Opinion
FSTCV176031388S FSTCV196039257S
05-22-2019
Matthew Porretta v. Chez Ernie’s Café et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sommer, Mary E., J.
MEMORANDUM OF DECISION RE (#134.00) MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS CHEZ ERNIE’S CAFÉ AND STEVEN J. PALMER
Sommer, J.
I. INTRODUCTION AND FACTUAL BACKGROUND
This is an action for personal injuries in which the plaintiff has alleged that he was severely injured as a result of an assault by an intoxicated patron of the defendant Chez Ernie’s Café ("Chez Ernie’s"), Christopher Aikler. Plaintiff has brought this action for damages under C.G.S. § 30-102, more commonly referenced as the Dram Shop Act. By way of background, Porretta and some friends were patrons at Chez Ernie’s from late in the evening of December 17, until early morning of December 18, 2016. The plaintiff has alleged that on that evening, employees of Chez Ernie’s sold alcoholic liquor to Aikler while he was intoxicated. Plaintiff further alleges that as a result of Aikler’s intoxication, and unprovoked by the plaintiff, Aikler struck plaintiff in the left side of his face with a beer mug, causing the beer mug to shatter and plaintiff to fall backwards. As a result of the fall, the plaintiff struck his head on a high top table ("the Incident"). As a result of Aikler’s actions, plaintiff suffered numerous severe injuries. The plaintiff had never met Aikler prior to the evening of the Incident. He alleges that neither he nor his friends interacted with Aikler on that evening until just prior to the Incident.
Pursuant to Practice Book § § 11-10 and 17-44 et seq., defendant Chez Ernie’s Café and defendant permittee Steven J. Palmer (collectively "Defendants") have filed a motion for summary judgment and a supporting memorandum of law as to Count One of Plaintiff’s Second Amended Complaint. Count One is a claim in which the plaintiff alleges that the defendant Chez Ernie’s is liable for the plaintiff’s injuries pursuant to the provisions of C.G.S. § 30-102. In support of their motion they have submitted security camera video recordings of the Incident and testimonial evidence of the bartender who served Aikler and a patron who assisted her on the evening in question which they claim establish that the defendant Christopher Aikler ("Aikler"), was not visibly or otherwise intoxicated when he purchased the vodka and soda water drink prior to shockingly striking the plaintiff, Matthew Porretta ("Porretta" or "Plaintiff") in the head and left side of his face with the glass in which the drink was served. The defendants also make the argument in support of their motion for summary judgment that to the extent the plaintiff argues liability for injuries sustained as a result of his own intoxication, he is not entitled to claim damages under Connecticut’s Dram Shop Act C.G.S. § 30-102 and that therefore, the defendants are entitled to judgment as a matter of law.
As noted above, in support of their motion for summary judgment, the defendants have submitted Chez Ernie’s surveillance camera videos which recorded the assault from two different angles. These video recordings show Aikler as he entered Chez Ernie’s on the night of the Incident along with two female patrons. In the video, Aikler is seen approaching the bar and purchasing three alcoholic drinks. The drinks are served in pint glasses. The drinks have been identified as consisting of three ounces of vodka to which club soda and ice have been added. Aikler kept one drink for himself, and handed the other two drinks to the two female patrons.
The videos further show Aikler consuming an undetermined amount of the alcoholic drink he kept for himself before the Incident occurred. The videos do not depict Aikler stumbling or slurring his speech. The defendants argue that the videos objectively show that Aikler was not visibly intoxicated when he purchased the alcoholic drinks from the bartender, or for the remainder of his time at Chez Ernie’s.
However, the purpose of the surveillance videos was security. As a result, the visual and audio quality of the surveillance videos is not completely clear. In addition, the lighting in the area surveilled is dim.
Chez Ernie’s bartender, Ashleigh Holt, was the only bartender working at the time of the Incident. Ms. Holt served Aikler one Tito’s brand vodka and soda water drink in a 16-ounce pint glass for himself, and the same drink for the two women who were with him. Ms. Holt is TIPS certified in the service of alcohol. As a TIPS certified server she is trained to evaluate evidence of perceived intoxication based on, among other things, a patron’s slurred speech, eye contact, and stability. Ms. Holt testified that when she served the drinks which Aikler purchased, his demeanor was normal, he was not slurring his words and his pupils were not dilated. She did not see him stumble. She testified that she did not consider him to be intoxicated.
An individual patron of Chez Ernie’s, Jason Stoll assisted Ms. Holt behind the bar on the night of the Incident. He recalled serving a couple drinks on the night of the Incident, but he does not have any memory of serving drinks to Aikler or to those he was with, nor is there evidence of him serving Aikler on the videos.
Prior to arriving at Chez Ernie’s on the night of the Incident, Aikler had been a patron at another establishment which served alcohol, Darien Social. Aikler did not recall how many drinks he may have had at Darien Social. After initially indicating he may have had "a couple of drinks," he later admitted he was not sure how many drinks he consumed at Darien Social or Chez Ernie’s on the night of the Incident.
II. APPLICABLE LAW
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Colangelo v. Heckelman, 279 Conn. 177, 182 (2006) (citation omitted). The moving party carries the burden of showing the absence of any genuine issue of material fact, when viewing the evidence in light most favorable to the non-moving party. Grady v. Town of Somers, 294 Conn. 324, 331 (2009). Once the moving party has carried his burden, the opposing party "must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact[.]" DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116 (2012). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015) (citation omitted). Bare assertions of fact cannot refute properly presented evidence in support of summary judgment. Id.
In O’Dell Adm. v. Kozee, 307 Conn. 231 (2012), the Supreme Court stated in dicta that "a plaintiff could establish visible intoxication through blood alcohol content and expert testimony, as long as the expert properly took into account all pertinent facts relating to the individual consuming the alcohol." Id. at 259. There is no requirement that the defendant knew or should have known that the patron was intoxicated. Any perceptible indicator of intoxication at the time of service, including excessive alcohol consumption itself, can be sufficient to deem the purveyor on notice of its potential exposure to liability. Id. at 268. The plaintiff need only prove that signs of patron’s intoxication could have been observed, not that they would have been obvious to anyone coming into contact with him. Id. at 272-73.
III. ANALYSIS
To prevail on a claim pursuant to § 30-102, the plaintiff must prove: "(1) sale of the alcoholic liquor; (2) that the sale was to an intoxicated person, and (3) that the intoxicated person caused injury to another’s person or property as a result of his or her intoxication ..." Craig v. Driscoll, 262 Conn. 312, 327-28 (2003); see also Kelehear v. Larcon, Inc., 22 Conn.App. 384, 387 (1990). Not only does a plaintiff need to allege actual service of alcohol, the plaintiff must prove the individual was served while visibly intoxicated. "To be intoxicated is something more than to be merely under the influence of, or affected to some extent, by liquor ... it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended ..." Sanders v. Officers Club of Connecticut, 196 Conn. 341, 349 (1985).
A. Whether The Defendants Have Established That There is No Issue of Fact Regarding Whether Aikler Was Visibly Intoxicated When He Was Served Alcohol
In order to recover damages from an establishment that serves alcohol under the Dram Shop Act, the plaintiff must be able to demonstrate that Aikler was "visibly or otherwise perceivably intoxicated" at the time he was served with alcohol. See O’Dell v. Kozee, 307 Conn. 231, 235 (2012). Examples of such evidence of intoxication would be signs that Aikler was stumbling, slurring his speech, or engaging in loud or boisterous behavior. See O’Dell at 236.
Connecticut cases that have applied the Dram Shop Act such as O’Dell, supra, require that a plaintiff prove that a patron be visibly intoxicated at the time of the purchase of an alcoholic beverage from a defendant. The video which the defendants have submitted supports the defendants’ argument that Aikler did not exhibit many of the behavioral signs that would establish that he was visibly intoxicated at the time he was served with alcohol at Chez Ernie’s prior to the Incident. As compelling as the video is regarding the fact that Aikler suddenly assaulted Porretta, it is not conclusive as to observable indicia of intoxication. It was not intended to, nor does it, create audible recordings of conversations. It is also not possible to see Aikler’s face to accurately determine his demeanor, facial expressions, including eye contact, as well as whether his pupils were dilated. The dramatic events which resulted in the plaintiff’s severe injuries were inexplicably preceded by what appears to be a congenial social setting. Aikler testified that he had consumed an unspecified number of alcoholic beverages at another establishment prior to consuming alcohol at Chez Ernie’s. By the time he arrived at Chez Ernie’s it was after 11:00 p.m. Aikler could not recall whether he had more than one drink at Chez Ernie’s before striking Porretta.
As noted, the video does not show that Aikler was stumbling or engaging in any loud or boisterous behavior until just before the Incident. The video shows Aikler enter Chez Ernie’s with two female patrons. They gathered at a high top table near the bar and Aikler walked over to the bar and ordered tall vodka soda drinks. These are vodka drinks that consist of three ounces of alcohol mixed with club soda and ice. The video shows Aikler consuming one of the tall vodka drinks. It does not show him consuming any other drinks. He is seen talking to other patrons and engaging in social activity. The videos appear to show some liquid coming out of the glass when Aikler struck Porretta.
The defendants claim that because the video evidence and deposition testimony of Holt supports a factual finding that Aikler was not stumbling or slurring his speech nor was he seen engaging in any loud or boisterous behavior until just before the Incident occurred, that Holt served him one drink for personal consumption, the plaintiff is therefore unable to prove that Aikler was visibly intoxicated at the time he was served alcohol at Chez Ernie’s. Consequently, the defendants argue that they are entitled to summary judgment as a matter of law.
Although Chez Ernie’s bartender, Ashleigh Holt, testified at her deposition that she did not see any signs that Aikler was intoxicated, her testimony is not conclusive, particularly when evaluated along with other factors, i.e., Aikler’s own admission that he had been drinking earlier and could not recall how many alcoholic drinks he’d consumed at Darien Social before drinking alcohol at Chez Ernie’s, the dim lighting and ambient noise in a crowded bar. Although Ms. Holt testified that she observed Aikler’s demeanor as normal, she was the sole employee serving a bar filled with patrons other than Aikler. The suddenness of Aikler’s violent behavior toward Porretta is inconsistent with sobriety and raises material factual issues which the video recording and the testimony of Ms. Holt and Jason Stoll do not resolve.
The Connecticut Supreme Court in O’Dell v. Kozee, supra, answered the question of whether 30-102 requires proof of perceivable intoxication at the time of sale. According to the analysis of the court in, the test for imposition of liability upon a purveyor of alcoholic beverages under C.G.S. 30-102, the Dram Shop Act, is whether the individual purchasing the alcohol was visibly or otherwise perceivably intoxicated at the time of sale. The Supreme Court in O’Dell conducted an exhaustive review of the legislative history of the statute including the definition of the term "intoxication." Although the legislature has defined intoxication in the context of penal statutes, it has not done so for the particular statutory provisions under the Liquor Control Act, which includes C.G.S. § 30-102. For the purpose of the subject statute, the Supreme Court concluded that intoxication "is a state of being, induced by the consumption of alcoholic liquor, that can be observed by the lay person through various indicators. In other words, intoxication under § 30-102 requires both an internal effect and an external manifestation." Id. at 256.
Determination of whether Aikler demonstrated signs of excessive alcohol consumption is not limited to the facts upon which the defendants rely in their motion for summary judgment. As mentioned above, defendant Aikler testified that he had been drinking earlier in the evening before arriving at Chez Ernie’s but he was unable to recall how many drinks he consumed there. When he arrived and while at Chez Ernie’s purchased three alcoholic beverages, presumably one for himself and one for each of his two female companions. According to the bartender, Ms. Holt, these drinks, referred to as tall vodkas, each consisted of three ounces of vodka in a 16 oz. beer glass filled with an undetermined amount of ice and club soda. The amount of alcohol in the drinks Ms. Holt served to Aikler is the equivalent of two standard alcoholic drinks. Defendant Aikler informed the police that he arrived at Chez Ernie’s at 11:45 p.m. and the subject incident took place approximately fifty minutes later. Not only was he unable to recall how many alcoholic beverages he consumed earlier at Darien Social, he was also unable to recall whether he consumed more than one alcoholic beverage at Chez Ernie’s before assaulting Matthew Porretta. The defendants rely on the surveillance videos and the deposition testimony of their employee Ashley Holt. The Supreme Court in O’Dell stated, "It is also self-evident that the statute requires no element of proof of the purveyor’s knowledge or state of mind." The court acknowledged that "Undoubtedly, when there are perceivable signs of intoxication, in many but not all cases a plaintiff likely would be able establish that the purveyor at the very least should have known of the patron’s condition." Id. at 264-65.
