Opinion
No. CV 02-0079083 S
January 11, 2005
NO. MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 120)
Introduction
In this action the Plaintiff alleges that the Defendants were the backer and permittee of an establishment at which alcoholic beverages were sold. The complaint alleges that on July 15, 2001, Wayne D. Quinn was a customer there and he was sold and/or furnished alcoholic beverages while he was in an intoxicated state. Quinn left the establishment in his motor vehicle and, due to his intoxication, he collided with the motorcycle being operated by the Plaintiff causing the Plaintiff to suffer severe injuries.
The action is brought in three counts. In the First Count of the Amended Complaint the Plaintiff sues the Defendants pursuant to the Dram Shop Act. In the Second Count the Plaintiff alleges a negligence cause of action against the Defendants. In the Third Count the Plaintiff alleges a cause of action in recklessness against the Defendants.
The Defendants have moved to strike Count Two of the complaint as well as certain paragraphs of Count Three. If Count Two is not stricken in its entirety, the Defendants move that certain paragraphs in that Count be stricken.
Second Count
The Defendants claim that although the Court in Craig v. Driscoll, 262 Conn. 312 (2003) recognized a common law cause of action for negligence against alcohol sellers, the legislature abolished such a cause of action and affirmed the exclusivity of the statutory cause of action when it enacted P.A. 03-91. That act amends the Dram Shop Act to increase the limits of liability but also provides: "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." Therefore the Defendants claim, the Plaintiff's Second Count sounding in negligence should be stricken.
The Plaintiff argues that the "new $250,000 per person limits of statutory Dram Shop liability [enacted in P.A. 03-91] probably cannot be imposed retroactively, but neither can its quid pro quo, the abolition of the common law action for negligent service of alcohol to adults." In response, the Defendants argue that the Act clarifies the intent of the original Dram Shop statute, that is, that it was the exclusive remedy against a negligent liquor seller, and the Act is therefore retroactive.
Several courts have addressed this same issue. In Craig v. Driscoll, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 9800756545 S (Bryant, J., August 28, 2003) ( 35 Conn. L. Rptr. 308), the court held that: "Thus, neither house of the General Assembly enacted Public Act 03-91 with the understanding that it was clarifying the legislative intent of the Dram Shop Act. Instead, they enacted it to interdict a new common-law cause of action." The court held that the Act was prospective only and did not preclude the Plaintiff's common law cause of action for negligence against a seller of alcohol. Similarly, in Esposito v. Farricielli, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 03 0479996 S (Licari, J., December 9, 2003) ( 36 Conn. L. Rptr. 148), the court held that the legislature's repeal of the Dram Shop Act interpreted by the Supreme Court in Craig and enactment of a new one in its place was not reflective of a clarifying intent and therefore P.A. 03-91 is prospective in its application. In Jensen v. DePaolo. Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277460 S (Wiese, J., March 8, 2004) ( 36 Conn. L. Rptr. 665), the court adopted the reasoning of the superior courts in Craig and Esposito and held that the Plaintiff's cause of action was not barred by P.A. 03-91.
