Opinion
No. CV-11 6007989S
November 17, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#107)
On June 15, 2011, the defendants Melody Decker and Tomeltoi, LLC, doing business as Shorties Bar Grill, filed a motion to strike counts two, three and four of the plaintiff's complaint on the grounds that the plaintiff, Benjamin Lizotte, failed to provide proper notice of injury required by General Statutes § 30-102 and failed to allege the existence of any duty owed to him by the defendants. The defendants have submitted a memorandum of law in support of the motion. On August 15, 2011, the plaintiff filed an objection and a memorandum of law in opposition to the motion. This matter was heard on the short calendar on October 24, 2011.
ALLEGATIONS
On February 28, 2011, the plaintiff filed a four-count complaint against the defendants for injuries the plaintiff suffered. In the complaint, the plaintiff alleges the following facts. On the evening of May 19, 2010, at approximately 11 p.m., Brandy Gilbarto was at Shorties Bar Grill (the bar) when she met Glenn Perkins, who had been drinking heavily. Perkins confronted Gilbarto, after which she walked outside to have a cigarette. Gilbarto and Jonathan Shelden, an employee of the bar, began talking and smoking immediately outside of the bar and the plaintiff, on crutches, joined them. Immediately thereafter, Perkins, who was visibly intoxicated, came outside and began making offensive comments to Gilbarto. When the plaintiff demanded that Perkins stop his offensive conduct, Perkins stabbed him in the chest with a knife and drove away. The plaintiff suffered severe injuries from the stabbing.
Count one of the complaint sounds in assault and battery against Glenn Perkins. That count is not included in the motion before the court and thus will not be further addressed. In this memorandum, Melody Decker and Tomeltoi, LLC will collectively be referred to as "the defendants."
In count two of the complaint, the plaintiff alleges that Perkins had been furnished alcoholic beverages by the defendants at the bar in violation of § 30-102, which resulted in the plaintiff's injuries. In count three, the plaintiff alleges that the defendants acted recklessly by failing to monitor Perkins' alcohol consumption; continually serving Perkins after he was under the influence of alcohol; not following proper conduct for service of alcohol when patrons show signs of intoxication; failing to enforce rules concerning service of alcohol to intoxicated persons; and allowing Perkins to remain at the bar when they knew or should have known that he posed an unreasonable risk of harm to others. In count four, the plaintiff alleges that the defendants acted negligently by failing to conduct reasonable inspections of the bar to make it safe; exercise proper supervision over patrons; properly train and supervise their employees regarding the behavior of patrons; enforce rules concerning patron supervision; warn the plaintiff or others that Perkins could cause harm; provide a reasonably safe area for patrons to smoke; provide adequate security personnel; and provide a verbal warning to patrons immediately outside of the bar that the area was not supervised.
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). "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." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). "In ruling on a motion to strike, the 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "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, CT Page 23837 219 Conn. 465, 471, 594 A.2d 1 (1991).
In their memorandum of law in support of the motion to strike count two of the complaint, the defendants argue that the plaintiff has not complied with the notice requirements of § 30-102, as the notice did not contain the time and date of the plaintiff's injury. The defendants argue that § 30-102 creates a cause of action that did not exist under the common law and, therefore, the statute must be strictly construed. The plaintiff counters that § 30-102 was satisfied even though the notice did not mention the time and date of the injury. The plaintiff argues that § 30-102, being remedial in nature, has been interpreted liberally. Thus, the plaintiff argues that since he substantially complied with the notice provisions of § 30-102 and the defendants were not misled or hampered by any defects in the notice, the notice was adequate.
The Connecticut Dram Shop Act, § 30-102, states, 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 . . . provided the aggrieved person or persons shall give written notice to such seller of such person's or persons' intention to bring an action under this section . . . Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred."
"General Statutes § 30-102 created a new cause of action not available at common law." Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 512, 603 A.2d 1173 (1992). The statute is "remedial in character and [thus] should be liberally construed to suppress the mischief and advance the remedy." (Internal quotation marks omitted.) Pierce v. Albanese, 144 Conn. 241, 251, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). "The courts have construed the content requirements of written notice liberally where, despite some inadequacy or insufficiency of otherwise timely notice, the defendant was apprised of the inception of [the] action." (Internal quotation marks omitted.) Ryan v. Curtis, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0513761 (September 23, 1993, Hennessey, J.) [ 10 Conn. L. Rptr. 108]. "Even where notice requirements have not been literally met . . . if under all the circumstances it nevertheless appears that the party entitled to notice was neither misled nor hampered by that defect, then he may not avail himself of the defect in his defense of the action." Kirby v. Rusty Nail Cafe of Bristol, Inc., 40 Conn.Sup. 331, 332, 449 A.2d 85 (1985).
