Opinion
No. CV07 5006982
May 21, 2009
MEMORANDUM OF DECISION
MOTION TO STRIKE
The defendant has moved to strike all five counts of the plaintiffs' complaint dated February 13, 2007, bearing a return date of March 27, 2007. The plaintiffs are Eric Wurzel, individually and as parent and legal guardian of Liam Wurzel and Jake Wurzel, minors. The complaint consists of five counts alleging:(1) Dram Shop violation pursuant to General Statutes § 30-102; (2) recklessness in the service of intoxicating beverages; (3) negligent supervision of employees; (4) negligent hiring of employees; and (5) bystander emotional distress as to plaintiff Jake Wurzel.
The defendant has moved to strike the first count alleging a Dram Shop violation for the reason that the plaintiffs failed to provide statutory notice as required by § 30-102. The defendant has moved to strike count two claiming that the plaintiffs have failed to sufficiently allege recklessness. As to counts three and four alleging negligent supervision and negligent hiring, the plaintiffs argue that the Dram Shop Statute as set forth in § 30-102 is the plaintiffs' exclusive remedy for the claims of negligent service of alcohol. Lastly as to the bystander emotional distress claim set forth in count five, the defendant argues that this claim is an ancillary claim and is derivative of the plaintiffs' other claims. Therefore, if the court strikes counts one through four, then count five must fail.
This matter involves a motor vehicle accident which occurred on or about February 16, 2006 when a vehicle operated by Derek Fatsy collided with a vehicle operated by the plaintiff Eric Wurzel. Eric Wurzel's minor children, Liam Wurzel and Jake Wurzel were passengers in the car being operated by their father Eric Wurzel. All three plaintiffs allege to have sustained personal injuries as a result of this collision.
The plaintiffs allege that on February 16, 2007, the defendant was the owner, backer and/or operator of the Black Rock Blue Caf É ("Black Rock") located at 3488 Fairfield Avenue, Bridgeport, Connecticut. The plaintiffs claim that on said date Derek Fatsy arrived at the Black Rock at approximately 5:30 p.m. and began to consume "copious" quantities of alcohol, specifically, gin and tonics, which were served to him by the defendant's employees until approximately 7:15 p.m. Immediately after leaving the defendant's premises, Fatsy allegedly drove his motor vehicle at a high rate of speed where he collided with the plaintiffs' vehicle causing the plaintiffs' claimed personal injuries. Fatsy was found to have had a blood alcohol content level of 0.24%, which was above the legal limit.
The plaintiffs claim the defendant, through its employees, agents and/or servants had a "policy and practice" of knowingly serving alcohol to intoxicated persons such as Fatsy and others; that the defendants knowingly and consciously disregarded the risk that this policy and practice would create an unreasonable risk of harm to others. They allege that Fatsy had exhibited visible signs of intoxication, but the defendants' employees continued to serve him alcohol; that the defendant's employees had to have served Fatsy 10-12 alcoholic drinks in less than two hours; that said conduct by the defendant and its employees was reckless. The plaintiffs additionally allege that the defendant was negligent in supervising its employees to ensure that Patsy was not being served alcohol while in an "obvious" state of intoxication and in letting Fatsy leave the premises while intoxicated. The plaintiffs allege that the defendant was negligent, as well, in failing to hire properly qualified persons to serve alcoholic beverages to its patrons. Lastly, the plaintiff Jake Wurzel alleges bystander emotional distress from witnessing the accident and injuries sustained by his father, Eric Wurzel and his brother, Liam Wurzel.
I Standard of Law
The standard of law to be utilized when deciding a motion to strike is well-settled. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be grateful if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
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." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185. (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II Dram Shop Notice Provision
At the time this action was commenced, General Statutes § 30-102, Connecticut's Dram Shop Act provided as follows:
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 within one hundred twenty days of the occurrence of such injury to person or property of such person's or persons' intention to bring an action under this section. 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.
Section 30-102 was amended by Public Act 06-69, which extended the notice period from 60 to 120 days and deleted provision regarding time excluded from computation of 60-day period, effective October 1, 2006, and applicable to causes of action arising on or after that date. The date of the subject motor vehicle accident was February 16, 2006. Therefore, for the purposes of this decision, the plaintiffs were required to give statutory notice to the defendant within 60 days of February 16, 2006.
Public Act 06-69 reads as follows:
AN ACT CONCERNING ADEQUATE NOTICE IN DRAM SHOP ACTIONS.
