Opinion
CV156008363S
11-29-2016
Angelo Espada v. Billy Casper Golf, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #135
John F. Cronan, Judge.
FACTS
On July 1, 2015, the plaintiff, Angelo Espada, filed a four-count complaint, alleging the following facts. On or about June 30, 2014, the plaintiff was an invitee of the defendant Billy Casper Golf, LLC (BCG) and participated in a golf tournament known as the " Fireside Grill Shotgun Tournament." The plaintiff was injured while riding as a passenger in a golf cart, driven by the defendant Wilson Reyes. Reyes was negligent and reckless when he operated the golf cart while intoxicated, which caused the plaintiff to " be thrown from the vehicle." Furthermore, BCG was negligent and careless in that it failed to take proper steps to instruct on and to ensure the safety of golf cart drivers and allowed alcohol to be served to people operating golf carts. The plaintiff also alleges a Dram Shop Act cause of action against BCG in that it sold or provided alcohol to Reyes while he was intoxicated.
On August 14, 2015, BCG filed an apportionment complaint against Fireside Bar and Grill (Fireside) alleging that if the accident did occur in the manner alleged, it was caused by the negligence and carelessness of Fireside. BCG alleges that Fireside (1) failed to properly supervise and monitor the distribution of alcohol for its event; (2) allowed Reyes to operate a golf cart in connection with its golf tournament; (3) failed to implement a designated driver or other similar program for the golf tournament participants; (4) served and/or continued to serve alcoholic beverages to Reyes such that he was unable to safely operate a golf cart; (5) failed to take other reasonable and appropriate steps to ensure that golf tournament participants would not attempt to drive golf carts after supplying them alcohol; and (6) failed to supervise the participants in its golf tournament after supplying them with alcohol.
On June 16, 2016, Fireside filed a motion to strike the apportionment complaint, along with a memorandum of law in support of its motion, on the ground that liability for negligence cannot be apportioned with a statutory claim. In response, BCG filed an objection to the motion to strike the apportionment complaint claiming that Fireside incorrectly assumes that the case against it falls under the Dram Shop Act. On August 1, 2016, the court heard arguments at short calendar.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In its memorandum of law in support of its motion, Fireside argues that the allegations of negligence in the plaintiff's complaint and the apportionment complaint are rooted in the service, provision, and consumption of alcohol, which are premised upon acts or omissions governed by the Dram Shop Act (act), General Statutes § 30-102 and that General Statutes § 52-572h prohibits apportionment between a party liable for negligence and a party liable under the act. BCG argues in its objection to the motion to strike that nowhere in the apportionment complaint does BCG allege that Fireside sold alcohol, and because Fireside is not being sued as the seller of alcohol, the act does not apply. BCG further argues that it is suing Fireside in its capacity as a social host because it sponsored the golf outing at which the plaintiff was injured. BCG contends that the apportionment complaint alleges negligent service of alcohol as a social host as opposed to a seller of alcohol under the act.
General Statutes § 30-102 states that there exists " 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."
A defendant may apportion liability only if it and the apportionment defendant are liable based on a theory of negligence: " [T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to . . . strict liability or liability pursuant to any cause of action created by statute . . ." General Statutes § 52-572h(o). Therefore, in the present case, in order to apportion its negligence liability with Fireside, BCG must bring a claim against Fireside sounding in negligence. Because the act " provides for one to sue under a strict liability theory"; LaPlante v. Vasquez, 136 Conn.App. 805, 815, 47 A.3d 897 (2012); liability cannot be apportioned here if the apportionment complaint is brought solely pursuant to the act.
The Dram Shop Act provides, in relevant part: " [i]f any person . . . sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured . . ." (Emphasis added.) General Statutes § 30-102. " To prevail on a dram shop claim, a plaintiff must prove: (1) the sale of the alcoholic liquor; (2) that the sale was to an intoxicated person; and (3) that the intoxicated person caused injury to another's person or property as a result of his or her intoxication." (Internal quotation marks omitted.) Hayes v. Caspers, Ltd., 90 Conn.App. 781, 801, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). Thus, the act provides for liability against only sellers of alcohol.
Trial courts have recognized a social host negligence theory of liability against those who gratuitously serve alcohol. See, e.g., Piontkowski v. Agan, Superior Court, judicial district of Windham, Docket No. CV-08-5003588-S (July 7, 2009, Riley, J.) (48 Conn.L.Rptr. 209, 212, ); Silvia v. Wittenberg, Superior Court, judicial district of New London, Docket No. CV-09-5011528-S (September 29, 2010, Martin, J.) (50 Conn.L.Rptr. 575, 578, ). " There are social host liability cases which have held that the act is only intended to address the behavior of commercial establishments, and that gratuitous service of alcohol to intoxicated guests may leave a noncommercial host vulnerable to a common-law action in negligence." Carr v. Hotshots Cafe, Superior Court, judicial district of Windham, Docket No. CV-14-6007736-S (July 30, 2014, Boland, J.) (58 Conn.L.Rptr. 681, 682, ), citing Silvia v. Wittenberg, supra, 575, .
As stated in the body of this memorandum, negligence liability for service of alcohol by social hosts has been recognized in this state on the trial court level. Because this court concludes that the apportionment complaint, as currently pleaded, comes within the scope of the Dram Shop Act, the court need not determine at this juncture whether it agrees with those trial court decisions that have recognized the theory of social host negligence liability.
