Opinion
No. CV 075002218 S
July 10, 2007
MEMORANDUM OF DECISION RE MOTION #104 MOTION TO STRIKE and MOTION #110 OBJECTION TO MOTION TO STRIKE
Facts
The plaintiff alleges in the first count of her complaint that on or about November 27, 2005 the plaintiff was operating a motor vehicle in the Town of West Haven. She subsequently lost control and crashed said motor vehicle causing her to be injured. She further alleges that prior to the accident she was served alcoholic beverages at the defendants' business establishment and that said beverages were served to her despite the fact that she was already in a state of intoxication. The plaintiff claims that the proximate cause of her injuries was the defendants' violation of § 30-102 C.G.S.
The defendants are Ipek Omer d/b/a Rudy's Restaurant, Ipek Omer and Rudy's Bar Grill, Inc.
The plaintiff alleges in the second count of her complaint that the defendants' actions were reckless and/or willful misconduct in that the defendants or their agents, servants and/or employees: "a) willfully sold or delivered alcoholic beverages to the Plaintiff after she was intoxicated, thus violating Connecticut General Statutes Section 30-86(b); b) wilfully allowed their employees to serve alcoholic beverages to the Plaintiff after she was intoxicated; c) served alcoholic beverages to the Plaintiff even though knowing that she would consume the alcoholic beverages while intoxicated and would become more intoxicated or stay intoxicated; d) sold or delivered alcoholic beverages to an intoxicated Plaintiff when they knew that she would thereafter operate a motor vehicle; and e) sold or delivered alcoholic beverages to an intoxicated Plaintiff knowing that operation of a motor vehicle by the Plaintiff while intoxicated would constitute an unreasonable risk of injury to herself."
The plaintiff alleges in the third count of her complaint that the proximate cause her injuries was the negligence and carelessness of the defendants in failing to properly supervise, train or give adequate instructions, rules, regulations or standards to its employees concerning serving intoxicated individuals.
On April 18, 2007 the defendants filed a motion to strike all three counts of the plaintiff's complaint. Specifically, the defendants moved to strike count one on the grounds that § 30-102 C.G.S. does not permit a cause of action by an intoxicated person who injures herself. The defendants moved to strike count two of the complaint on the grounds that said count is legally insufficient for reason that "the plaintiff has only alleged conclusory allegations of recklessness that do not sufficiently allege wilful or reckless conduct by the defendants." The defendants moved to strike count three on the grounds that "Connecticut law does not provide a cause of action against the seller of alcoholic beverages for negligent supervision of the sale of alcohol to an intoxicated individual who injures herself."
Standards
Whereas the defendants have filed a motion to strike, a brief review of case law concerning the motions to strike is warranted:
A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. We take the facts to be those alleged in the complaint that has been stricken 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. (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable there under. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).
Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002).
A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982); Mora v. Aetna Life Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
Section 10-39 of the Practice Book concerns the Motion to Strike. This section provides that:
(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations or any complaint, counterclaim or cross claim, or any one or more counts thereof to state a claim upon which relief can be granted. . . that party may do so by filing a motion to strike the contested pleading or part thereof.
The standard for considering motions to strike has been well established in our courts.
[A] motion to strike challenges the legal sufficiency of a pleading. . . (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000). In deciding on a motion to strike, the court must "read the allegations of the complaint generously to sustain its viability. . ." Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000). "The 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).
"If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Brackets omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "In deciding on a motion to strike. the trial court must take the facts to be those alleged in the [pleadings]. . . and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "Moreover [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).
Jossick v. Carolan, 2001 Ct.Sup. 10530 (Aug. 2, 2001, White, J.).
Discussion As to Count One Violation of § 30-102 C.G.S.
The plaintiff conceded at oral argument that her alleged cause of action brought pursuant to the provisions of § 30-102 C.G.S. is legally insufficient and therefore the motion to strike as to this count is granted as to this count.
Section 30-102 of the Connecticut General Statutes is Connecticut's Dram Shop Act. This statute states that:
If any person, by such person or such person's 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 two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred 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 one hundred twenty days of the occurrence of such injury to person or property of such person's or persons' intention to bring an action under this section. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of. 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.
As to Count Two — Reckless or Wilful Service of Alcohol To an Intoxicated Person
"In Kowal v. Hofher, [ 181 Conn. 355, 360-61, 436 A.2d 1 (1980),] [our Supreme Court] held that the plaintiff could bring a cause of action against a restaurant owner and permittee, his agents and employees, for recklessly serving alcoholic beverages to a patron who was already intoxicated and who, thereafter, operated his vehicle in a negligent manner causing the resulting injuries to the plaintiff's decedent. That holding was premised on the court's conclusion that the policy considerations that justify protecting a vendor. . . from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages did not apply with respect to wanton and reckless misconduct." Craig v. Driscoll, 262 Conn. 312, 334, 813 A.2d 1003 (2003).