"[T]he purpose of the notice required by [§ ]30-102 is to enable a prospective defendant to begin marshalling his evidence while memories are still fresh." (Internal quotation marks omitted.) 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]. "[S]ubstantial compliance so as to effectuate [the] purpose of the statute is sufficient." (Internal quotation marks omitted.) Id. Several trial court decisions have found substantial compliance where the plaintiff omitted one or more of the requirements under the statute. See, e.g., id. (notice omitted name of person to whom sale was made and place where injury occurred); Benedict v. Gillette, Superior Court, judicial district of Tolland at Rockville, Docket No. 46849 (October 1, 1991, McWeeny, J.) [ 5 Conn. L. Rptr. 102] (notice omitted address of injured person and time, date and place of injury); Cruz v. Wice, 40 Conn.Sup. 48, 49-50, 479 A.2d 1249 (1984) (notice gave time of day as "evening" and stated that injury was caused by patron of defendant).
In the present case, the plaintiff's notice substantially complies with the provisions of § 30-102. Although the notice fails to specify the time and date of the plaintiff's injury, all other notice requirements under the statute have been met. The phrase "substantial compliance" as interpreted by Connecticut decisions does not delineate minimum requirements that must be met in order to satisfy the statute. Nevertheless, when compared with the previously cited cases where substantial compliance has been found, the plaintiff's notice certainly seems adequate. Further, it does not appear that the defendants were misled or hampered by the defect, and the defendants were given the chance to begin marshaling their evidence. Because § 30-102 is to be liberally construed and the purpose of the statute was met in this case, the defendants motion to strike count two of the complaint is denied.
The defendants also argue that counts three and four of the complaint, alleging recklessness and negligence, respectively, should be stricken as the plaintiff has failed to allege facts establishing that the defendants owed him a duty. Specifically, the defendants argue that the plaintiff has not alleged that he was a patron or business invitee of the defendants and, therefore, the defendants owed him no duty. The plaintiff counters that count three is legally sufficient, as purveyors of alcohol owe a duty to third parties regardless of their entrant status if the defendants' conduct is reckless or wanton. The plaintiff also argues that it has alleged a duty in count four because Perkins was a patron of the bar, the incident took place immediately outside of the bar and the defendants had knowledge and control of the area.
"In order to recover in a tort case, the plaintiff must show that the defendant has breached a legal duty owed to him . . . The existence of a duty is a question of law . . . 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 . . . The requisite duty to use care may stem from a contract, from a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result." (Citations omitted; internal quotation marks omitted.) Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 44-45, 492 A.2d 219 (1985). Further, "[t]o be legally sufficient, a count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." Id., 46; see also Warren v. Connecticut Community for Addiction Recovery, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. CV 09 5005416 (September 15, 2010, Riley, J.) ("[a] claim for recklessness cannot survive without a foundation in negligence, and specifically, a duty").
Connecticut decisions have recognized a distinction in the viability of negligence and recklessness causes of action against purveyors of alcohol. In the context of negligence claims, the Supreme Court has "held in a number of cases that there is no common-law action in negligence 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 underlying the rule is that the proximate cause of the intoxication was not the sale or furnishing of the liquor but the consumption of it by the purchaser or donee." (Internal quotation marks omitted.) Boehm v. Kish, CT Page 23840 201 Conn. 385, 389, 517 A.2d 624 (1986).
In Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), the Supreme Court considered whether this rule also applies in situations involving wanton and reckless misconduct. The court held that it does not, reasoning that "one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent." Id., 361. Thus, "[a]n examination of the policy considerations involved in legal cause [persuaded the court] that there is no logical reason for denying the plaintiff a recovery based on proof of wanton and reckless misconduct." Id., 362. In reaching this conclusion, the Supreme Court focused its analysis on proximate cause rather than duty. See id., 359-61.
