Opinion
No. CV01-0166633S
January 23, 2004
RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
The defendants, Mark Grosso and Mang, Inc., d/b/a Bushwacker's Restaurant (hereinafter "Bushwackers"), in the above-captioned action, seek summary judgment on count fourteen of the plaintiff's complaint. That count sounds in common-law negligence.
In count fourteen, the plaintiff states that one Jennifer Ann Gorman (hereinafter "Ms. Gorman") died on February 15, 2001, and that the plaintiff, Robin Gorman, was appointed as the administratrix of Ms. Gorman's estate on April 19, 2001. At all times relevant to the complaint, the plaintiff alleges that the defendant Mark Grosso was the permittee and the defendant Mang, Inc. was the backer of Bushwackers, an establishment which sells alcoholic beverages. On and about February 14 and 15, 2001, the plaintiff contends that Bushwackers sold alcoholic beverages to their patron and another defendant Christopher Szewczak while he was intoxicated in violation of General Statutes § 30-102. The plaintiff claims that Ms. Gorman was a passenger in a motor vehicle operated by Mr. Szewczak, who, as a result of his intoxication, drove his motor vehicle off the road and struck a utility pole, causing Ms. Gorman to suffer serious personal injuries resulting in her death. The count further alleges numerous ways that the collision and certain specified damages were caused by Bushwackers' negligent service of alcohol to Mr. Szewczak.
BACKGROUND
General Statutes § 30-102 (hereinafter "Dram Shop Act") addresses the liability of alcohol sellers for damages to third parties caused by intoxicated patrons. In the nineteenth century, the common law held that the alcohol purveyor should not be liable because, as a matter of law, the proximate cause of the intoxication was the consumption by the patron, not the service by the purveyor. Craig v. Driscoll, 262 Conn. 312, 322, 813 A.2d 1003 (2003). In 1872, the legislature enacted a predecessor to the Dram Shop Act which displaced this common-law rule and provided a cause of action against alcohol purveyors. Id., 323. "In subsequent amendments to the act, the legislature expanded liability by including sales by the purveyor's agents and by eliminating the requirement of proof of a causal connection between the selling of the alcoholic liquor and the intoxication that caused the injury." Id., 323. In 1959, the legislature significantly limited a plaintiff's recovery under the Dram Shop Act. Lavieri v. Ulysses, 149 Conn. 396, 402, 180 A.2d 632 (1962). Instead of allowing "just damages" the legislature capped the damages at $25,000 for a single injury, which is an amount which the legislature has adjusted over tine. Id., 402.
Prior to 2003, the Supreme Court held in Quinnett v. Newman, 213 Conn. 343, 344, 568 A.2d 786 (1990), that a purveyor of alcohol could not be held liable in common-law negligence for serving an adult patron who later caused an injury resulting from his intoxication. Id., 344. The Court found that the legislature "filled this field through the enactment of General Statutes § 30-102." Id. In other decisions, the Court did allow common-law claims where purveyors were reckless or served minors. Bohan v. Last, 236 Conn. 670, 681, 674 A.2d 839 (1996); Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988); Kowal v. Hofher, 181 Conn. 355, 360-61, 436 A.2d 1 (1980).
On February 4, 2003, the Court in Craig v. Driscoll, supra, 262 Conn. 312, overruled its decision in Quinnett, holding that "the act does not occupy the field so as to preclude a common-law action in negligence against a purveyor of alcoholic beverages for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another." Id., 330. The Court found that the damage cap in the Dram Shop Act was intended by the legislature to be a floor rather than a ceiling. Id., 328. Allowing a common-law negligence action, the Court reasoned, "would provide an avenue to recover full compensation, but only upon establishing the requisite culpability and causation." Id., 328. In effect, "the tort action would supplement, rather than conflict with, the act." Id.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.). Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 514, 825 A.2d 72 (2003).
Neither party argues that this summary judgment motion should fail because there are issues of material fact. The defendants move for summary judgment on the ground that, as a matter of law, "the Connecticut General Assembly has precluded actions for negligent service of alcohol except in cases where the service was to a minor." They argue that Public Acts 2003, No. 03-91 ( P.A. 03-91), which amends the Drain Shop Act, as a matter of law applies retroactively to this case and thus prohibits count fourteen. Also, they move for summary judgment on the ground that, as a matter of law, the increase in the statutory damage limits from $50,000 to $250,000 ordered by P.A. 03-91 is prospective and does not apply to this case.