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 October 1, 2006, and applicable to causes of action arising on or after said date):
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 within [sixty] one hundred twenty days of the occurrence of such injury to person or property of 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 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.
May 19, 2006-Enacted Final
October 1, 2006-Effective and applicable as provided in section 1.
General Statutes § 30-102 has been further amended by P.A. 07-165.
The plaintiffs concede they did not provide any notice pursuant to General Statutes § 30-102 because they had no notice themselves regarding Fatsy's alleged consumption of alcoholic beverages at the Black Rock Blue Caf É until after the time period for the statutory notice had expired. The plaintiffs request that the court liberally construe the provisions of General Statutes 30-102 to allow the Dram Shop action to proceed, despite not having provided any notice, including late notice to the defendant. The plaintiffs also ask that the court conduct an evidentiary hearing to determine, if in fact, the defendant was "on notice" through media coverage, or otherwise, that Fatsy was drinking at the defendant's establishment and was involved in a serious accident causing the plaintiffs' serious injuries. In support of this position the plaintiffs have submitted several decisions relating to the sufficiency of notice and substantial compliance with the notice provisions of § 30-102. See, Allen v. Waterfront Caf É , 4 C.S.C.R, 351 (March 28, 1989, Kulawiz, J.); Kirby v. Rusty Nail Caf É of Bristol, Inc., 40 Conn.Sup. 331, 499 A.2d 85 (1985); Cruz v. Wice, 40 Conn.Sup. 48, 479 A.2d 1249 (1984). These cases are cases where the notice requirements were not literally complied with, but nonetheless provided a defendant with sufficient notice as to not prejudice a defendant in its ability to marshal evidence in its defense while memories were still fresh. Thus, the notice defects were not found to be patent and did not deprive the court of subject matter jurisdiction. However, these cases do not address a situation where the plaintiffs have not provided any notice, as in this case.
"In order to maintain an action pursuant to 30-102, the plaintiff must give written notice to the seller of alcohol within sixty days from the date of the injury. The notice requirement of 30-102 enables a defendant to gather evidence while witnesses' memories are still fresh. Because 30-102 is remedial in nature, it should be interpreted liberally `to suppress the mischief and advance the remedy.'" (Citations omitted; internal quotation marks omitted.) Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 515 (1992).
"Section 30-102 requires that a plaintiff send notice of his intent to file a claim under the Dram Shop Act to the seller of the intoxicating beverages . . . The conclusion that the existence of a statutory right is conditioned upon compliance with the terms of the statute creating it is entirely consistent with the views [our Supreme Court has] expressed with relation to other types of rights created by statute. The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation [or] condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived . . . Failure to file a timely notice pursuant to § 30-102 does deprive the trial court of subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) Davenport v. Quinn, 53 Conn.App. 282, 291-93 (1999). However, though the dram shop portion of the action is barred because of the plaintiff's failure to provide timely notice under § 30-102, the trial court continues to have subject matter jurisdiction over the remainder of plaintiffs' claims. Id., 293.
The plaintiffs request that the court conduct an evidentiary hearing to determine if the defendant had actual notice of the accident involving the plaintiffs and Fatsy. "Whether a party has been given notice is a question of fact." O G Industries, Inc. v. Mizzoni, 23 Conn.App. 19, 21, 578 A.2d 672 (1990). "To answer the necessary questions of fact, the court concluded that an evidentiary hearing was required." Hersey v. Lonrho, Inc., 73 Conn.App. 78, 80, 807 A.2d 1009 (2002). "When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); see also Rosengarten v. Downes, 71 Conn.App. 372, 376, 802 A.2d 170, cert. granted on other grounds, appeal dismissed as moot, CT Page 8372 261 Conn. 986, 800 A.2d 1000 (2002).
The court denies the request for an evidentiary hearing to determine whether the plaintiffs have complied with the notice provisions of § 30-102, as the plaintiffs concede they did not provide any written notice to the defendant and made no attempt to comply even after they were in possession of facts which allowed them to file this action within the statutory period of one year from the date of the accident. See § 30-102. Whether the defendant learned of the accident through news media accounts is of no consequence where the plaintiffs have failed to give any written notice to the defendant pursuant to § 30-102.
