Opinion
No. CV04-4000928S
May 17, 2005
MEMORANDUM OF DECISION
This is an action brought against two purveyors of alcohol based on their serving alcoholic drinks to an intoxicated adult. According to the complaint, the plaintiff, Joseph Shortt, Jr., suffered severe injuries as a result of being dragged by a 1991 Chevrolet pickup truck at a high rate of speed and then thrown to the ground with great force and impact when the truck crashed into a bridge. The plaintiff alleges that the driver of the Chevrolet pickup truck had been drinking at the establishments and was extremely intoxicated at the time of the incident which occurred on September 18, 2002.
The plaintiff brings this action in four-counts. The first and third counts sound in negligence against Senor Panchos, Inc. and Mitsfitz, Inc. The second and fourth counts allege recklessness against the two defendants respectively. Senor Panchos moves to strike the first count on the grounds that (1) a claim for negligent service of alcohol to an adult was not recognized as viable at the time the plaintiff's cause at action accrued in 2002, and (2) the Connecticut Supreme Court's decision in Craig v. Driscoll should not be retroactively applied.
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. See Practice Book § 10-39. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. We take the facts to be those alleged in the complaint 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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
Senor Panchos correctly points out that on September 18, 2002, the date on which the plaintiff's cause of action accrued, Connecticut did not recognize a common-law cause of action for negligent service of alcohol to an adult. "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, 226 A.2d 383 (1967). In the absence of pleading and proof of recklessness, the Dram Shop Act provided the exclusive remedy against a purveyor of alcohol whose furnishing of alcohol to an intoxicated person resulted in injury to third parties. "This statute, which requires no showing of a causal relation between the sale of intoxicating liquor and the subsequent injury, was enacted to fill the void created by the old rule's disallowance of any action against the barkeeper grounded in negligence." Kowal v. Hofher, 181 Conn. 355, 358, 436 A.2d 1 (1980).
On February 4, 2003, the Connecticut Supreme Court decided Craig v. Driscoll which held that a purveyor of alcohol may be liable to an injured party under the theory of common-law negligence:
"The time has arrived when this court should again exercise its inherent power as the guardian of the common law and hold upon general principles of common-law negligence a person, who, when he knows or should have known a person is intoxicated, sells or gives intoxicating liquor to such a person, is guilty of a negligent act; and if such negligence is a substantial factor in causing harm to a third person, he should be liable with the drunken person under our comparative — negligence doctrine. Conceded, the common law in this state for over one hundred years has been to the contrary . . . but the basis upon which these cases were decided is sadly eroded by the shift from commingling alcohol and horses to commingling alcohol and horsepower. [ Garcia v. Hargrove, 46 Wis.2d 724, 737, 176 N.W.2d 566 (1970) (Hallows, C.J., dissenting).]" (Citations omitted; internal quotation marks omitted.) . . . It seems self-evident that the serving of alcoholic beverages to an obviously intoxicated person by one who knows or reasonably should know that such intoxicated person intends to operate a motor vehicle creates a reasonably foreseeable risk of injury to those on the roadways . . . Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care and therefore may be held liable in negligence." Craig v. Driscoll, 262 Conn. 312, 338, 334, 340, 813 A.2d 1003 (2003).
In response to the Court's holding in Craig v. Driscoll, supra, the General Assembly enacted Public Act Number 03-91 of the 2003 Public Acts, which explicitly abrogates a cause of action in common-law negligence and increases the statutory Dram Shop limit from $20,000 to $250,000.
Public Act No. 03-91
AN ACT CONCERNING THE DRAM SHOP ACT.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 30-102 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):
If any person, by [himself or his] 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 [twenty] two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of [fifty] 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 sixty days of the occurrence of such injury to person or property of [his or their] such person's or persons' intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of [his] such person's estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. 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.
Approved June 3, 2003. Effective June 3, 2003.
The defendant argues that the first count should be stricken because the plaintiff's cause of action did not accrue during the four-month period (from February 4, 2003 until June 3, 2003) in which a common-law cause of action was allowed.
The plaintiff contends that the Court's holding in Craig v. Driscoll should be retroactively applied to permit the action based on negligence. The appellate courts have not addressed the issue, and there is a split of authority among the lower courts.
Historically, the courts have favored retroactivity of court decisions. "There is abundant authority to support the proposition that where a court overrules a previous decision the effect is not to make a change in the law but to recognize that the court was mistaken in its first declaration of it and to establish that the law always was as stated in the later decision." Mickel v. New England Coal Coke Co., 132 Conn. 671, 676, 47 A.2d 187 (1946). "As a rule, judicial decisions apply retroactively. Robinson v. Neil, 409 U.S. 505, 507-08, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity." (Citation omitted; internal quotation marks omitted.) State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986).
