Opinion
No. FST CV 06 5000951
December 4, 2009
MEMORANDUM OF DECISION RE MOTIONS FOR DIRECTED VERDICT (#130) AND TO SET ASIDE VERDICT (#131)
Before the court is the defendant's motion for directed verdict postjudgment (#130) and motion to set aside the verdict (#131). Liability in the present matter is based on a violation of General Statutes § 30-102, the Dram Shop Act. The defendant's argument is twofold. First, it asserts that the jury verdict cannot stand as the plaintiff failed to sustain her burden of proof with regard to the intoxication of Cynthia Caceras (Caceras). Next, the defendant argues that the verdict should be set aside as a matter of law as the plaintiff administratrix, Linda Zaneski, failed to prove that her decedent's injuries were caused by reason of the intoxication of Caceras. The plaintiff has filed an objection to the motion arguing that sufficient evidence was presented by which a jury could reasonably find a violation of the Dram Shop Act.
Factual Background
Linda Zaneski, as administratrix of the estate of her son, Michael Zaneski (Zaneski), commenced this action against the defendant, the Thirsty Turtle, pursuant to General Statutes § 30-102, the Dram Shop Act. In a single-count complaint, the plaintiff alleges the wrongful death of her son as a result of the defendant's service of alcohol to an intoxicated person, Caceras. Following a jury trial, a verdict was returned in favor of the plaintiff awarding $1,000,000 dollars in noneconomic damages and $28,200.31 in economic damages.
Although the plaintiff has named The Thirsty Turtle, Club, LLC and permittee Donald G. Kelly as the defendants in this action, they will be referred to collectively as the defendant.
This award was subsequently reduced to $250,000 by the court in accordance with General Statutes § 30-102.
At trial, the jury could have reasonably found the following facts. During the early evening hours of March 18, 2005, Caceras arranged to meet friends at the Thirsty Turtle in Stamford, Connecticut. She arrived at the bar at approximately 7:30 PM and stayed until slightly after 12:00 midnight, during which time she consumed between three and four beers. After leaving the Thirsty Turtle, Caceras proceeded to a neighboring bar, but did not have anything further to drink during this time. In fact, the evidence presented at trial established that the only alcohol consumed by Caceras during the entire evening occurred at the Thirsty Turtle. At approximately 1:45 AM, Caceras drove her cousin, with whom she had been throughout the course of the evening, to her cousin's car and then proceeded onto I-95. As Caceras merged onto the highway she changed from the middle to the left lane of traffic. In so doing, she struck a vehicle operated by Zaneski. Both parties pulled to the shoulder of the road, exited their cars and exchanged information, agreeing that Caceras would pay $100.00 for the minor damage to Zaneski's vehicle. As they were walking back to their respective cars an unrelated vehicle struck Caceras' car, causing it to propel into Zaneski and pinning him against the guardrail. Zaneski sustained severe injuries, which ultimately caused his death. Zaneski was pronounced dead at the scene.
Trooper John Jackson (Jackson) was the first to arrive at the scene at approximately 2:15 AM. Jackson briefly spoke with Caceras but noted nothing unusual about her behavior. Caceras was transported to Stamford hospital, where blood tests were taken pursuant to routine police procedure concerning motor vehicle fatalities. Jackson testified that when he later spoke to Caceras at the hospital, he smelled alcohol on her breath and noted her bloodshot eyes. Jackson noted that Caceras had been crying heavily during the evening, which, he acknowledged, could have contributed to the condition of her eyes. Jackson indicated that the first of two urine tests was administered to Caceras at 4:20 AM, while the second test was given at 5:20 AM. Both tests resulted in blood alcohol readings of .140.
While evidence of the blood alcohol results was admitted into evidence, the jury was instructed that such evidence could only be used for purposes of determining whether Caceras was intoxicated at the time of the accident and not at the time of service at The Thirsty Turtle.
