Opinion
No. CV04-4002547 S
June 9, 2006
MEMORANDUM OF DECISION ON DEEENDANT'S MOTION FOR SUMMARY JUDGMENT
This case arises out of a claim for injuries as the result of an alleged assault by a Vincent Baker and a Reverend James Baker. The assault purportedly occurred at the defendant's premises which contains outdoor softball fields. The theory of liability lies in negligence and claims the defendant's employees were negligent in that
(a) They served liquor despite the fact that Vincent Baker and Rev. James Baker may have been intoxicated already;
(b) They failed to provide adequate security to prevent the violence which caused the plaintiff's injuries;
(c) They caused or allowed and permitted said premises to have noisy and unruly patrons, including but not limited to VINCENT BAKER, and REV. JAMES BAKER, when they had inadequate staff to control the same, creating a volatile situation;
(d) They failed to warn the plaintiff when under the circumstances it knew or should have known that the plaintiff could have been and was harmed by a patron, including, but not limited to VINCENT BAKER, and REV. JAMES BAKER, who was consuming alcohol on said premises;
(e) They served alcoholic beverages to VINCENT BAKER, and REV. JAMES BAKER, without having proper supervision of said premises and allowed VINCENT BAKER, and REV. JAMES BAKER, to consume an overabundance of alcoholic beverages:
(f) They maintained the aforesaid premises at said time and place in aforesaid conditions; and
(g) They failed to adequately train their agents, servants and/or employees to prevent patrons from harming other patrons and persons in attendance at said premises.
(First Revised Complaint)
Suit has also been filed against the Bakers; that case has been consolidated with the case now before the court. In this case the defendant Connecticut Sports Plex, LLC has filed a motion for summary judgment.
The rules to be applied in deciding such motions are well-known. The courts should not grant such a motion if there is a genuine issue of material fact. However, if there is no such issue they should be granted so that parties should not have to endure the expense and aggravation of litigation. On such a motion a court must view the evidence in the light most favorable to the non-moving party, Strada v. Conn. Newspapers, Inc., 193 Conn. 313, 316 (1984). Courts should also be cautious about granting a motion for summary judgment when the allegations lie in negligence; "it must be quite clear what the truth is" any real doubt must be excluded, "a conclusion of negligence . . . is ordinarily one of fact," Amendola v. Geremia, 21 Conn.App. 35, 37 (1990); Fogarty v. Rashaw, 193 Conn. 442, 445 (1984). Also see Maffucci v. Royal Park Ltd., 42 Conn.App. 563 (1996). "Ordinarily," however, does not cover the entire universe and even in a negligence case such a motion should be granted where it is appropriate to do so.
The negligence claim appears to fall into two categories. It is claimed that the defendant served alcohol to the Bakers when they "may have been intoxicated already"; they allowed them "to consume an overabundance of alcoholic beverages."
The plaintiff also makes another claim in negligence which generally speaking revolves around an alleged failure to exercise reasonable care for the safety of patrons of its facility. Thus it is said that the defendant failed to provide adequate security, failed to provide adequate staff to control noisy and unruly patrons, failed to warn the plaintiff of dangers presented by people like the Bakers who were consuming alcohol and failure to train staff for the purpose of preventing some patrons from harming other patrons.
(1)
As noted this is a one-count complaint purporting to lie in common-law negligence and various allegations of negligence are asserted in the eight paragraph of the complaint which may be divided into two general aspects.
Under our procedure a motion for summary judgment cannot be directed at particular paragraphs of one cause of action which allege different ways in which the cause of action can be established. Here the claim lies in common-law negligence and that claim is supported by separate paragraphs; if any one of the ways in which it is alleged there has been a violation of common-law negligence is established, then the motion fails. That is so because the motion can only be for judgment as to the whole case or different causes of action set forth in separate counts.
It should be noted that Section 30-86(b) of the General Statutes is alluded to in the first revised complaint. In paragraph 5 it is said the defendant had a duty to comply with that statute which bars sale of alcohol to minors, intoxicated persons and drunkards. But it is not alluded to in either brief as a separate basis for liability and paragraph 8 merely sets forth a common-law claim of negligence.
(a)
The court will first discuss the general allegations regarding failure to provide adequate security, allowance of unruly and noisy patrons without the presence of adequate staff, failure to warn the plaintiff of possible harm from patrons including the Bakers who were consuming alcohol on the premises, failure to train employees to prevent patrons from harming other patrons. The plaintiff's deposition, which is attached to both briefs indicate that on the day in question he was a patron of the defendant's facility having played in a softball game which was part of a tournament. The defendant does not seem to dispute the fact that the plaintiff was a patron or business invitee of the defendant's premises at the time of this incident. There is no indication Hopkins had to pay to participate in the tournament but courts have held individuals can be invitees even where entry on the premises confers no pecuniary benefit, see Prosser Keeton, Law of Torts § 61, pages 422-23, cf. Guilford v. Yale University, 128 Conn. 449 (1942) (person attending college reunion).
