Opinion
No. CV 04-4000066 S
December 6, 2004
MEMORANDUM OF DECISION
This matter is before the court on a motion to strike, dated February 26, 2004, brought by the defendants, Starstruck Karaoke Restaurant, a/k/a Farmington Avenue, and A. Graham Nicholson. On February 18, 2004, the plaintiff, Kimberly Campochiaro, in her capacity as administratrix filed a revised complaint on behalf of the estate of Theresa J. Collin. Campochiaro brought the twenty-four count revised complaint against the defendants Jessica Stanwicks, Starstruck Karaoke Restaurant, A. Graham Nicholson, Frank R. and Marjorie Sudyk, F.M.S., LLC, and Sports Rock, Inc. d/b/a Sports Rock USA. This action arises out of injuries and losses sustained by the decedent Collin and her estate as a result of a motor vehicle accident in the early morning hours of January 23, 2003. At the time of the accident, Collin was a passenger in a vehicle driven by Stanwicks, who was allegedly intoxicated.
Of the counts brought by Campochiaro, only eight are pertinent to Starstruck and Nicholson's motion to strike. In counts three and four, Campochiaro alleges negligence and wanton and reckless misconduct, respectively, on the part of Starstruck, the restaurant which served Stanwicks alcohol and permitted her to depart intoxicated. In counts six and seven, which are also brought against Starstruck, she alleges negligent supervision and negligent hiring which resulted in Starstruck's employees serving Stanwicks while she was inebriated and permitting her to operate a vehicle in an intoxicated state. In counts eight and eleven, Campochiaro alleges negligence and wanton and reckless misconduct on the part of Nicholson, the owner of Starstruck, under the doctrine of respondeat superior. In counts seventeen and twenty she alleges negligent hiring and negligent supervision on the part of Nicholson, on agency principles and respondeat superior.
In the remaining counts Campochiaro alleges the following: (1) Count one, negligence on the part of Jessica Stanwicks; (2) count two, a violation of General Statutes § 14-295 on the part of Jessica Stanwicks for operating a vehicle while under the influence of alcohol; (3) count nine, negligence on the part of Frank and Marjorie Sudyk; (4) count ten, negligence on the part of F.M.S., LLC; (5) count twelve, wanton and reckless misconduct on the part of Frank and Marjorie Sudyk; (6) count thirteen, wanton and reckless misconduct on the part of F.M.S., LLC; (7) count fifteen, liability under General Statutes § 30-102, the Dram Shop Act, on the part of Frank and Marjorie Sudyk; (8) count sixteen, that F.M.S., LLC is liable under § 30-102; (9) count eighteen, negligent supervision on the part of Frank Marjorie Sudyk; (10) count nineteen, negligent supervision on the part of F.M.S., LLC; (11) count twenty-one, negligent hiring on the part of Frank and Marjorie Sudyk; (12) count twenty-three, negligence on the part of Sports Rock, Inc.; and (13) count twenty-four, wanton and willful misconduct on the part of Sports Rock, Inc.
On March 2, 2004, Starstruck and Nicholson filed a motion to strike counts three, four, six, seven, eight, eleven, seventeen, and twenty, attaching a memorandum of law in support. Campochiaro filed a memorandum in opposition to the motion on March 30, 2004. On June 8, 2004, Starstruck and Nicholson filed a reply to Campochiaro's memorandum in opposition.
I.
The purpose of a motion to strike is to challenge "the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbell Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court "construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
Starstruck and Nicholson move to strike the negligence counts three, six, seven, eight, seventeen, and twenty and the wanton and reckless misconduct counts, four and eleven. As to the counts of negligence, which also include negligent supervision and negligent hiring, Starstruck and Nicholson assert that General Statutes § 30-102, commonly referred to as the Dram Shop Act (act), provides the exclusive remedy for negligent service of alcohol to an adult, twenty-one years and older. They argue that because Public Act 2003, No. 03-91 became effective on June 3, 2003, approximately six months before Campochiaro instituted this action on December 19, 2003, Campochiaro's negligence claims are legally insufficient. As to the two counts of wanton and reckless misconduct, Starstruck and Nicholson contend they are merely reassertions of the negligence allegations, and accordingly, should be stricken on the grounds of legal insufficiency.
