Opinion
No. CV02 079162S
October 20, 2004
MEMORANDUM OF DECISION
The plaintiffs, Shaun R. Wills and Ryan G. Wills, co-administrators of the estates of Kathleen G. Wills and Brittany S. Wills, have brought this action on behalf of the decedents, who were killed when the vehicle in which they were driving was struck by a vehicle driven by Frederick J. Hine (Hine). The plaintiffs have sued, inter alia, Jeremiah's Grille Cafe, Dean F. Taylor, its permittee, and East Village Inn, Inc., the backer of the cafe. The original complaint, filed on August 14, 2002, alleges a cause of action against these defendants pursuant to General Statutes § 30-102, the "Dram Shop Act," for the sale of alcohol to Hine while he was intoxicated. On December 5, 2003, the plaintiffs filed a twenty-six count amended complaint. Counts nineteen and twenty allege that the defendants served alcohol to Hine, who was visibly intoxicated, when they knew or should have known that he was intoxicated and would be operating a vehicle.
On January 29, 2004, the defendants filed a motion to strike counts nineteen and twenty of the plaintiffs' amended complaint, accompanied by a supporting memorandum of law. On June 10, 2004, the defendants filed a supplemental memorandum of law in support of their motion to strike. The plaintiffs responded with an opposing memorandum of law on September 1, 2004.
The defendants contend that, at the time of the accident, Connecticut did not recognize a common-law cause of action in negligence arising out of service of alcohol to an adult who is known to be intoxicated. The defendants allege that Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), does not apply retroactively to permit a cause of action in negligence that accrued prior to February 4, 2004. The defendants further allege that Public Act 03-91 ( P.A. 03-91) bars a cause of action for negligent service of alcohol to a person twenty-one years of age and older.
The plaintiffs counter that the holding of Craig v. Driscoll should be applied retroactively. A cause of action in negligence is viable, the plaintiffs argue, because it accrued prior to P.A. 03-91, which is not retroactive in application.
Although the plaintiffs claim that Craig v. Driscoll is retroactive in application, they fail to cite a case that stands directly for this contention.
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
It is undisputed that at the time of the accident on December 13, 2001, Connecticut did not recognize a common-law cause of action for the negligent service of alcohol to an intoxicated adult who thereafter causes injury to another. Quinnet v. Newman, 213 Conn. 343, 344, 568 A.2d 786 (1990). The Dram Shop Act provided the exclusive remedy for the negligent service of alcohol to an intoxicated person. See id.; Davenport v. Quinn, 53 Conn.App. 282, 287, 730 A.2d 1184 (1999). On February 4, 2003, the Connecticut Supreme Court overruled Quinnet v. Newman, supra, 213 Conn. 343, by holding that the Dram Shop Act does not preclude a common-law negligence action against a purveyor of alcohol. Craig v. Driscoll, supra, 262 Conn. 329. In response to the Craig decision, the Connecticut legislature enacted P.A. 03-91 which provides, in relevant part, that "[an] 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." P.A. 03-91 took effect on June 3, 2003.
The court first must determine when the plaintiffs' cause of action accrued. It is well established that the "[s]ubstantive rights of the parties are fixed at the date upon which the cause of action accrued . . . In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm . . . Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury." (Citations omitted; internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 520-21, 562 A.2d 1100 (1989). Following this principle, the court finds that the substantive rights of the parties in this case were fixed as of December 13, 2001, the date of the accident. The court, however, will not reach the issue of whether P.A. 03-91 has retroactive application to this case if it concludes that Craig v. Driscoll is not to be retroactively applied to a cause of action that accrued prior to February 4, 2003.
The Connecticut appellate courts have not addressed whether Craig v. Driscoll should be applied retroactively. As a result, there is a split of authority within the Superior Court as to this issue. This court finds the reasoning of the Superior Court decisions that have held that Craig v. Driscoll should not be given retroactive application to be more persuasive. See Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.); Rossitto v. Ernie's Place Cafe, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0101052 (June 29, 2004, Silbert, J.) ( 37 Conn. L. Rptr. 341); Estate of Ridgaway v. Silk, Superior Court, complex litigation docket at Middletown, Docket No. CV 01 0103518 (April 28, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 872); but see Amato v. Randall's Restaurant, Superior Court, judicial district of Ansonia/Milford at Derby, Docket No. CV 02 0079868 (August 9, 2004, Robinson, J.) ( 37 Conn. L. Rptr. 608); Raposa v. Lynam, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 0182731 (December 3, 2003, D'Andrea, J.T.R.) ( 36 Conn. L. Rptr. 174).
A common-law cause of action in negligence, therefore, existed only during the four-month period from the release of Craig v. Driscoll on February 4, 2003 until June 3, 2003, when P.A. 03-91 became effective. Because the controlling date in this case is December 13, 2001, the plaintiffs' cause of action did not accrue within the limited four-month period for a viable cause of action. At the time of the accident, therefore, the Dram Shop Act provided the exclusive remedy for the negligent service of alcohol to an adult. As mentioned above, the court's finding that Craig v. Driscoll is not retroactive in application makes the effect of P.A. 03-91 irrelevant to the resolution of the present action.
The motion to strike as to counts nineteen and twenty of the amended complaint is therefore granted.
SHLUGER, J.