Opinion
No. CV01 018 27 31
December 3, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE #146
On May 8, 2003 Robin L. Raposa and Frank A. Latella (plaintiffs), filed an amended ten-count complaint against Thomas G. Lynam (Lynam), The Drydock, Inc. and Carl P. Gallo (collectively, "defendants"). According to the facts alleged in the complaint, on the night of February 7, 2000 Robin Raposa was involved in a motor vehicle accident on the Route 7 Connector in Norwalk. The plaintiff, who was on her way home to Wilton, was traveling in a northbound lane. Lynam mistakenly entered Route 7 via an exit ramp placing him on the wrong side of the highway heading south — directly toward the plaintiff. That mistake resulted in a head-on collision with the plaintiffs' car. It is further alleged that shortly before the accident, Lynam patronized the defendants' business, a local bar and pub, where he was served numerous alcoholic beverages.
The complaint states the following claims against Lynam: count one (negligence), count two (loss of consortium), and count three (violation of General Statutes § 14-295). In addition, the complaint states the following claims against the defendants: count four (reckless service of alcohol), count five (loss of consortium — reckless service of alcohol), counts six (negligent service of alcohol), count seven (negligent supervision), count eight (negligent training), count nine (negligent hiring), and count ten (loss of consortium — negligent service of alcohol).
On May 22, 2003, the defendants filed a motion to strike counts six through ten based on a statute of limitations defense. The plaintiffs filed an objection and the defendants also submitted a reply brief.
"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 admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
The defendants raise the defense of statute of limitations in this motion to strike. The Appellate Courts have stated that "[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, 239, 624 A.2d 389 (1993); see also Girard v. Weiss, 43 Conn. App. 397, 416, 682 A.2d 1078 (1996). "In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when the parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer . . . [t]he second is where `a statute gives a right of action which did not exist at common law . . .'" (Internal quotation marks omitted.) Forbes v. Ballaro, supra, 31 Conn. App. 239.
Here, the defendants argue that this matter falls under the first exception because the parties have agreed to all the facts necessary to decide the issue. The plaintiffs have not contested this assertion and did not raise the issue in their brief. The court will assume the pertinent facts related to a statute of limitations defense are not in dispute and, thus, will consider the basis of the motion to strike.
Before addressing the defendants' substantive claim a brief chronology of events is useful. The plaintiffs originally filed this suit on February 27, 2001, which included a claim for reckless service of alcohol against the defendants. At that time the only legally cognizable claims against those who serve alcohol to patrons who later commit negligent acts were claims of recklessness and claims under the General Statutes § 30-102 (Connecticut's Dram Shop Act). However, on February 4, 2003, the Supreme Court, in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), established a common-law right for persons to bring negligence actions against sellers of alcohol, irrespective of the Dram Shop Act. Subsequent to Driscoll, the plaintiffs moved for leave to amend their complaint to include the negligence claims, incorporated into counts six through ten, against the defendants. The court, D'Andrea, J.T.R., granted leave on April 14, 2003.
It is important to note that, effective June 3, 2003, the Connecticut Legislature passed Public Act 03-91 to amend the Dram Shop Act, which effectively abrogates the Driscoll decision. The legislature added the sentence: "Such injured person 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."
In their motion to strike the defendants first argue that retroactive application of Driscoll, supra, "would unfairly create new potential liability by imposing a different standard of care applicable to [the defendants] after the causative events transpired." (Defendants' memorandum of law at p. 5.) Our Supreme Court has adopted a "three-part test . . . for determining whether a decision must be applied prospectively only. A common law decision will be applied nonretroactively only if: (1) it establishes `a new principle of law, either by overruling past precedent on which litigants have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed' . . . (2) given its prior history, purpose and effect, retrospective application of the rule would retard its operation, and (3) retroactive application would produce substantial inequitable results, injustice or hardship." (Citations omitted.) Ostrowski v. Avery, 243 Conn. 355, 380, 703 A.2d 117, n. 18 (1997).
It is seems clear that the Supreme Court, in Driscoll, overruled precedent in arriving at its conclusion. Craig v. Driscoll, supra, 262 Conn. 329. Thus the defendant is able to satisfy the first element required by Ostrowski. However, not only have the defendants cited no authority for their position that it would be unfair to apply Driscoll retroactively, they have also failed to show that retroactive application would "retard its operation" or "produce substantial inequitable results, injustice or hardship" as required by Ostrowski. Thus, this court finds no barrier to a retroactive application of Driscoll. Although no appellate court has precisely decided this issue, two superior court cases applied Driscoll retroactively without comment. See Nelson v. Sales, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 02 077204 (September 8, 2003, Holden, J.); Estate of William Ridgaway v. Silk, Superior Court, judicial district of New London at Norwich, Docket No. CV 01 025739, 35 Conn. L. Rptr. 445 (September 12, 2003, Quinn, J.).
Next the defendant argues that counts six though ten are barred by the two-year statute of limitations applicable to these claims under General Statutes § 52-584. Further, the defendants assert that the relation back doctrine cannot save these counts from the statute of limitations defense.
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."