The question becomes what is the duty owed to persons such as the plaintiff by those who own or control premises such as the premises involved here which was used for conducting soft ball games. General references include Section 61 of Prosser and Keeton Law of Torts; Connecticut Law of Torts, 3d ed, Wright, Fitzgerald, Ankerman Section 49, "Duty Owed to Invitees", pages 116 et seq.; Restatement (2d) Torts, § 344. More specific commentaries are 75 A.L.R.3d 441, "Liability of Owner or Operator of Theater or Other Amusement to Patron Assaulted by Another Patron"; 27 Am.Jur.2d 357 "Entertainment and Sports Law", §§ 42 et seq., pages 397 et seq. Section 344 of the Restatement says:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect against it.
Am. Jur.2d in somewhat more detail at § 57, page 411 makes the following comments which are more directly related to this case
The proprietor of a place of public amusement has a duty to maintain order on his or her premises and may be held liable for injuries resulting from the dangerous activities of a third person, whether such acts are accidental, negligent, or intentional, if he or she does nothing to restrain or control such conduct after he or she knows, or in the exercise of reasonable care could have known, of it. The proprietor must exercise due care to protect his or her patrons from assaults by other patrons, at least if the proprietor had knowledge of conduct which would naturally result in an injury, or if he or she might reasonably have anticipated an assault.
Where there has been a more or less sudden, direct attack, liability generally is not imposed, for the reason that the proprietor could not reasonably have anticipated the occurrence.
The Am. Jur. article cites numerous cases from several jurisdictions. See for example Dellinger v. Pierce, 848 S.W.2d 654, 655 (Ct. of App. Tenn., 1992) (attendees at theater). Also see Merhi v. Becker, 164 Conn. 516 (1973) (attendee of union picnic, claim altercations and unruly individuals not controlled, insufficient security.) In Merhi the court said at page 520
The defendant Local 1010, as the possessor of the premises on that day, had the duty of exercising reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there. Greenley v. Miller's, Inc., 111 Conn. 584, 150 A.500. "In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm . . . even from intentional attacks on the part of such third persons." Prosser, Law of Torts (4th Ed.) 61, p. 395. On the evidence, the jury could properly find that the defendant Local 1010 had failed to perform its duty to provide adequate police protection or otherwise to control the activities of its beer drinking guests, especially after the earlier outbreak of fisticuffs.
The 75 A.L.R.3d article referenced above is extremely helpful. Section 2 at pp. 445 to 448 is the summary and comment which refers to cases discussed in the following sections. The article deals with deliberate and reckless assaults and makes the following points with reference to numerous cases
(1) . . ." what constitutes reasonable care by the owner or operator of the amusement is partly dependent on the owner or operator's knowledge of the conditions threatening his patron's safety. Thus the owner or operator's duty to protect his (her) patrons is often stated in terms of his (her) obligation to protect his (her) patrons not only against dangers of which he (she) has actual knowledge, but also against those which he (she) should reasonably anticipate."
Bearman v. University of Notre Dame, 453 N.E.2d 1196, 1198 (Ct. of App. Ind., 1983) patron at football game injured, university aware of alcohol consumption, tailgate parties); Ruehling v. Amer. Legion Pavilion, 96 N.W.2d 702, 703-04 (1959) patron entering dance pavilion).
(2) Thus courts look to the protective measures taken by the operator or owner "in view of the prior warning he (she) had that an assault might take place". . . (where liability has been found) "courts have emphasized (things) such as prior trouble between the injured patron and his (her) assailant or general rowdiness among the patrons of the type that eventually lead to a patron's injury."
Bearman v. Univ. of Notre Dame, supra; Nance v. BalI, 134 So.2d 35, 37-38 (Fla.App. 1961) (patron at bowling alley who assaulted another patron known to have assaultive tendencies), Moran v. Valley Forge Drive-In Theater, 246 A.2d 875, 878 (Pa., 1968) (prior acts of rowdiness in past two years.)
(3) In cases where liability has not been found the courts have pointed to circumstances showing that the owner or operator could not have reasonably anticipated an assault, such as the suddenness of the assault or the absence of assaults during prior events held on the premises.
Ruehling v. American Legion Pavilion, supra; Townsley v. Cinanatti Gardens Inc., (Ct. of App. Ohio, 1974) (attack in sports arena, defendant could not have anticipated the attack, absence of prior incidents); Hawkins v. Maine New Hampshire Theaters, 164 A (Me., 1933) (theater operator not required to anticipate a sudden act, willful and isolated in nature), id., page 629.
(4) It has also been pointed out in a number of cases exonerating the owner or operator that even if he (she) had taken greater protective measures, he (she) still could not have prevented the assault which injured the patron.
