Opinion
No. CV 04-0104721
April 15, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On July 13, 2003 the plaintiff was a passenger in an automobile operated by Eduardo A. Rivera when it was involved in a motor vehicle accident in Middletown, causing injuries to the plaintiff. The plaintiff has now brought this action pursuant to General Statutes § 30-102, better known as the Dram Shop Act, against Sylvia G. Miceli, both individually and doing business as Franco's Pizzeria Restaurant and Lounge. He alleges that the defendant sold Eduardo Rivera alcoholic beverages while in an intoxicated condition and that his injuries were a consequence of that intoxication.
General Statutes § 30-102 provides, in relevant part, that "[i]f 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 . . ." General Statutes § 30-102.
The defendant has asserted a special defense in which she alleges "the plaintiff insofar as his injuries alleged in his complaint were caused by his own negligence in entering and remaining in a motor vehicle driven by an intoxicated person." While inartfully worded, that special defense may be read as alleging either contributory negligence or assumption of risk on the part of the plaintiff.
Whatever the theory, the plaintiff has moved to strike the special defense based on his contention that it fails to state a claim upon which relief may be granted. The motion to strike is the proper motion to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). "Its function . . . is to test the legal sufficiency of a pleading." Id. "In reviewing the granting of a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader. If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied." R.K. Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 650 A.2d 153 (1994). A motion to strike is the correct method to challenge the legal sufficiency of a special defense. Krasnow v. Christensen, 40 Conn.Sup. 287, 288 (1985).
The plaintiff argues first that contributory negligence is not a proper defense to an action brought pursuant, to the Dram Shop Act, citing Sanders v. Officer's Club of Connecticut, Inc., 196 Conn. 341, 352 (1985). The court in Sanders, while stressing that it was not bound by the decision, was persuaded by the reasoning in a Federal Court case, Zucker v. Vogt, 329 F.2d 426 (D.Conn., 1964), that contributory negligence should not be a defense to a dram shop violation. That reasoning has since been followed by our Appellate Court in Belanger v. Village Pub I, Inc., 26 Conn.App. 509 (1992). Additionally, the plaintiff argues that because the claim brought under the Dram Shop Act is not grounded in common-law negligence but rather in a statutory violation, a special defense based on negligence is inapposite and thus may not be maintained. See Staples v. Lucas, 142 Conn. 452, 456 (1955).
The plaintiff also argues that assumption of the risk, which has been abolished in negligence actions pursuant to General Statutes § 52-572h, ought not to be applicable to a statutory violation when the statute was enacted to create an obligation to the public at large, as this one certainly was, L'Heureux v. Hurley, 117 Conn. 347, 355-58 (1933), but here he encounters greater difficulty with his argument. The issue has not yet been directly addressed by our Supreme or Appellate Courts, and Sanders, supra, upon which the plaintiff relies, specifically left undecided the question of whether "under some circumstances, a plaintiff can be held to have assumed a risk which has its basis in the violation of a statutory requirement and enacted for his protection." Several trial courts, however, have addressed the issue, and with mixed results.
General Statutes § 52-572h(h)(2)(1) provides in relevant part that "[t]he legal doctrines of last clear chance and assumption of risk in [negligence] actions . . . are abolished."
In Rousseau v. Ricciardi, Superior Court, judicial district of Waterbury, Docket No. 121665 (August 22, 1995, McDonald, J.), then-Judge McDonald noted the
split of authority as to whether assumption of the risk is a valid defense to a dram shop claim. For cases finding that assumption of the risk is a valid defense to a dram shop action, see Sego v. Debco, Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 03 96 50 (Sep. 8, 1994, Skolnick, J.) ( 12 Conn. L. Rptr. 415); Gelosa v. Sagan, 1 Conn. L. Rptr. 141, 143 (January 3, 1990, Mulcahy, J.); Tarver v. DeVito, 7 CSCR 843 (June 25, 1992, Rush, J.). For cases holding that assumption of the risk is not a valid defense to a dram shop action, see Lepore v. Lavigne, 6 Conn. L. Rptr. 46 (February 6, 1992, Hennessey, J.); Passini v. Decker, 39 Conn.Sup. 20 (Super.Ct. 1983, Pickett, J.); Archambault v. Pascual, 3 Conn. L. Rptr. 36 (January 7, 1991, McDonald, J.). This court has found that assumption of the risk is not a defense to an action based on a statutory violation when the statute was enacted to create an obligation to the public at large. See Johnpiere v. Bendler, 9 CSCR 521 (April 19, 1994, McDonald, J.); Archambault v. Pascual, 3 Conn. L. Rptr. 36 (December 19, 1990, McDonald, J.).