Public Act 2003, No. 03-91 provides in relevant part that an "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 . . ."
Campochiaro counters in her memorandum in opposition that P.A. 03-91, which amended, § 30-102, only applies after Campochiaro's causes of action accrued on January 23, 2003. Campochiaro argues that this amendment was meant to be applied prospectively, not retroactively, and, consequently, applies as of June 3, 2003. Further, regarding the counts of wanton and reckless misconduct, Campochiaro argues they have been sufficiently pleaded and do not merely restate her negligence claims.
In their reply memorandum, Starstruck and Nicholson argue that even if P.A. 03-91 is not retroactive, no common law action for negligent service of alcohol to intoxicated adults existed when Campochiaro contends her cause of action accrued. They further argue that prior to our Supreme Court's decision in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the act provided the sole remedy for negligent service of alcohol to persons over twenty-one, who thereafter injured another. See Quinnet v. Newman, 213 Conn. 343, 568 A.2d 786 (1990). It is their position that Craig v. Driscoll, which was decided on February 4, 2003, a few weeks after Colin's injuries and subsequent death, was nullified by P.A. 03-91. As the law currently stands, they claim the act, not the common law, provides the sole remedy for negligent service of alcohol to persons over twenty-one.
II.
The plaintiff's complaint alleges various acts of negligence in counts three, four, six, seven, eight, seventeen, and twenty. In determining the various rights of the parties, the court must determine the cause of action accrual date. Starstruck and Nicholson argue that because Campochiaro instituted this suit on December 19, 2003, six months after the amended Dram Shop Act took effect, the action commencement date should control. "In Connecticut, [however] a cause of action accrues when a plaintiff suffers actionable harm." (Internal quotation marks omitted.) Tyler v. Schnabel, 34 Conn.App. 216, 220, 641 A.2d 388, aff'd, 230 Conn. 735, 646 A.2d 152 (1994); "Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action." (Internal quotation marks omitted.) Tarnowsky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004). Therefore, Campochiaro's causes of action accrued when Collin suffered her injuries on January 23, 2003.
Since January 23, 2003, is the operative date, the court must next determine whether the Supreme Court's holding in Craig v. Driscoll applies. If Craig v. Driscoll is not applicable, then the issue of whether the amendment has retroactive effect need not be reached, as Campochiaro still would not have a cause of action when her claims accrued.
In Craig v. Driscoll, the Connecticut Supreme Court "recogniz[ed] a common-law negligence action for injuries caused by an intoxicated adult patron against purveyors of alcoholic liquor . . ." Craig v. Driscoll, supra, 262 Conn. 328. This expressly overruled the Court's previous decision in Quinnett v. Newman, which held "[a]t common law there is no cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated." Quinnett v. Newman, supra, 213 Conn. 345.
Starstruck and Nicholson maintain that because Campochiaro's claims accrued prior to the decision in Craig, its holding should not apply retroactively. In most instances, "[t]he applicable substantive law is that in effect at the time the action accrues . . . The only exception to this rule is when the legislature enacts substantive legislation and unequivocally declares that the new legislation is to be given retroactive effect." (Citations omitted; internal quotation marks omitted.) Tyler v. Schnabel, supra, 34 Conn.App. 220.
Currently, there is no appellate court authority concerning the retroactivity of Craig v. Driscoll and the superior courts are split on this issue. See, e.g., Rossitto v. Ernies' Place Café, Superior Court, judicial district of Middlessex at Middletown, Docket No. CV 03 0101052 (June 29, 2004, Silbert J.) ( 37 Conn. L. Rptr. 341) ( Craig is not retroactive); Estate of Ridgaway v. Silk, Superior Court, judicial district of Middlesex, Docket No. CV 01 0103518 (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872) (same); Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.) (same); Wills v. Hine, Superior Court, judicial district of Ansonia-Milford, Docket No. CV02 079162 (October 20, 2004, Shluger, J.) (same); but see Raposa v. Lynam, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182731 (December 3, 2003, D'Andrea, J.) ( 36 Conn. L. Rptr. 174) (applying Craig retroactively); Amato v. Randall's Restaurant, Superior Court, judicial district of Ansonia/Milford at Derby, Docket No. CV 02 0079868 (August 9, 2004, Robinson, J.) ( 37 Conn. L. Rptr. 608) (applying Craig retroactively).