Gold v. Heath, 392 S.W.2d 298 (MO, 1965) (child injured at theater, defendant not an insurer, every patron need not be furnished with an attendant; court also noted general supervision would not have prevented injury in case before it); see also Corbitt v. Ringley, 496 S.W.2d 914, 918-19 (Ct. of App. Tenn., 1973) (patron assaulted and robbed in restroom.)
On the other hand, the insufficiency of the number of security personnel, their improper conduct under the circumstances, and other failures to adequately warn and protect patrons have been emphasized in cases where the owner or operator was held liable.
Moran v. Valley Forge Drive-In Theater, supra.
The basic principles of the foregoing case law seem to be accepted by our Appellate Courts since they merely reflect basic common-law pronouncements of the duties owed by owners or controllers of premises, see for example Merhi v. Becker, supra; Davenport v. Quinn, 53 Conn.App. 282, 288 (1999), also cf. Antrum v. Church's Fried Chicken, Inc., 40 Conn.Sup. 343 (1985, L. Dorsey, J.)
It should be noted that the plaintiff appears to take the position that the jury could very well find that the Bakers' assaults were not intentional but negligent or reckless. Given the allegations of the complaint and the deposition testimony this seems to be an unlikely supposition. Furthermore, in perhaps a departure from the Restatement (2d) Torts view, in our state . . . "an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently," Alteiri v. Colasso, 168 Conn. 329, 333 (1975), cf. Choninard v. Marjani, 21 Conn.App. 572, 580 (1990). The observations and cases cited in the 75 A.L.R.3d article dealing with assaults in places of public amusement involve assaultive behavior by allegedly intoxicated parties and circumstances which indicate the assaulting party may not have acted with the requisite intentionality for Restatement purposes or the requirements of criminal law.
It is also true, for this court at least, that the technical rigors of a proximate cause analysis based on the supposition of an intentional intervening act can complicate an analysis and establish too sharp a dichotomy between the finding of a duty which is the basis of any negligence action and the question of imposition of liability. Thus Section 344 of the Restatement (2d) Torts says that
A possessor of land who holds it open to the public for entry for his (sic) business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons . . .
Comment f makes clear, however, that "since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur."
In other words the foreseeability of causing harm by a failure to act to prevent harm to a patron, for example, by another patron is a prerequisite to liability whether the tortfeasor acts or is about to act negligently, recklessly, or intentionally.
And this fits in with the prescription of § 442B of the Restatement.
§ 442B. Intervening Force Causing Same Harm as That Risked by Actor's Conduct.
Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.
Under § 442B the "intervention of another force: could be a negligent or reckless force (see § 344) but a category of force further separated out by § 442B is harm which is caused "intentionally." And comment c says the rule in § 442B "does not apply where the harm of which the risk has been created or increased by the actor's conduct is brought about by the intervening act of a third person which is intentionally tortious or criminal, and is not within the scope of the risk created by the original negligence" But then the comment goes on to say "Such tortious or criminal acts may in themselves be foreseeable, and so within the scope of the created risk, in which case the actor may still be liable for the harm . . ." (emphasis by this court). In other words foreseeability of harm is the prerequisite for finding negligence liability in the type of case now before the court whether the third party causing harm acted intentionally or negligently. The foreseeability requirements to impose liability on the premises operator may be stricter where intentional assaults are involved just because intentional assaults are more difficult to predict or foresee in the ordinary course of life but foreseeability has the same operative definition whether the third party is accused of being negligent or of acting intentionally. Foreseeability is the test.
It should be noted that Section 344 of the Restatement (2d) Torts has been relied upon by our Appellate Courts, United Coastal Ind. v. Clearheart Constr., 71 Conn.App. 506, 511 (2002); also see Burns v. Gleason, 10 Conn.App. 480, 484 (1987) and Bohan v. Last, 236 Conn. 670, 679 (1996) relying on § 442B.
Based on the foregoing discussion the court will now try to discuss the facts of his case.
Two further matters should be noted (1) The common-law rule "that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property of another," Nolan v. Morelli, 154 Conn. 432, 436 (1967) does not serve as a bar to the negligence claims made here. As said by Nolan in language applicable to all who control premises and referring to the just mentioned common-law rule: "Thus, a cause of action predicated on negligence in the failure of the proprietor of a restaurant, or his (her) servant or agents, to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment would be unaffected by the common law rule, whether they were not intoxicated, and, if intoxicated, regardless of when, where, or how they became intoxicated. In such a situation, a patron or business visitor of the establishment who sustained an injury in person or property as a consequence of such negligence in supervision might have a common law cause of action under the rule in cases such as Lowthert v. Loyal Order of Moose, 147 Conn. 529, 533 . . ." (1960) (that case cited traditional rule that party who controls premises has a duty to a business visitor to exercise "reasonable care to have and keep the premises reasonably safe for" (reasonably anticipated uses).
