Opinion
No. CV08 500 49 95S
((July 25, 2008))
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (#122)
The defendants, David J. Orazietti d/b/a Downtown Danny O's a/k/a Danny O's Bar Grille and GINJESS, LLC, pursuant to Connecticut Practice Book § 10-39(a)(1) have moved to strike the ninth count of the plaintiff-administratrix's Second Amended Complaint dated May 7, 2008. The court heard this matter at short calendar on July 21, 2008.
According to the complaint, on April 20, 2007, the decedent, Jennifer L. McLeod, was a passenger in a car driven by the defendant, Von R. Moody, at an excessive rate of speed. Defendant Moody collided with another vehicle and, as a result of the accident, Ms. McLeod suffered serious personal injuries resulting in her death.
In the ninth count of the complaint, the plaintiff-administratrix asserts that the injuries to and death of her daughter, Jennifer L. McLeod, were caused by the "reckless, wilful and/or wanton misconduct" of the defendants, David J. Orazietti d/b/a Downtown Danny O's, a/k/a Danny O's Bar Grille and GINJESS, LLC. The defendants contend that the allegations are insufficient to state a claim of recklessness, thereby resulting in a standard negligence claim which is impermissibly joined with a statutory Dram Shop Act claim under Connecticut General Statutes § 30-102 (Eighth Count).
In pertinent part, the allegations of the Ninth Count include:
5. Agents and/or employees of Downtown Danny O's a/k/a Danny O's Bar Grille served alcoholic beverages to Von R. Moody while he was visibly and obviously intoxicated in violation of § 30-102 of the Connecticut General Statutes.
13. The collision and the damages mentioned above were caused by the reckless, willful and/or wanton misconduct of the defendants, their agents, servants and/or employees in one or more of the following ways:
a. They served numerous drinks to Von R. Moody, which caused his intoxication, when the defendants knew, or should have known, that Von R. Moody would operate a motor vehicle upon leaving the defendants' premises;
b. They chose not to cut off Von R. Moody when they knew he was intoxicated and likely to drive a motor vehicle on the roads of this State with other drivers;
c. They allowed Von R. Moody to operate a motor vehicle upon leaving the bar when they knew that Von R. Moody was in an intoxicated state;
d. They continued to supply alcohol to Von R. Moody who lacked the capacity to fully understand the risks associated with intoxication due to his propensity to drink alcohol excessively.
The defendants argue that the foregoing allegations are insufficient to state a claim for recklessness as alleged in the ninth count and have moved to strike that count.
"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 and citation omitted.) Coble v. Maloney, 34 Conn.App. 655, 661 (1994). In Coble, the Appellate Court determined that the trial court correctly 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] was drunk, and they knew or should have known that [the driver] was already intoxicated." Id., 672; see also Nelson v. Apple East of Danbury, Superior Court, judicial district of Danbury at Danbury, Docket No. CV06 5001354S (May 11, 2007, Shaban, J.).
In a well briefed and well argued presentation, the
defendants urge this court to follow decisions which have required that, in order to survive a motion to strike, the plaintiff must plead actual facts which indicate that the defendants knowingly served an intoxicated person, rather than pleading conclusions. See, e.g., Bonetti v. Continental Corporation, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV92 0703607 (May 9, 1994, Wagner, J.). However, in factual situations analogous to the present case, a number of other courts (including this court) have declined to strike a recklessness claim. See, e.g., Coble v. Maloney, Superior Court, judicial district of Waterbury, Docket No. CV90 089843 (November 16, 1990, McWeeny, J.); Gumkowski v. U.S.S. Chowder Pot, III, Superior Court, judicial district of New Haven, Docket No. CV94 0361840 (September 20, 1995, Hartmere, J.); Czajkowski v. Snookers Billiards, Superior Court, judicial district of Ansonia/Milford, Docket No. CV06 5000754 (September 16, 2006, Stevens, J.); Resulovski v. Ipek, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV07 5002218S (July 10, 2007, Robinson, J.).
Here, the plaintiff-administratrix has alleged in the complaint that the defendants: 1) served numerous drinks to the driver, which caused his intoxication, when they knew or should have known that the driver would operate a motor vehicle upon leaving the defendants' premises; 2) chose not to cut off the driver when they knew he was intoxicated and likely to drive a motor vehicle on the roads of this State with other drivers; 3) allowed the driver to operate a motor vehicle upon leaving the bar when they knew that the driver was in an intoxicated state; 4) continued to supply alcohol to the driver who lacked the capacity to fully understand the risks associated with intoxication due to his propensity to drink alcohol excessively; and 5) served alcoholic beverages to the driver while he was visibly and obviously intoxicated.
The foregoing clearly allege "conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger [and] wilful, wanton and reckless conduct sufficient to survive a motion to strike." Craig v. Driscoll, 262 Conn. 312, 343 (2003).
Accordingly, the defendants' motion to strike the ninth count of the complaint is denied.