Opinion
No. CV-08-5005108
April 17, 2009
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (#126)
The defendants, John Mancini and Westbrook Lodge No. 1784, B.P.O.E. of the United States of America, Incorporated, seek to strike the third and fourth counts of the plaintiff's third amended complaint on the basis that these counts fail to state a claim upon which relief can be granted. The plaintiff, Michael Truax, argues that he may bring a claim sounding in negligence for injuries he sustained while operating his motor vehicle as the result of the reckless misconduct of the defendants in serving him while he was intoxicated. The defendants contend that Connecticut does not recognize a right of recovery against an alcohol server for an imbiber injured as a result of his own intoxication.
The third and fourth counts of the third amended complaint specifically allege that the plaintiff was served alcohol by the defendants and said service amounted to reckless misconduct because the defendants served the plaintiff when they knew or should have known that he was intoxicated and failed to stop serving him alcoholic beverages despite obvious and observable manifestations of intoxication when they knew he would be operating a motorcycle.
"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 may be granted." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). A motion to strike requires no factual findings by the court. Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, CT Page 7447 117, 889 A.2d 810 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Batte-Holmgren v. Commissioner of Public Health, supra, 294.
At common law, it was the general rule that no cause of action lay against one who furnished, whether by sale or gift, intoxicating liquors to a person who then became voluntarily intoxicated and in consequence of his intoxication, injured the person or property of himself or another. Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383 (1967). This common-law rule was subsequently modified by the Dram Shop Act which mandated that any cause of action arising from the negligent service of alcohol to intoxicated person shall arise under the Dram Shop Act. Davenport v. Quinn, 53 Conn.App. 282, 287, 730 A.2d 1184 (1999). It should be noted that the Supreme Court has not abrogated causes of actions arising from reckless and wanton misconduct.
The Dram Shop Act, General Statutes § 30-102, provides, in relevant part: "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 . . ." The Dram Shop Act was subsequently modified; Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 06 5002366 (May 19, 2008, Tobin, J.) (45 Conn. L. Rptr. 499, 499-500); to provide that "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." § 30-102.
"The Act is concerned only with the liability of a seller, as such, of intoxicating liquor. But if, under any circumstances, any alternative common-law right against a seller, as such, exists, it would, to the extent, that it exists, necessarily permit the avoidance, through the use of a common-law action, of the provision, of the Act restricting the amount of damages recoverable . . . The Act itself, however, contains no provision expressly making it an exclusive remedy against the sellers, as such, of intoxicating liquor for damages to person or property caused by the intoxication of a purchaser, whether those damages are sustained by the purchaser himself or by innocent third parties." Id., 287-88, citing Nolan v. Morelli, supra, 154 Conn. 439 n. 2.
The Dram Shop Act is inapplicable to the factual allegations as set forth in the third and fourth counts of the plaintiff's third amended complaint and, therefore, does not bar this common-law tort action. As the plaintiff notes, the Dram Shop Act was not created to govern law suits brought by intoxicated persons seeking to recover for their own injuries. Rather, it was created for those third parties injured as the result of the conduct of the intoxicated person. Thus, the Act does not apply to the plaintiff as he is not a third party. The plaintiff is the "injured" party and also the "intoxicated" party who was recklessly served alcohol by the defendants. Therefore, the plaintiff's claim against the defendants is not precluded by the Act. See Kowal v. Hofher, 181 Conn. 355, 362, 436 A.2d 1 (1980); see also Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 06 5002366 (May 19, 2008, Tobin, J.) (45 Conn. L. Rptr. 499, 499-500). In Kowal, the Supreme Court held that the Dram Shop Act allowed the plaintiff's administrator to maintain an action against the alcohol vendor who wantonly and recklessly served alcohol to an intoxicated person who was subsequently involved in a motor vehicle accident that resulted in the death of the plaintiff's decedent. The Supreme Court did not limit the ruling to third-party plaintiffs or preclude recovery for imbibers who caused injury to themselves. Kowal v. Hofher, supra, 362. It should be noted that in Kowal the Supreme Court relied on two cases, Nally v. Blandford, 291 S.W.2d 832 (Ky. 1956) and Grasser v. Fleming, 74 Mich.App. 338, 253 N.W.2d 757 (1977), where the plaintiff was the imbiber. Kowal v. Hofher, supra, 361. Similarly, in Boehm v. Kish, 201 Conn. 385, 389-90 517 A.2d 624 (1986), the Supreme Court, in affirming the trial court's directed verdict in favor of the defendants on the basis that the plaintiff, the intoxicated person, did not meet his burden of proof as to the cause of the accident, held that the plaintiff was not precluded as a matter of law from asserting a recklessness claim.
While no Appellate or Supreme Court case has specifically held that an adult imbiber is permitted to sue an alcohol seller for recklessly serving him in an intoxicated state, there have been several superior court cases which have held that he may do so. See Lindsay v. Benevolent Protective Order, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000828 (August 6, 2007, Gallager, J.) (44 Conn. L. Rptr. 20, 22); Candelora v. Lulu, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0485530 (October 26, 2004, Licari, J.) (38 Conn. L. Rptr. 123, 124); Lee v. The Splash Pacific Rim Grille, Superior Court, judicial district of New Haven, Docket No. CV 97 0399683 (March 3, 1999, Moran, J.) (24 Conn. L. Rptr. 233, 234); Vichiola v. Aitken, Superior Court, judicial district of Fairfield, Docket No. CV 93 0308350 (July 21, 1994, Freedman, J.) (9 C.S.C.R. 865, 866).
The plaintiff here has alleged a claim for reckless misconduct in the service of alcohol to the plaintiff while he was in an intoxicated state. The court joins the holdings of the trial court cases in finding that an intoxicated person can recover for his/her own injuries on a theory of reckless service of alcohol. The motion to strike the third and fourth counts of the third amended complaint is denied.