Opinion
No. CV 04-0485530 S
October 26, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE COMPLAINT (#106)
The plaintiff administrators allege that the decedent while intoxicated as a result of service from the defendants was fatally struck by a vehicle. There is no claim against the operator of that vehicle. The plaintiffs seek damages for the reckless and wanton service of alcohol to the decedent alleged alcoholic.
The parties agree that the despositive issue is whether or not an intoxicated person can maintain a cause of action for his own injuries upon a theory of reckless purveyance to him.
If this court concludes that such a cause of action is viable the defendants further argue that the complaint is facially inadequate because it fails to provide any facts to demonstrate how the defendants would have known that the decedent was intoxicated. The defendants argue that the allegation that the decedent was "visibly intoxicated" is purely conclusory.
At the outset it is significant to note what is not in issue here. There is no claim of negligent service. The applicability or retroactivity of Craig v. Driscoll, 262 Conn. 312 (2003) and the new Dram Shop Act legislation it spawned, PA03-091, is not implicated. Nor is there any claim of legislative preemption by virtue of that or any other legislation. The issue presented is purely a matter of common law placing this court in the position of having to assess the Connecticut Supreme Court's past, present and future common-law jurisprudence on proximate cause in alcohol-related cases. The precise issue presented has not been directly addressed by our Supreme Court.
Under that common law the traditional view was that an intoxicated person cannot sue for his own injuries which are deemed to be a result of his own indulgence. The rationale behind this restriction was that a person's own consumption was the proximate cause of his injuries. Nolan v. Morelli, 154 Conn. 432 (1967), Bohan v. Last, 236 Conn. 670 (1996). However, the legal landscape has changed.
In Howal v. Hofher, 181 Conn. 355 (1980) the Supreme Court extended the scope of proximate cause by permitting an innocent third party to maintain an action outside the Dram Shop Act, Connecticut General Statutes § 30-102, against a server who recklessly served an intoxicated tortfeasor. While Howal did not involve a claim by the intoxicated person himself the court's discussion of the fluid concept of proximate cause informs the decision here.
In its text the Supreme Court stated:
The question before us, then, is whether those policy considerations which might justify protecting both a vendor and a social host from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages to another also apply when the conduct constitutes wanton and reckless misconduct. We hold that they do not. This conclusion is based primarily on the notion that one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent. See Restatement (Second), 2 Torts § 501, comment (a).
There are a number of cases which have considered the liability of an actor for intentional or reckless misconduct in the sale of alcoholic liquor. The seminal case in this field is Nally v. Blandford, 291 S.W.2d 832 (Ky. 1956). Kentucky does not recognize a common-law action against a vendor of liquor on the ground of negligence; nor does it have a dram shop statute. Nally involved an action alleging wrongful death resulting from the drinking of an excessive quantity of whiskey, where the vendor knew when he sold liquor to an intoxicated person that such person intended to drink all of it without ceasing, that he could not safely be trusted with it, and that the vendor could reasonably foresee that death might result. The court held that the complaint stated a sufficient cause of action since it could be concluded that the unlawful sale was the proximate cause of death, especially where it was alleged that the sale was made to the deceased for the purpose of injuring him. A cause of action based principally on wilful, wanton and intentional misconduct in serving alcoholic beverages to a known compulsive alcoholic was also upheld in Grasser v. Fleming, 74 Mich.App. 338, 253 N.W.2d 757 (1977).
The reason that intentional and reckless misconduct are treated the same is that the conduct in both cases is outrageous, and the difference between the two in a conceptual sense is microscopic. "Wanton misconduct is more that negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action. Wilful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct." Menzie v. Kalmonowitz, 107 Conn. 197, 139 A. 698 (1928).
An examination of the policy considerations involved in legal cause persuades us that there is no logical reason for denying the plaintiff a recovery based on proof of wanton and reckless misconduct. The trial court's contrary conclusion was, therefore, erroneous.
Id., pp. 360-62.
The concept of enlarged responsibility for reckless conduct is no less applicable here and liability to the intoxicated person himself for his own injuries for reckless service to him is within the scope of responsibility recognized in Kowal. Of significance to this court is that Kowal cited with approval two cases from other jurisdictions recognizing such a cause of action. Nally v. Blandford, 291 S.W.2d 832 (KY, 1956) and Grasser v. Fleming, 74 Mich.App. 338, 253 N.W.2d 757 (1977).
The extension of liability for reckless service to claims by the intoxicated person himself implicitly recognized in Kowal was further acknowledged in Boehm v. Kish, 201 Conn. 385 (1986). Therein the Connecticut Supreme Court while accepting such a cause of action without ruling on it upheld a directed verdict for a defendant because of insufficient evidence as to proximate cause.
