Opinion
No. CV 054005749
December 24, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#150)
This court denies defendant Poor John's Pub's motion for summary judgment (and Supplemental Motion for Summary Judgment, #173) because it finds that there are issues of material fact in dispute as to whether or not the defendant served alcoholic beverages to an intoxicated person. The defendant relies upon the assertions of Luis Rivera, the alleged intoxicated person, that he was not intoxicated while in Poor John's Pub; and upon the alleged lack of evidence of "visible intoxication." Further, the defendant challenges the plaintiff's expert evidence as insufficient to establish Rivera's level of intoxication. The plaintiff relies upon the hospital records of Luis Rivera, created after the motor vehicle accident which he allegedly caused when he left Poor John's Pub which indicated that Mr. Rivera's blood alcohol level was more than double the legal limit; and upon expert evidence opining what the alcohol level meant in terms of Mr. Rivera's level of intoxication while in Poor John's Pub. Also, the plaintiff introduced evidence into the record which establishes that: (1) Mr. Rivera is and has been unavailable for several years and has probably left the country; and (2) Mr. Rivera lost consciousness in the accident.
Relying on the holdings in Sanders v. Officers Club of Conn., Inc., 196 Conn. 341 (1985) and Hayes v. Caspers, Ltd., 90 Conn.App. 781 (2005), the defendant argues that it is entitled to judgment because the plaintiff cannot establish that Mr. Rivera was visibly intoxicated when he was served alcoholic beverages in the defendant's establishment.
While this court acknowledges the precedential value of the two cases relied upon by the defendant, it concurs with the reasoning articulated by Judge Jennings in Geib v. Sheraton Stamford Hotel, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X-08-CV 05 5000466 (November 18, 2008, Jennings, J.). Judge Jennings articulated the applicable standard in Dram Shop actions. "In a cause of action under the Dram Shop Act the plaintiff does not need to prove that the defendant knew that the customer was intoxicated when it sold the liquor to [him]. Nor does the plaintiff have to prove that the liquor sold to the customer by the defendant produced or contributed to [his] intoxication. The plaintiff merely has to prove that the defendant sold liquor to the customer . . . while [he] was intoxicated . . ." As in this instant matter, in Geib, "[the defendants] state in their memorandum that . . . there is no evidence that [the alleged intoxicated person] was visibly intoxicated . . . They ask for summary judgment strictly on their claimed insufficiency of the evidence of visible intoxication" Also as in this case, the defendants in Geib cited Hayes v. Caspers, 90 Conn.App. 781 (2005), where Appellate Court upheld trial court's direction of verdict because of lack of evidence of visible intoxication, to support their argument that they were entitled to judgment. In his Geib Memorandum of Decision, Judge Jennings observed that the appellate court in Hayes upheld the trial court decision because it could not find that the court's ruling was clearly erroneous and because "the plaintiff has not brought to our attention any part of the record that contradicts the court's finding." Hayes v. Caspers, supra, 90 Conn.App. at 802.
In Geib, Judge Jennings concluded that the contrary evidence that was missing in Hayes was present in the record in his case. Likewise, this court concludes that the contrary evidence that was missing in Hayes is present in the instant matter, in the form of toxicology tests for intoxication and expert evidence, both of which were notably absent in the Geib matter. Given these two pieces of evidence, and the self-serving nature of the unavailable Mr. Rivera's statement, this court finds that there is evidence, in the record, to dispute the claim of the defendant that Mr. Rivera was not intoxicated when he was served an alcoholic beverage in the defendant's establishment. For this reason, the motion for summary judgment is denied.