The plaintiff does not dispute any of the material facts relied upon by the defendants in their motion. It is her position, however, that the defendant's motion for summary judgment should fail as a matter of law "in that the current case law and actions of the Connecticut General Assembly allow for this cause of action [sounding in negligence] to stand" She argues that the legislature intended that P.A. 03-91 be applied prospectively in its entirety and is therefore inapplicable to this case.
"[T]o determine properly whether the enactment of [a statutory amendment] violates the doctrine of separation of powers and the due process clause, it is necessary to determine whether the legislature changed the existing law or merely clarified [it]. We engage in this inquiry to determine whether the amendment created a new substantive liability, thus implicating due process concerns, and to determine whether the legislature improperly intruded on the judicial authority, thus implicating separation of powers concerns . . . We presume that, in enacting a statute, the legislature intended a change in existing law . . . This presumption, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act . . . Furthermore, an amendment that is intended to clarify the intent of an earlier act necessarily has retroactive effect." (Citations omitted; internal quotation marks omitted.). Bhinder v. Sun Co., 263 Conn. 358, 369, 819 A.2d 822 (2003).
"We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect." Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 518, 767 A.2d 692 (2001). An act that "contains no express language regarding its retrospective applicability" can be deemed retrospective if "its legislative history convincingly demonstrates that the legislature intended to clarify [its intent]." Oxford Tire Supply, Inc. v. Commissioner, 253 Conn. 683, 694 n. 15, 755 A.2d 850 (2000). "[A] legislative act must be read as a whole and construed to give effect and to harmonize all of its parts . . ." (Internal quotation marks omitted.) Danbury v. International Assn. of Firefighters, Local 801, 221 Conn. 244, 251, 603 A.2d 393 (1992); see also Reid v. Zoning Board of Appeals, 235 Conn. 850, 864, 670 A.2d 1271 (1996). "It is now well settled that testimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation." (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 703 n. 11, 724 A.2d 1093 (1999).
When an amendment is enacted in "reaction to a judicial interpretation that the legislature deemed inappropriate," it is evidence that the amendment is clarifying and therefore retroactive. Bhinder v. Sun Co., supra, 263 Conn. 371. "[S]uch a clarification does not constitute an invasion of judicial authority . . . The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we had previously interpreted a statute to confer." (Internal quotation marks omitted.) Id. "The mere fact that the legislature changes the language of a statutory provision in response to a judicial decision interpreting that provision does not mean that the legislature necessarily intended that the amendatory language be retroactive." Colonial. Penn Ins. Co. v. Bryant, 245 Conn. 710, 720, 714 A.2d 1209 (1998). "Legislation which limits or increases statutory liability has generally been held to be substantive in nature." Lavieri v. Ulysses, supra, 149 Conn. 402.
The legislature adopted P.A. 03-91 adopted on June 3, 2003. The Dram Shop Act, as amended by P.A. 03-91 reads as follows:
If any person, by such person or such person's 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, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of such person's or persons' intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of such person's estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of. Such 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.
(Emphasis added.) General Statutes § 30-102.
The act amends the statute in two ways. First, it raises the liability limits under the statute from $20,000 to $250,000 for a single person injured and from $50,000 to $250,000 in aggregate damages for multiple persons injured. Second, it precludes claims of negligence against sellers of alcohol to persons over the age of twenty-one.
Before examining the text and legislative history of P.A. 03-91, this court must, as a threshold issue, decide whether the public act should be applied retroactively or prospectively as a whole or in parts. The defendant argues for application in parts: that the increase in statutory damage limits should be applied prospectively and the elimination of negligence claims should be applied retrospectively. The defendant, however, does not provide any compelling legislative history showing the legislature's intent to have this particular amendment treated that way. In fact, the legislative history suggests that the amendments regarding the dollar caps and negligence claims were interrelated elements of a broader policy debate, as will be discussed below. Absent any such showing, this court is unwilling to partition legislative acts that are often a deliberately crafted compromise mosaic. "[A] legislative act must be read as a whole and construed to give effect and to harmonize all of its parts . . ." (Internal quotation marks omitted.) Danbury v. International Assn. of Firefighters, Local 801, supra, 221 Conn. 251. The court will therefore analyze P.A. 03-91 as a whole.
Having determined to construe P.A. 03-91 as a whole, we turn to the text and legislative history. Andersen Consulting, LLP v. Gavin, supra, 255 Conn. 518. The act's modification to the liability limits changes the dollar amounts already present in the statute. The modification regarding the elimination of negligence actions adds the following sentence to General Statutes § 30-102: "Such 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." This portion also does not suggest a legislative preference. The text of P.A. 03-91, then, does not expressly state a legislative intent to have the amendment apply retroactively or prospectively.