(b)
In support of its motion for summary judgment the defendant has offered the affidavit of Vincent Candelora who is now and was the manager of Sports Plex at the time of this incident on August 25, 2002. Mr. Candelora states that "the Sports Plex has no knowledge of any physical altercations between its patrons and guests prior to August 25, 2002 at (the premises in question). The affidavit is somewhat bareboned — it does not say when the Sports Plex began operating at the location, whether Candelora managed the premises from its inception, if not, how long before the August 25th date he began his duties. It only speaks apparently to physical altercations not the threat thereof which did not proceed to fisticuffs or actual physical contact. Issues such as general rowdiness or excessive drinking are not referred to in the affidavit. Also the general statement is made that "the Sports Plex" does not have knowledge of physical altercations — does this mean the management? Does it refer to all employees? Is there a reporting system to insure information about operations would be communicated to management by employees? Was Candelora always present when the premises were operating so he could himself make the observations which lead to his conclusion in the affidavit?
But the defendant adds certain portions of the deposition of the plaintiff and others to support its position. The following relevant facts were testified to by the plaintiff, Hopkins, in the portion of his deposition testimony attached to the defendant's motion.
(1) During softball season Hopkins was at the premises two or three times a week. He also played indoor football and his child attended a baseball clinic at the facility.
(2) On the day of the incident he was in a tournament and after the tournament had consumed six beers.
(3) He shook Vin Baker's hand and said play hard with the Celtics. Hopkins surmised Baker thought he said something worse and yelled he did not want to talk about baseball. Hopkins said Baker did not have to be so rude and Baker told him shut up and do not say another f______ word.
(4) Hopkins said he walked to his vehicle and when asked what Baker's problem was said f___ him which Hopkins surmises Baker heard. Baker came over to him and yelled, Hopkins uttered another obscenity and was pushed down. "His guys" then dragged him thirty feet away and he was punched.
(5) The Reverend Baker then joined the fray saying he would take care of Hopkins and proceeded to pummel Hopkins. His friend Mike Viora tried to break the altercation up and it ended with some more words exchanged.
(6) The incident happened around 6 p.m. The deposition attached to the motion skips from page 50 to page 119 and at the top of the page it says
A . . . Do you know whether they are or not?
A. No I don't.
Q. Okay. But no other employees or staff that you know of.
A. No. CT Page 10684
(7) Hopkins then said the incident happened very fast, ten seconds from the exchange of words to the time Baker came up to him. Hopkins apparently was not asked how long the actual physical alteration took, that is from the time Baker pushed him, including the time he said he was pummeled by Baker's entourage and the time the Reverend joined in and stopped hitting Hopkins.
(8) Hopkins said he never saw the defendants consume alcohol or drugs. He said he never saw any physical fights while he was at the Sports Plex and never heard of any taking place at the premises. He also did not see the Bakers purchase alcohol and he could not tell if they were intoxicated.
The defendant also attached the deposition testimony of Mike Viora, a friend of Hopkins. He said the following:
(1) He had no idea a fight was gong to occur; if he did he would have tried to brace himself for it. The people with Baker were not people that are at the complex all the time.
(2) Viora described the altercation, it was "bad" his shirt was ripped! No one helped him and Hopkins out — no one from their team or the complex. "Chick" an 85 year old who runs a hot dog stand apparently observed the fighting — Chick told someone on their team not to jump in to help Viora and Hopkins or they'd never play at the complex again.
(3) Beer was sold from a concession stand; it was sold to his teammates. He has no memory of beer being sold to anyone that was intoxicated.
The plaintiff attached portions of the Hopkins and Viora depositions to his objection which were not attached to the defendant's motion. The following additional facts were brought out in the Hopkins deposition:
(1) Hopkins in some detail describes being dragged from the original point of altercation and the attack he underwent by the Baker entourage and Reverend Baker. Viora tried to pull people off. Rev. Baker then said Hopkins had had enough and even tried to protect him from further assault.
(2) Viora had the same amount to drink as Hopkins that day — about six beers.
(3) Candelora told him not to come back to the complex after this incident, "they thought that I started the whole thing." ("they" refers to Candelora and a man who "was in charge of certain things" according to Hopkins.)
(4) As to the beer he consumed, Hopkins said he bought the beer at the complex, "you can't bring alcohol into the complex").
(5) He had been going to the complex from the time it opened — it had been opened for a period of years.
The deposition then skips a few pages and the following then occurred.
(6) He could not say if certain people (not identified) were wearing a uniform. He seemed to say he did not notice Sports Plex staff present (at the scene of the altercation presumably) other than "Chick Furino" and the other two who apparently were in the concession stand.
(7) Umpires were present but he does not know if they are hired by the complex — but no other staff was present that he knew of.
(8) On the day of the attack he only saw the Bakers sporadically at the complex. He did not observe the Bakers purchase beer from the concession stand.
(9) He noticed no difference in the crowd on the day of the incident from crowds there at other times. He saw no security guards on the day of the incident.
