Opinion
No. CV 09-5029198 S
January 28, 2010
MEMORANDUM OF DECISION ON RE DEFENDANTS' MOTION TO STRIKE (#109)
PROCEDURAL AND FACTUAL HISTORY
The operative complaint is the amended version filed by the plaintiff on November 12, 2009, in which the plaintiff alleges the following facts. On or about November 23, 2007, during the evening, and on or about November 24, 2007, during the early morning, the plaintiff's decedent, Emily Keeney, consumed "copious amounts" of alcohol at Chuck's Margarita Grill, a restaurant in Branford owned and operated by the defendant Kukai Caliente, LLC. The defendant Patrick Gallagher is the owner of Kukai Caliente, LLC DBA Chuck's Margarita Grill, while the defendant Bryan Horsley is the permittee.
Hereinafter, the court will refer to Kukai Caliente, LLC, Gallagher and Horsley collectively as the "defendants."
On or about November 24, 2007, at approximately 1:50 a.m., the decedent operated a motor vehicle of which she lost control, resulting in a one-motor vehicle accident. The accident caused damages and injuries to the decedent that in turn led to her immediate death. The plaintiff in the present case is Barbara Keeney, the administratrix of the decedent's estate. The complaint that she has filed against the defendants contains six counts. Count one is against Kukai Caliente, LLC DBA Chuck's Margarita Grill and sounds in negligence. Count two is against Gallagher and sounds in negligence. Count three is against Horsley and sounds in negligence. Count four is against Kukai Caliente, LLC DBA Chuck's Margarita Grill and sounds in reckless service of alcohol. Count five is against Gallagher and sounds in reckless service of alcohol. Finally, count six is against Horsley and sounds in reckless service of alcohol.
In counts one through three, the plaintiff makes the following allegations against the defendants. First, the defendants failed to prevent and monitor or supervise the decedent's consumption of alcohol. Second, the defendants knew or should have known that the intoxicated decedent posed an "unreasonable risk" to herself and others, both generally and specifically with respect to operating a motor vehicle. Third, the defendants failed to train their employees to identify and prevent further service of alcohol to intoxicated persons like the decedent. Fourth, the defendants knew or should have known about the decedent's intoxication and the resulting risk that she posed to others, but they nonetheless continued to serve alcohol to her. Fifth, the defendants promoted the decedent's "gross intoxication" because they failed to institute preventive practices and procedures. Sixth, the defendants violated Connecticut General Statutes § 30-86 because they sold and/or delivered alcohol to the already-intoxicated decedent. Finally, the defendants violated Connecticut General Statutes §§ 53a-181(a)(6) (breach of the peace in the second degree) and 53a-182(a)(5) (disorderly conduct) by serving alcohol to the already intoxicated decedent, furthering her intoxication and failing to monitor her consumption of alcohol.
The defendants filed a motion to strike with a supporting memorandum of law on November 30, 2009. Specifically, the defendants move to strike counts one through three of the amended complaint. The plaintiff has not filed an objection to the motion. Furthermore, she did not appear at short calendar on December 21, 2009, at which time the court heard oral argument on the motion.
DISCUSSION
Practice Book § 10-39(a)(1) provides in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or 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 role of the trial court [is] to examine the complaint, construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[T]he court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
There are two grounds for the defendants' motion. First, "Connecticut does not permit recovery for injuries to an intoxicated purchaser who is involved in a motor vehicle accident which causes her death." Second, "the plaintiff has failed to allege that the intoxicated decedent was under 21 years of age at the time of the accident, which is a necessary predicate to a negligent service of alcohol claim." The defendants argue in their memorandum that the Dram Shop Act (the "Act"), Connecticut General Statutes § 30-102, governs the plaintiff's cause of action, only provides relief to third parties injured by intoxicated persons, and only allows for a negligent sale of alcohol cause of action when a subject intoxicated person is younger than twenty-one years old.