The plaintiff argues that the legislature necessarily intended that the act be applied prospectively because P.A. 03-91 has an introductory statement that reads: "Section 30-102 of the general statutes is repealed and the following in substi-tuted in lieu thereof ( Effective from passage)." (Emphasis in original.) The presence of "effective from passage" language, even "it becomes part of the text of the statute (which in this case, it did not), is not probative of the legislature's intent on this issue. Oxford Tire Supply, Inc. v. Commissioner, supra, 253 Conn. 694 n. 15. An act that "contains no express language regarding its retrospective applicability" can be deemed retrospective if "its legislative history convincingly demonstrates that the legislature intended to clarify [its intent]." Id.
Turning to the legislative history, the circumstances surrounding the genesis of P.A 03-91 demonstrate that the Supreme Court's decision in Craig v. Driscoll was the major impetus for the legislation. The Supreme Court released this decision, which held that the Dram Shop Act did not preclude common-law negligence claims, on February 4, 2003. Public Act 03-91 was introduced in the legislature only five weeks later on March 12. The portion of the act that bars negligence claims for serving intoxicated adults is a precise repudiation of Craig's holding. Prior to Craig, the Court exercised its authority to allow common-law claims for injuries resulting from serving alcohol to minors as well as for reckless conduct in Bohan, Ely and Kowal. The language of the act, however, only affects Craig's holding regarding negligence claims involving intoxicated adults. Common-law actions alleging recklessness or service to minors, as established in Bohan, Ely and Kowal, survive the amendment.
The discussions in the Senate and General Law committee confirm this focus on Craig v. Driscoll. When the bill was introduced in the Senate for a vote, Senator Colapietro summarized the legislation: "the reason for this bill is to increase the recovery limits under the Dram Shop Act and to provide an action under the Act as the exclusive remedy against the seller of alcoholic liquor by a person injured by an intoxicated person to whom such seller sold alcoholic liquor." 46 S. Proc., Pt. 8, 2003 Sess., p. 2276. Senator McDonald then stated: "I believe that this legislation would narrow the scope of the Craig decision . . . I believe it is well within the prerogatives of this body to pass legislation dealing with this issue." Id., p. 2277. "I believe it is the specific intent of this legislation to preclude a claim for a simple negligence against an individual if the person is 21 years of age or older . . ." Id., p. 2279.
In the General Law committee hearing, one of the first speakers was Valerie Craig, the mother of Sarah Craig, on whose behalf the civil action Craig v. Driscoll was brought. Conn. Joint Standing Committee Hearings, General Law, 2003 Sess., p. 589. She prefaced her testimony with "my name is Valerie Craig. I'm the mother of Sarah Craig, the case that was brought and decided before the Supreme Court which ultimately brings us here today, concerning SB 1112." Id.
The next speaker in the committee, Mr. Tim Adams of J. Timothy's Restaurant, spoke in support of the bill. In relevant part, he stated: "If it is the intent of the Legislature to raise the current limits for awards, this bill will accomplish that and importantly, will return the Dram Shop to the exclusive remedy for injuries claimed to have resulted from the sale or furnishing of alcoholic beverages." Id., p. 591.
Mr. Angelo Faenza, vice-president of the Connecticut Restaurant Association, and also a restauranteur, followed Mr. Adams. He testified: "Unfortunately, our industry which is already struggling is threatened by a recent action of the Connecticut Supreme Court when it overturned the Dram Shop Act and effectively created a floor with no ceiling. We strongly agree with the dissenting opinion of Chief Justice William Sullivan when he accused the majority of . . . [j]udicial lawmaking . . ." Id., pp. 592-93. "We ask the Connecticut [l]egislature to take its rightful role in passing the appropriate legislation on the Dram Shop. We ask the [l]egislature to reaffirm the interests of this legislative body by reaffirming the Dram Shop Act intent and its limits." Id., p. 593.
A subsequent speaker, Mr. Peter Berden, General Counsel to the Wine and Spirits Wholesalers Trade Association, echoed the understanding of those who testified: the Supreme Court's decision in Craig v. Driscoll "brought about this legislation." Id., p. 634. In a separate written statement, the association stated that it was "appropriate that the legislature [make] its intention clear to the Connecticut Supreme Court that the Dram Shop Act as previously interpreted is intended to be the exclusive remedy for injured persons against the sale of alcoholic liquor." Id., p. 661.
Testifying in opposition to the proposed bill, Senator Edith Prague's brief remarks included: "Finally, in January of this year (citing the horrors that result from drinking and driving), the Supreme Court ruled that bar owners may be held liable with no limit on the size of the judgment against then if they negligently serve intoxicated patrons who injure others." Id., p. 658.