"The relation back doctrine has been well established by [the Supreme Court]. 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 . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change 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 . . ." (Citation omitted; internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64, 776 A.2d 444 (2001).
1. Count Six — Negligent Service of Alcohol
The defendant argues that the negligent service of alcohol claim (count six) cannot be saved by the relation back doctrine because it relates back to a reckless service of alcohol claim (count four), which is a "different cause of action requiring proof of different facts." (Defendants' memorandum of law at p. 5.)
The Supreme Court dealt with a similar issue in Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). In Gurliacci, the plaintiff's original complaint alleged negligence in the operation of a vehicle against a defendant who, while driving under the influence of alcohol, caused the plaintiff's injuries. The plaintiff subsequently amended the complaint after the statute of limitations had run to include willful, wanton, and malicious conduct. The court permitted the amendment stating that the plaintiff's "amendment reiterated the negligence claim based on [the defendant's] operation of the vehicle, but added that [the defendant] was acting willfully, wantonly, and maliciously . . ." Id., 548.
Similarly, in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the Supreme Court noted that although "there is a difference between negligence and a reckless disregard of the rights of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." (Emphasis added.) Id., 343.
In this case, count four of the plaintiffs' original complaint asserts a claim for reckless service of alcohol against the defendants allegedly arising out of a motor vehicle accident that occurred shortly after the defendants' agent served alcohol to Lynam. Count four states that the defendants served Lynam "large amounts" of alcohol when they knew or should have known that Lynam was intoxicated, a drunkard, and would operate his motor vehicle. Further, count four expressly states that the defendants' alleged reckless conduct caused the plaintiff's injuries. After the statute of limitations had run, the plaintiffs amended their complaint to include count six, which alleges a claim for the negligent service of alcohol based on similar facts contained in count four. However, count six includes express language that a negligence claim is being asserted. The negligence and reckless claims are clearly based on the same core set of facts. The defendant, therefore, received "fair notice" of the negligence claim since the same underlying facts were previously contained in the original complaint. Similar to Gurliacci, supra, negligence and wanton (or reckless) claims may be relate back to one another. In addition, two recent Superior Court cases decided post- Driscoll concluded the same. See Nelson v. Sales, supra; Estate of William Ridgaway v. Silk, supra. Thus, the court finds that the plaintiffs' negligence claim in count six relates back to the plaintiffs' original complaint and is not subject to a statute of limitations defense.
2. Count Seven — Negligent Supervision; Count Eight — Negligent Training; Count Nine — Negligent Hiring
The defendant next argues that counts seven through nine also cannot be saved under the relation back doctrine because they "contain new allegations of fact and plead entirely new causes of action . . ." (Defendants' memorandum of law at p. 6.) A review of each count reveals the following: count seven alleges that the defendants were negligent in supervising their employees; count eight alleges that the defendants failed to have the proper procedures or policies or training in place that would ensure compliance with liquor regulations, prevent patrons from becoming intoxicated and prevent patrons from driving while intoxicated; finally, count nine alleges that the defendants failed to hire competent employees.
This case is analogous to Sharp v. Mitchell, 209 Conn. 59, 71-72, 546 A.2d 846 (1988). In Sharp the plaintiffs were asphyxiated in an underground fuel storage facility. The administrators of the plaintiffs' estates brought an action based on negligent supervision. After the statute of limitations had elapsed, the administrators amended their complaint to include negligent design/construction. The Supreme Court held that the new claims in the amended complaint did not relate back to the original complaint and were thus time barred because the new claim "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 . . ." Id.
It is clear to this court that the facts needed to prove a reckless service of alcohol claim are quite different than the facts needed to prove negligent supervision, negligent training, and negligent hiring claims. For instance, each of these counts would necessarily require the defendants to collect new and different facts, evidence and witnesses for a time period well before the defendants actually served alcohol to Lynam. The defendants were, consequently, deprived of any notice of these claims. Where an "entirely new and different factual situation is presented, a new and different cause of action is stated," Alswanger v. Smego, supra, 257 Conn. 64, which cannot relate back to an earlier complaint for statute of limitations purposes.
3. Count Ten — Loss of Consortium
The defendants' final argument asserts that the plaintiffs' loss of consortium based on the negligent service of alcohol cannot relate back to the original complaint. The defendants rely solely on Hull v. Cumberland Farms Food Stores, Inc., 35 Conn. Sup. 283, 408 A.3d 671 (1979), which held that a consortium claim does not relate back to the original action. The plaintiff cites to Allen v. Endrukaitis, 35 Conn. Sup. 286, 408 A.2d 673 (1979), which held that a consortium claim can relate back to the original complaint if the party seeking the consortium claim was an original party to the action. Since the plaintiff's original complaint contained a loss of consortium claim related to the reckless service of alcohol claim, the court finds no reason why a loss of consortium claim based on the negligent service of alcohol cannot relate back to the original complaint.
For the foregoing reasons the court denies the defendants' motion to strike with respect to count six (negligence) and count ten (consortium), but grants the defendants' motion to strike with respect to count seven (negligent supervision), count eight (negligent training), and count nine (negligent hiring).
BY THE COURT
D'ANDREA, JUDGE TRIAL REFEREE.