Opinion
No. CV 07-5005586 S
November 28, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On July 16, 2007, the plaintiff, Ian Kupec, filed a six-count complaint against the defendants. The plaintiff, in his complaint, alleges that he was involved in a one-car motor vehicle accident in the early morning hours of August 13, 2005 when the car that he was operating struck a utility pole and several mailboxes along Rubber Avenue in Naugatuck, Connecticut. The plaintiff alleges that prior to his accident, he was served alcohol at the defendants' establishment also located in Naugatuck doing business as Asbury Park Night Club. The plaintiff asserts claims against Classic Rock Caf É, Inc. d/b/a Asbury Park Night Club as the owner, and Kevin Hendricks, as the permittee.
The First and Second Counts of Plaintiff's Complaint sound in negligence against Classic Rock Caf É and Kevin Hendricks, respectively, pertaining to the sale and service of alcoholic beverages to the plaintiff. The Third and Fourth Counts allege negligent supervision, monitoring and training against the respective defendants. The Fifth and Sixth Counts allege recklessness against the respective defendants. The plaintiff claims that he sustained significant injuries and losses due to his automobile accident after he left the bar.
On September 11, 2007, the defendants filed a motion, and memorandum in support, to strike counts one, two, three and four of the plaintiff's complaint for failure to state claims upon which relief may be granted. The defendants argue that neither Connecticut common law nor § 30-102 of the Connecticut General Statutes (the Dram Shop Act) permit a cause of action for negligence or for negligent supervision and training against sellers of alcoholic beverages to an intoxicated person who injures himself. On September 27, 2007, the plaintiff filed a memorandum in opposition. Oral argument on the motion to strike was heard at short calendar on November 13, 2007.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and [it] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004) . However, "[A motion to strike] does not admit legal conclusions or the truth of accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
As to Counts One and Two
Section 30-102 of the Connecticut General Statutes 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 . . ." In February of 2003, the Connecticut Supreme Court addressed the issue of whether the Dram Shop Act was the exclusive remedy for an individual who was injured as the result of the negligent service of alcohol to an intoxicated adult. See Craig v. Driscoll, 262 Conn. 312 (2003). The Court in Craig held that the Dram Shop Act was not the exclusive remedy for individuals who suffer damages as the result of the negligent service of alcohol to an intoxicated adult. In a response to the Connecticut Supreme Court's decision in Craig v. Driscoll, the legislature passed Public Act 03-91. This act raised recoverable damages for actions brought pursuant to the statute to $250,000. It also prohibited negligence actions against sellers of alcohol to persons of twenty-one years or older by those injured as a result of the tortfeasors intoxication.
The effect of the Public Act is, however, irrelevant to this dispute in that plaintiff concedes its inapplicability. Yet, the plaintiff claims he is entitled, as the intoxicated driver who injured himself, to bring a Connecticut common-law negligence cause of action. In Nolan v. Morelli, 154 Conn. 432, 438, 439, 226 A.2d 383 (1967), where the Connecticut Supreme Court discussed the history of the Dram Shop Act, the Court observed:
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. 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. Connecticut and sister states eventually modified the foregoing common-law rule by statute. Such statutes, were known as Dram Shop Acts. Although our state's version of this so-called civil damage or Dram Shop Act nowhere provides that it is the exclusive remedy, "[o]ur Supreme Court has mandated that the only cause of action arising from the negligent service of alcohol to intoxicated persons shall arise under the Dram Shop Act." Davenport v. Quinn, 53 Conn.App. 282, 287, 730 A.2d 1184 (1999). It is clear that this statute, is the only modification of the common-law rule which the General Assembly has ever intended to make. 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. In light of the specific allegations of the complaint, this court finds that the First and Second Counts are not legally sufficient to sustain a cause of action. Accordingly, the motion to strike the first and second counts is granted.
As to Counts Three and Four
Our courts have recognized the validity of a negligent supervision action where the plaintiffs were injured by other patrons on the premises of the defendant, and the injuries were allegedly caused by the defendant's failure to supervise the other patrons and provide a safe business environment. Clinch v. Maratta, Superior Court, judicial district of New Britain, Docket No. CV 99 0498020 (April 17, 2002, Quinn, J.) (32 Conn. L. Rptr. 77, 78). In Davenport v. Quinn, 53 Conn.App. 282, 287-89, 730 A.2d 1184 (1999), the Appellate Court found that the trial court properly held that a plaintiff patron could allege common-law negligence claims against defendant bar owner in addition to violation of Dram Shop Act, after plaintiff was attacked while standing on sidewalk outside bar by individuals who had just left the bar. In Nolan v. Morelli, 154 Conn. 432, 440-41, 226 A.2d 383 (1967), our Supreme Court stated:
[A] cause of action predicated on negligence in the failure of the proprietor of a restaurant, or his servants 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 or 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 . . . In Federico v. Caruso, Superior Court, Judicial District of Ansonia-Milford at Milford, Docket No. CV 96 0053808 (April 18, 2002, Sequino, J.), and in Flower v. Lombard, Superior Court, Judicial District of Hartford, the superior court judges discussed cases very similar to the instant case, as follows:
"Although the plaintiff claims that the allegations of the third count involve `negligent supervision' of the defendant's employees, the thrust of the allegations clearly involve a claim of negligent sale of alcohol. The claimed failure of the defendant to supervise his employees to prevent their sale of alcohol to an intoxicated person is not supervision of the premises or supervision of patrons of the premises. Courts have uniformly rejected similar attempts to validate claims of negligent sale of alcohol by calling them negligent supervision claims." See Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. CV 95 0115265 (March 21, 1995, Flynn, J.) (14 Conn. L. Rptr. 346, 348-49). ("In cases that have recognized such a cause of action, the plaintiffs were injured by other patrons on the premises of the defendant, and the injuries were allegedly caused by the defendants' failure to supervise the other patrons and provide a safe business environment."); Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 92 039650 (July 23, 1993, Jones, J.) (9 Conn. L. Rptr. 518, 519) (negligent supervision "has only been allowed in cases where the establishment served alcohol to one patron who subsequently assaulted another patron in the same establishment").
Claims similar to the plaintiff's allegation in the third and fourth counts based on the negligent failure of the defendant tavern and tavern owner to prevent a patron from driving, have been generally rejected. The common law has not recognized a duty to prevent a person from causing harm, even in the case where someone provides alcohol to another person knowing that the person may, thereafter, operate a motor vehicle. Federico v. Caruso, supra, Superior Court, Docket No. CV 96 0053808. See Quinnett v. Newman, supra, 213 Conn. 343.
Since the third and fourth counts in this case clearly involve a claim of negligent sale of alcohol, the defendant's motion to strike the third and fourth counts is also granted.