"In Neyland v. Board of Education, 195 Conn. 174, 179, CT Page 8767 487 A.2d 181 (1985), [the Connecticut Supreme Court] adopted the three-part test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), 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" (citations omitted); Neyland v. Board of Education, supra, 179; (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. Id., 180." Ostrowski v. Avery, 243 Conn. 355, 377 fn.18, 703 A.2d 117 (1997).
The first prong of the test is clearly satisfied in Craig, wherein the court expressly overruled Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990). There is, however, disagreement as to the second and third prongs. In Estate of Ridgaway v. Silk, Superior Court, complex litigation docket at Middlesex, Docket No. CV 01 0103518 (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872), the court declined to apply Craig retroactively because, in view of the legislature's action in response to Craig, "analyzing `the prior history, purpose and effect' of the rule, it becomes clear that furtherance of the rule as set forth in Craig v. Driscoll would significantly frustrate the objectives of our legislature and would be contrary to the public policy of this state." Additionally, "[t]he owners of the establishments who purchased insurance and trained employees under the law as it existed prior to Craig v. Driscoll and subsequent to the passage of Public Act 03-91 should not be subject to the unexpected liability which was deemed to be in existence for that four-month period of time." Id. "Courts declining to apply Craig retroactively have generally followed the line of reasoning employed by the court in Estate of Ridgaway. See Stavola v. Costa, Judicial District of Danbury, Docket No. CV03-03504625 (Jan. 18, 2005, Moraghan, J.) ( 38 Conn. L. Rptr. 530), Campochiaro v. Stanwicks, Superior Court, Judicial District of Waterbury at Waterbury, Docket Number No. CV 04-4000066 (December 6, 2004, Matasavage, J.); Wills v. Hine, Superior Court, Judicial District of Milford at Milford No. CV02 079162S (Oct. 20, 2004, Shluger, J.); Collar v. Da Cruz, Judicial District of Hartford at Hartford, No. CV 03-0830138 (Aug. 13, 2004, Booth, J.); Rossotto v. Ernie's Place Cafe, Superior Court, Judicial District of Middlesex at Middletown, No. CV03 0101052S (Jun. 29, 2004, Silbert, J.). In Guillemette v. Rockville Lodge No. 1359, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV 02-007083 (January 11, 2005, Scholl, J.) ( 38 Conn. L. Rptr. 513), the court observed that, "if we apply Craig to allow a cause of action in negligence against a seller of alcohol, where at the time of injury no such cause of action was recognized, we are exposing the seller to a liability for which he was unable to take appropriate action to protect himself against."
Courts applying Craig retroactively are in the minority. See Esposito v. Karaoke, Inc., Judicial District of New Britain at New Britain, No. CV-03-0521042 (Feb. 16, 2005, Burke, J.); Raposa v. Lynam, Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV01 018 27 31 (Dec. 3, 2003, D'Andrea, J.T.R.) ( 36 Conn. L. Rptr. 174); Blackwell v. Barone's Sports Cafe, Superior Court, Complex Litigation Docket No. CV 02-400057 (Jan. 10, 2005, Schuman, J.) ( 38 Conn. L. Rptr. 636). The minority determined that the second prong of the "Chevron" test is not satisfied. Judge Schuman articulated the basis for applying Craig retroactively:
"The question is whether retroactive application of the rule would retard the rule's operation, not whether it would conflict with statutes or other public policy. Although it may be rare that retroactive application of a new rule would retard its own operation, the test is an important one and should be applied as stated . . .
The purpose of the Craig decision was to `provide an avenue to recover full compensation, but only upon establishing the requisite culpability and causation.' Craig, supra, 262 Conn. 328. It would decidedly further this purpose to hold Craig retroactive, since doing so would allow victims, upon proof that the excessive sale of alcohol caused their injuries, to recover full compensation, unlimited by the dram shop act. Thus, the defendants cannot prove that retroactive treatment of Craig would retard its operation." Blackwell v. Barone's, supra.
Moreover, the court pointed out the difficulty in balancing the equities with respect to the third prong of the Chevron test:
"The third factor is whether `retroactive application would produce substantial inequitable results, injustice or hardship.' It is true, as the defendants highlight, that there is some inequity in subjecting bar owners, who purchased insurance based on the law as it existed before Craig, to the unexpected and increased possibility of payment of full compensation for resulting injuries. But there may also be inequity in limiting the recovery of the victims of a catastrophic alcohol-related auto accidents occurring prior to the Craig decision to the old dram shop cap of $20,000 when persons injured in the four months after the February 4, 2003 Craig decision can recover an unlimited amount and persons injured after the June 1, 2003 amendment of the dram shop act can recover up to $250,000. While it is difficult to balance these inequities precisely, the comparative equities and tragic accidents in these cases make it less certain that retroactive operation of Craig would subject tavern owners to `substantial inequitable results, injustice or hardship.'"
For reasons set forth in Blackwell v. Barone, the court agrees with the decisions applying Craig retroactively. Accordingly, the motion to strike the first count of the complaint is denied.
GALLAGHER, J.