This court agrees with the analysis of the cases cited above which hold that P.A. 03-91 applies prospectively only to preclude a negligence cause of action against a seller of alcohol. The issue thus becomes whether the Plaintiff here had such a cause of action at the time of his injury. The Plaintiff's injury occurred on July 15, 2001. Craig was not decided by the Supreme Court until February 4, 2003. In Ridgaway v. Silk, Superior Court, judicial district of Middlesex, Docket No. X04CV010103518S (Quinn, J., April 28, 2004) ( 36 Conn. L. Rptr. 872), the court held that Craig was not to be applied retroactively to a cause of action which arose in 2000. There the court stated: "In determining whether a case holding should be applied retroactively, the Connecticut Supreme Court has adopted a three-part test: 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. (Citations omitted; internal quotation marks omitted.) Ostrowski v. Avery, 243 Conn. 355, 377 n. 18, 703 A.2d 117 (1997). The first part of the test is clearly met. Craig v. Driscoll overruled the case of Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990), which expressly held that neither a common-law negligence action nor a public nuisance action exists against the seller of alcohol to an adult who thereafter injures another by reason of his intoxication. The Court in Quinnett concluded that the Dram Shop Act preempted the field. The Craig v. Driscoll Court reached the opposite conclusion, stating that the Dram Shop Act is not the exclusive remedy under such circumstances because `there is nothing in the Act to suggest that the legislature intended to occupy the field, either in its language or legislative history.' Id., 326. Shortly after the Craig v. Driscoll decision, the legislature amended the Dram Shop Act in two material respects. First it increased the limit of liability from $20,000 per injured person and $50,000 as an aggregate amount for injured persons to $250,000 per person and $250,000 as an aggregate amount. Second, it added the sentence: `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.' Thus, it is clear that a cause of action for negligent service of alcohol to an adult was not recognized prior to February 4, 2003 and will not be recognized after June 3, 2003. The issue is whether Craig v. Driscoll should be applied retroactively to allow the plaintiff to proceed with his negligence claim because he moved to amend his complaint within that four-month window. This court declines to do so. The legislature has made it exceedingly clear with the passage of Public Act 03-91 that the Dram Shop Act preempts the field under these circumstances. In overruling the Quinnett case, the Craig v. Driscoll Court relied heavily upon the fact that the legislature gave no indication of its intent to preempt the field under the previous statute. To give retroactive effect to a decision which is premised on a factor which is no longer the case is contrary to logic and common sense. Moreover, the second and third parts of the test quoted in Ostrowski v. Avery, supra, do not support the retroactive application of a case which has only been legally viable for four months. As our Supreme Court noted in Quinnett, at page 347, `[t]o the extent that the General Assembly sees fit to articulate public policy through specific legislation, we are bound to honor the means by which it addresses the public policy in question.' The legislature has done just that, making it clear that common-law actions for the negligent service of alcohol to an adult are preempted by the Act and raising the limits of liability. To allow the retroactive application of Craig v. Driscoll goes directly contrary to the stated intent of the legislature. Thus, in analyzing `the prior history, purpose and effect' of the rule, it becomes clear that furtherance of the rule as set forth in Craig v. Driscoll would significantly frustrate the objectives of our legislature and would be contrary to the public policy of this state. Further, the court questions the `fairness' of allowing a plaintiff to maintain a cause of action in negligence because he amended his complaint within the four-month viability period of Craig v. Driscoll whereas the majority of plaintiffs with identical fact situations are precluded from maintaining such actions. The owners of the establishments who purchased insurance and trained employees under the law as it existed prior to Craig v. Driscoll and subsequent to the passage of Public Act 03-91 should not be subject to the unexpected liability which was deemed to be in existence for that four-month period of time. For these reasons, the court finds that the holding of Craig v. Driscoll should not be applied retroactively to permit causes of action for the negligent service of alcohol to an adult who thereafter injures another by reason of his intoxication." (Footnote omitted) Ridgaway v. Silk, Superior Court, judicial district of Middlesex, Docket No. X04CV010103518S (Quinn, J., April 28, 2004) ( 36 Conn. L. Rptr. 872). The reasoning of the Ridgaway court was adopted in Rossitto v. Ernie's Place Cafe, Superior Court, judicial district of Middlesex, Docket No. CV 030101052 (Silbert, J., June 29, 2004) ( 37 Conn. L. Rptr. 341); Collar v. Da Cruz, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 03-0830138 (Booth, J., August 13, 2004), and Wills v. Hine, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 079162 S (Shluger, J., October 20, 2004). However, Craig has been applied retroactively by other courts. See, Raposa v. Lyman, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 010187231 (D'Andrea, J.T.R., December 3, 2003) ( 36 Conn. L. Rptr. 174), and Amato v. Randall's Restaurant, Superior Court, judicial district of Ansonia-Derby at Derby, Docket No. CV 02-0079868S (Robinson, J., August 9, 2004) ( 37 Conn. L. Rptr. 608). The Raposa court held that the Defendants had failed to cite authority for their position that it would be unfair to apply Craig retroactively or to show that its retroactive application would retard its operation or produce inequitable results. The court in Amato adopted the Raposa's court position but without further comment.