While the Craig decision was certainly the stimulus for the act, the General Law committee hearings reveal that legislators used the opportunity to consider a much broader reform of the act. A central concern was the effect on the availability and rates of insurance for liquor sellers. Todd Hallek, an agent for the insurance companies, testified that "[h]istorically the insurance companies are willing to provide insurance in the state of Connecticut because of the caps under the Dram Shop law and the loophole regarding negligence has been something that has been wrestled with but for the most part, insurance companies have retained the limit of insurance, internally." Id., pp. 593-94. He later stated that "the [insurance] companies are looking for stability . . . It's either based on proving negligence and there's no limit, just as a liability claim would happen, or that there is a particular cap and there's some control on negligence. Without the controls, they have no idea where to set their rates and without the ability to increase their rates, they're pulling out of the marketplace." Id., p. 597.
Senator Cappiello asked Hallek a series of questions regarding negligence: "Would you suggest if it were up to you, besides placing a cap on liability, also making Connecticut a state where you'd have to prove negligence against the restaurant or bar?" Id., p. 600. He also asked: "[W]hat would you think would be more important? To keep rates as low as possible, having caps or making Connecticut a negligence-proof state?" Id., p. 601. The legislature, then, was not categorically opposed to Craig and even willing to consider adopting a common-law negligence standard as part of its reform of the statute.
The insurance discussion also demonstrates that the amendment regarding negligence and the amendment regarding the statutory damage limits were interrelated. Along with Senator Cappiello's question regarding caps and negligence in the insurance discussion, the interconnection also arose during the debate over the negligence provision itself. Bob Aldeman of the Connecticut Trial Lawyers Association testified that his organization "opposes this bill because it would cost lives and severely limit the recoveries of people severely injured or killed by intoxicated drivers." Id., p. 586. After he testified, Representative Fox asked "Would the Trial [Lawyers] Association support the bill if the cap was higher?" Id., p. 587. Aldeman answered in the negative. Id. At the time of the debate, the raised bill had proposed increasing the cap to $50,000 for a single claim and $100,000 in aggregate. Raised Committee Bill No. 1112, January Sess. 2003. In the final public act, this number had risen to $250,000 for each. At least one reason for the proposed increase in the cap limit, then, was to address the concern that reversing Craig v. Driscoll would leave plaintiffs inadequately compensated. The legislature, it appears, did not view the amendment for the cap and the amendment for negligence actions as isolated issues, but as connected parts of an effort to achieve an overall policy balance regarding liquor liability.
The text and legislative history concerning the two changes made by P.A. 03-91 places this case between two Supreme Court decisions which reach conflicting results: Lavieri v. Ulysses, supra, 149 Conn. 396 and Bhinder v. Sun Co., supra, 263 Conn. 358. The Lavieri case involved a 1959 amendment to the Dram Shop Act which limited the damages a plaintiff could recover to $25,000. Id., 400. Prior to the amendment, a plaintiff could recover "just damages" with no limitation. Id. Finding no language in the amendment expressing an intent for it to be applied retroactively, the Court found that the decrease in damages "sharply curtailed a substantive right" and was therefore prospective only. Id., 402. The Court stated that "[l]egislation which limits or increases statutory liability has generally been held to be substantive in nature." Id.
The Bhinder v. Sun litigation comprised two Supreme Court cases, Bhinder v. Sun Co., 246 Conn. 223, 717 A.2d 202 (1998) (hereinafter " Bhinder I") and Bhinder v. Sun Co., supra, 263 Conn. 358 (hereinafter " Bhinder II"), arising from a plaintiff's motion to strike a defendant's apportionment complaint. The statute in question was General Statutes § 52-572h which addresses negligence doctrines and the liability of multiple tortfeasors. The issue was whether the statute, which allowed the apportionment of liability among negligent tortfeasors, also permitted the apportionment of liability between a negligent tortfeasor and an intentional or reckless tortfeasor. Bhinder I, supra, 223 Conn. 230. In Bhinder I, the Court, after reviewing the text and legislative history of the statute, found that the legislature had not contemplated such an issue. Id., 235. The Court concluded that the statute did not preclude a negligent defendant from apportioning liability to an intentional defendant and decided that apportionment in this manner would be appropriate under the common law. Id., 242-43. In response to Bhinder I, the legislature in 1999 passed an amendment to the statute which expressly prohibited the apportionment of liability or damages between negligent tortfeasors and parties liable on any other basis than negligence. Bhinder II, supra, 263 Conn. 365. In the text of the statute, the legislature provided that the effective date of the amendment would be the date of the Bhinder I decision, August 11, 1998. Id.