Notwithstanding language in some of the cases stating that social host liability may attach to noncommercial hosts, other cases have found social host liability against commercial enterprises, if the enterprises are not sellers of alcohol. See Raymond v. Duffy, Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04-CV-03-0102444-S (January 13, 2005, Quinn, J.) (38 Conn.L.Rptr. 562, 565, ). In that case, employers, named " Able Warehousing & Equipment Inc." and " Able Rigging & Transfer Inc, " hosted a picnic at which they served alcohol. Id., 565, . The court held that one can sue a social host if that host negligently served alcohol to an intoxicated person and such guest consequently injured another. Id., 566, . In Raymond, even though the social hosts were businesses, it was clear from the defendants' names that they were not in the business of selling alcohol, and the facts alleged in the case involved gratuitous service of alcohol. Thus, in cases in which courts have allowed for a social host theory of liability, the actors hosting those social events are neither selling the alcohol nor in the business of selling alcohol.
Whether a commercial entity can be liable as a social host depends on whether there are facts from which it can be inferred that the alcohol was provided gratuitously. In the present case, the apportionment defendant's name, " Fireside Bar and Grill, " strongly implies that it is in the business of selling alcohol. Even though BCG argues a social host theory of liability in its memorandum of law, the facts alleged in its apportionment complaint do not amount to a social host scenario, even in the light most favorable to it. The court may reasonably infer that Fireside is in the business of serving alcohol, and by extension, that it was selling alcohol at the golf tournament in the present case. Furthermore, the apportionment complaint alleges that the golf tournament was Fireside's event and describes Fireside as serving or supplying its participants with alcohol. The allegation that the event was a golf tournament does not generate an inference that alcohol was not sold. Cf. Carr v. Hotshots Cafe, supra, 58 Conn.L.Rptr. 682, (fact that complaint said defendants " served" rather than " sold" alcohol did not support inference that case was one of social host liability, where alleged service of alcohol were commercial actors serving alcohol in bar setting).
Furthermore, BCG also alleges that Fireside " failed to implement a designated driver" program, " failed to take other reasonable and appropriate steps to ensure golf court tournament participants would not attempt to drive golf carts after supplying them alcohol, " and allowed Reyes to operate a golf cart when it knew it was not reasonable to do so. These allegations can be characterized as negligent supervision claims. Connecticut courts recognize a cause of action for negligent supervision of both patrons and employees of bars; Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967); " based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment . . ." (Internal quotation marks omitted.) Wurzel v. LTR, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-07-5006982-S (May 21, 2009, Arnold, J.) (47 Conn.L.Rptr. 775, 778, ). In cases that have held that a cause of action in negligent supervision of a bar may be maintained, the resulting injuries were not alleged to have been caused by the defendant's conduct in furnishing intoxicating beverages, but by the failure to control unruly patrons who were intoxicated. See e.g., Widdows v. Crown Street Bar LP, Superior Court, judicial district of New Haven, Docket No. CV-07-5009467-S, (January 14, 2008, Zoarski, J.) (defendant failed to monitor bar in which plaintiff was assaulted by intoxicated bar patron); Clinch v. Maratta, Superior Court, judicial district of New Britain, Docket No. CV-99-0498020-S (April 17, 2002, Quinn, J.) (32 Conn.L.Rptr. 77, 78, ) (failure of defendant to train employees on preventing and controlling altercations); Davenport v. Quinn, 53 Conn.App. 282, 284, 730 A.2d 1184 (1999) (failure of defendant to intervene in assault and call police).
In contrast to those cases, trial courts have held that failure to prevent an intoxicated person from driving does not sound in negligent supervision, but, rather, falls within the Dram Shop Act. Allegations of " fail[ing] to adopt or enforce policies and procedures for preventing intoxicated patrons from operating their motor vehicles after becoming intoxicated on the premises . . ." sound in the Dram Shop Act. Poulin v. Laboy, Superior Court, judicial district of Hartford, Docket No. CV-10-6016743-S (March 31, 2011, Peck, J.) (51 Conn.L.Rptr. 6). Similarly, an allegation of allowing a bar patron to operate a motor vehicle upon leaving the bar after he had become visibly intoxicated and failing to " request [the patron] to turn over his keys or take any action to prevent him from driving" fall within the purview of the act. Liquori v. Spalding, Superior Court, judicial district of New Haven, Docket No. CV-15-6056265-S (March 29, 2016, Fischer, J.) (61 Conn.L.Rptr. 930, ).
Thus, even though BCG advances other claims of negligence beyond negligent service of alcohol, such as that Fireside " failed to implement a designated driver" and that Fireside failed to take steps to ensure that tournament participants would not attempt to drive golf carts after drinking alcohol, those claims are all derivative of service of alcohol claims and fall under the purview of the Dram Shop Act. There are no other allegations that the plaintiff's injuries were caused by the negligent supervision of Fireside employees who failed to control patrons or to prevent harm on its premises. Furthermore, the allegations that Fireside should have prevented Reyes from driving the golf cart are analogous to the facts in Poulin and Liquori .
CONCLUSION
Thus, while courts recognize a social host theory of liability, the facts alleged in both complaints do not expressly or implicitly involve a social host situation. Furthermore, the allegations sounding in negligent supervision of tournament guests are derivative of service of alcohol claims. Without further facts pleaded, the motion to strike the apportionment complaint is granted.