The trial courts that have dealt with this matter have employed the Connecticut Supreme Court's three-part test for determining whether a case holding should be given retroactive effect. See Otrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997). "A common-law decision will be applied non-retroactively only if: (1) it establishes a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed . . . (2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship." (Internal quotation marks omitted.) Rossitto v. Ernie's Place Cafe, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0101052 (June 29, 2004, Silbert, J.) ( 37 Conn. L. Rptr. 341).
When applied to the present case, the first part of the test is clearly met. Craig v. Driscoll expressly overruled Quinnet v. Newman, a precedent upon which litigants had previously relied. The second part of the test, allowing the retroactive application of Craig v. Driscoll "goes directly contrary to the stated intent of the legislature . . . [and] furtherance of the rule . . . would significantly frustrate the objectives of our legislature and would be contrary to the public policy of the state." (Internal quotation marks omitted.) Rossitto v. Ernie's Place Cafe, supra, Superior Court, Docket No. CV 03 0101052. As to the third factor, retroactive application would seemingly produce inequitable results and hardship. To allow a negligence claim that accrued prior to Craig v. Driscoll, where such an action was precluded at that time and is precluded now would be inequitable. Furthermore, bar and restaurant owners who purchased insurance within the legal requirements as they existed prior to Craig and subsequent to the amendment should not be subjected to the hardship of unexpected liability. As such, this court will follow the well-reasoned decisions set out in Rossitto and Ridgeway and find that Craig v. Driscoll should not be applied retroactively. Once it has been deemed that Craig will be applied only prospectively to causes of action that occurred between February 4, 2003 and June 3, 2003, the retroactive or prospective nature of P.A. 03-91 need not be reached by this court.
III.
In counts four and eleven for wanton and reckless misconduct against Starstruck and Nicholson, respectively, Campochiaro alleges that "[t]he accident was caused by the reckless and wanton misconduct on the part of Starstruck in the servicing of alcoholic beverages to the obviously intoxicated Stanwicks and this was done with a reckless disregard of safety and consequences of such action." In paragraphs nine and ten, respectively, Campochiaro further alleges that "they continued to serve Stanwicks alcohol putting her into a greater intoxicated state" and "acted recklessly and with wanton misconduct without regard to the rights or safety of others and in conscious disregard of others who, like the decedent Collin, was lawfully traveling as a passenger on the roadways in Stanwicks' vehicle."
"In order to prove that a sale of intoxicating liquor was made in a wilful, wanton, and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Coble v. Maloney, 34 Conn.App. 655, 661, 643 A.2d 277 (1994). "The mere use of the words `reckless' and `wanton' is insufficient to raise an actionable claim of reckless and wanton misconduct." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985). "[T]o sustain a cause of action alleging willful, wanton and reckless misconduct in the service of alcohol, the plaintiff must plead facts, and not mere conclusions, which indicate that the defendants knowingly served an intoxicated patron." Gumkowski v. U.S.S. Chowder Pot, III, Superior Court, judicial district of New Haven, Docket No. CV 94 0361840 (September 20, 1995, Hartmere, J.).
Campochiaro's allegations that Starstruck and Nicholson served alcohol to an obviously intoxicated Stanwicks and permitted her to depart in an intoxicated condition, in reckless disregard of the safety of others meets the pleading requirements for reckless and wanton misconduct. As such, Campochiaro has sufficiently pleaded wanton and reckless misconduct in counts four and eleven.
IV.
Accordingly, the court grants Starstruck and Nicholson's motion to strike counts three, six, seven, eight, seventeen, and twenty; and denies the motion as to counts four and eleven.
Matasavage, J.