Opinion
No. TTD CV 07-5001286-S
November 13, 2007
RULING ON PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY
This case is a Dram Shop action, pursuant to General Statutes § 30-102, by the Estate of Amanda Hersey against the liquor permit premises doing business as Up or On the Rocks at 50 Union Place in Hartford, CT, and the owners and operators of that business. Plaintiff alleges that Amanda Hersey died on October 28, 2006, when her boyfriend, Bryan Hood, crashed his motorcycle after a night of drinking at the bar. Amanda was riding on the back of the motorcycle at the time, having gone to the bar to get him because he was too intoxicated to drive. Presently before the court is plaintiff's Application for Prejudgment Remedy in the amount of $250,000, the maximum amount available under the Dram Shop Act. For the following reasons, the application is granted.
The term " Dram Shop" is a legal term referring to a bar, tavern or the like where alcoholic beverages are sold. Traditionally, it referred to a shop where spirits were sold by the dram, a small unit of liquid. Dram Shop, http://en.wikipedia.org/wiki/Dram_Shop.
I
Under General Statutes § 52-278d(a), the court must make four determinations on an application for prejudgment remedy: (1) whether there is probable cause that a judgment will be rendered for the plaintiff in an amount equal to or greater than the amount of the prejudgment remedy requested, taking into account all defenses, counterclaims or set-offs; (2) whether the defendant has adequate insurance to pay any judgment that may be rendered; (3) whether the property is exempt from execution; and, (4) whether to require a bond. On the probable cause issue, probable cause means a bona fide belief in facts essential under the law for the action, and such as would lead a reasonably prudent person to entertain such belief. See, Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996). "It is firmly established that the trial court's hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . ." (Internal quotation marks omitted; citations omitted.) Fischel v. TKPK, Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994).
II
The court heard testimony in this matter on July 12 and September 15, 2007, from Paul Ferry, a bouncer at the bar; Kathleen Hersey, the Administratrix of the Estate and Amanda's mother; Christopher Chambers-Ficorilli, of the backer CJ Entertainment, LLC; and Detective Michael Chauvin of the Hartford Police Department. The court also received into evidence police reports, the medical examiner's reports, witness statements, medical records, letters, the funeral home bill and the fiduciary's certificate. The parties also filed briefs addressing their respective positions on the issues.
The plaintiff is seeking a prejudgment remedy to attach and garnish the property of the defendants Shaun Sullivan, the permittee on the liquor license, and CJ Entertainment, LLC, the backer on the liquor license, and only those defendants. To prevail in a Dram Shop action, the plaintiff must prove: (1) the sale of alcoholic liquor; (2) to an intoxicated person; and (3) that the intoxicated person caused the injury to another's person or property as a consequence of his or her intoxication. London Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 56, 119 A.2d 325 (1955); Hayes v. Caspers, Ltd., 90 Conn.App. 781, 801, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). Under the Dram Shop Act, a causal connection between the sale of liquor and the injury is not required. London Lancashire Indemnity Co. v. Duryea, supra. 142 Conn. 57.
On the issue of probable cause, the court finds that it is probable that it will be found as follows: On October 27, 2006, Bryan Hood was drinking at a Halloween party at the defendants' liquor permit premises, Up or On the Rocks. He was observed at the premises at least between 8 to 11 p.m. consuming alcoholic liquor with cup in hand. In fact, the bouncer, Paul Ferry, who was Bryan's friend, bought at least one drink for him from the bar. Bryan stayed there the whole night. At one point, after the bar closed at 2 p.m., he was seen re-entering the building to get his backpack, and then he left.
Amanda Hersey was Bryan's girlfriend. That night, she was working at a different bar until 11 p.m., and returned to her dorm room at St. Joseph's College in West Harford, CT, where she was a resident assistant and in a Ph.D. program at the college. She received a phone call to come to the bar to get Bryan so that he would not ride his motorcycle because he was "quite inebriated." She immediately drove her Volkswagen Cabriolet to get Bryan, and she parked her car at the corner of Ann and High Streets in Hartford. It was raining heavily and the streets were wet and littered with leaves.
