Opinion
No. CV06-5006433 S
October 2, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #116
This is a Dram Shop Act case brought by the plaintiff against the moving defendants arising from a motor vehicle accident that occurred on April 21, 2006. The Dram Shop Act, Conn. Gen. Stat. § 30-102 provides in relevant part: "If any person, by himself or his 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 . . ."
The plaintiff alleges that the defendants sold intoxicating liquor to Marjorie Mason, while she was intoxicated and that in consequence thereof she injured the plaintiff while driving him home.
The defendants have moved for summary judgment claiming that there is no issue of material fact as to whether Marjorie Mason was intoxicated at the time the defendant sold her intoxicating liquor which is required in order to state a claim under the Dram Shop Act. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341 (1985).
In support of their motion, the defendants attach a copy of the deposition of Marjorie Mason in which she testified that on April 21, 2006 the only liquor which she consumed was a few sips of a drink that she had while on the defendants' premises and that she was not intoxicated on that date.
The plaintiff raised a procedural objection claiming that the supporting documents filed by the defendant were inappropriate. However, a certified copy of Marjorie Mason's deposition was filed and the court considered only her deposition testimony in deciding this motion.
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209 (2000).
In opposition to the defendants' motion, the plaintiff has submitted his affidavit in which he states that he observed Marjorie Mason drinking from a container that evening from which he had previously seen her drinking alcoholic beverages. He also stated that he observed her drinking at the defendants' establishment on numerous occasions prior to the accident. He also states that he believes Marjorie Mason was intoxicated at the time of the crash.
Notably absent from the plaintiff's affidavit is a statement that he observed her in an intoxicated state at the defendants' premises and that she was served alcoholic beverages while in an intoxicated state.
"The delict defined by § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated." Sanders at 348-49.
The plaintiff's affidavit does not create an issue of fact as to whether Marjorie Mason was served intoxicated liquor while intoxicated.
The motion for summary judgment is granted.