Opinion
CV116011202S.
11-02-2012
Janet K. WILLIAMS, Administrator of the Estate of Cathy J. Blinstrubas, et al. v. Thomas R. ADKINS, III, Administrator of the Estate of Thomas Adkins, Jr., et al.
UNPUBLISHED OPINION
V. ROCHE, J.
FACTS
This case arises out of a motor vehicle accident. On April 10, 2012, a third amended complaint was filed alleging the following facts. The plaintiff Janet K. Williams is the administrator of the estate of Cathy J. Blinstrubas. The defendant Thomas R. Adkins III is the administrator of the estate of Thomas Adkins, Jr. (Adkins, Jr.). Blinstrubas and a third individual, the plaintiff Norman Chacho, Jr., were passengers in a vehicle driven by Adkins, Jr., which Adkins, Jr. lost control of, causing it to strike a utility pole. Blinstrubas and Adkins, Jr., were killed as a result of the accident. Chacho was badly injured. Prior to the accident, Adkins, Jr. had been served alcohol at a number of bars and/or restaurants, including Joanne's Sit and Sip Café, Outside Inn Café and Pines Café . Those establishments are owned and operated by the defendants Joanne's Sit and Sip Café, LLC, Outside, Inc., and Pines Café, Inc., respectively.
Although filed subsequent to the motions to strike that are the subject of this memorandum, the defendants have not objected to the filing of the amended complaint. The counts of the complaint relevant to the motions before the court were unaffected by the amendments contained in the third amended complaint, which added causes of action against the defendants Outside, Inc. and Daniel R. Lucian. The court previously had granted motions to cite in those parties on March 26, 2012, and April 2, 2012.
In addition to Adkins and the aforementioned business entities, the defendants to this action also include Theresa J. Cleary as member and permittee of Joanne's Sit & Sip Café, Clarisse Julian as president of Pines Café, Inc., David W. Anderson, Sr., as permittee of Pines Café, Inc. and Daniel R. Lucian as permittee of Outside Inn Café .
The complaint has thirteen counts, of which counts two through seven, nine and ten are relevant to the motions now before the court. Counts two, three, five and six allege causes of action pursuant to the Dram Shop Act (Act). Counts four, seven and nine sound in common-law recklessness.
General Statutes § 30-102 provides: " 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 of such person's or person's intention to bring an action under this section. Such notice shall be given (1) within one hundred twenty days of the occurrence of such injury to person or property, or (2) in the case of the death or incapacity of any aggrieved person, within one hundred eighty days of the occurrence of such injury to person or property. 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."
" 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).
On March 27, 2012, the defendants Joanne's Sit and Sip Café, LLC and Theresa Cleary, the Café 's permittee (collectively, the " Sit and Sip defendants"), filed an amended answer and special defenses. The Sit and Sip defendants specifically allege six special defenses. The first three special defenses allege assumption of risk, participation, and contributory recklessness, respectively, on the part of the plaintiff Williams' decedent, Blinstrubas. Those special defenses are directed at counts two and three of the complaint, which were brought under the Act. The Sit and Sip defendants' fourth, fifth and sixth special defenses likewise allege assumption of risk, contributory recklessness and participation, respectively, on the part of Blinstrubas. Those special defenses target the fourth count of the complaint sounding in common-law recklessness.
The Sit and Sip defendants' first special defense alleges, inter alia that Blinstrubas accompanied Adkins, Jr. during the course of the evening, observed his consumption of alcohol, knew or should have known of his intoxicated state, knew or should have known of the risks associated with such intoxication and voluntarily chose to ride in a vehicle he was driving despite her knowledge that he was intoxicated.
