Opinion
No. CV01 0277460-S
June 30, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #152.10
I PROCEDURAL HISTORY
On April 22, 2003, the plaintiff, David Jensen, Jr., filed an eight-count amended complaint against the defendants, William DePaolo and Brian Badorek d/b/a Sam the Clam's, Robert Newman as the permitee of Sam the Clam's, Joseph Barbino, George Fenn, Mary Cantone d/b/a Manor Inn and Manor Inn, Inc. Count one, a claim for negligent service of alcohol, and count three, a claim for negligent supervision, are against DePaolo and Badorek.
Counts two, four, five, six, seven and eight are not at issue in this motion for summary judgment. Accordingly, the court will not address those counts.
The plaintiff alleges the following facts. On June 27, 1999, Barbino, Fenn and the plaintiff were patronizing Sam the Clam's, a bar and restaurant owned, controlled and managed by DePaolo and Badorek d/b/a Sam the Clam's and Newman. Barbino and Fenn arrived in an obvious state of intoxication at Sam the Clan's between 11 p.m. and 12 a.m. DePaolo, Badorek and Newman, acting through their agents, servants and/or employees, negligently sold and served to the intoxicated Barbino and Fenn additional alcoholic beverages causing them to become more intoxicated. As a direct and proximate consequence of their intoxication, Barbino and Fenn assaulted and battered the plaintiff causing him to suffer numerous injuries and damages.
On November 25, 2003, DePaolo and Badorek moved for summary judgment on the first and third counts, negligent service of alcohol and negligent supervision of patrons, respectively. Accompanying the motion is a memorandum of law with three exhibits: copies of two unpublished trial court opinions, a sworn affidavit from Newman and uncertified copies of excerpts from the plaintiff's deposition transcript. The plaintiff filed a memorandum of law in opposition on December 11, 2003. A reply brief also was filed by DePaolo, Badorek and Newman on December 18, 2003. The court heard oral argument on March 22, 2004. Pursuant to this court's order at oral argument, the parties filed supplemental documents containing certified copies of excerpts from the deposition transcripts.
On October 10, 2003, DePaolo and Badorek moved for summary judgment as to count one of the amended complaint on the ground that Connecticut does not recognize a cause of action for negligent service of alcohol to an intoxicated adult. This court denied that motion for summary judgment. See Jensen v. DePaolo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277460 (March 8, 2004, Wiese, J.).
On December 12, 2003, the defendant Newman also filed a motion for summary judgment as to counts one and thee of the amended complaint. Newman has adopted the supporting documentation and the memorandum of law in support of the present motion for summary judgment filed by DePaolo and Badorek. Any reference herein to the defendants, however, is solely to DePaolo and Badorek.
Badorek, DePaolo and Newman submitted only a copy of the certification page of the deposition transcript of the plaintiff. The copy of the excerpt itself was submitted previously as exhibit C of the defendants' memorandum of law in support of their motion for summary judgment. The plaintiff submitted a certified copy of an excerpt of the deposition transcript of the defendant Fenn.
II 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. 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.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 124 S.Ct. 1603, 158 L.Ed.2d 244 (2004). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Id., 252-53. "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn. App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 153, 819 A.2d 216 (2003).
In the present case, the defendants move for summary judgment on the grounds that the alleged incident giving rise to the plaintiff's injuries was not the result of their actions or their failure to act and that the plaintiff's alleged injuries were caused by the intentional conduct of a third party. In their memorandum of law in support of their motion for summary judgment, the defendants argue that the alleged attack on the plaintiff was not foreseeable by them and that they had no duty to prevent it. They argue that they did not have notice of prior incidents similar to the claims made by the plaintiff on the property. In Newman's affidavit, he attests that he, as permittee of Sam the Clam's, was "not aware of any complaints and/or incidents similar to the claims made by [the plaintiff] as related to an alleged assault occurring at Sam the Clam's" during his employment and that he was "not aware of any incidents involving a response by the police department previous to the complaint made by [the plaintiff]." (Defendants' Memorandum of Law in Support of the Defendants' Motion for Summary Judgment, Exhibit B: Affidavit of Robert Newman, ¶¶ 5-6.) Furthermore, the defendants argue that the plaintiff testified at his deposition that he had not witnessed any fights nor had he been involved in any fights in the past at Sam the Clam's.
