Opinion
CV156056265S
03-29-2016
Lisa Liquori v. Theodore Spalding et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO STRIKE #129
Brian T. Fischer, J.
FACTS
The plaintiff, Lisa Liquori, filed a complaint in this action against the defendants, Bottle Crib and Pasquale DiMatteo (d/b/a Bottle Crib), on July 30, 2015. As the result of a request to revise filed on September 9, 2015, the plaintiff filed a ten-count revised complaint on October 9, 2015. In the revised complaint, the plaintiff alleges the follow relevant facts.
The plaintiff is the duly appointed Administratrix of the Estate of John Liquori.
The plaintiff additionally names Theodore Spalding, Antonio DiMatteo (d/b/a Bottle Crib), and Rosa DiMatteo (d/b/a Bottle Crib) as defendants. The present motion to strike, however, concerns only Bottle Crib and Pasquale DiMatteo, and for purposes of this memorandum, they shall be referred to as the defendants.
The defendants filed a second request to revise on September 28, 2015, to which the plaintiff objected on October 13, 2015. This court, Fischer, J., sustained the objection on October 29, 2015.
Bottle Crib (and DiMatteo in the business under the tradename Bottle Crib), was a business entity in Connecticut located at 1065 Middletown Avenue in Northford, and was in the business of purveying alcohol and alcoholic beverages to customers. On July 16, 2014, between 10:38 a.m. and approximately 2:17 p.m., Theodore Spalding, a patron of Bottle Crib, was already visibly intoxicated by the time he arrived at the premises, and Bottle Crib, through its agents, servants, and/or employees, sold one or more intoxicating beverages to Spalding. Spalding consumed the alcoholic beverages while on the premises at Bottle Crib at a table that it made available for its patrons, and at no relevant time did Bottle Crib take any action to prevent him from driving. On said date, at approximately 2:17 p.m., the plaintiff's decedent, John Liquori, was walking and/or running on Middletown Avenue in North Haven. Spalding, while under the influence of alcohol, was operating a motor vehicle on Middletown Avenue when suddenly and without warning he swerved to the right, violently striking Liquori. Liquori was pronounced dead at Yale-New Haven Hospital at approximately 7:18 p.m. on July 17, 2014. The plaintiff alleges that the collision and resulting injuries were a direct and proximate result of the negligence and carelessness of Bottle Crib and DiMatteo in that they, amongst other things: failed to properly supervise and monitor the distribution and sale of alcohol within Bottle Crib; allowed Spalding to operate a motor vehicle upon leaving Bottle Crib; and served and/or continued to sell/serve one or more alcoholic or intoxicating beverages to Spalding after he had become visibly intoxicated.
On November 25, 2015, the defendants filed a motion to strike counts four and six of the complaint on the ground that the claims are specifically excluded by General Statutes § 30-102, the Connecticut Dram Shop Act. The motion was supported by a memorandum of law. The plaintiff filed a memorandum in opposition to the motion to strike on December 17, 2015. This matter was heard at short calendar on January 25, 2015.
Section 30-102 entitled, " Dram Shop Act; liquor seller liable for damage by intoxicated person. No negligence cause of action for sale to person twenty-one years of age or older, " 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 injuries 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, to be recovered in an action under this section . . ."
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." (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 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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).
The defendant argues that counts four and six of the plaintiff's complaint, which sound in negligence, are specifically excluded by the Dram Shop Act. The defendant specifically argues that the allegations in paragraph twelve either explicitly allege negligence in the sale or service of alcohol or allege violations of duties imposed as a result of the service of alcohol. The plaintiff counters that the negligence counts arise not out of the sale of alcohol, but out of the act of providing a table on the premises at which patrons were permitted to drink alcohol.
The Dram Shop Act 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 . . . 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 year of age or older."
" [T]he Dram Shop Act . . . is a statutory cause of action creating rights that did not exist at common law." Eaton v. Ruggles, Superior Court, judicial district of New London, Docket No. CV-11-6010411-S (March 9, 2012, Martin, J.) (53 Conn. L. Rptr. 713, 717, at *19). " In [ Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003)], our Supreme Court held that the Dram Shop Act was not intended to occupy the field and be the exclusive remedy for the negligent sale of alcoholic beverages. Several months after this decision, however, the Connecticut legislature passed Number 03-91 of the 2003 Public Acts which added the following sentence: 'Such 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.' Undoubtedly, Public Act 03-91 eliminated any common-law negligence causes of action by person entitled to recover under the Dram Shop Act." Negri v. Murphy, Superior Court, judicial district of New Haven, Docket No. CV-15-6054538-S (January 8, 2016, Fischer, J.) .