Where a party seeks the benefit of a statute requiring a prescribed form of notice to trigger its operation, strict compliance with the statutory requirement is required. Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 414, 456 A.2d 325 (1983). While, § 30-152 is to be construed liberally under some circumstances, and the substantial compliance test applied, Belanger v. Village Pub I, Inc., supra, 26 Conn.App. 515 (1992), this rule is not applicable where the issue is whether the defendant has received any notice at all. The motion to strike the First Count of the plaintiffs' complaint alleging a Dram Shop action is hereby granted.
III Recklessness
The Second Count alleges an action for recklessness in regard to the defendant's service of intoxicating beverages to Fatsy. In Kowal v. Hofher, 181 Conn. 355, 360-61, 436 A.2d 1 (1980), our Supreme Court held that "the plaintiff properly 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 or social host 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, 324, 813 A.2d 1003 (2003).
To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
Id., 342
While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends 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 . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.
(Citations omitted; internal quotation marks omitted.) Id., 342-43.
The defendants are mired in the fact that, aside from the addition of the words "willful, wanton and/or reckless actions," the plaintiffs' allegations in their reckless counts mirror many of their assertions in the counts alleging a violation of the Dram Shop Act, negligent supervision, negligent hiring and negligent and reckless infliction of bystander emotional distress. "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." (Citations omitted.) Id., 343.
A review of the Second Count of the plaintiffs' complaint alleges conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger. Id. The allegation of a specific policy to continue to serve alcohol to a particular patron, while that patron already is intoxicated, and allowing him to leave the premises and to operate a motor vehicle upon leaving the premises reflects wilful, wanton and reckless conduct sufficient to survive a motion to strike. See. Id. The motion to strike the Second Count is denied.
IV Negligent Supervision and Negligent Hiring
The defendant moves to strike the Third and Fourth Counts purporting to allege negligent supervision and negligent hiring arguing that the Connecticut Dram Shop Act, § 30-102, is the exclusive remedy for the plaintiffs' claim of negligent service of alcohol. The plaintiffs in their memorandum of law have not presented any law or argument in opposition to the motion to strike these counts. The plaintiffs argue only that Counts One, Two and Five are legally sufficient to survive the motion to strike.
The Dram Shop Act, § 30-102 was amended, by Public Acts 2003, No. 03-91, which added the following sentence to the statute: "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." Public Act 03-91. "Undoubtedly, Public Act 03-91 eliminated any common-law negligence causes of action by person entitled to recover under the Dram Shop Act." Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002366 (May 19, 2008, Tobin, J.) ( 45 Conn. L. Rptr. 499, 500).
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." (Citations omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). Connecticut also recognizes a cause of action for the negligent supervision of tavern patrons and employees. See Nolan v. Morelli, 154 Conn. 432, 440, 226 A.2d 383 (1967). "The cause of action for negligent supervision . . . is based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor's negligence in furnishing alcohol." (Emphasis added; internal quotation marks omitted.) Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.).
The plaintiffs' claim of negligent supervision is premised on the defendant's alleged service of alcohol to Fatsy, an intoxicated person and the defendant's failure to ensure that his employees did not do so. This is the type of behavior and claim for which the Dram Shop Act is the proper remedy.
Count Four alleges that the defendant "failed to select persons properly qualified to serve alcoholic beverages to the patrons of the establishment . . ." Count Four is also premised on the negligent service of alcohol, which is the type of claim the legislature sought to preclude when amending the Dram Shop Act by passage of Public Act 03-91. Accordingly, the motion to strike the Third and Fourth Counts is granted.
V Bystander Emotional Distress
The defendant argues that the plaintiff Jake Wurzel's claim for bystander emotional distress is derivative in nature. Mendillo v. Board of Education, 246 Conn. 456, 488, 717 A.2d 1177 (1998); Drew v. William W. Backus Hospital, 77 Conn.App. 645, 669-70, 825 A.2d 810 (2003). The defendant states that the minor son Jake Wurzel seeks to recover, not on the tortious harms that the defendant inflicted directly upon him, but for emotional harm he claims to have suffered as a result of a third party, Fatsy's tortious conduct committed against Jake Wurzel's father. See, Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 520-21, 838 A.2d 993 (2004). The defendant concludes that if the first four counts of the complaint are ordered stricken then Count Five cannot survive and must also be stricken.
The court has not stricken Count Two alleging recklessness. The Second Count sufficiently supports the plaintiff Jake Wurzel's claim in Count Five for bystander emotional distress. The motion to strike Count Five is denied.
Orders
For the reasons stated herein, the motion to strike Counts One, Three and Four is granted. As to Counts Two and Five, the motion to strike is denied.