The plaintiff argues in opposition that the defendants could have foreseen the attack on the plaintiff because the defendant Barbino was belligerent and used abusive language towards a waitress at Sam the Clam's prior to the attack on the plaintiff. Furthermore, the plaintiff argues that the defendant Fenn, in his deposition, admitted that he needed to remove Barbino from Sam the Clam's because of his abusive and outrageous language directed at the waitress.
Fenn testified as follows:
A: Joe Barbino. He was sarcastic, and I think towards the end, the last couple things he said that put it to the point where me and Palomba decided we were leaving, they were a little inappropriate, more than — it got to the point where it wasn't — where he wasn't just sarcastically fooling around with her. It got to the point where it's, all right, enough's enough. Let's get out of here.
Q: You made that determination based on Barbino's behavior?
A: Absolutely.
Q: How long then from the time you entered Sam the Clam's until you said, Barbino's a little out of control; let's get out of here?
A: Not even 15 minutes.
Q: All right. Did you hear Barbino say anything to the waitress like, "Hey, you got a great ass"?
A: He said something. I don't remember word for word what he said, but he was — he got a little obnoxious. He —
Q: How about something like, "What do you think, I want to fuck you or something?"
A: I don't recall exactly word for word, something along those lines would have been one of the ones he said that pushed me over the limit. It was something obnoxious, I know that.
Q: Would it be fair to say that his conduct was such that you didn't want to be around him anymore?
A: Absolutely.
(Plaintiff's Supplement to the Plaintiff's Memorandum of Law in Opposition, Deposition of George Fenn, pp. 31-32.)
Count One
In count one of the amended complaint, the plaintiff alleges negligent service of alcohol. The defendants, in their memorandum of law in support of their motion for summary judgment, argue that they did not have a legal duty to prevent the alleged attack on the plaintiff, or, alternatively, that their actions were not the proximate cause of the plaintiff's alleged injuries. This court finds that genuine issues of material fact exist regarding the defendants' alleged failure to take reasonable measures to avoid injuries caused by their patron's alleged intoxication and their failure to enact sufficient procedures to monitor the amount of alcohol served to their patrons. Accordingly, the court denies the defendants' motion for summary judgment as to count one of the plaintiff's amended complaint because the defendants have failed to meet their burden of showing the absence of any genuine issues of material fact.
Count Three
In count three of the amended complaint, the plaintiff alleges negligent supervision. The defendants argue, however, that they did not have a duty to prevent the alleged attack in this case because it was not foreseeable. The plaintiff testified that he arrived at Sam the Clam's at about 11:30 p.m. on the night of the alleged incident. (Defendant's Memorandum, Exhibit B: Deposition of the Plaintiff, p. 20.) The defendants admitted in their answer that they possessed and controlled Sam the Clam's at the time of the alleged incident. Accordingly, the plaintiff's legal status was that of a business invitee and the defendants owed him a duty to keep their premises in a reasonably safe condition. See Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). Furthermore, a possessor of property must "act as a reasonable [person] to avoid harm . . . even from intentional attacks on the part of . . . third persons." (Internal quotation marks omitted.) Davenport v. Quinn, 53 Conn. App. 282, 288, 730 A.2d 1184 (1999). "Typically, [f]or the plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., supra, 140.
In support of their argument, the defendants rely on Monk v. Temple George Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 01 0447092 (April 29, 2003, Robinson-Thomas, J.), aff'd, 82 Conn. App. 660, 846 A.2d 933 (2004). In Monk, the plaintiff, after leaving a nightclub, was physically attacked by a former girlfriend of her husband in the parking lot where the plaintiff had parked her car for a fee. Monk v. Temple George Associates, LLC, supra, 661. The plaintiff sued the owners and operators of the parking lot, alleging that her injuries were caused by the defendants' negligence. Id., 662. The defendants moved for summary judgment on the grounds that they did not have a legal duty to protect the plaintiff from the attack and their conduct was not the proximate cause of the attack. Id. The trial court granted the motion for summary judgment and concluded that because the type of harm alleged was not reasonably foreseeable, the defendants had no legal duty to protect the plaintiff from the attack. Id. The trial court also found that the plaintiff would have failed on the issue of proximate cause even if the plaintiff had presented evidence to support a claim of duty. Id.