Specifically, the Sit and Sip defendants' second special defense alleges: " The Plaintiff's decedent, Cathy Blinstrubas, accompanied Defendant Thomas Adkins during the course of the evening on November 1, 2010, while the Defendant Thomas Adkins consumed alcohol ... The Plaintiff's decedent, Cathy Blinstrubas, participated in, facilitated and encouraged the alleged intoxication of the Defendant Thomas Adkins, in that she:
Sit and Sip defendants' third special defense alleges, inter alia, that any damages sustained by Blinstrubas were caused by her own reckless conduct because she (1) " [r]ecklessly and voluntarily entered the vehicle operated by Thomas Adkins when she knew or should have known that Thomas Adkins was intoxicated and despite her knowledge of the dangers associated with driving under the influence, " (2) " [r]ecklessly and voluntarily accompanied the defendant Thomas Adkins when she knew that he was in an intoxicated state, " (3)" [a]ctively encouraged the consumption of alcoholic beverages by the Defendant Thomas Adkins when she knew that he was in an intoxicated state and that he was likely to be operating a motor vehicle in an intoxicated state."
On April 20, 2012, the defendants Pines Café, Inc., Clarisse Julian, its president, and David Anderson, its permittee (collectively, the " Pines defendants"), filed an answer and special defenses. The Pines defendants specifically allege four special defenses. The first special defense, as to the fifth and sixth counts of the complaint, alleges assumption of risk on the part of the plaintiff Williams' decedent, Blinstrubas. The second special defense, directed at the complaint's fifth and sixth counts, alleges participation on the part of Blinstrubas. The Pines defendants' third and fourth special defenses, as to the seventh and ninth counts of the complaint, allege contributory recklessness on the part of the plaintiffs.
The Pines defendants' first special defense alleges that the plaintiff's decedent, Blinstrubas, knew or should have known of Adkins, Jr.'s intoxicated condition and the risks associated with such intoxication, yet voluntarily chose to ride as a passenger in a vehicle that he was driving. Therefore, the Pines defendants allege, the plaintiff " is barred from recovery in that [she] assumed the risk of such injury ..."
Pines defendants' second special defense alleges that the plaintiff is barred from recovery because Blinstrubas was " fully compliant and complicit in causing or contributing to his intoxication, " including sharing and purchasing alcohol with Adkins, Jr. and facilitating and encouraging his intoxication.
These defenses allege, inter alia, that any damages sustained by the plaintiffs were caused by the recklessness of Blinstrubas and Chacho, including voluntarily riding in a vehicle with Adkins, Jr. despite knowing that he was intoxicated, accompanying Adkins, Jr. when he was in an intoxicated state, encouraging Adkins, Jr.'s consumption of alcoholic beverages, and recklessly and voluntarily riding in a vehicle driven by Adkins, Jr. when the plaintiffs knew or should have known his reputation for drinking to the point of severe intoxication.
On April 10, 2012, the plaintiff Williams moved to strike all of the Sit and Sip defendants' special defenses, claiming that they are legally insufficient. On April 30, 2012, the plaintiffs, Williams and Chacho, moved to strike all of the Pines defendants' special defenses on similar grounds. On June 7, 2012, the Pines defendants filed an objection to the motion to strike and, on June 12, 2012, the Sit and Sip defendants likewise filed an objection. The plaintiffs filed replies on July 18, 2012. Oral argument was heard at the short calendar on September 4, 2012.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). " [A] plaintiff can [move to strike] a special defense ..." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). " In ... ruling on [a] ... motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The special defenses raised by the Sit and Sip defendants and the Pines defendants are substantially similar and the arguments raised by the parties supporting and opposing the plaintiffs' motions to strike are nearly identical. Accordingly, rather than parse out individual arguments and duplicate much of its analysis, the court will instead address generally the special defenses raised against the plaintiff's statutory claims, brought pursuant to the Act. The court will then address generally the defenses raised against the plaintiffs' common-law reckless service of alcohol claims.
I
DRAM SHOP ACT DEFENSES
The plaintiff claims that the special defenses of participation, assumption of risk and contributory recklessness are not cognizable defenses to a statutory claim brought pursuant to the Act. While acknowledging a split of authority among superior courts addressing those defenses to claims brought under the Act, the plaintiff argues that the better reasoned cases support striking the special defenses. Both the Sit and Sip defendants and Pines defendants argue, in response, that the court should side with those cases recognizing the aforementioned defenses as valid special defenses to a claim brought pursuant to the Act. The court will analyze the three defenses raised against the plaintiff's Dram Shop claims in turn.
