Opinion
No. CV02 0077204S
September 8, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE #142
I
Before the Court is a motion to strike filed by the defendants, Bennigan's Restaurant (Bennigan's); Lee Provencher, the restaurant's permittee; and DMM Restaurant (DMM), the restaurant's backer. Also before the court is an objection to the defendants' motion filed by the plaintiff, Peter Nelson. For the following reasons, the defendants' motion to strike is denied.
The court notes that the original complaint also names Michael Sayles, Susan Laird and James Laird as defendants in this action. Nevertheless, because this memorandum addresses the motion to strike filed by Provencher, Bennigan's and DMM, the court will treat them as the sole defendants.
The relevant facts and procedural history are as follows.
FACTS
On February 19, 2002, the plaintiff filed a three-count complaint. In count three, the plaintiff alleges that on March 3, 2001, he and Michael Sayles went to Bennigan's, where Sayles was served alcoholic beverages despite being intoxicated. Thereafter, the plaintiff alleged, he suffered severe personal injuries when he was involved in a two-car accident while riding as a passenger in a vehicle operated by Sayles. Based on these allegations, the plaintiff alleged that the defendants violated General Statutes § 30-102, commonly known as the Dram Shop Act.
General Statutes § 30-102 provides in part: "If any person, by himself or his 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 twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section."
On March 31, 2003, the plaintiff filed a request for leave to amend his complaint. In addition to the first three counts, the amended complaint includes a fourth and fifth count sounding in. negligence and recklessness, respectively.
Practice Book § 10-60(a) provides in relevant part: "[A] party may amend his or her pleadings or other parts of the record or proceedings at any time . . . [b]y filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." Because the defendants did not file an objection to the plaintiff's request to amend within fifteen days of it filing, the amended complaint is the operative complaint.
On April 22, 2003, the defendants filed the present motion to strike. The defendants move to strike counts four and five on the ground that they are barred by the two year statute of limitations set out in General Statutes § 52-584. The defendants have filed a corresponding memorandum of law in support of their motion to strike.
General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
On May 7, 2003, the plaintiff filed an objection to the defendants' motion. The plaintiff objects on the ground that counts four and five relate back to the original complaint, and thus, are not barred by the statute of limitations. The plaintiff has also filed a corresponding memorandum of law in opposition to the defendants' motion to strike.
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 . . . We take the facts to be those alleged in the complaint . . . and we construe 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 . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
In this case, however, the defendants raise the defense of statute of limitations by way of a motion to strike. Our Appellate Court has held: "A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . The advantage of the statute of limitations cannot be taken by [a motion to strike]." (Citations omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn. App. 235, 239624 A.2d 389 (1993). Nevertheless, "when a [motion to strike] raising the issue of the Statute of Limitations is filed and the plaintiff joins in that issue, it can properly be considered by the court." Hitchcock v. Union New Haven Trust Co., 134 Conn. 246, 248, 56 A.2d 655 (1947). In this case, the plaintiff does not argue that the defense of statute of limitations is improperly raised. Instead, the plaintiff joins in the issue of whether counts four and five are barred by the applicable statute of limitations. Thus, the court will consider this issue.
In their motion to strike, the defendants contend that counts four and five were filed more than two years after the accident, and thus, are barred by the applicable statute of limitations. Furthermore, the defendants contend, counts four and five cannot be saved by the relation back doctrine as they require different allegations and proof than an action under the dram shop act.
The plaintiff does not dispute that counts four and five were filed after the two year statute of limitations had run. He argues, however, that the counts relate back to the original complaint filed on February 19, 2002, and thus, are not barred by the two year statute of limitations.
This court must, therefore, determine whether the relation back doctrine applies to counts four and five. "The relation back doctrine has been well established . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).
