wells, 204 Cal.App.3d 533, 251 Cal.Rptr. 344 (1988) (bartender did not breach a duty of care when he failed to arrange transportation for the decedent upon his request because there was no special relationship); Knighten v. Sam's Parking Valet, 206 Cal.App.3d 69, 73-74, 253 Cal.Rptr. 365 (1988) (parking valet had no duty to prevent an intoxicated customer from driving); Gustatson v. Mathews, 109 Ill.App.3d 884, 888, 441 N.E.2d 388 (Ill.App.Ct. 4th Dist. 1982) (tavern did not have a duty to prevent the plaintiff from driving away); contra Leppke v. Segura, 632 P.2d. 1057 (Colo.App. 1981) (liability imposed on tavern who denied service to an intoxicated patron, but had a special relationship because it permitted an employee to affirmatively assist the patron by jump starting his car). Thus, the court concludes that the decisions of other jurisdictions do not support the duty proposed by the plaintiffs in their memorandum in opposition.
CONCLUSION
After consideration of these four factors, the court declines to find that the duty of care suggested by the plaintiffs existed in this case without the existence of a special relationship. "Connecticut has recognized only a limited duty to take action to prevent injury to a third person. Our point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Internal quotation marks omitted.) Seguro v. Cummisky, 82 Conn.App. 186, 193, 844 A.2d 224 (2004). Despite the growing societal interest in preventing drunk driving, precedent requires a special relationship generated from the furnishment of alcohol for such a duty to exist. If the always evolving public policy against drunk driving is ever to be construed as supporting a broader duty on the public at large, the court believes that this duty of care must first be given credence by the appellate courts. The court, therefore, holds that there are no genuine issues of material fact because, as a matter of law, count nine of the complaint fails to allege a recognized cause of action. Accordingly, the defendant's motion for summary judgment on count nine of the complaint is granted.