(10) Between games Baker and others would go inside Baker's vehicle.
(11) Hopkins brought a round of beers for the group he was with. They don't ask for an I.D. As to Chick Furino Hopkins does not know his position. He apparently was near the spot where the altercation began; Hopkins did not see him during the altercation but he did come up with his golf cart "towards the end" but "didn't do anything." Hopkins was not on the ground at that point. He also said he saw Furino try to break up the fight.
The plaintiff also attached portions of the deposition transcript of Mike Viora some of which were not included in the defendant's attachments. The court will reference factual assertions not included in the earlier discussion of the Viora deposition or not made clear.
(1) Viora said that at the time of the events in question neither he nor Hopkins were intoxicated. He said he saw Vin Baker during the day.
(2) Viora describes the beginning of events much as did Hopkins. He says in a private conversation between him and Hopkins the latter said F___ that or him. Vin Baker was thirty-four feet away — "nobody knew anything was going to happen until he (Baker) came over . . . pointing at (Hopkin's chest).
(3) After the foregoing a crowd of people who were with Vin Baker grabbed Hopkins.
(4) Hopkins was pushed down a hill and Viora was being hit in the back — it was chaotic. A "little pull" then occurred and the Reverend Baker joins in saying "I'll take care of this myself" and Hopkins was on the ground. Viora pulled the Reverend off who said he in fact had stopped the fighting. Someone then called the police and everyone scattered. There had been about 40 people with Baker.
(5) Guys on the team were buying beer from the stand, putting it in baskets; he and Hopkins bought maybe one beer. He did not see people in the stand sell beer to anyone visibly intoxicated.
(6) Viora denied that he or Hopkins were intoxicated but "we were feeling good." No one in the stand selling the beer cut him or Hopkins off. In all the years he played there he never heard of anyone being cut off.
(7) During the altercation he saw "Chick" riding around and a "kid" named "Froggy" was talking to "Chick."
(8) During the entire day he was there Viora did not observe any security personnel on the premises nor was there a policeman on duty. No one came to the aid of Hopkins from the complex during the incident, he was the only one who did.
The plaintiff has also submitted an affidavit from a Michael Perry. He states that on the day of the incident he was a patron at the sports complex and played softball there from 10:00 a.m. to 2:00 p.m. He goes on to say that during two games on several occasions he observed Vin Baker and his friends consuming beer in the bleachers adjacent to the dug out.
(c)
The court has reviewed the general law in this area. Now the court will try to review the facts in light of the specifically relevant case law on the liability of owners or operators of places open to the public for entertainment or sports activities. There are not many Connecticut appellate or trial level on this issue; the court has looked at common-law cases from other jurisdictions.
The cases make clear that the operator of such a place of course has no duty to assign a guard or security person to every patron that enters its premises, Warner v. Florida Jai Alai, 221 So.2d 777, 778 (Fla.App., 1969); Whitfield v. Cox, 52 S.E.2d 72, (Va., 1949); Gold v. Heath, 392 S.W.2d 298, 306 (Mo., 1965); Hawkins v. Theater Co., 164A 628 (Me., 1933); cf. Corbitt v. Ringley-Crockett, 496 S.W.2d 914 (Tenn.App., 1973).
Whether or not security must be provided and the level of security depends in part on the forseeability that harm might be likely to occur. This can be found if there were past incidents of general fighting or rowdyism, Napper v. Kenwood Drive In Theater Co., 310 S.W.2d 270 (Ky., 1958); Antinucci v. Hellman, 174 N.Y.S.2d 343 (1958); Dellinger v. Pierce, 848 S.W.2d 654, CT Page 10688 656 (Tenn.App., 1992); cf. Hart v. Hercules Theater Corp., 258 App.Div. 537, 538 (NY, 1940).
In this case the affidavit of the manager of the complex, Mr. Candelora, denies any knowledge of prior altercations on the premises. None of the deposition testimony of the plaintiff or Mr. Viora or the affidavit of Mr. Perry indicate that any of these individuals witnessed rowdy behavior or fighting in the past. And the plaintiff had been going to the complex since it opened, for years. The plaintiff, for example, had no problem with bringing his child to the facility to attend a baseball clinic and affirmatively said he never saw fights at the facility and never heard of any taking place.