The court balanced "philosophic, pragmatic and moral approaches to causation" and stated that "a moral approach to causation introduces into the formula the perceived nature of the actor's conduct which produced the injury." Kowal v. Hofher, supra, 181 Conn. 359-60.
The distinction between proximate cause and duty in this context, however, is not entirely clear. "Frequently, [duty] is dealt with in terms of what is called `proximate cause,' usually with resulting confusion. In such cases, the question of what is `proximate' and that of duty are fundamentally the same: whether the interests of the plaintiff are to be protected against the particular invasion by the defendant's conduct." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 54, p. 358. Further, the Supreme Court has stated that the duty inquiry "is quite similar to the analysis that we engage in with respect to the third element of negligence, proximate causation. Indeed, as Professors Prosser and Keeton have noted, `[t]he question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff's benefit. Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant's hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the `proximate cause' of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same.' . . ." (Citations omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 387 n. 4, 650 A.2d 153 (1994).
For example, in Autore v. Kimberly Inn, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0331085 (July 16, 1998, Nadeau, J.) ( 22 Conn. L. Rptr. 423), the plaintiff alleged that the defendants served their employee numerous alcoholic drinks and allowed him to drive, which resulted in a collision with the plaintiff. The plaintiff alleged that the defendants were reckless in serving their employee to the point of intoxication, while the defendants argued that they owed no duty to the plaintiff. Id. The court disagreed with the defendants, citing Kowal for the proposition that "policy considerations which might justify protecting both a vendor and a social host from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcohol beverages to another [do not] also apply when the conduct constitutes wanton or reckless misconduct." (Citations omitted; internal quotation marks omitted.) Id. The court therefore held that "the defendants' argument that they owed the plaintiff no duty is misplaced, as the plaintiff has not alleged common law negligence, but recklessness." Id. Thus, in holding that the defendant owed the plaintiff a duty, the court relied on Kowal, which concerned proximate cause.
"While duty and causation are separate elements, both involve a determination of whether the harm that occurred was foreseeable." Nixon v. Kaufman, Superior Court, judicial district of New Haven, Docket No. CV 97 0398142 (March 12, 1999, Devlin, J) [ 24 Conn. L. Rptr. 244]. "It is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm." Lodge v. Arett Sales Corp., 246 Conn. 563, 574, 717 A.2d 215 (1998). Accordingly, in the context of common law recklessness claims brought against purveyors of alcohol, the reasoning of Kowal supplies a framework for analyzing the separate, but analogous, inquiry of duty.
In the present case, the plaintiff alleges in count three that the defendants were reckless and wanton in various ways. The defendants' argument that the plaintiff has not alleged a duty relies on the plaintiff's failure to allege it was a patron or invitee of the defendants' bar at the time of the incident. This argument is misplaced, however, in that it assumes that such an entrant status is required. Kowal and Autore both involved recklessness claims brought by third parties who were not invitees or otherwise connected to the establishments that served the imbiber. Those decisions, whether viewed as involving proximate cause or duty, allowed the plaintiffs' recklessness claims to proceed based on a foreseeability and policy analysis. Similarly, in this case the plaintiff has not alleged that he entered the bar, but he has alleged that he was stabbed by Perkins who was recklessly served alcohol by the defendants. Because this is a recklessness claim as opposed to a negligence claim, the facts alleged by the plaintiff are legally sufficient to set forth the existence of a duty owed by the defendants. Thus, the defendants' motion to strike count three of the complaint is denied.
Since negligence claims require a different analysis than recklessness claims, the plaintiff must allege a separate basis for finding that the defendants owed him a duty in order for count four of the complaint to be legally sufficient. "[A] possessor of land who holds it open to the public is under a duty to members of the public who enter in response to his invitation . . . The duty arise[s] out of special relations between the parties, which create a special responsibility." (Citation omitted; internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 789 n. 7, 918 A.2d 249 (2007). Further, "a possessor of land has a duty to conduct its business operations in a manner that does not create an unreasonable risk of physical harm to those outside of the premises . . ." (Citations omitted.) Fleming v. Garnett, 231 Conn. 77, 83-84, 646 A.2d 1308 (1994); see also W. Prosser W. Keeton, supra, § 57, p. 387 ("The possessor of land is first of all required to exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises").