This extension has also been recognized at the Superior Court level. CT Page 16145 Lee v. The Splash Pacific Rim Grille, 1999 CT Sup 2751 (Moran, J.) ( 24 Conn. L. Rptr. 233), Vichiola v. Aitken, 1994 CT Sup 7032 (Freedman, J.) ( 12 Conn. L. Rptr. 201).
The most recent erosion of common-law jurisprudence occurred in Craig v. Driscoll, supra, 262 Conn. 312, wherein our Supreme Court abandoned the rule that consumption by the person served broke the chain of proximate cause so as to permit a common-law cause of action by an innocent third party for negligent service to an intoxicated tortfeasor.
As already noted Craig is not applicable there. However, the language of the Supreme Court demonstrates its willingness to adopt the common law to changing times. The court stated:
Finally, because this is an issue of our common-law jurisprudence, we examine the issue taking into account the relevant policy considerations. Specifically, we are mindful of the horrors that result from drinking and driving, horrors to which we unfortunately have grown more accustomed. In light of the staggering statistics concerning alcohol-related fatalities, Justice Bogdanski's call to action in his dissent in Slicer v. Quigley, supra, 180 Conn. 217-73, merits repeating: "When most people walked and few had horses or carriages, or even in the days when the horse and buggy was a customary mode of travel, it may have been that the common law rule of non-liability arising from the sale of liquor to an intoxicated person was satisfactory. But the situation then and the problem in today's society of the imbiber going upon the public highways and operating a machine that requires quick response of mind and muscle and capable of producing mass death and destruction are vastly different. Meade v. Freeman, 93 Idaho 329, 400, 462 P.2d 54 (1969) [Parther, D.J, concurring in part, dissenting in part] . . .
"The time has arrived when this court should again exercise its inherent power as the guardian of the common law and hold upon general principles of common law negligence a person, who, when he knows or should have known a person is intoxicated, sells or gives intoxicating liquor to such a person, is guilty of a negligent act; and if such negligence is a substantial factor in causing harm to a third person, he should be liable with the drunken person under our comparative-negligence doctrine. Conceded, the common law in this state for over one hundred years has been to the contrary . . . but the basis upon which these cases were decided is sadly eroded by the shift from commingling alcohol and horses to commingling alcohol and horsepower. [ Garcia v. Hargrove, 46 Wis.2d, 737, 176 N.W.2d 566 (1970) (Hallows, C.G., dissenting).]" (Citations omitted: internal quotation marks omitted.)
Id., pp. 337-38.
The plaintiff's cause of action here is consistent with the Supreme Court's evolving standard of proximate cause to meet the acknowledged danger upon our highways caused by intoxication.
In Barr v. Quality Steel Products, Inc., 263 Conn. 424 (2003), the Connecticut Supreme Court further streamlined the concept of proximate cause by abandoning the doctrine of superseding cause. While the facts and issues of that case are distinguishable it is significant because it demonstrates the court's philosophical willingness to eliminate unnecessary barriers to proximate cause. In so doing the court was persuaded that the doctrines of causation and foreseeability impose the same limitations on liability as does the superseding cause doctrine. Causation limits a negligent actor's liability to foreseeable consequences. A superseding cause is by definition, one that is not reasonably foreseeable and therefore adds nothing to the requirement of foreseeability not already inherent in causation. Id., p. 445.
Consumption is no longer an artificial barrier to proximate cause in alcohol cases. It can no longer be argued that serving alcohol to an intoxicated alcoholic does not create a reasonable foreseeability that he may not only injure others but also himself because of his intoxication. Clearly as a matter of policy, subject to proof, the scenario before this court suggests legal causation. The foregoing analysis of the Supreme Court's proximate cause jurisprudence in light of its recognition that the common law is a dynamic principle to be tailored to changing needs and in light of its recognition of the increasing loss of life caused by intoxication on our highways, this court concludes that the plaintiffs here have stated a cause of action which our Supreme Court will expressly recognize. Consumption by the claimant himself would as a matter of policy no longer break the chain of proximate cause. Otherwise a reckless purveyor of alcohol would be allowed to escape the reasonably foreseeable consequences of his own reckless conduct contrary to Kowal.
This court also finds the defendants' alternative argument to be without merit. When read in the light most favorable to the pleader, as the court must do, the complaint sufficiently states a factual predicate for the claim that the defendants knew the decedent was intoxicated.
Among the plaintiff's factual allegations are that the decedent was a known alcoholic, visibly and highly intoxicated with little or no control of his person and faculties. This is more than a conclusory statement that the defendants knew the decedent was intoxicated. Consequently, the defendants' reliance upon Dziekan v. Shillelagh, 10 Conn. L. Rptr. 420, 1993 WL 499690 (Conn.Super. 1993), is misplaced.
Motion denied.
Licari, J.