On the day of the incident itself there was no fighting or rowdy behavior displayed by any patrons or by the Bakers and their friends prior to the actual incident. Hopkins said on that day he noticed no difference in the crowd on the day of the attack from other crowds he observed at other times he had been at the complex. Viora said before the actual incident he had no idea fighting would occur. Courts have attached importance to whether or not prior incidents have occurred and how much warning they would have given to owners of premises being sued, cf. Rawson v. Mass. Operating Co. 105 N.E.2d 220 (Mass., 1952) (rowdy, disorderly behavior for 1-1/2 hrs. before actual injury to plaintiff patron; Gill v. Chicago Park District, 407 N.E.2d 671 (App.Ct. of Ill., 1980) (Court noted absence of threats, violence on premises on day of incident where patron injured); Townsley v. Gardens, 314 N.E.2d 409 (Ct. of App. Ohio, 1974) (no prior fights in past or on day of incident); Pfeifer v. Standard Gateway Theater, 48 N.W.2d 505 (Wis., 1951) (youths throwing things in theater for some period of time before young patron injured, employee-attendants in exercise of reasonable care could have done something to control their behavior and prevent injury to other patrons), see also Sample v. Baton, 145 Cal. App.2d 312, 316 (Ct. of App. Cal., 1956); Moran v. Valley Drive In Theater Inc., 246 A.2d 875 (Pa., 1968); Gill v. Chicago Park District, 407 N.E.2d 671 (App.Ct.Ill., 1980) (no duty to protect plaintiff patron, no notice of probability of assaults where no such assault in past or on day of assault itself).
From the previous discussion of the facts presented to the court it is of course also true here that the Bakers in the past before this incident or before the attack on the day it occurred had not presented any problem or threat to Hopkins or other patrons, cf. Nance v. Ball, 134 So.2d 35 (Fla.App., 1961) (assault on patron of bowling alley by person who previously threatened plaintiff), cf. Dellinger v. Pierce, supra.
But the plaintiff does not rest his case on whether assaultive behavior had occurred prior to this incident. It could also be negligent to allow patrons who later attack others to bring and consume alcohol or to serve them alcohol with knowledge that they would become intoxicated or in fact did become intoxicated and liability can attach if such harm is thus foreseeable and steps such as added security and warnings of the danger presented thereby are not implemented. In Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196 (Ind.App. 1983) a lady was injured while returning to her car after a football game by a drunk who knocked her down. The court said the university was aware that alcohol was consumed during and after games and tailgate parties were held in parking lots around the stadium. The court conceded that there was no showing the university had reason to know of the particular danger posed by the drunk who caused injury to Mrs. Bearman. But the court went on to say that the university "had reason to know that some people will become intoxicated and pose a general threat to the safety of other patrons. Therefore, Notre Dame is under a duty to take reasonable precautions to protect those who attend its football games from injury caused by the acts of third persons," id. page 1198.
In this case, however, there is not an iota of evidence presented to the effect that the Bakers were intoxicated or how their drinking in any way contributed to causing this altercation, or that any behavior induced by their drinking did or should have put the defendant and its employees on notice that their drinking and general behavior induced thereby posed a threat to anyone in general and Hopkins and Viora in particular, cf. Gross v. Wiley, 373 P.2d 421 (Or., 1962); Warner v. Florida Jai Alai, 221 So.2d 777 (Fla.App. 1969).
Furthermore to expect that a provider of alcohol would foresee the dangerousness of a patron by merely serving the patron alcohol would be imposing a form of strict liability, cf Bishop v. Four Lanes Bowling, Inc., 623 F.Sup. 1195, 1201 (N.D.Ga., 1986).
It is true that beer was sold to patrons at this facility and Viora said no one, to his knowledge, was ever cut off. From that one could surmise there would be a danger of people getting intoxicated and belligerent, cf. Bearman v. Univ. of Notre Dame, supra. But again there was no evidence that the Bakers were intoxicated or even appeared so to Hopkins and Viora who certainly had close contact with them and could have given a lay opinion to that effect.
Given the foregoing it cannot be said that the defendant violated any duty of care to the plaintiff based on a foreseeability test. What must be kept in mind is that this sports complex after all consisted of five softball fields frequented by adults apparently in organized leagues. We are not dealing with outbursts of violence or constant raucous behavior which might be likely to be a feature of rock-and-roll concerts and wrestling matches. The latter have been defined in one case as "not quiet and dignified affairs," Whitfield v. Cox, 52 S.E.2d 72 (Va., 1949), also see on this point Townsley v. Gardens, supra, Gold v. Heath, 392 S.W.2d at page 306.
But the plaintiff could maintain that apart from matters such as the service of alcohol and absence of prior behavior that would serve to warn the defendant of danger to patrons, there was no security at all and this in itself could be a basis of liability. Mr. Viora testified that during the whole day he saw no security personnel at the sports complex to supervise the people using the softball field and their guests. But even if we assume there was a duty to supervise the patrons of the facility as said in Gold v. Heath, supra, at 392 S.W.2d, page 306, quoting from a Florida case: "Usually, even where the duty to supervise may be found to exist, the supervision need be general only as distinguished from special or immediate. It would not be necessary to furnish every patron with an usher or attendant . . . In the case before us it is not fairly inferable from the complaint that general supervision would have prevented the injury caused by the impetuous or wayward boy who did the pushing," also see Warner v. Florida Jai Alai, 221 So.2d 777, 779 (Fla.App. 1969).