A
Participation
A split of authority exists among superior courts regarding whether a participation defense may be raised against a statutory claim brought pursuant to the Act. Those courts recognizing the participation defense generally reason that the Act does not contemplate " giving a remedy to one who joins and participates in and contributes to the violation of it." Cookinham v. Sullivan, 23 Conn.Supp. 193, 196, 179 A.2d 840 (1962). That is, courts recognizing a participation defense construe the Act as protecting only " innocent" third parties. See, e.g., Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 0039650 (September 8, 1994, Skolnick, J.) (12 Conn. L. Rptr. 415, 416-17); Breen v. Brother Bones Café, Inc., Superior Court, judicial district of Hartford, Docket No. CV 930523016 (Oct. 14, 1994, Corradino, J.) (12 Conn. L. Rptr. 518, 519).
In contrast, courts declining to recognize a participation defense generally reason that principles of statutory construction counsel against reading an unexpressed exception into the Act's language. This line of reasoning was articulated by the court in Passini v. Decker, 39 Conn.Supp. 20, 23, 467 A.2d 442 (1983): " The purpose of the statute is to protect the public at large from tortious conduct committed by an intoxicated person who was served intoxicating liquor by a tavern owner while in an intoxicated state ... A third party who accompanies an intoxicated driver is a member of the public at large and is a protected party within the purview of the statute. To hold otherwise would be to thwart the purpose of the statute. Courts may not, by construction, read into a statute provisions not clearly expressed therein."
The court agrees with those decisions that have determined that a participation defense is not a cognizable defense to a claim predicated on a violation of the Act. See, e.g., Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV 5014334 (November 2, 2008, Blue, J.) (46 Conn. L. Rptr. 399, 400) (" [t]he judicially created doctrine of participation is inconsistent with the legislative scheme of placing the economic burden of intoxication-related injuries on dram shops" [internal quotation marks omitted]). Specifically, the court agrees that " [a] plain reading of the statute indicates no legislative intent to limit recovery to ‘ innocent’ third parties. If the legislature intended so to limit the statute, it would have been easy so to provide by including the intoxicated person himself within the ambit of the act if it desired to do so." Passini v. Decker, supra, 39 Conn.Supp. at 23.
B
Assumption of Risk
Courts recognizing assumption of risk as a valid defense to a claim brought pursuant to the Act often rely on the same logic underpinning the recognition of the participation defense, namely, a determination that the Act is intended to protect only " innocent" third parties. See. e.g., Sego v. Debco, Inc., supra, 12 Conn. L. Rptr. at 416-17. Other courts recognizing an assumption of risk defense note that parties raising assumption of risk as a defense are " not technically pleading assumption of risk but comparative negligence" Breen v. Brother Bones Café, Inc., supra, 12 Conn. L. Rptr. at 520. This line of reasoning recognizes a relationship between assumption of risk and comparative negligence, noting " [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.
Courts rejecting the assumption of risk defense in the context of a claim brought pursuant to the Act often conclude that " [w]hile 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 ... he cannot 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." Rivera v. Miceli, Superior Court, judicial district of Middlesex, Docket No. 040104721 (April 15, 2005, Silbert, J.) (39 Conn. L. Rptr. 151, 153).
The court is persuaded by those cases rejecting assumption of risk as a defense to a claim brought pursuant to the Act. In particular, the court agrees that " [a]n assumption of the risk defense carves out too broad an exception to the public policy underlying the dram shop act of policing the conduct of the liquor seller for the purpose of protecting the general public." Blondin v. Meshack, Superior Court, judicial district of New Haven, Docket No. CV 085018828 (October 2, 2008, Lager, J.) (46 Conn. L. Rptr. 396, 398).
C
Contributory Recklessness
Whether contributory recklessness may be raised as a defense to a claim brought under the Act remains an open question. Nonetheless, some courts have rejected the defense for reasons similar to those articulated by courts rejecting an assumption of risk defense. See Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002709 (March 17, 2008, Pickard, J.) (45 Conn. L. Rptr. 200, 202) (" while the plaintiff may properly be alleged to be reckless in choosing to accompany a driver that she knew or should have known to be intoxicated, the plaintiff cannot be held to have contributed to the reckless service of alcoholic liquor to a person known to be intoxicated"); Petrolito v. Cucullo, Superior Court, judicial district of Hartford, Docket No. CV 106012391 (December 30, 2011, Woods, J.) (53 Conn. L. Rptr. 269, 271) (" pursuant to the public policy underlying the Dram Shop Act this court grants the plaintiff's motion to strike the defendants' special defense of contributory recklessness"). The court adopts the reasoning of those courts rejecting contributory recklessness as a defense to a claim under the Act.
II
RECKLESS SERVICE OF ALCOHOL DEFENSES
The court will next address generally the defenses raised against the plaintiff's common-law reckless service of alcohol claims. The plaintiff claims that the special defenses of assumption of risk, contributory recklessness and participation are not valid special defenses to a common-law claim for the reckless service of alcohol. The defendants contend, in opposition, that the special defenses are cognizable defenses to a common-law claim grounded in reckless conduct. Again, the parties note a split of authority within the Superior Court on these issues.
A
Assumption of Risk
Superior courts disagree as to whether assumption of risk is a valid defense to a common-law claim of reckless service of alcohol. Decisions that have recognized assumption of risk as a defense to such claims generally follow the reasoning articulated in Sego v. Debco, Inc., supra, 12 Conn. L. Rptr. at 416: " [W]anton, willful or reckless conduct by the plaintiff's decedent which naturally increased the probability of injury and contributed thereto would be admissible under the pleadings and would constitute a defense to the claim of recklessness ... [Where the] defendants contend that plaintiff's decedent voluntarily subjected himself to the risks involved in riding as a passenger ... knowing that [the driver] was intoxicated ... [s]uch an act in the eyes of a trier might be held to constitute wanton, willful or reckless conduct increasing the probability of injury and supporting a defense of assumption of the risk to a claim of recklessness as against the defendants." (Citations omitted; internal quotation marks omitted.); see also Jacocks v. Monahan's Shamrock, Superior Court, judicial district of New Haven, Docket No. CV 92 0330268 (October 13, 1993, Zoarski, J .) (allowing assumption of the risk defense to stand as to reckless service of alcohol claim, but disallowing defense as to claim under Act).
In contrast, some courts determine that rejection of an assumption of risk defense is warranted on the basis of General Statutes § 52-572h. These courts are willing to strike allegations amounting to a " pure" assumption of risk defense; Anastasio v. Ladd, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160470 (January 29, 2001, Doherty, J.); as opposed to a claim that may be construed as sounding in comparative negligence, reasoning that " it is doubtful whether assumption of the risk applies as a defense to a claim of wilful, wanton or reckless misconduct under Connecticut law, and the majority rule in other states is that assumption of the risk is not a valid defense to such actions." Cheneski v. Barber, Superior Court, judicial district of Danbury, Docket No. CV 307083 (February 7, 1992, Fuller, J.) (7 Conn. L. Rptr. 92, 93); see also Wylie v. Trio's Bar and Grill, LLC, Superior Court, judicial district of New London, Docket No. 4002507 (April 26, 2007, Hurley, J.T.R.) (43 Conn. L. Rptr. 275, 275-76); Zawadski v. Robbins, Superior Court, judicial district of Hartford, Docket No. CV 384518 (July 14, 1992, Wagner, J.) (7 Conn. L. Rptr. 92).
With regard to a claim premised on a violation of the Act, the court, as articulated above, declines to recognize a defense that very well may contradict the Act's legislative purpose. See Blondin v. Meshack, supra, 46 Conn. L. Rptr. at 398. With regard to a common-law claim alleging reckless service of alcohol, however, the court is inclined to agree with those decisions recognizing assumption of risk as a valid defense to such claim. See, e.g., Jacocks v. Monahan's Shamrock, supra, Superior Court, Docket No. CV 92 0330268.