In deciding whether Craig should be applied retroactively the courts generally agree that a Plaintiff's cause of action accrues on the date of injury and that substantive rights are fixed on that date citing Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-1 (1989). Here that date is July 15, 2001. At that time no cause of action for negligence against a seller of alcohol was recognized. "The issue of retroactivity of decisional law is a question of policy to be decided by a state's Supreme Court, and may be decided by the policy considerations of whether litigants could be deemed to have relied on past precedent or whether the `new' resolution of an `old' issue was foreshadowed, or whether equity, given the particular facts, requires a prospective application only. See id.; Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 622-25, 563 N.W.2d 154 (1997); Beavers v. Johnson Controls World Services, Inc., 118 N.M. 391, 395-98, 881 P.2d 1376 (1994); 5 Am. Jur.2d, Appellate Review § 790 (1995). [fn9 — The issue of retroactivity of legislation is an issue different from the retroactivity of decisional law.] In determining whether a decision should be applied retroactively, consideration must be given to whether a retroactive application would produce a substantial, inequitable result. See Ostrowski v. Avery, 243 Conn. 355, 377-78 n. 18, 703 A.2d 117 (1997)." Amodio v. Amodio, 56 Conn.App. 459, 472-3 (2000).
In applying these standards the court adopts the reasoning of the court in Ridgaway but adds the following observations. First, there is no doubt that Craig established a cause of action not previously recognized. Second, in Amodio the court cited two cases from other jurisdictions in discussing the issue of retroactive application of a decision. The reasoning of those cases is also helpful in this analysis. In Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 625 (1997) the court stated, in discussing when its general rule of retroactivity of decisions would not apply, that: "The court does not prospectively apply a holding merely because of reliance on an old rule. Rolo v. Goers, 174 Wis.2d 709, 723, 497 N.W.2d 724 (1993). Prospective application of a holding based on reliance on an old rule has occurred when there has been reliance on an overruled decision by a substantial number of persons and considerable harm or detriment could result to them. Id. See also Kojis v. Doctors Hospital, 12 Wis.2d 367,107 N.W.2d 131, 107 N.W. 292 (1961) (abrogating charitable immunity); Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962) (abrogating governmental immunity); Widell v. Holy Trinity Catholic Church, 19 Wis.2d 648, 121 N.W.2d 249 (1963) (abrogating immunity of religious entity). When tort law is changed, the court is concerned about exposing many individuals and institutions to liability who would have obtained liability insurance had they known they would no longer enjoy immunity. Harmann, 128 Wis.2d at 381." Clearly here if we apply Craig to allow a cause of action in negligence against a seller of alcohol, where at the time of injury no such cause of action was recognized, we are exposing the seller to a liability for which he was unable to take appropriate action to protect himself against. This is similar to those occasions eked by the court in Jacque where a party had been stripped of a previously recognized immunity.
In the other case cited by the court in Amodio, Beavers v. Johnson Controls World Services, Inc 118 N.M. 391, 395-98, 881 P.2d 1376 (1994), the New Mexico Supreme Court noted that: "The extent to which the parties in a lawsuit, or others, may have relied on the state of the law before a law-changing decision has been issued can hardly be overemphasized. It is a factor that receives repeated recognition in cases discussing retroactivity vs. prospectivity. See, e.g., Hicks v. State, 88 N.M. at 594, 544 P.2d at 1159 (pure prospectivity accorded to decision abolishing sovereign immunity because governmental entities had conducted their affairs in reliance upon prior state of law); Lopez v. Maez, 98 N.M. at 632, 651 P.2d at 1276 (selective prospectivity applied to decision imposing liability on tavern-keeper selling liquor to intoxicated person because tavern keepers might not have acquired necessary insurance); Whenry v. Whenry, 98 N.M. at 739, 652 P.2d at 1190 (rule announced in case overruling previous cases holding military retirement pay to be community property held not retroactive because attorneys and courts had relied on previous rule)." In Lopez v. Maez, the New Mexico Supreme Court recognized a common law action for negligent service of alcohol to an intoxicated person. The court held that its decision was not to be applied retroactively stating: "In deciding how a case should be applied, a court must look at each case individually by weighing the merits and demerits, looking at the prior history of the rule in question, considering its purpose and effect and determining whether retrospective application will further or retard its operation. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Hicks v. State, supra. If the new law imposes significant new duties and conditions and takes away previously existing rights, then the law should be applied prospectively. See Southwest Distributing v. Olympia Brewing, 90 N.M. 502, 565 P.2d 1019 (1977). For example, the imposition of this new liability on tavernowners may subject the tavernowners to liability when they are not properly insured. Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979); see Molitor v. Kaneland Community Unit District No. 302, supra. Therefore, after reviewing the circumstances surrounding the law and the new liabilities that this decision creates, we apply this decision to this case for having afforded us the opportunity to change an outmoded and unjust rule of law and to prospective cases in which the damages and injuries arise after the date of the mandate in this case. Molitor v. Kaneland Community Unit District No. 302, supra." Lopez v. Maez, 98 N.M. 625, 632 (1982). The same reasoning is applicable here.