Also as to the confrontation with Vin Baker, Hopkin's deposition testimony indicates the incident developed quickly. He estimated the exchange of words he had with Vin Baker lasted thirty seconds. Seconds only passed until the time Baker actually approached Hopkins. The only time Vin Baker actually put his hands on Hopkins was when he first came up to Hopkins and pushed him. He did not fall. Vin Baker did not punch or kick Hopkins. People who had been with the Bakers then kept pushing him back but Hopkins cannot say what Vin Baker was doing at that point. At another point in his deposition Hopkins says "his guys" (meaning Vin Baker's friends) grabbed him and dragged him thirty feet. "They grabbed him, but they pulled him (apparently Baker) out of there." Then however he says "They took me into a corner 'him and his guys'" and proceeded to pummel him. Viora's deposition explicitly says that after Vin Baker pushed Hopkins, somebody grabbed Baker and he heard someone say "you got to get out of here." It was only then that "his crowd" grabbed Hopkins to begin striking him and ripping his shirt.
Given the suddenness of the attack, general supervision could not have prevented the contact that occurred between Vin Baker and Hopkins. Even the presence of security personnel at some ideal number not otherwise defined would not have meant the incident as it involved Vin Baker would not have occurred, cf. Whitfield v. Cox, supra. The confrontation was sudden, occupied seconds of time and the operator of the complex had no warning or reason to suspect a confrontation like this would occur. Corbitt v. Ringley-Crockett, supra. Causation cannot be established — it cannot be said that failure to do or not to do anything by the defendant was a factor, let alone a substantial factor in the occurrence of this confrontation. And this is so whether Vin Baker's actions are characterized as negligent, reckless or intentional. To paraphrase Noble v. Los Angeles Dodgers, Inc., 168 Cal.App.3d 912 (Ct. of App., 1985) as to the Vin Baker confrontation, the "plaintiff's theory is purely and simply that the (defendant) (was) negligent in failing to effectively deter any and everyone from acting in such a manner," id. page 917.
As to the Reverend Baker, the relevant factual situation is much the same. After the initial Vin Baker-Hopkins confrontation, Hopkins was dragged some thirty feet according to deposition testimony by friends of Baker, the people who accompanied him to the premises. Reverend Baker's involvement appears to have come at the end of the ensuing melee when he pinned Hopkins down which allowed him to be pummeled. As Viora pulled Reverend Baker off Hopkins, Reverend Baker adopted the posture that he had helped Hopkins by breaking up the attack against him. Hopkins said Rev. Baker never kicked or punched him.
Again this whole second phase of the incident lasted an undefined but apparently brief amount of time. It was sudden and the defendant would have had no warning that an attack as ferocious as that described could have been expected by anything that occurred during the day the Bakers and their entourage were present.
It is true that reading comment f to § 344 of Restatement (2d) Torts it is clear that a defendant would have a duty of care if he knows acts of a patron such as an attack on another patron are about to occur or are occurring. The suddenness of the attack here make it impossible to say that that duty was violated.
A man named Chick Celentano or Furino who is described at various points as being 85 years old, the operator of the concession stand and riding around in a golf cart is said in deposition testimony to be at or near the scene of the altercation. Two other individuals were in the concession stand but from the depositions it is difficult to know how far they were from the second phase of the melee involving Rev. Baker and thus whether they could have done anything to break up the attack on Hopkins themselves or by helping Viora.
The exact location of Furino is not made clear. He is said to have driven up in his golf cart to the location of the Rev. Baker-Hopkins melee and he does not do anything but that was "toward the end." It is difficult to see what this one individual could have done to stop the attack or assist Mr. Viora and no where is this articulated except by generalized Viora statements that no one from the sports complex came to help.
Chick Furino also is alleged to have told one Froggy not to have the Hopkins-Viora teammates help Hopkins or they would not be allowed to play again at the sports complex. But this hearsay statement which could be objected to if sought to be introduced at trial could only have been made, if made at all, during the second phase of the melee involving Rev. Baker. Deposition testimony or affidavits from Furino (Celentano) or "Froggy" were not provided to the court so it can only speculate at what point in the altercation the statement was made which is critical for determining whether Furino, as an agent of the defendant, had a duty to assist Hopkins or Viora and whether such assistance would have prevented any injury or further injury to the plaintiff. Where in fact these "teammates" were located in relation to the altercation is not mentioned and Furino's statement may have merely reflected a general policy concerning anyone involved in altercations at the complex. As to whether Furino's statement prevented anyone besides defendant's employees from coming to Hopkins' or Viora's aid, the court cannot determine that question on what has been presented and no evidence by way of affidavit or deposition has been offered on this issue.
The court concludes that the general negligence claims against the defendant based on a violation of a duty to ensure the safety of patrons on its premises should be dismissed.