B
Contributory Recklessness
There is disagreement among superior courts as to whether contributory recklessness is a valid defense to a common-law claim of reckless service of alcohol. At least one superior court has struck a contributory recklessness defense to a common-law reckless service claim, relying on reasoning articulated in Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002709 (March 17, 2008, Pickard, J.) (45 Conn. L. Rptr. 200). See Gatling v. Barleycorn, LLC, Superior Court, judicial district of Waterbury, Docket No. 095013079 (May 6, 2010, Gallagher, J.) [ 49 Conn. L. Rptr. 793]. That court's reliance on Waldron, however, appears to be misplaced. Although the Waldron opinion uses the phrase " reckless service of alcoholic liquor, " the facts of that case do not support a conclusion that it was addressing anything other than a statutory claim under the Act. See Herrera v.. Adams, Superior Court, judicial district of New London, Docket No. CV 106004615 (January 25, 2011, Martin, J.) (51 Conn. L. Rptr. 357).
In contrast, two recent superior court decisions have recognized the viability of a contributory recklessness defense in the context of a common-law reckless service claim. See Petrolito v. Cucullo, supra, 53 Conn. L. Rptr. at 269; Herrera v. Adams, supra, 51 Conn. L. Rptr. at 357. In reaching their conclusions, both the Herrera and Petrolito courts rely on the decision in Tarver v. DeVito, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0120282 (June 25, 1992, Rush, J.) (7 Conn. L. Rptr. 631, 632), which held that " [c]ontributory recklessness would constitute a defense to an action based on recklessness. Wright, FitzGerald & Ankerman, Conn. Law of Torts (3d Ed.1991) § 62."
The court adopts the reasoning of the Petrolito and Herrera courts and will recognize contributory recklessness as a defense to the common-law reckless service claims alleged in the present matter.
C
Participation
Few courts have addressed a participation defense in the context of a common-law reckless service of alcohol claim. In Jacocks v. Monahan's Shamrock, supra, Superior Court, Docket No. CV 92 0330268, the court recognized participation as a defense to a common-law recklessness claim. The Jacocks court, in reaching that conclusion, construed the defenses raised in that case— assumption of risk and participation— broadly and determined that " the defendants' special defenses sound in comparative negligence [and] relate directly to [the] plaintiff's failure to comprehend a risk ..." Id.; see also Sego v. Debco, Inc., supra, Superior Court, Docket No. CV 92 0039650 (recognizing participation as defense to common-law recklessness claim).
The court is persuaded by the reasoning of the Jacocks and Sego courts regarding recognition of a participation defense in the common-law context. Therefore, construing the special defenses at issue in the present matter broadly, the court determines that the participation defense raised here is a viable defense to the common-law reckless service claim.
The court recognizes that Sego found participation a valid defense to a claim brought under the Act. As noted previously in this opinion, however, the court concludes that recognition of a participation defense in the context of a claim brought pursuant to the Act improperly invades the legislature's domain and thwarts the purpose of the Act. The court is more receptive to a participation defense when raised in response to a common-law claim because the threat of invading the legislature's purview is minimized in such context.
CONCLUSION
For the foregoing reasons, the court enters the following orders. The court grants the plaintiff's motion to strike as to the Sit and Sip defendants' first, second and third special defenses. In addition, the court grants the plaintiffs' motion to strike the Pines defendants' first and second special defenses. The court denies the plaintiff's motion to strike the Sit and Sip defendants' fourth, fifth and sixth special defenses. Additionally, the court denies the plaintiffs' motion to strike the Pines defendants' third and fourth special defenses.
a. Supplied alcoholic beverages to Thomas Adkins;
b. Consumed alcoholic beverages with Thomas Adkins;
c. Contributed to the supplying of alcoholic beverages to Thomas Adkins;
d. Purchased alcoholic beverages for Thomas Adkins;
e. Asked Thomas Adkins to accompany her to various bars for the purpose of consuming alcoholic beverages."