Consequently, there are situations where a land possessor owes a duty to a person not located within the physical boundaries of the possessor's property. For example, in Goodjohn v. Pleasant Moments Cafe, Superior Court, judicial district of New Haven, Docket No. CV 01 0456213 (April 25, 2002, Robinson, J.), the plaintiff alleged that he was driving past the defendants' bar on a motorcycle when a patron of the bar opened fire with a gun, causing the plaintiff to take evasive action and sustain injuries. The defendant filed a motion to strike the count of the plaintiff's complaint alleging negligent supervision, asserting that the count was legally insufficient because the plaintiff was not on the defendants' premises at the time of the incident. Id. The court denied the defendants' motion to strike because, although the plaintiff had no entrant status, "the act that [was] alleged to be the proximate cause of the plaintiff's injuries took place on the premises of the defendants." Id.
Conversely, in Atwood v. Buon Appetite, Superior Court, judicial district of New Haven, Docket No. CV 98 0419188 (December 15, 1999, Devlin, J.) [ 26 Conn. L. Rptr. 97], the court held that "the common law duty that a proprietor owes to business invitees did not extend to injuries sustained away from the business premises." In that case, the defendants, who were owners and operators of a bar, observed a hostile argument between two patrons and ordered them to leave the premises. Id. Subsequently, at some distance away one of the patrons was assaulted. Id. In holding that no duty existed, the court relied on Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967), for the proposition that "the plaintiff had pointed to no common law duty resting on the defendants, as sellers, proprietors or otherwise . . . to guard against injuries sustained at unknown instances from the defendant's premises and at places and under circumstances wholly outside the defendant's knowledge or control." Id. The court added in a footnote that "[t]here is no allegation in the complaint that [the plaintiff] was injured in the parking lot . . . or immediately outside the door; nor is there any allegation that the defendants could observe or had any knowledge of the fight." Id.
Although Nolan contains broad language, the Kowal decision expressly limited Nolan's holding to negligence, and not recklessness, claims. See Kowal v. Hofher, supra, 181 Conn. 357 n. 2 ("An examination of the record and briefs in Morelli . . . reveals that no cause of action was alleged based either on reckless or intentional conduct with respect to the consequences flowing from the supplying of alcohol . . . [W]e do not find the rule of Morelli and its progeny to be controlling in the present case.").
Further, a premises liability claim may proceed even where the condition that caused the plaintiff's injury happened outside of the physical boundaries of the defendant's premises. See, e.g., Ford v. Hotel Restaurant Employees Bartenders Union, 155 Conn. 24, 34-35, 229 A.2d 346 (1967). These cases typically turn on the issue of control, which is defined as "the authority to manage, direct, superintend, restrict or regulate" the subject area. Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822 (1971). Whether the defendant retained a sufficient amount of control over the property is a question of fact. LaFlamme v. Dallessio, 261 Conn. 247, 257, 802 A.2d 63 (2002).
In the present case, the plaintiff alleges in count four that he was smoking with Gilbarto and Shelden "immediately outside the entrance" of the bar. The plaintiff further alleges that "[i]mmediately thereafter" Glenn Perkins "came outside and began making offensive, expletive laced comments" to Gilbarto, which led to the alleged stabbing. The plaintiff has therefore alleged that the incident happened in close proximity to the bar, rather than at an undisclosed location. Cf. Atwood v. Buon Appetite, supra, Superior Court, Docket No. CV 98 0419188. Although the plaintiff has not alleged that he entered the bar at any time, the plaintiff's lack of entrant status is not dispositive so long as the subject incident took place on the defendants' premises. See Goodjohn v. Pleasant Moments Cafe, supra, Superior Court, Docket No. CV 01 0456213. While the plaintiff's complaint is not entirely clear as to whether the incident took place on the defendants' premises, it does describe an area where the defendants may have retained a sufficient amount of control so as to impose liability. The plaintiff has alleged that the incident occurred directly outside of the entrance of the bar where an employee was present and where patrons had congregated to smoke. Whether the defendants retained a sufficient amount of control over this area is a question of fact that cannot be resolved for the purposes of the present motion. Thus, because the plaintiff has sufficiently alleged a duty, the defendants' motion to strike count four of the complaint is denied.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike counts two, three and four of the plaintiff's complaint is denied.