Opinion
No. CV-08-5018828S
October 2, 2008
RULING ON MOTION TO STRIKE (#119)
The plaintiff Jason Blondin (Jason) has alleged in a six-count complaint that he sustained injuries as a result of a motor vehicle accident that occurred on May 13, 2007. The third and sixth counts make claims pursuant to General Statutes § 30-102 against Shawn Quinn individually, as permittee and doing business as TCB Bar and Billiards (TCB). The fourth and fifth counts make claims pursuant to General Statutes § 30-102 against Salvatore J. Mazzaro individually, as permittee and doing business as J. Roo's Restaurant Home of Vic's Pizza (J. Roo's). These counts allege service of alcohol to John Blondin while he was in an intoxicated condition and allege that the subsequent drunk driving of John Blondin caused injury to Jason, his passenger.
On June 30, 2008, TCB and J. Roo's filed answers and special defenses of assumption of risk and participation as to the respective counts against them. On July 14, 2008, the plaintiff moved to strike the special defenses. A motion to strike may be used to challenge the legal sufficiency of a special defense. The court is required to accept as admitted "all well-pleaded facts and those facts necessarily implied from the allegations" and to construe the challenged pleading "broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted; citations omitted). Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
I.
General Statutes § 30-102, commonly known as the dram shop act, permits a cause of action against a liquor seller "who sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another." Connecticut has had a dram shop act since 1872 along with a statute that penalizes a liquor seller for the sale or delivery of alcoholic liquor to an intoxicated person. See General Statutes §§ 30-86(b), 30-113; Nolan v. Morelli, 154 Conn. 432, 445, 226 A.2d 383 (1967). These statutes are part of a comprehensive legislative scheme regulating purveyors of alcohol. Craig v. Driscoll, 262 Conn. 312, 347-48, 813 A.2d 1003 (2003) (Sullivan, C.J., dissenting).
The dram shop act is in derogation of the common law which did not provide a cause of action against someone who provided alcohol for the harm subsequently done by the intoxicated individual under the theory "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, supra, 154 Conn. 437. Under the dram shop act, strict liability is imposed upon the purveyor, without any requirement of proximate cause, because there is always "a reasonable relationship between a sale in violation of the law and the injury consequent upon the intoxication of the one to whom the sale was made." Pierce v. Albanese, 144 Conn. 241, 250, 129 A.2d 606 (1957). "A dram shop payment is made on behalf of a liquor establishment which serves alcohol to an intoxicated person who thereafter causes injury to a third party." American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 199, 530 A.2d 171 (1987). In enacting the dram shop act, the legislature satisfied two purposes: a punitive purpose in the sense that the act reinforced the statutory prohibition against providing liquor to an intoxicated person and a remedial purpose in the sense that it created a "new basis of liability" to permit an injured person to recover against the liquor seller. Pierce v. Albanese, supra, 144 Conn. 249-51.
II.
TCB and J. Roo's have filed identical special defenses to the dram shop claims against them asserting assumption of risk. These defenses allege that Jason was aware that John Blondin was intoxicated "prior to the automobile accident, yet he voluntary chose to ride as a passenger in the vehicle driven by John Blondin," that he "knew or should have known of the risk created by what he alleges to be the intoxicated condition of John Blondin," and that he is consequently barred from recovery "by knowingly and voluntarily riding as a passenger in the automobile driven by John Blondin." Superior Court judges have been divided as to whether assumption of the risk is a legally sufficient defense to a dram shop claim. Compare Hersey v. Up or On the Rocks, Superior Court, judicial district of Tolland at Rockville, Docket No. 07-5001286 (Nov. 13, 2007, Vacchelli, J.) (collecting cases; assumption of risk not allowed on different theories) with Nolan v. Schuster, Superior Court, judicial district of Waterbury, Docket No. 98-0145395 (Dec. 4, 1998, Espinosa, J.) (collecting cases; assumption of risk allowed on different theories).
See Amended Answer and Special Defenses filed by TCB on June 30, 2008, First Special Defense as to Third Count and Sixth Count and Answer Special Defenses filed by J. Roo's on June 30, 2008, First Special Defense as to Fourth Count and Fifth Count.
