Opinion
No. CV08-5003588
July 7, 2009
MEMORANDUM OF DECISION
This matter came before the court as a motion to strike (#105), as well as an objection to the motion to strike (#107). The plaintiff also filed a reply to the defendant's objection to motion to strike (#109), and on the date of oral argument, the defendant filed a reply to plaintiff's objection to motion to strike (#110).
At issue is whether or not it is appropriate for the plaintiff to include in a cause of action based upon premise liability allegations with regard to alcohol ingestion and its relationship to the duties owed by an occupier of land to one claiming invitee status.
It is interesting to note, upon a review of the file, that the defendant had previously filed a request to revise (#104), which sought to have the plaintiff separate his causes of action. Although no objection was filed to the request to revise within thirty (30) days, Practice Book § 10-37(a), the parties are apparently also in agreement that in spite of this, the request to revise is not automatically granted and that they have chosen instead to proceed on the noted motions doing battle over either the inclusion or exclusion of sub-paragraphs 7a and 7c of countone.
The request to revise appears to have been intended to have required the plaintiff to separate out his two causes of action — one for a violation as to the duties owed to a social invitee, and the second with regard to the liability of a social host for the negligent service of alcohol to a visibly intoxicated quest who subsequently injures a third party. Although there is some potential overlap between these two causes of action, they are separate and distinct as well. From a review of #110, it appears that the defendant feels that any inclusion of references to the service of alcohol are inappropriate in a cause of action based upon premise liability — that they must be set forth, if at all, in a separate count based solely upon social host liability. For reasons set forth herein, the court remains unpersuaded.
The plaintiff, Michael Piontkowski, brought this action in four counts against the defendants, Kevin Agan (count one) and Jason Agan (counts two, three and four). In his complaint, he alleges that on October 14, 2007, during a social gathering held at the home of Kevin Agan, he suffered personal injuries as a result of the negligent conduct of Kevin Agan and the negligent, reckless and intentional conduct of Jason Agan. Specifically, he alleges that Kevin Agan acted negligently by furnishing alcohol to his brother, Jason Agan, whom he knew or should have known to have a propensity to become violent under the influence of alcohol. The plaintiff further alleges that Kevin Agan acted negligently by continuing to furnish alcohol to Jason Agan even though he knew or should have known that Jason Agan would act violently towards the plaintiff and by failing to intervene before Jason Agan violently struck the plaintiff about the body. As for Jason Agan, the plaintiff alleges that after consuming alcohol, he negligently used excessive force against the plaintiff and recklessly and intentionally assaulted the plaintiff by striking him repeatedly about the body.
On February 11, 2009, Kevin Agan filed a motion to strike paragraphs 7a and 7c of count one of the plaintiff's complaint on the ground that Connecticut does not recognize a cause of action against a social host for the negligent service of alcohol to an adult. On April 22, 2009, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. The defendant filed a reply brief on May 29, 2009. The court heard argument on June 1, 2009. On June 4, 2009, the plaintiff filed a surreply brief.
On October 29, 2008, Jason Agan was defaulted for failure to appear. All references to the defendant are hereinafter to Kevin Agan.
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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 472 n. 21, 944 A.2d 315 (2008). Generally, it is improper to move to strike specific paragraphs of a pleading; however, "most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike . . . when it attempts to set forth all of the essential allegations of a cause of action or defense." (Internal quotation marks omitted.) Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) ( 43 Conn. L Rptr. 458, 458).
In the present case, the defendant is moving to strike paragraphs 7a and 7c of count one of the plaintiff's complaint on the ground that they are an attempt by the plaintiff to impose liability on the defendant for the alleged negligent service of alcohol to an adult by a social host, for which he argues there is no cause of action. In his surreply brief, the plaintiff argues that the defendant cannot seek to strike these specific paragraphs of his complaint because they contain allegations that "are inextricably intertwined with [his] cause of action" against the defendant for the negligent supervision of his guests and the creation of a dangerous condition that injured an alleged social invitee, the plaintiff.
Paragraphs 7a and 7c of count one of the plaintiff's complaint arguably attempt to state a cause of action for the negligent service of alcohol to an adult by a social host. In paragraph 7a, the plaintiff alleges that the defendant was negligent "[i]n that he served and/or made available alcoholic beverages to his brother, Jason Agan, when he knew or should have known of Jason Agan's propensity to conduct himself in a violent manner when laboring under the influence of alcohol." In paragraph 7c, the plaintiff alleges the defendant was negligent "[i]n that he continued to serve and/or make available to his brother, Jason Agan, alcoholic beverages at a time when he knew or should have known that his brother, while under the influence of alcohol, would likely act in a violent manner towards [the plaintiff]." Consequently, these paragraphs can be subject to a motion to strike.
It should, however, be noted that "[w]henever the judicial authority grants a motion to strike the whole or any portion of any pleading or count which purports to state an entire cause of action or defense, and such pleading or portion thereof states or constitutes a part of another cause of action or defense, the granting of that motion shall remove from the case only the cause of action or defense which was the subject of the granting of that motion, and it shall not remove such pleading or count or any portion thereof so far as the same is applicable to any other cause of action or defense." Practice Book § 10-45. Even if the court were to agree with the defendant that there is no liability upon a social host for the negligent service of alcohol, which it does not, the issue as to whether or not these allegations may remain in a cause of action premised upon the liability of an occupier of land. Accordingly, the court will only address the defendant's motion to strike these paragraphs in so far as they attempt to state a cause of action for the negligent service of alcohol to an adult by a social host, who is an occupier of land.