On the basis of this amendment, the trial court granted the plaintiff's renewed motion to strike, and the defendant appealed to the Court claiming that the legislature's decision to make the statute retroactive violated the separation of powers. Id., 365-66. In Bhinder II, the Court examined the amendment's text and legislative history and found a clear legislative intent to overrule the common-law portion of the Bhinder I decision. Id., 370-71. The amendment text in Bhinder II explicitly stated that the act was to apply retroactively to August 11, 1998 and the legislators explicitly stated that the act was clarifying their original intent. Id., 365, 369-70. The Court held that the amendment was "a reaction to a judicial interpretation that the legislature deemed inappropriate" and was therefore a clarification of the legislature's original intent. Id., 371. The Court explained that "such a clarification does not constitute an invasion of judicial authority" and affirmed the trial court's grant of the plaintiff's motion to strike, allowing the amendment to be applied retroactively. Id. Bhinder II and Lavieri reached opposite conclusions as to whether their respective amendments should be retroactive or prospective based on different types of amendments. Lavieri specifically applied to the Dram Shop Act and addressed changes in statutory liability limits, while Bhinder II involved an amendment prompted by a judicial interpretation of the statute. In the present case, however, P.A. 03-91 appears to amend the Dram Shop Act in both those ways. Like Lavieri, P.A. 03-91 changes the liability limits dramatically from $20,000 and $50,000 to $250,000. Similar to Bhinder II, however, the amendment eliminating negligence claims for persons under the age of twenty-one is obviously a reaction to the Supreme Court's decision in Craig v. Driscoll.
The Court quoted several statements by the legislators: "During the legislative debate on the bill in the House of Representatives, Representative Michael P. Lawlor stated: 'This bill intends to correct what many people interpret to be a wrongful decision by our state Supreme Court made last August . . . [T]his bill intends to clarify what everyone had understood the law to be prior to a decision of our state Supreme Court last August.' Additionally, during the debate in the Senate, Senator Donald E. Williams remarked: 'The intent of this legislation is to restore the state of the laws as it existed prior to a Connecticut Supreme Court decision in [ Bhinder I] . . . It simply allows apportionment of liability and damages only in actions based on negligence. So, essentially this would not allow such apportionment between a negligent and an intentional tortfeasor. And through that . . . it would restore us to the state of the law that existed through tort reform legislation in the 1980s . . .'" Bhinder II, supra, 263 Conn. 369-70.
The legislative history and statutory text in Bhinder II, though, presented a much stronger case for retroactivity than the present one. In Bhinder II, the statutory text made the amendment retroactive to 1998, and legislators specifically stated that the amendment was to clarify their original intent. Bhinder II, supra, 369-70. The present amendment, P.A. 03-91, expresses no such clear intent. Moreover, the committee legislative history illustrates that the legislature was not merely content with reversing Craig, but entertained a much broader reform of the Dram Shop Act, which potentially could have included allowing common-law negligence in some form.
It is admittedly difficult to ignore the central role that Craig v. Driscoll played in instigating this legislation, especially since an expressed intent of the act was to narrow the Supreme Court's holding. Without the change in the statutory damage limits, this court might be persuaded that the legislature intended it to be applied retroactively. The text and legislative history as it exists, however, is not enough to overcome the presumption that legislative acts are to be applied prospectively. Bhinder v. Sun Co., supra, 263 Conn. 369. "The mere fact [however] that the legislature changes the language of a statutory provision in response to a judicial decision interpreting that provision does not mean that the legislature necessarily intended that the amendatory language be retroactive." Colonial Penn Ins. Co. v. Bryant, supra, 245 Conn. 720.
Lavieri clearly states that changes in liability limits are generally prospective in nature. Lavieri v. Ulysses, supra, 149 Conn. 402. The increase in the present case is as steep as the sharp decrease noted in Lavieri. Id. A liquor seller's strict liability limit jumps from $20,000 for a single claim to $250,000 as a result of this amendment. Applying such a change retroactively would leave sellers potentially liable for $230,000 in damages for which they did not have the opportunity to purchase insurance at the time. Accordingly, the court finds that P.A. 03-91 was intended to be prospectively applied.
For the foregoing reasons, the defendants' motion for summary judgment is denied on the ground that the negligence clause in P.A. 03-91 applies retrospectively and is granted on the ground that the increase in the damage limits applies prospectively.
ALVORD, JUDGE.