"Many of the cases upholding the defense [of assumption of the risk] rely on a restatement of the trial court in [ Sanders v. Officers' Club of Connecticut, Inc.] that `it appears that such a defense is proper within the boundaries of voluntarily and willingly assuming the risk of another's intoxication, for example accepting a ride from one known to be drunk' . . . However, cases which have disallowed the defense of assumption of the risk rely on L'Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933), wherein the court held that assumption of the risk is not a defense to an action based on a statutory violation when the statute was enacted to create an obligation to the public at large." (Citations omitted; internal quotation marks omitted.) Jacocks v. Monahan's Shamrock, Superior Court, judicial district of New Haven, Docket No. 330268 (October 13, 1993, Zoarski, J.). See also, Rousseau v. Ricciardi, supra, ("assumption of the risk is not a defense to an action based on a statutory violation when the statute was enacted to create an obligation to the public at large"); Archambault v. Pascual, supra; Lepore v. Lavigne, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 393695 (February 6, 1992, Hennessey, J.) ( 6 Conn. L. Rptr. 46); Passini v. Decker, 39 Conn.Sup. 20, 467 A.2d 442 (1983). In Penn v. LaBoy, Superior Court, judicial district of New London, Docket No. 508818 (July 30, 1990, Axelrod, J.) ( 2 Conn. L. Rptr. 165), the court granted a motion to strike the special defense of assumption of risk to a Dram Shop Act cause of action, holding that "[t]here is nothing in section 30-102 that allows assumption of risk as a defense . . . If the damage limitation in section CT Page 7018 30-102 is to be reduced, then the proper remedy to reduce the statutory limit is by legislative action rather than be creating [the] defense [of assumption of the risk] that was not established by the legislature." Id.
Other superior courts have held that assumption of the risk is a valid defense to a violation of the Dram Shop Act. In Breen v. Brother Bones Cafe, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 523016, 12 Conn. L. Rptr. 165 (October 14, 1994, Corradino, J.), the court held that assumption of risk was a defense because "[w]hen a plaintiff's conduct in assuming a risk is unreasonable, then the (assumption of risk) doctrine overlaps contributory negligence and the principle of comparative negligence . . . should apply." (Internal quotation marks omitted.) Id. See also, Sego v. Debco, Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 039650, 12 Conn. L. Rptr. 415 (September 8, 1994, Skolnick, J.) ("[s]ince the statute is primarily remedial . . . and . . . intended to limit recovery to innocent third-party victims, the defense [of assumption of risk] bars recovery in a Dram Shop action where the plaintiff comprehended the risk of harm") (Internal quotation marks omitted.) Id. Nolan v. Schuster, No. CV-98-0145395S, Superior Court, judicial district of Waterbury (December 4, 1998, Espinosa, J.) ( 23 Conn. L. Rptr. 552) is the most recent case found by the court to adopt this reasoning.
The even more recent Butler v. Long, No. CV 03 0090334S, Superior Court, judicial district of Litchfield at Litchfield (Feb. 11, 2004, Pickard, J.), 2004 Ct.Sup. 3536, 36 CLR 513, which reaches a similar result, involved not a dram shop violation, but rather an allegation of violation of General Statutes § 30-86(b), which provides, in relevant part: "Any person who sells, ships, delivers or gives any [alcoholic] liquors to [a] minor, by any means . . . shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen months or both."
This court concludes that those courts which have disallowed assumption of the risk as a defense to a claim of a Dram Shop Act violation have the better of the argument. Located in Title 30, dealing with intoxicating liquors, § 30-102 is part of a detailed scheme for the regulation of an entire industry. It provides a direct cause of action against a seller of intoxicating beverages to already intoxicated persons, who, in consequence of their intoxication, cause damages to others. To prevail, a plaintiff need not show negligence, recklessness, wilfulness or wantonness on the part of the seller, only that the sale took place under circumstances where the seller knew, or should have known, of the patron's state of intoxication. While a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated, as several cases have held, he can not be held to have "assumed the risk" that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated. General Statutes § 30-102 does not regulate the driver of the vehicle, only the seller of the intoxicating beverage. While a plaintiff may not be a totally "innocent third party" with respect to the principal tortfeasor, he is such with respect to the party who allegedly sold the intoxicating beverage to an already intoxicated person.
Based on the above, the court concludes that the special defense, whether sounding in contributory negligence or assumption of the risk, fails to state a claim upon which relief may be granted as a matter of law. The motion to strike that special defense is therefore granted.
Jonathan E. Silbert, Judge