The Appellate Court affirmed the trial court's ruling, concluding that public policy issues concerning the tort compensation system supported the conclusion that the defendants did not have a legal duty to protect the plaintiff from the attack at issue. Id., 665. The Appellate Court did not address, however, (1) the plaintiff's claim that she had presented sufficient evidence to create a genuine issue of fact as to whether the defendants could have foreseen the attack; id., 664; and (2) the plaintiff's claim concerning causation. Id., 665 n. 4.
This court finds that Monk v. Temple George Associates, LLC, supra, 82 Conn. App. 660, is distinguishable from the present case. In the present case, the plaintiff was allegedly attacked by Barbino and Fenn inside Sam the Clam's, a bar and restaurant owned, controlled and managed by the defendants, not in a parking lot. Furthermore, the Appellate Court in Monk did not address the issues of proximate cause and whether there was sufficient evidence to create a genuine issue of fact as to the foreseeability of the attack. Instead, the Appellate Court performed a public policy analysis, stating that the imposition of a legal duty on the parking lot owners under the circumstances of that case would be "tantamount to imposing strict liability on a parking lot owner or operator for any injury on its property . . ." Id., 664. The Appellate Court also stated that the imposition of liability would "not act as a deterrent, given the unique circumstances of the attack at issue . . ." Id. The narrow focus of the Appellate Court's policy analysis in Monk does not apply to the circumstances of the present case; therefore, the defendants' reliance on Monk is not dispositive of the matter.
As stated previously, the issue of whether to impose a duty on the defendants in this case involves a consideration of public policy. See Gould v. Mellick Sexton, supra, 263 Conn. 153. Based on the record presented, this court finds that an imposition of a duty on the defendants in this particular case would not violate public policy.
As to the issue of foreseeability, this court finds that, in viewing the evidence in the light most favorable to the plaintiff, genuine issues of material fact remain as to whether an "ordinary person in the defendant[s'] position, knowing what the defendant[s] knew or should have known"; Gould v. Mellick Sexton, supra, 263 Conn. 153; would have had actual or constructive notice of the alleged danger posed by Barbino and Fenn. The plaintiff submits an excerpt from the deposition transcript of Fenn as evidence that the defendants may have had constructive notice of the alleged attack on the plaintiff. Fenn testified that, on the basis of Barbino's behavior, Fenn and Barbino should have left Sam the Clam's before the alleged attack on the plaintiff. Fenn testified that Barbino "got a little obnoxious" and that he said "something obnoxious" to a waitress at Sam the Clam's. (Deposition of Fenn, pp. 31-32.) Fenn testified that Barbino's comments reached a point "where he wasn't just sarcastically fooling around with [the waitress]." (Deposition of Fenn, p. 31.) Fenn continued: "It got to the point where it's, all right, enough's enough. Let's get out of here." (Deposition of Fenn, p. 31.) Genuine issues of material fact exist as to whether the alleged attack on the plaintiff would have been foreseeable to an "ordinary person in the defendant[s'] position"; Gould v. Mellick Sexton, supra, 153. The issues of whether Barbino's conduct would have given an ordinary person in the defendants' position notice of an attack on the plaintiff and whether an ordinary person in the defendants' position would have had a reasonable amount of time to react to the situation and take the appropriate steps to protect their patrons are questions of fact for the jury determination.
Because the plaintiff has raised genuine issues of material fact as to notice in this case, the court cannot determine as a matter of law that the defendants owed a duty to the plaintiff to prevent the alleged attack. Furthermore, because genuine issues of material fact exist as to duty, the court need not reach the issue of proximate cause.
III CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment as to counts one and three is denied.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge