Opinion
No. FST CV 02 0187731
August 9, 2005
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE #103
The plaintiff, Gregory Lucas, commenced this action against the defendants, JSN, L.L.C., Joseph A. Rebecco, Jr., Steven P. Barrenecha and Nicholas Jossem by a seven-count complaint dated January 17, 2002 for injuries he allegedly sustained when he was allegedly assaulted and struck in the face with a large beer glass at the Skybox Cafe, a bar owned and/or operated by the defendants.
The first, third and fifth counts of the plaintiff's complaint sound in negligence against the defendants, JSN, L.L.C., Joseph A. Rebecco, Jr. and Steven P. Barrenecha. The second fourth and sixth counts of the plaintiff's complaint allege gross negligence and wanton, wilful and reckless conduct against these same defendants. The seventh count alleges a cause of action under General Statutes § 30-102, the Dram Shop Act. On March 20, 2002, pursuant to Practice Book § 10-39 et seq., the defendants filed a motion to strike counts two, four and six of the plaintiff's complaint for failure to state a claim upon which relief may be granted. The defendants contend that Connecticut does not recognize a cause of action for gross negligence and that the allegations of the plaintiff's complaint do not support a claim for wanton and reckless conduct.
The plaintiff contends that Connecticut does recognize a cause of action against a purveyor of alcohol for gross negligence and cites the Supreme Court decisions of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003) and Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980) to support this contention. The plaintiff further contends that the allegations of his complaint do support a claim for wanton and reckless conduct.
"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). A motion to strike "consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "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.) Commissioner of Labor v. C.J.M Services, Inc., 283, 292, 842 A.2d 1124 (2004). Moreover, "[t]he court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted). Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The plaintiff's reliance on the holdings in Craig v. Driscoll, supra, 262 Conn. 312 and Kowal v. Hofher, supra, 181 Conn. 355, that Connecticut recognizes a cause of action for gross negligence against a purveyor of alcohol, is clearly misplaced.
In Kowal, the plaintiff, administrator of the estate of James Kowal, brought an action in three counts against the defendant restaurant owner. The plaintiff alleged in each count that the defendant served alcoholic beverages to the driver of the automobile which collided with the automobile driven by the plaintiff's decedent, while the driver was already intoxicated, and that the driver then operated his vehicle in a negligent manner causing the collision and injuries which resulted in death. In the first count of the plaintiff's complaint in Kowal, the plaintiff alleged liability under General Statutes § 30-102, the Dram Shop Act. In the second and third counts, the plaintiff alleged liability for gross negligence and for wanton and reckless conduct. The defendants moved to strike the second and third counts on the grounds that the remedies provided by the Dram Shop Act are exclusive and the plaintiff has no common-law cause of action. The motion was granted, and judgment was rendered in favor of the defendants on the second and third counts. The plaintiff appealed. The sole question presented on appeal was whether the plaintiff's remedies were limited to those provided by the Dram Shop Act.
Although the Supreme Court in Kowal concluded that the Dram Shop Act was not the plaintiff's exclusive remedy, it nevertheless applied the common-law rule 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 and precluded the plaintiff's claim in negligence. Kowal v. Hofher, supra, 181 Conn. 355. The court in Kowal explained:
There is no specific provision in this statute which bars a common-law action or otherwise preempts the field of liability of a seller of liquor. This statute, which requires no showing of a causal relation between the sale of intoxicating liquor and the subsequent injury, was enacted to fill the void created by the old rule's disallowance of any action against the bar keeper grounded in negligence. The underlying premise of the [act] is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication. There is absolutely no indication, however, that where causation is adequately traced back to the barkeeper who served an intoxicated person an alcoholic beverage the legislature, nevertheless, intended the . . . act, to be the injured plaintiff's exclusive remedy . . . If the plaintiff has no cause of action against the bartender for negligence, it is not the statute but rather the common law which denies the plaintiff a right of recovery. Although the trial court granted the motion to strike the [negligence] count on the basis of its conclusion that the statute provided the exclusive remedy, the motion to strike was also based, correctly, in our view, on the absence of a common-law cause of action. The court's ruling was therefore correct, even though the ground on which it was supported was erroneous.
(Citations omitted; internal quotation marks omitted.) Id., 358-59.
The Kowal court determined that the third count which was based on wanton and reckless misconduct could proceed. The court premised that conclusion "primarily on the notion that one ought to be required, as a matter of policy, to bear greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent." Id., 361. The plaintiff in the instant matter contends that because the plaintiff in Kowal alleged gross negligence in the reckless count, the court in holding that the reckless count could proceed, impliedly recognized a cause of action for gross negligence.
This court disagrees. The sole question presented on appeal in Kowal was "whether the plaintiff's remedies are limited to those provided by the dram shop act." Id., 357. The Supreme Court held, as previously discussed, that they are not limited. However, the court precluded the plaintiff's claim in negligence and determined that the claim based on reckless conduct could proceed. Contrary to the plaintiff's contention that the court in Kowal implicitly recognizes a cause of action in gross negligence, the court explicitly stated that "[w]e confine our ruling in this case to the allegations of wanton and reckless misconduct." Id., n. 3, 359.
The plaintiff's reliance on Craig v. Driscoll, supra, 262 Conn. 312 for the proposition that Connecticut recognizes a cause of action in gross negligence against a purveyor of alcohol is similarly misplaced. The issues before the court in Craig were whether the Dram Shop Act provided the exclusive remedy against a seller for negligently furnishing alcoholic beverages, whether the common law recognizes a cause of action for negligent infliction of emotional distress on a bystander against a purveyor of alcoholic liquor for injuries caused by an intoxicated adult patron, and whether the allegations in the plaintiff's complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander.
Reaffirming Kowal, the court in Craig concluded that there is nothing in the language of the Dram Shop Act or in its legislative history to suggest that the legislature intended to occupy the field, and thus held that the act does not preclude a common-law action in negligence against a purveyor of alcoholic beverages. Once the court in Craig concluded that the act was not intended to be the exclusive remedy for the negligent sale of alcoholic beverages, the court then abandoned its holding in Quinette v. Newman, 213 Conn. 343, 345-46, 568 A.2d 786 (1990) that negligence in selling alcohol was not a viable action at common law because, "the subsequent injury has been held to have been proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about intoxication and the subsequent injury." The court in Craig thus concluded that Connecticut does recognize a common-law cause of action for negligence against a purveyor of alcohol. The court also held that the allegations in the plaintiffs' complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander. Accordingly, the court's decision in Craig neither implicitly nor explicitly recognizes a cause of action for gross negligence.
The legislature overruled the holding in Craig v. Driscoll, supra, 262 Conn. 312 by the passage of P.A. 03-91 which bars a common-law cause of action in negligence against a seller of alcohol to an intoxicated person twenty-one years of age or older.
At common law, Connecticut has never recognized gross negligence as a separate basis of liability. Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939); see also Film v. Downing Perkins, Inc., 135 Conn. 524, 526, 66 A.2d 613 (1949); Matthiessen v. Vanech, 266 Conn. 822, 833 n. 10, 836 A.2d 394 (2003) (stating that the court does not recognize a classification of standards of care into slight, ordinary, and gross, or the like, except in certain definite relationships.)
Although there are a few decisions in Connecticut which have recognized a cause of action in gross negligence against a server of alcohol; See Dufficy v. Mohring, Superior Court, judicial district of Danbury, Docket No. 311091 (December 7, 1993, Moraghan, J.) ( 9 C.S.C.R. 29) ( 10 Conn. L. Rptr. 457); Ryea v. Connell, Superior Court, judicial district of Waterbury, Docket No. 78609 (September 9, 1987, McDonald, J.) ( 2 C.S.C.R. 1020), citing Jameson v. Royal Equities, Superior Court, judicial district of Waterbury, Docket No. 059526 (July 16, 1982, Berdon, J.); the majority of Superior Court decisions have held that there is no cause of action in gross negligence against a server of alcohol because Connecticut does not recognize different gradations of negligence. See Gumkowski v. U.S.S. Chowderpot III, Ltd., Superior Court Judicial district of New Haven, Docket No. 361840 (September 19, 1995, Hartmere, J.) (1 Conn. Ops. 1142); Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. CV 94115265 (March 21, 1995, Flynn, J.) ( 14 Conn. L. Rptr. 346); Baker v. Palm's Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 92 292760 (February 11, 1993, Leheny, J.) ( 8 Conn. L. Rptr. 332); Olson v. Tompkins, Superior Court, judicial district of Litchfield, Docket No. 054161 (August 28, 1991, Pickett J.) ( 6 C.S.C.R. 850) ( 4 Conn. L. Rptr. 786). Accordingly, the defendants' motion to strike that portion of counts two, four and six of the plaintiff's complaint which allege a cause of action in gross negligence is hereby granted.
Contrary to the plaintiff's claim that the defendant's motion to strike must fail if any part of the pleading or count is viable, "most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . Only an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." (Internal quotation marks omitted). Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.) ( 31 Conn. L. Rptr. 380); Pinho v. Daly, Superior Court, judicial district of New Britain, Docket No. CV 00500895 (May 3, 2001, Shapiro, J.); Cain v. Destefano, Superior Court, judicial district of New Haven, Docket No. CV 98 420347 (December 17, 1999, Zoarski, J.).
In the present case, since the plaintiff attempts in counts two, four and six to set forth the essential allegations of a cause of action for gross negligence and reckless misconduct in a single paragraph within each count entitled "gross negligence," this paragraph is properly subject to attack by a motion to strike.
The defendants further contend that counts two, four and six of the plaintiff's complaint are legally insufficient in that the plaintiff has not sufficiently alleged facts showing recklessness. The Supreme Court recognized a cause of action in wanton and reckless misconduct against a vendor of alcohol in Kowal v. Hofher, supra, 181 Conn. 362, which was reaffirmed in Craig v. Driscoll, supra 262 Conn. 341. Guided by the Appellate Court's decision in Craig v. Driscoll, 64 Conn.App. 699, 720-21, 781 A.2d 440 (2001) in deciding this issue, the Supreme Court in Craig stated that "[t]o determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that wilful, wanton or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, supra, 262 Conn. 342-43.
In relevant part, the plaintiff alleges the following facts in the counts for wanton, wilful and reckless misconduct: "As of the date of said assault, the assailant, Shane Meehan, was 20 years old and therefore, a minor for the purposes of purchasing and/or consuming alcoholic liquor. The aforementioned assault and battery and the resulting injuries and damages to the plaintiff, Gregory Lucas, were caused by the gross negligence and wanton, wilful and reckless disregard of the defendant JSN, L.L.C., its agents, servants and/or employees in that they served alcoholic beverages to Shane Meehan, a minor and that they served Shane Meehan, a minor alcoholic liquor when he was intoxicated."
The language in counts two, four and six explicitly informs the court and the defendants that reckless conduct is being alleged. The plaintiff has pleaded that the defendants served alcohol to a minor. As the Connecticut Supreme Court articulated in Bohan v. Last, 236 Conn. 670, 681 A.2d 839 (1996), "minors are presumed not to have the capacity to understand fully the risks associated with intoxication." The court had previously articulated the logic behind the state's prohibition of serving alcohol to minors when it described "the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so"; Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988); in a case where a minor who was served alcohol, was later involved in a car accident. Counts two, four and six allege conduct that has been interpreted in Connecticut to constitute an extreme departure from ordinary care in a situation involving a high degree of danger, namely, serving alcohol to an intoxicated minor. This court finds that the plaintiff, Gregory Lucas, has sufficiently pleaded facts to support a cause of action sounding in recklessness.
Whether the plaintiff can actually prove that the defendants' conduct exceeded negligence and rose to the level of recklessness is a question for the trier of fact. When considered in the light most favorable to the plaintiff, the allegations of the complaint, taken as a whole, support a cause of action sounding in recklessness. Therefore, the defendants' motion to strike that portion of counts two, four and six which allege wilful, wanton and reckless conduct is denied.
IT IS SO ORDERED.
BY THE COURT
WILSON, J., ROBIN L.