"In order to prove that a sale of intoxicating liquor was made in a wilful, wanton and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended 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." (Internal quotation marks omitted.) Coble v. Maloney, 34 Conn.App. 655, 661-62, 643 A.2d 277 (1997). In Coble, the Appellate Court determined that trial court properly instructed the jury that it could determine whether a pub was reckless in serving alcohol to a driver if it found that the pub "served liquor beyond the point when [the driver who collided with the plaintiff] was drunk, and they knew or should have known that [the driver] was already intoxicated." Id., 672. See also Czajkowski v. Snookers Billiards, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000754 (September 16, 2006, Stevens, J.) (allegations that defendant served alcohol to driver when it knew he was impaired and that its policy allowed such service are sufficient to support claim of recklessness).
Nelson v. Apple East of Danbury, Superior Court, judicial district of Danbury at Danbury, Docket No. CV06-5001354 S (May 11, 2007, Shaban, J.) [ 43 Conn. L. Rptr. 438].
The plaintiff alleges in Count Two of her complaint that:
7) A substantial factor in causing the collision and the resultant injuries and damages to the Plaintiff was the reckless and/or willful misconduct of the Defendants and/or their agents, servants and/or employees in one or more of the following ways in that they;
a) willfully sold or delivered alcoholic beverages to the Plaintiff after she was intoxicated, thus violating Connecticut General Statutes Section 30-86(b);
Section 30-86(b)(1) C.G.S. provides that: "Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor or any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113."
Section 30-113 C.G.S. provides that: "Any person convicted of a violation of any provision of this chapter for which a specified penalty is not imposed, shall, for each offense, be fined not more than one thousand dollars or imprisoned not more than one year or both."
b) willfully allowed their employee to serve alcoholic beverages to the Plaintiff after she was intoxicated;
c) served alcoholic beverages to the Plaintiff even though knowing that she would consume the alcoholic beverages while intoxicated and would become more intoxicated or stay intoxicated;
d) sold or delivered alcoholic beverages to an intoxicated Plaintiff when they knew or should she would thereafter operate a vehicle; and
e) sold or delivered alcoholic beverages to an intoxicated Plaintiff knowing that operation of a motor vehicle by the Plaintiff while intoxicated would constitute an unreasonable risk of injury to herself."
The defendants argue that: "Count two of the plaintiff's complaint should be stricken because the plaintiff's claim against the defendant as for reckless and wilfull (sic) misconduct is legally insufficient as a matter of law. `In order to prove that a sale of intoxicating liquor was made in a wilful, wanton, and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended to take on the aspect of highly probable unreasonable conduct, involving extreme departure from ordinary care, in a situation where a high degree of danger is apparent.' The mere use of the words `reckless' and `wanton' is insufficient to raise an actionable claim of reckless and wanton misconduct." (Citations omitted.)
The issue of the requisite specificity to allege a cause of action for the wilful or reckless service of alcohol to an intoxicated person has been repeatedly discussed in the Courts of this State. Our Courts have concluded that if the language of the complaint is sufficient to place the defendant on notice as to a cause of action sounding in wilful conduct or recklessness, said complaint is legally sufficient. "The defendants are mired in the fact that, aside from the addition of the words `willful, wanton and/or reckless actions' the plaintiffs' allegations in their reckless counts mirror their assertions in the counts charging the defendants with negligence. Although there is a difference between negligence and a reckless disregard of the rights or safety 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." Craig v. Driscoll, 262 Conn. 312, 343 813 A.2d 1003 (2003).
Upon completing its review of the acts as pled this court concludes that the language of the subject count adequately places the defendant on notice of the allegations of reckless conduct and therefore said it is legally sufficient. For the foregoing reasons the defendants' motion to Strike Count Two is denied.
As to Count Three Connecticut Law Does Not Provide a Cause of Action Against the Seller of Alcoholic Beverages for Negligent Supervision of the Sale of Alcohol to an Intoxicated Individual Who Injures Herself. "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." Nolan v. Morelli, 154 Conn. 432, 436-37, (1967).Until recently there were three recognized exceptions to the common-law rule: 1) the Dram Shop Act; and 2) the service of alcohol or intoxicating liquor to minors; and 3) reckless service of alcohol. However, until recently an individual seeking redress for injuries caused by the negligent service of alcohol to an adult could only obtain said redress through the Dram Shop Act.
In February of 2003 the Connecticut Supreme Court addressed the issue of whether the Dram Shop Act was the exclusive remedy for an individual who was injured as the result of the negligent service of alcohol to an intoxicated adult. See Craig v. Driscoll, 262 Conn. 312 (2003). The Court in Craig held that the Dram Shop Act was not the exclusive remedy for individuals who suffer damages as the result of the negligent service of alcohol to an intoxicated adult.
The plaintiff does not allege that she was a minor when she was served alcohol before the accident in question. Additionally the subject count does not sound in Dram Shop Act liability. Lastly, the subject count does not allege recklessness, but "the negligence and carelessness of the Defendants" in serving an intoxicated person who injured herself. In light of the specific allegations of the complaint this court finds that the Third Count is not legally sufficient to sustain a cause of action.
See the Third Count, paragraph 7 of the plaintiff's complaint.
Conclusion
For all of the reasons stated herein the motion to strike is granted as to Count One and Three, and is denied as to Count Two. So ordered.