Therefore, for the reasons cited above, the court finds that the decision in Craig should not be applied retroactively to allow the negligence cause of action in this case.
The motion to strike Count Two is granted.
Third Count
The Defendants have also moved to strike certain paragraphs of Count Three which involve acts subsequent to the service of alcohol and the `violation of Defendants' internal rules and state liquor control regulations. The Defendants claim that the decision in Craig only recognized a cause of action in negligence which relates to the actual service of alcohol and since such allegations cannot support a claim of negligence they cannot support a claim of recklessness. In response, the Plaintiff argues that individual paragraphs of a complaint are not subject to a motion to strike unless they attempt to state a cause of action. This court agrees.
"`Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.' (Internal quotation marks omitted.) Moltz v. Harry's Taxi, Superior Court, judicial district of New London at New London, Docket No. 547023 (August 5, 1999, Martin, J.). `Prior to the 1978 Practice Book revision, a motion to strike (or its demurrer predecessor) individual portions or paragraphs of a count did not lie if the count as a whole stated a cause of action. See, e.g., Schrader v. Rosenblatt, 26 Conn.Sup. 182, 183 (1965). Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count. See, e.g., Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) ( 17 Conn. L. Rptr. 296, 298 fn. 1.) However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action. See, e.g., Zimmermann v. Connecticut College, Superior Court, judicial district of New London, Docket No. 544623 (July 2, 1998, Handy, J.); Larson v. BB Realty, Superior Court, judicial district of Danbury, Docket No. 324087 (April 6, 1998, Moraghan, J.) ( 21 Conn. L. Rptr. 627); Bombard v. Industry Riggers, Inc., Superior Court, judicial district of Waterbury, Docket No. 140181 (January 5, 1998, Pellegrino, J.).' Cantoni v. Xerox Corp., Superior Court, judicial district of Hartford at Hartford, Docket No. 582705 (February 3, 1999, Fineberg, J.) ( 24 Conn. L. Rptr. 38); see also Smith v. Bridgeport Futures Initiative, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 326697 (August 16, 1996, Levin, J.) ( 17 Conn. L. Rptr. 412, 416 n. 2)." Trimachi v. Workers' Compensation Commission, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 97-0403037S (Devlin, J., June 14, 2000) ( 27 Conn. L. Rptr. 469). This is consistent with Practice Book § 10-39(a) which states that: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof."
The Defendants move to strike certain subparagraphs of Paragraph 12 of the Third Count which specify the ways in which the Plaintiff claims the Defendants' acts were wilful, wanton and/or reckless. The purpose of a motion to strike is to test the legal sufficiency of a pleading, that is, whether the facts alleged would support a cause of action. Johnson v. Maza, 80 Conn.App. 155, 158 (2003). The Defendants' motion to strike does not do so. The Motion to Strike does not address all the allegations of reckless conduct and thus the legal sufficiency of the Third Count. Consequently, even if the motion to strike is granted as to certain paragraphs the cause of action alleged survives. The insufficiency of individual allegations of recklessness may be more appropriately the subject of a request to revise. See, Rees v. Flaherty, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV01 0077316 (Scholl, J., June 7, 2002) ( 32 Conn. L. Rptr. 292).
Therefore the Motion to Strike as directed to the Third Count of the Amended Complaint is denied.
Jane S. Scholl, J.