Nolan v. Schuster, Superior Court, judicial district of Waterbury, Docket No. 98-0145395 (Dec. 4, 1998, Espinosa, J.) is the most recent case this court could find that allowed the defense. Since 1998 it appears the trend is to disallow it.
The doctrine of assumption of risk has fallen into disfavor. 4 F. Harper, F. James O. Gray, Torts, (2d Ed. 1986) § 21.8, pp. 259-60. It has been aptly described as "simply a confusing way of stating certain no-duty rules or (where there has been a breach of duty toward the plaintiff) simply one kind of contributory or comparative negligence." Id., § 2.10, p. 190. Traditionally, the doctrine "provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . the assumption of risk variants fall generally within two separate categories: (1) a negligence defense that the plaintiff's conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant's negligence and the risk thereby created, but nevertheless chose to confront such risk." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 684-86, 849 A.2d 813 (2004). The abolition of assumption of risk as a defense in negligence actions, General Statute § 52-572h(l), suggests a legislative preference for the more straight-forward and fair approach of comparative fault which permits consideration of the degree of a plaintiff's responsibility when a defendant has breached a duty to him.
Because assumption of risk acts as a complete bar to recovery by a plaintiff, see Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 684, allowing it to be asserted as a defense to a dram shop action would be inconsistent with the dual punitive and remedial purposes of the act. An assumption of the risk defense carves out too broad an exception to the public policy underlying the dram shop act of policing the conduct of the liquor seller for the purpose of protecting the general public. See Pierce v. Albanese, supra, 144 Conn. 249-50. As Judge Silbert cogently stated:
It could also be maintained that an assumption of risk defense defeats the purpose of the dram shop act because the act places full responsibility on the liquor seller, within the statutory limit on the amount of damages recoverable, for injuries caused as a consequence of the sale of liquor to someone who is already intoxicated. See Restatement (Second) of Torts, ?496F, p. 579-80 (1965). The Restatement comments that courts are also free to conclude that parties governed by statutes which are a "safety measure for the protection of the public" should not have an assumption of risk defense available to them. Id., comment e, citing L'Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933); Casey v. Atwater, 22 Conn.Sup. 225, 167 A.2d 250 (Super.Ct. 1960). See Hersey v. Up or On the Rocks, Superior Court, judicial district of Tolland at Rockville, Docket No. 07-5001286 (Nov. 13, 2007, Vacchelli, J.); Davila v. Casper, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 91-0286349 (June 8, 1993, Melville, J.); Archambault v. Pascual, Superior Court, judicial district of Litchfield, Docket No. 0052477 (Dec. 19, 1990, McDonald, J.) (applying this concept in dram shop actions).
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 . . . he cannot 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, Superior Court, judicial district of Middlesex, Docket No. 04-0104721 (April 15, 2005, Silbert, J.) see Waldron v. Oehler, Superior Court, judicial district of Litchfield, Docket No. 07-5002709 (March 17, 2008, Pickard, J.). Therefore, as a matter of law and policy, this court concludes that assumption of risk is not a valid defense to a dram shop action.
III.
TCB and J. Roo's have also filed identical special defenses to the dram shop claims against them asserting participation. These defenses allege that Jason "supplied alcohol to [John], consumed alcohol with him, contributed to the supplying of alcoholic liquor to him, and participated in, facilitated and encouraged the alleged intoxication of John Blondin." As with the defense of assumption of risk, there is a division in the Superior Court as to whether participation is a viable defense to a dram shop claim. Compare Rousseau v. Ricciardi, Superior Court, judicial district of Waterbury, Docket No. 0121665 (Aug. 22, 1995, McDonald, J.) (allowing defense), with Pont v. Barker, Superior Court, judicial district of New London, Docket No. 4002020 (May 30, 2006, Hurley, J.) (disallowing defense) [ 41 Conn. L. Rptr. 445].
See Amended Answer and Special Defenses filed by TCB on June 30, 2008, Second Special Defense as to Third Count and Sixth Count and Answer Special Defenses filed by J. Roo's on June 30, 2008, Second Special Defense as to Fourth Count and Fifth Count.