In seeking to strike paragraphs 7a and 7c of count one of the plaintiff's complaint, the defendant argues that as a general rule there is no cause of action for the negligent service of alcohol by a social host. The only exception to the rule is where the social host serves a minor. Since the plaintiff's complaint does not contain an allegation that Jason Agan was a minor at the time of the incident, the defendant contends that the plaintiff cannot sustain a cause of action against him for the negligent service of alcohol. Citing Raymond v. Duffy, Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 03 0102444 (January 13, 2005, Quinn, J.) ( 38 Conn. L. Rptr. 562), the plaintiff counters, in his surreply brief, that "Connecticut common law . . . is tending towards the allowance of a cause of action against social hosts for negligently dispensing alcohol when those served cause foreseeable injuries to third parties."
"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 or donee. 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 . . . Common-law tort claims against purveyors routinely failed, therefore, because the consumption of the liquor was viewed as an intervening act breaking the chain of causation between the purveyor and the ensuing injury caused by the intoxication." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 322, 813 A.2d 1003 (2003).
"In Connecticut, as far back as 1872, it came to be felt that the . . . common-law rule [limiting the liability of purveyors of alcohol] was to some extent overly harsh and should be modified by statute . . . The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for `any damage or injury to any other person, or to the property of another' done by the intoxicated person `in consequence' of his intoxication . . . The modern version of this so-called civil damage or dram shop act is General Statutes § 30-102." (Citation omitted; internal quotation marks omitted.) Quinnett v. Newman, 213 Conn. 343, 347, 568 A.2d 786 (1990), overruled on other grounds by Craig v. Driscoll, supra, 262 Conn. 312. Connecticut's current dram shop act imposes liability up to a certain amount on "any person, by such person or such person's agent, [who] sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another; . . . General Statutes § 30-102.
In addition to being modified by statute, the common-law rule limiting the liability of purveyors of alcohol has been modified by the Supreme Court. In Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), the Supreme Court held that a cause of action could lay against a purveyor or social host for the reckless sale or service of alcohol to another. It reasoned "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. In Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988), the Supreme Court held that "[i]n view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." The Supreme Court accordingly held that a purveyor could be held liable for the negligent sale or service of alcohol to a minor. Id. It noted: "This is not to say, however, that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect." Id., 97.
More recently, in Craig v. Driscoll, supra, 262 Conn. 312, the Supreme Court modified the common-law rule by recognizing a cause of action against a purveyor who negligently serves alcohol to an adult who, as a result of his intoxication, injures another. In doing so, the Supreme Court held that the dram shop act was not the exclusive remedy for such injuries, and it expressly rejected the reasoning underlying the common-law rule, stating: "[I]t is now time to discontinue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor's negligence is otherwise established." (Emphasis in original; internal quotation marks omitted.) Id., 340. The legislature responded by amending the dram shop act, effective June 3, 2003, to include the following sentence: "Such injured personal 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." See Public Acts 2003, No. 03-91.
As noted by the court in Raymond v. Duffy, supra, 38 Conn. L. Rptr. 565, "[u]nquestionably the dram shop act, as amended by Public Act. No. 03-91, legislatively overrules Craig as it applies to sellers of alcoholic beverages." That is, the dram shop act is the exclusive remedy for injuries arising from the sale of alcohol to an intoxicated adult. In all other respects, Craig remains good law. Most notably, its rejection of the presumption "that the ingestion of alcohol by the patron acted as an intervening force sufficient to shift the entire causation element to some entity or entities other than the purveyor." Craig v. Driscoll, supra, 262 Conn. 333. As the Supreme Court explained: "That presumption . . . runs counter to our proximate cause jurisprudence generally, in which a tortious act by a third party does not act as an intervening force if such acts are within the scope of the risk created." Id. Moreover, "[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue." (Internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 249, 943 A.2d 430 (2008).
Based upon the rejection of the reasoning underlying the common-law rule limiting the liability of purveyors of alcohol by the Supreme Court in Craig coupled with the legal principle that proximate causation is generally a question of fact, this court holds, similar to the court in Raymond, "that the voluntary consumption of alcohol by the tortfeasor no longer serves to bar" an action against a social host for the negligent service of alcohol to an adult. Raymond v. Duffy, supra, 565. Accordingly, a social host, who is also an occupier of land, can be held liable for the negligent service of alcohol to an adult under our common law.
In the present case, the plaintiff is seeking to hold the defendant liable for injuries that he sustained as a result of the defendant's alleged negligence in furnishing alcohol to his brother, Jason Agan, whom he knew or should have known to have a propensity to act violently and whom he knew or should have known would act violently against the plaintiff while under the influence of alcohol. In holding that the plaintiff has stated a viable cause of action against the defendant, this court is merely concluding that the claim that a social host who provides alcohol to an adult known to become violent under the influence of alcohol may be the proximate cause of subsequent injuries caused by the intoxicated person. A factual issue remains as to whether the defendant's alleged conduct was a substantial factor in producing the plaintiff's injuries. That is, "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Craig v. Driscoll, CT Page 11758 supra, 262 Conn. 331.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike paragraphs 7a and 7c of count one of the plaintiff's complaint is denied.