Despite the legislature's modification of the statute, plaintiffs have attempted to bring separate causes of actions in negligence based on behavior which they argued fell outside of the scope of the statute. For instance, in Poulin v. Laboy, Superior Court, judicial district of Hartford, Docket No. CV-10-6016743-S (March 31, 2011, Peck, J.) (51 Conn. L. Rptr. 648), the plaintiff brought claims against the defendants arising out of injuries he suffered when after an intoxicated driver struck his vehicle. The plaintiff alleged that the injuries and losses he sustained were caused by the defendants' negligent conduct of the permit premises in, inter alia, failing to adopt or enforce policies for preventing intoxicated patrons from operating their motor vehicles. The defendants moved to strike the " negligent conduct of premises" count on the ground that it alleged a cause of action for negligent sale of alcohol to an adult, which was barred by the Dram Shop Act. The plaintiff maintained that the cause of action was not preempted by the Act because it was not for the sale of alcohol.
In granting the defendant's motion to strike, the court stated, " [t]he plaintiff argues that the legislative abrogation of negligence causes of action effected by Public Act No. 03-91 applies only in cases of alcohol " sale." This argument is incorrect and misconstrues the language and legislative intent of the amended statute. The legislative prohibition of negligence actions, enacted in response to the Supreme Court's decision in Craig, applies to actions brought against the seller ." Id., 649, at *5. See Raymond v. Duffy, Superior Court, Complex Litigation Docket No. X04-CV-03-0102444 (January 13, 2005, Quinn, J.) (38 Conn. L. Rptr. 562, 565) (" Unquestionably, the Dram Shop Act, as amended by Public Act No. 03-91, legislatively overrules Craig as it applied to sellers of alcoholic beverages"). " The amended statute does not specify the particular conduct of the seller that must be charged as negligent. Rather, it states that '[s]uch injured person shall have no cause of action against such seller ' for that seller's negligence in the sale of alcoholic liquor . . . [T]he plaintiff's action is against the defendants, 'sellers' of alcohol, and thus is subject to the provisions of the Dram Shop Act . . . The statute clearly states that an individual injured by an intoxicated person has no cause of action against the seller for its negligence in the sale of alcoholic liquor to an adult . . ." Poulin v. Laboy, supra, 649at *6.
Although the courts have declined to allow causes of actions in negligence against the sellers of alcohol, Connecticut has held that an employer may be held liable for the negligent supervision of tavern patrons and employees. See Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967) (" if a cause of action is not predicated on the defendant's furnishing, whether by sale or gift, intoxicating liquor, it would not fall within the common-law rule that the consumption, rather than the furnishing, of intoxicating liquor is the proximate cause of intoxication and of any resulting damage to person or property"); Widdows v. Crown Street Bar Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV-07-5009467-S, (January 14, 2008, Zoarksi, J.) (denying defendants' motion to strike where " plaintiff argues negligent supervision as a cause of action because [the defendants] negligently failed to keep the premises safe for the plaintiff as a business invitee");
In the present case, although the plaintiff argues that it is alleging a separate cause of action in the defendant providing tables for patrons and allowing them to consume alcohol in its establishment, it is clear that the allegations are still predicated on the negligent sale of alcohol. Counts four and six sound in negligence against Bottle Crib and DiMatteo, respectively, and contain identical allegations. Paragraph four of both counts states that: " At all relevant times, Theodore Spalding was already visibly intoxicated and/or showing signs of intoxication by the time he arrived at Bottle Crib, having consumed one or more alcoholic beverages before his arrival." Paragraphs five alleges that the defendants sold Spalding one or more alcoholic beverages even though he was visibly intoxicated. Paragraphs six further alleges that Spalding consumed the beverages while on the premises at a table that Bottle Crib made available for its patrons. Moreover, paragraphs seven states that at no relevant time did the agents, servants and/or employees of the Bottle Crib request Spalding to turn over his keys or take any action to prevent him from driving.
Because the plaintiff's negligence claims are based largely upon the negligent sale of alcohol to an intoxicated person, those claims fall within the purview of the Dram Shop Act. Furthermore, the plaintiff does not provide any case law, nor does the court's research reveal any, that supports her claim that an alcohol retailer is negligent in providing a table on the premises where patrons are permitted to consume alcohol. Accordingly, the court grants the defendants' motion.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to strike counts four and six of the plaintiff's complaint.
Whoolery v. Archie Moore's Cafe, Superior Court, judicial district of New Haven, Docket No. CV-04-4000006-S, (December 15, 2004, Zoarski, J.) (denying motion strike count where plaintiff successfully alleged negligent supervision); Carr v. Hotshots Cafe, Superior Court, judicial district of Windham, Docket No. CV-14-6007736-S (July 30, 2014, Boland, J.) (58 Conn. L. Rptr. 681) (same). Nonetheless, " [s]everal judges of the Superior Court have found that claims with the main premise clearly involving the negligent sale of alcohol do not constitute negligent supervision as a separate remedy from the Dram Shop Act." Negri v. Murphy, supra, Superior Court, Docket No. CV-15-6054538-S 614 (granting defendants' motion to dismiss negligent supervision claims where allegations spawn from service of alcohol to intoxicated person); see also Eaton v. Ruggles, supra, 53 Conn. L. Rptr. 717, Id. at*19 (granting defendant's motion to strike where allegations relate solely to furnishing of alcohol). In the present case, the plaintiff does not argue negligent supervision, thus the court will not analyze the claim on this ground.