The Act, section 30-102, provides in relevant part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars." In 2003, the legislature amended the Act to add the following language: "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." Public Acts 2003, No. 03-91, § 1. This is the provision upon which the defendants rely with respect to the second ground for the motion. However, such reliance is misplaced because § 30-102 is not at all applicable to the facts of this case as alleged by the plaintiff.
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If; after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." The Act clearly identifies those who may bring a cause of action under it as "person[s] injured" by "intoxicated person[s]," not "intoxicated person[s]" who injure themselves. See also, e.g., Nolan v. Morelli, 154 Conn. 432, 435-36, 226 A.2d 383 (1967) ("By its express terms, the Act authorizes a recovery, where its conditions are fulfilled, by one injured in person or property as a consequence of the intoxication of another person to whom intoxicating liquor has been sold while he was intoxicated, but it clearly does not authorize recovery for injuries or property damages sustained by the intoxicated purchaser himself."); Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002366S (May 19, 2008, Tobin, J.) ( 45 Conn. L. Rptr. 499, 500) (concluding that provision did not apply to plaintiff who injured himself by falling while intoxicated because "[t]he reference to `such injured person' in the 2003 amendment can only refer to the individual who suffers personal injury `in consequence of [the] intoxication' of the person wrongfully served alcohol while intoxicated").
In the present case, the party who brings this negligence claim based upon the defendants' sale of alcohol is not a third party injured by an intoxicated person. It is instead the administratrix of the intoxicated person's estate who alleges that the defendants' negligence resulted in the intoxicated person's injury and death. Therefore, the Act, including the provision added by Public Act 03-91, does not apply to the plaintiff's cause of action, and the court cannot grant the motion on the defendants' second ground that the plaintiff has failed to allege the decedent's age as required by the Act.
"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 either of 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. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 322, 813 A.2d 1003 (2003). See also Kupec v. Classic Rock Cafe, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5005586S (November 28, 2007, Alvord, J.) ( 44 Conn. L. Rptr. 574, 575) ("Nothing in the history of the statute or the case law of Connecticut suggests that the intoxicated person over the age of twenty-one has a cause of action in negligence against the alcohol purveyor for injuries resulting from his own intoxication.")
As discussed, the Act provides an exception to the rule for third parties injured by intoxicated persons. There is no statutory equivalent for intoxicated persons who injure themselves. The Act is one of "three recognized exceptions to the common-law rule"; the other two are "the service of alcohol or intoxicating liquor to minors" and the "reckless service of alcohol." Resulovski v. Ipek, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 07 5002218S (July 10, 2007, Robinson, J.). See also Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988) (common-law cause of action exists for negligent service of alcohol to minors); Kowal v. Hofher, 181 Conn. 355, 359-62, 436 A.2d 1 (1980) (reversing trial court's grant of motion to strike count sounding in "wanton and reckless misconduct" where plaintiff was administrator of estate of intoxicated person who died in motor vehicle collision).
The negligence causes of action brought by the plaintiff against the defendants are based upon the alleged fact that the defendants "furnished . . . intoxicating liquor" to the decedent, "who thereby voluntarily became intoxicated and in consequence of [her] intoxication injured the person or property . . . of [her]self." Specifically, the plaintiff's allegations in counts one through three of the amended complaint focus primarily upon the defendants' continued service of alcohol to the decedent despite her intoxication, which led to her inability to operate her motor vehicle, which in turn led to her accident and resulted in her death. The plaintiff cannot avail herself, however, of any of the exceptions to the common-law rule. First, as discussed above, the Act does not apply to the plaintiff's negligence causes of action against the defendants. Second, as the defendants argue, the plaintiff does not allege either explicitly or implicitly in the amended complaint that the decedent was a minor at the time of the motor vehicle accident. Finally, counts one through three of the amended complaint do not contain allegations of "wanton and reckless misconduct." Such allegations are instead contained in counts four through six, which sound in reckless service of alcohol and are not subject to the present motion to strike. Counts one through three are therefore legally insufficient because they do not qualify for any of the three exceptions to the common-law rule that there is no tort cause of action for a party injured by an intoxicated person against a seller of alcoholic beverages.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike counts one through three of the amended complaint is granted.