The couple were seen talking by the car, and putting the backpack in Amanda's vehicle. The reason for what happened next is a mystery, but, shortly before 2:55 a.m. on October 28, 2006, witnesses saw Bryan and Amanda on the motorcycle speeding down Asylum Street heading toward St. Joseph's College. Brian was driving his Suzuki SV 650 S, a sport motorcycle with only one seat for the driver and no passenger seat. Amanda was seated on the back fender. She was wearing a helmet; Brian was not wearing a helmet. They were going about 50 mph in a 25 mph speed limit zone, on the wet, slick streets in the heavy rain. The same witnesses followed the motorcycle down Asylum Street, and soon came upon the tragic crash scene. There was no helmet on Amanda. Police were called at 2:55 a.m. and responded in a minute, Amanda was dead at the scene. At the time of her death, she was 24 years old. Bryan was declared dead a few hours later at Hartford Hospital. Both died of head injuries sustained in the crash. A toxicology report taken at Hartford Hospital shortly after the accident showed that Bryan's blood alcohol level to be .207, more than twice the legal limit.
A Hartford Police Department accident reconstruction expert analyzed the forensic evidence at the scene and estimated that at the time Bryan lost control of the motorcycle, it was traveling at approximately 48-56 mph in a 25 mph zone. Weather conditions at the time were poor due to heavy rain and high winds. The report also concluded that Bryan was driving, inter alia, recklessly in violation of General Statutes § 14-222(a), and driving while intoxicated in violation of General Statutes § 14-227a. The investigator also looked for, but found no evidence that Bryan had been drinking anywhere but Up or On the Rocks.
Based on these facts, the court finds probable cause to believe that a judgment will be rendered for the plaintiff in the Dram Shop action, and that the amount could be equal to the amount requested: $250,000 — the maximum allowed in a Dram Shop action.
Defendants argue that the application should be denied due to the likelihood that they will prevail on their defenses of contributory negligence and/or assumption of the risk. Both defenses are based on the same fact premise: that, tragically, after failing to persuade Bryan not to drive his motorcycle because he was too intoxicated, she elected to ride on his one seat motorcycle in the wind and rain. They argue that she "elected to assume the risk of this dangerous scenario with full knowledge of its dangerous nature." Defendants' Objection to Application, p. 4. There were insufficient facts adduced at hearing to explain why Amanda got on the back of the motorcycle. Obviously, the safer course would have been for her to drive them both in her car, and leave the motorcycle parked. If this were a negligence action against Hood, the defenses would obviously be appropriate, see, e.g., Fitzpatrick v. Cinitis, 107 Conn. 91, 139 A. 639 (1927); although not necessarily prevailing. See, e.g., Craig v. Dunleavy, 154 Conn. 100, 221 A.2d 855 (1966). However, the defenses must fail here because this is a Dram Shop action, not a negligence action, and the defenses of contributory negligence and assumption of the risk are not available in a Dram Shop action as a matter of law.
A negligence action by the estate against the bar is not available because, at common law, the consumption of alcohol by the patron who caused the injury is deemed an intervening cause. Because of this barrier, the legislature created the statutory remedy — the Dram Shop Act — to provide a cause of action against bars in such cases. See, Quinneti v. Newman, 213 Conn. 343, 345-48, 568 A.2d 786 (1990).
As to contributory negligence, the law is well settled. "[C]ontributory negligence is not a valid defense to a Dram Shop suit." Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 352, 493 A.2d 184 (1985); see also Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 512 602 A.2d 1173 (1992); Zucker v. Vogt, 329 F.2d 426, 429-30 (2nd Cir. 1964).
The law on the availability of the assumption of the risk defense in a Dram Shop suit is less clear. The point has not been squarely resolved by any appellate court, and the Superior Court Judges who have faced the issue have reached different results. Compare Nolan v. Schuster, Superior Court, judicial district of Waterbury, Docket No. CV 98-0145395 (December 4, 1998, Espinosa, J.) (collecting cases; assumption of the risk allowed); with Pont v. Barker, Superior Court, judicial district of New London, Docket No. CV 4002020 (May 30, 2006, Hurley, J.T.R.) collecting cases; assumption of the risk not allowed).
In Zucker v. Vogt, cited with approval by our Supreme Court in Sanders v. Officers Club of Connecticut, Inc., the federal Court of Appeals for the Second Circuit reasoned that since a Dram Shop lawsuit is not a negligence action, but, rather, a suit based on a statutory violation, negligence is not a consideration, and, therefore, contributory negligence is not a good defense. Zucker v. Vogt, supra, 329 F.2d 430. Assumption of the risk is also, traditionally, a defense to a negligence action. Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 684, 849 A.2d 813 (2004); Lopez v. CCRC dba Nutmeg Recycling, LLC, Superior Court, judicial district of Hartford (January 27, 2006, Keller, J.). It is not available in suits based on a statutory violation. L'Heureux v. Hurley, 117 Conn. 343, 357, 168 A. 8 (1933). Based on the analysis in Zucker v. Vogt, the defense is not available in a Dram Shop lawsuit, either, and this court so holds.
In negligence cases in Connecticut, the assumption of the risk defense has been abolished in favor of a comparative negligence model. General Statutes § 52-572(1).
The modern Dram Shop Act was enacted in 1933, together with the modern CT Page 19519 Liquor Control Act, after the repeal of prohibition. Damages are currently limited to $250,000. General Statutes § 30-102. The Dram Shop Act was enacted as an aid to the enforcement of the Liquor Control Act's prohibition on the sale of liquor to intoxicated persons, "by imposing a penalty, in the form of civil liability, in addition to the penalty prescribed in that section, and to protect the public." Pierce v. Albanese, 144 Conn. 241, 251, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). "The act . . . provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action and without the benefit of the broader scope of recovery permitted under such an action." Craig v. Driscoll, 262 Conn. 312, 328, 813 A,2d 1003 (2003). The decedent was a protected party within the purview of that statute. To deny her a remedy in this case would thwart the work of the legislature. That, the courts cannot do by construction. Martin v. Martin, 99 Conn.App. 145, 151, 913 A.2d 451 (2007). If the legislature had wanted to excuse liability in cases such as this, it could have expressed that in the statute. See, e.g., General Statutes § 22-35 (Dog bite statute; trespass, tort, teasing, tormenting or abusing defenses permitted).
Defendants argue, and several Superior Court Judges have decided, that the assumption of the risk defense is available based on dicta in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 493 A.2d 184 (1985). In that case, the plaintiff estate brought a Dram Shop action based on an auto accident caused by an allegedly intoxicated driver who hit plaintiff's decedent — a bystander. After finding that contributory negligence was not available in a Dram Shop action as a matter of law, it also denied an assumption of the risk defense as follows:
We can see no ground upon which this defense can be maintained in this case. "A defense that a plaintiff seeking recovery upon the ground of negligence assumed the risk of the situation which brought about the injury is in the nature of a plea in confession and avoidance; the defendant may admit his own negligence and the plaintiff's lack of contributory negligence and still claim that he is not liable upon this ground." French v. Mertz Co., 116 Conn. 18, 21, 163 A. 457 (1932). As we have already noted, the gravamen of the plaintiff's cause of action is not negligence or wanton misconduct but rather a violation of § 30-102. Staples v. Lucas, 142 Conn. 452, 456, 115 A.2d 337 (1955). Assuming, without deciding, that under some circumstances a plaintiff can be held to have assumed a risk which has its basis in the violation of a statutory requirement enacted for his protection; but see L'Heureux v. Hurley, 117 Conn. 347, 357, 168 A. 8 (1933); that issue is not presented in this case. There is no evidence to indicate any awareness by the plaintiff of the intoxicated condition of the driver of the car that struck him.
Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 352-53.
This court does not read the Sanders case as supporting the defense. In Sanders, the Supreme Court considered the availability of the defense, arguendo, and rejected it as contrary to existing legal precedent and inconceivable under the facts. That is hardly encouraging.
Accordingly, this court sides with those Superior Court decisions that have found that the assumption of the risk defense not available in a Dram Shop case. See, e.g., Wylie v. Trio's Bar and Grill, LLC, Superior Court, judicial district of New London, Docket No. 4002507 (April 26, 2007, Hurley, J.T.R.) [ 43 Conn. L. Rptr. 275]; Rivera v. Miceli, Superior Court, Judicial District of Middlesex, Docket No. CV 04-0104721 (April 15, 2005, Silbert, J.) [ 39 Conn. L. Rptr. 151]; Jacocks v. Monahan's Shamrock, Superior Court, judicial district of New Haven, Docket No. 330268 (October 13, 1993, Zoarski, J.); Rousseau v. Ricciardi, Superior Court, judicial district of Waterbury, Docket No. 121665 (August 22, 1995, McDonald, J.); Lepore v. Lavigne, Superior Court, judicial district of Hartford/New Britain, Docket No. 393695 (February 6, 1992, Hennessey, J.) [ 6 Conn. L. Rptr. 46]; Penn v. LaBoy, Superior Court, judicial district of New London, Docket No. 505818 (July 30, 1990. Axelrod, J.) [ 2 Conn. L. Rptr. 165]; Passini v. Decker, 39 Conn.Sup., 20, 467 A.2d 442 (1983). Likewise, a leading treatise on torts has observed, "Contributory negligence and assumption of the risk may be legally insufficient defenses under General Statues § 30-102, but may be distinguished from defenses that plaintiff participated, facilitated, or encouraged intoxication, which are legally sufficient." D. Wright, J. Fitzgerald, and W. Ankerman, Connecticut Law of Torts (3rd Edition 1991) § 83, p. 240. There is no suggestion in this case that the plaintiff's decedent helped or encouraged Bryan Hood to become intoxicated. Quite the opposite appears to be true.
Finally, defendants argue that it is questionable whether liability can be established in this case because even if Hood had been completely sober, this accident would have happened since he was traveling on a one-seat motorcycle with a passenger in the rain, with high winds, and at a high rate of speed. That argument is not availing. It is exactly that kind of causation issue that the Dram Shop Act eliminates. "The act provides a means of recovery for plaintiffs who are unable to prove causation and culpability, subject to a statutory limitation on damages." Craig v. Driscoll, supra, 262 Conn. 327-28.
Accordingly, the court finds probable cause to believe that a judgment will be rendered for the plaintiff in the Dram Shop action, and that the amount could be equal to the amount requested.
III
Defendants ask the court to substitute a bond for any attachment or garnishment ordered. That request is granted pursuant to General Statutes § 52-278c(g). Defendants are ordered to post a bond with surety to cover the prejudgment remedy within 30 days hereof.
Defendants ask the court to order the plaintiff to post a bond pursuant to General Statutes § 59-278d(d) to protect defendants' business, which cannot afford to have its bank accounts and other assets frozen pending litigation. Inasmuch as the court has allowed the defendants to post a bond, the justification for plaintiff to post a bond is obviated. Accordingly the request is denied.
At hearing, there was no evidence as to whether insurance was in effect to pay any judgment that might be rendered. Also, the court finds no evidence of property exempt from execution.
IV
For all of the above stated reasons, the Application for Prejudgment Remedy to attach and garnish the assets of the defendant permittee and backer is granted, up to the amount of $250,000.