The defendants attempt to draw some similarity between the present case and Sharp v. Mitchell, 209 Conn. 59, 546 A.2d 846 (1988). In Sharp, three employees were asphyxiated in an underground fuel storage facility. Id., 60. The administrators of the decedents' estates initiated a wrongful death action based on the employer's negligent supervision. Id., 73. After the statute of limitations had run, the administrators amended their complaint alleging that the defendant negligently designed and constructed the storage facility. Id. The court held that the amended complaint did not relate back to the original complaint because the "complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability . . . The defendants did not have fair notice of the claim of negligent construction and design of the underground storage area when the original complaint merely alleged that [the defendant] was negligent in ordering the employees to enter the area." Id.
The newly alleged claims in the present case, however, are considerably different than those in Sharp. In this case, counts four and five do not allege the same cause of action based on a different set of circumstances, but rather, allege different causes of action based on the same set of circumstances.
In Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), the Supreme Court was presented with amendments more like those in this case. In Gurliacci, the plaintiff claimed that she suffered injuries when her automobile was struck by a vehicle operated by the defendant, who was intoxicated at the time. Id., 534. The plaintiff's original complaint alleged that the defendant was negligent in operating his vehicle while intoxicated. Id., 546. After the applicable statute of limitations had run, the plaintiff amended her complaint to include allegations that the defendant had acted wilfully, wantonly and maliciously, or outside the scope of his employment. Id. The court in that case concluded that the amended complaint related back to the original complaint. Id. The court reasoned: "The amendment that occurred in this case is distinguishable from that in Sharp v. Mitchell . . . In Sharp, the change in the nature of the negligence action from one of negligent supervision to one of negligent construction was dramatic because the defendant would have been required to gather different facts, evidence and witnesses to defend the amended claim. In this case, however, the plaintiff's amendment reiterated the negligence claim based on Mayer's operation of a motor vehicle, but added that Mayer was acting either wilfully, wantonly, and maliciously or outside the scope of his employment. The new allegations did not inject two different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability . . . Mayer had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident." (Citations omitted; internal quotation marks omitted.) Id., 548.
Tort claims based on the negligent or reckless service of alcohol do not inject different sets of circumstances or depend on different facts than claims under the dram shop act. In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), our Supreme Court concluded that "a common-law negligence action [for the negligent furnishing of alcohol] neither conflicts with the [dram shop] act nor thwarts its underlying purpose . . . The act provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action and without the benefit of the broader scope of recovery permitted under such an action . . . A tort action would provide an avenue to recover full compensation, but only upon establishing the requisite culpability and causation. In this manner, the tort action would supplement, rather than conflict with, the act." (Citations omitted.) Id., 327-28. Thus, this court finds that the plaintiff's new allegations of negligent and reckless service of alcohol merely amplify and expand upon the previous allegations by setting forth alternate theories of liability. Furthermore, the court finds that the plaintiff's claim under the dram shop act in the original complaint gave the defendants adequate notice that a claim was being asserted against them arising out of the alleged service of alcoholic beverages.
At least one court has come to a similar conclusion. In Lefebvre v. Joker's Café, LLC, Superior Court, judicial district of Windham at Putnam, Docket No. 066052 (May 19, 2003, Foley, J.) ( 34 Conn.L.Rptr. 641), the plaintiff sought leave to amend his original complaint by adding allegations of common law negligent service of alcohol to the second count, which alleged a violation of the dram shop act. The defendant objected on the ground that the plaintiff's request was barred by the applicable statute of limitations. Id. The court granted the plaintiff's request, holding: "The additional allegations in the second count merely propose an alternative theory of liability to the same set of facts . . . The identity of the plaintiff's cause of action remains substantially the same. As such, the amendments relate back to the plaintiff's . . . original complaint, and would not be barred by General Statutes § 52-584." (Citation omitted.) Id. Thus, this court likewise finds that the plaintiff's claims of negligence and recklessness relate back to the original complaint, and therefore, are not barred by the two year statute of limitations.
For the foregoing reasons, the defendants motion to strike is denied.
The Court
By Holden, J.