(2)
The claims of service of alcohol and failure to provide a safe environment for patrons of the sports facility cannot be divided into neat compartments at least in all respects. However, the court will now separately discuss the negligence claim of the plaintiff that the defendant served alcohol to the Bakers "without proper supervision and in overabundance" and when they "may" have been intoxicated. In one of the headings in its brief the plaintiff maintains that the "plaintiff's allegations of negligent service of alcohol survive" the defendant's motion. Craig v. Driscoll, 262 Conn. 312 (2003) is then discussed and the issue of retroactivity in light of the fact that the legislature statutorily overruled Craig soon after it was decided. In effect, as to this particular claim of negligence, the plaintiff seems to concede that barring the applicability of Craig a common-law claim would not lie for the service of alcohol to the Bakers.
Nolan v. Morelli, 154 Conn. 432, 436-37 (1967) sets forth the common-law rule.
At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property of either himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee.
Craig v. Driscoll, supra, basically concluded that this rule was thought to be a harsh one and was modified by various statutes over the years. The court held that the so-called Dram Shop Act (§ 30-102) was not meant by the legislature to "occupy the field." The court then reviewed the common-law rule as "an issue of our common law jurisprudence" and overruled that rule. It said generally that "we expressly reject the claim that a purveyor who provides alcoholic beverages to an already intoxicated patron or a patron known to him to be an alcoholic cannot, as a matter of law, be the proximate cause of subsequent injuries caused by the intoxicated person," id. page 340. Earlier in its opinion during its proximate cause analysis the court said case law "recognized the substantial causal relationship between the negligent service of alcoholic beverages and the injuries that occur as a result of drunkenness," id. page 360.
It should also be noted that the court in Craig v. Driscoll was not intending to set up a strict liability rule; scienter on the defendant's part is a prerequisite to recovery. In a comment before setting forth the rule the court said serving an "obviously intoxicated person" alcohol by one who "knows or reasonably should know this person intends to operate a car" creates a reasonably foreseeable risk of injury. The rule itself talks of liability for one who provides alcohol to someone "known to him to be an alcoholic," id. pp. 339-40.
This is in contrast to the Dram Shop Act. At 262 Conn. page 328 the court commenting on that act said: "The act thereby 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." The bar owner's "knowledge or state of mind is thus irrelevant under § 30-102."
The court will not reach the retroactivity issue in light of the legislature's overruling of the result in Craig v. Driscoll by statute. This is so because there is not any evidence that the altercation that occurred here was the result of serving alcohol to intoxicated patrons. The deposition testimony is to the contrary and has been previously discussed.
Nor can the plaintiff persuade the court that there is an issue of fact as to whether the defendant served beer to Vin Baker knowing he was an alcoholic (one variation of the Craig v. Driscoll theme, the first of which involved serving alcohol to an intoxicated person.) The plaintiff asks the court to take judicial notice of the fact that Vin Baker is an alcoholic; this is said to be "known to the public and especially the sporting community." Websites, a newspaper article, and an "essay" are said to attest to this. This is not the type of matter of which the court could take judicial notice. Section 2-1c of the Code of Evidence says a judicially noticed fact must not be subject to reasonable dispute in that it is either "(1) within the knowledge of people generally in the ordinary course of human experience or (2) generally accepted as true and capable of ready and unquestionable demonstration."
Both tests are not met here. That a particular N.B.A. player is an alcoholic or have alcohol problems may be known in the sporting community but it is hardly within the knowledge of people generally or certainly of this court. Neither can it be said that it is capable of "ready and unquestionable demonstration" when the source to verify that consists of website reference and article in newspapers. Tait in Connecticut Evidence at § 2.3.3 page 109 cites Nichols v. Nichols, 126 Conn. 614, 621 (1940) and Town of West Hartford v. FOIC, 218 Conn. 256, 264 (1991) for the proposition that "A court may take judicial notice of all matters within the knowledge of people generally in the ordinary course of life's experience . . . The court sometime said that this type of information is in the mind of the trier and judicial notice serves to refresh that memory." This type of matter may be in the minds of basketball fans, and professional basketball fans in particular but the court cannot conclude it is in the mind of people generally. That the requirements for finding notice are high is underlined, for example, by the court's ruling in Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 450. There it was held notice could not be taken of the fact Barbieri, a well-known local and state politician, had been a Democratic town chairman and a powerful politician in our state, The knowledge the defendant, its owners, managers, and employees might have had about Baker's status or condition as an alcoholic could have been better explored through deposition testimony not by relying on the information referred to here to prove what is after all those individuals' personal knowledge.
The court concludes that, even if the rule in Craig v. Driscoll were operative in this case despite legislative action, the plaintiff has not offered anything to create a material issue of fact as to whether it should apply here. Also for the reasons discussed the court did not consider in the previous section any suggestion or claim that Vin Baker was an alcoholic in deciding whether the defendant violated its general duty to keep its premises reasonably safe for its patrons by serving alcohol to a person known by it to be an alcoholic.
In any event the motion for summary judgment is granted.