Based on the above, it is apparent that the defendants cannot rely alone on the testimony of their employee, the bartender who served Aikler. Without a blood alcohol test there is no evidence of Aikler’s blood alcohol level at any time related to the Incident. The defendants have not presented testimony from individuals who would be able to provide information regarding Aikler’s condition when he purchased the alcoholic beverages other than defendants’ employee. For the purpose of imposition of liability under the Dram Shop Act, the issue is Aikler’s perceived condition, i.e., whether he exhibited visible signs of intoxication when he purchased the alcoholic beverages, not necessarily how much alcohol he subsequently consumed before assaulting Porretta. Whether Aikler consumed one tall vodka soda or any portion of the other tall vodka soda drinks which he purchased at the same time begs the issue of whether he exhibited signs of intoxication at the time he purchased the alcoholic beverages.
The court has conducted a thorough review of the evidence submitted in support of the defendants’ motion for summary judgment. Review of the surveillance camera video recording does not illustrate the totality of the circumstances regarding the question of whether there was evidence of Aikler’s intoxication at Chez Ernie’s before he struck Porretta. Specifically, one cannot discern from the video whether at the time he purchased the three alcoholic beverages at Chez Ernie’s bar the pupils of defendant Aikler’s eyes were dilated, whether he was slurring his speech or the nature of any conversations he had before the Incident. What is clear is that the dramatic evidence of Aikler’s sudden assaultive behavior toward the plaintiff strongly suggest a behavior and impaired judgment associated with intoxication. Aikler’s actions occurred in a crowded social setting where the likelihood of other individuals witnessing any perceivable signs of intoxication is high. Without such testimony, the record is insufficient to establish whether the defendants may be excused from liability as a matter of law in this case. The question of whether Aikler demonstrated perceivable signs of intoxication raises material issues of fact which must be decided by a trier of fact. The defendants have the burden of producing such evidence in a motion for summary judgment and cannot rely on the sole testimony of their employee.
B. Whether Plaintiff’s Own Intoxication Bars Recovery Under C.G.S. § 30-102
The Chez Ernie defendants raise a second claim in support of their motion for summary judgment in which they argue that C.G.S. § 30-102 applies only to victims who suffer damages resulting from actions of a third party who was sold alcohol while that third party was intoxicated. In support of their claim they cite a superior court case, O’Meara v. Restaurants at Captain’s Cove, in which the plaintiff brought a common-law action for negligence and an action under the Dram Shop Act for injuries he suffered after he left the defendant’s restaurant intoxicated and crashed his motorcycle. 2013 WL 1277287, *1 (Ct.Super. Mar. 12, 2013). The O’Meara plaintiff alleged he was visibly intoxicated upon leaving the defendant’s restaurant and his companion warned the employees of the defendant restaurant that plaintiff should not be allowed to drive home. Id. However, the court in O’Meara explicitly asserted that "an intoxicated imbiber may not bring a claim pursuant to the Dram Shop Act against a seller of alcohol for damages that the imbiber incurred as a result of his or her own intoxication." 2013 WL 1277287, *2 (Ct.Super. Mar. 12, 2013). This court finds the O’Meara case to be distinguishable based on the actions of the plaintiff O’Meara not only becoming intoxicated but then causing his own injury despite his companion actively warning the establishment about his impaired condition. O’Meara v. Restaurants at Captain’s Cove, supra, does not bar the plaintiff’s right to recover against the Chez Ernie’s defendants under C.G.S. § 30-102 based on the facts presented to the court in support of the defendants’ motion for summary judgment.
IV. CONCLUSION
Following the analysis of the Connecticut Supreme Court as articulated in O’Dell, Admin. v. Kozee, supra, as applied to the defendants’ motion for summary judgment, the court has concluded that the defendants have not met the required burden of establishing that there are no material factual issues to be determined by the trier of fact. Therefore, the defendants’ motion for summary judgment as to Count One of the plaintiff’s Second Amended Complaint is denied.