The concept of a "participation defense" to a dram shop claim appears to have arisen in Cookinham v. Sullivan, 23 Conn.Sup. 193, 179 A.2d 840 (Super.Ct. 1962), where the court, Covello, J., concluded that a plaintiff "who joins and participates in and contributes to the violation" of § 30-102 could be barred from recovery under the act. In this court's opinion, a "participation defense" which absolutely bars recovery against the liquor seller suffers from the same problems as the defense of assumption of risk by filly relieving the purveyor of its statutory responsibility. But a more narrow defense that permits a comparison between the plaintiff's conduct in contributing to the intoxication of the tortfeasor with the purveyor's conduct in violating the statute does not appear to be inconsistent with the punitive and remedial purposes of the dram shop act. See Grady v. Cedar Side Inn, Inc., 330 Ore. 42, 47, 997 P.2d 197, 200 (2000), (The Supreme Court of Oregon concluded that absolutely precluding a plaintiff from recovering damages when that person was complicit in bringing about the tortfeasor's intoxication was inconsistent with "Oregon's comparative fault regime [and that] plaintiff's relative fault in causing his own injuries, if any, is to be apportioned by the trier of fact, rather than serve as a bar to recovery . . .").
This absolute bar was of concern to the court in Passini v. Decker, 39 Conn.Sup. 20, 23, 467 A.2d 442 (Super.Ct. 1983), which concluded that a participation defense was inconsistent with the dram shop act's purpose to protect the public.
Indeed, it makes sense that "one whose actions made the violation of the act possible by himself giving the intoxicated person liquor," Archambault v. Pascual, Superior Court, judicial district of Litchfield, Docket No. 0052477 (Dec. 19, 1990, McDonald, J.) [ 3 Conn. L. Rptr. 36], may potentially have some responsibility, along with the liquor seller, for any injury he later incurs as a result of the conduct of the intoxicated person. A "participation defense" which compares like conduct (the seller's conduct and the plaintiff's conduct in purveying to the intoxicated person) differs substantially from an assumption of risk defense which tries to compare apples (the plaintiff's conduct in getting into the car with an intoxicated person) with oranges (the seller's conduct in purveying to an intoxicated person). Furthermore, it is consistent with the remedial and punitive purposes of the dram shop act because it does not fully relieve the liquor seller of responsibility.
Some courts have held, relying on dicta in Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967), that a participation defense should be available under these circumstances because the remedy of the dram shop act is limited to "innocent third parties." See Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. 92-039650 (Sept. 8, 1994, Skolnick, J.), and cases cited therein. It is unnecessary to construe the statute's purpose in that regard because the only time a participation defense will be raised is when a defendant liquor seller has reasonable cause to believe that a plaintiff's conduct, in some manner, substantially caused the tortfeasor's intoxication. Practice Book § 10-5.
However, participation in this sense requires that the plaintiff actively procure or cause the tortfeasor's intoxication; that is, the plaintiff cannot merely participate in the drinking activities but must be actively involved in bringing about the inebriate's intoxication. This type of participation defense has been described as one of "complicity," and the proponent has "a heavy burden in showing that the participation alleged rose to the level of complicity and in effect contributed substantially to causing the intoxication . . ." Breen v. Brother Bones Cafe, Inc., Superior Court, judicial district of Hartford, Docket No. 93-0523016 (Oct. 14, 1994, Corradino, J.). "In order for participation to constitute complicity, it must be more than passive." Cox v. Rolling Acres Golf Course Corp., 532 N.W.2d 761, 764 (Iowa 1995), and cases cited therein. Even active participation might not rise to the level of complicity; "complicity depends on the specific facts of each case." Graham v. United National Investors, Inc., 319 Ill.App.3d 593, 253 Ill. Dec. 753, 745 N.E.2d 1287, 1291-92 (Ill.App. 2001).
In this case, the allegations of the participation special defenses that Jason "contributed to the supplying of alcohol" and "facilitated and encouraged the alleged intoxication of John Blondin" are sufficient to survive a motion to strike. A determination of whether the evidence adduced in support of the defense is adequate to establish complicity must wait to a later time.
IV.
Based on the foregoing, the court grants the motion to strike TCB's First Special Defense to the Third Count and Sixth Count and J. Roo's First Special Defense to the Fourth Count and Fifth Count. The court denies the motion to strike TCB's Second Special Defense to the Third Count and Sixth Count and J. Roo's Second Special Defense to the Fourth Count and Fifth Count.