The only witnesses who testified at trial were Trooper Jackson, Cynthia Caceras, Todd Kosakowski, a past owner of The Thirsty Turtle, and Linda Zaneski. All witnesses were called by the plaintiff. Evidence as to what transpired at the Thirsty Turtle on the night in question was offered exclusively by Caceras. She testified that the three to four beers consumed by her while at the bar were ingested over the four-to five-hour period in which she was at the Thirsty Turtle socializing with friends. Caceras indicated that she did not feel intoxicated at any time during the evening, that she never slurred her speech, had any difficulty maintaining her balance, had any trouble walking, or had any problems talking or dancing. Caceras testified that at no time did she exhibit any visible signs of impairment.
At the conclusion of the evidence, the defendant made a motion for a directed verdict, to which the court reserved judgment in accordance with Connecticut Practice Book § 16-37. The jury found in favor of the plaintiff awarding damages in the amount of $1,028,200.31. The defendant then filed the present motion for a directed verdict (#130), renewing its previous motion upon which the court reserved judgment. The defendant simultaneously filed a motion to set aside the verdict (#131). The plaintiff objects to the two motions. Briefs were filed by both parties. The court heard argument on August 25, 2009.
Legal Discussion
"The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence." Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006). "The defendant must overcome a high threshold to prevail on either a motion for a directed verdict or a motion to set aside a judgment. Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion." (Internal quotation marks omitted.) Hicks v. State, 287 Conn. 421, 432, 948 A.2d 982, 992 (2008). "Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party . . ." (Citations omitted.) Id. When evaluating a motion for directed verdict, "the evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 739, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).
"Similarly, [the court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . ." (Citations omitted; internal quotation marks omitted.) Hicks v. State, supra, 287 Conn. 432. Where there is some evidence by which a jury might reasonably have reached its conclusion, the verdict must be upheld. Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). It is against these stringent legal standards that the court must evaluate the current motions.
General Statutes § 30-102, commonly known as the Dram Shop Act, permits a cause of action against a liquor distributor who sells liquor to an intoxicated person who thereafter causes injury to another as a result thereof. Specifically, the Dram Shop Act provides in relevant part: "[i]f 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." § 30-102. "In enacting the dram shop act, the legislature satisfied two purposes: a punitive purpose in the sense that the act reinforced the statutory prohibition against providing liquor to an intoxicated person and a remedial purpose in the sense that it created a `new basis of liability' to permit an injured person to recover against the liquor seller. Pierce v Albanese, [ 144 Conn. 241, 249-51, 129 A.2d 606 (1957)]." Blondin v Meshack, Superior Court, judicial district of New Haven, Docket No. CV 08 5018828 (October 2, 2008, Lager, J.) [ 46 Conn. L. Rptr. 396]. Thus, "the act covers all sales of liquor that result in an intoxicated person causing injury, irrespective of the bar owner's knowledge or state of mind. The act thereby provides an action in strict liability both without the burden of proving the element of scienter essential to a negligence action, and without the benefit of the broader scope of recovery permitted under such an action." Craig v. Driscoll, 262 Conn. 312, 328, 813 A.2d 1003 (2003).
Notably, the harm proscribed by the Dram Shop Act is not the sale of liquor to create a condition of intoxication, but rather the sale of liquor to one who is already intoxicated. Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985). To sustain a prima facie case under the Dram Shop Act, the burden is upon the complainant to prove: "(1) that [the defendant] was intoxicated, (2) that while so intoxicated, the defendant, by itself or its agent, sold him alcoholic liquor, and (3) as a proximate consequence of such intoxication existing at the time the sale was made, the plaintiff was injured by [the defendant]." (Emphasis added.) Id., 351. It is the second element, service to an intoxicated person, to which the defendant directs its claim in the pending motions. As it is uncontradicted in the present action that on March 18, 2005, the defendant sold alcohol to Caceras, the gravmen of the issue before the court is whether the evidence, as presented at trial, is sufficient to sustain a finding that Caceras was intoxicated at the time she was served liquor at the Thirsty Turtle.
To establish that a person was intoxicated for purposes of § 30-102, the Connecticut Supreme Court has stated: "[t]o be intoxicated is something more than to be merely under the influence of or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporally suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be `dead-drunk.' It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." Wentland v. American Equity Ins. Co., 267 Conn. 592, 603-04, 840 A.2d 1158 (2004); Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349-50. "[A]lthough it is possible to be under the influence of intoxicating alcohol while not being intoxicated, it is impossible to be intoxicated while not at the same time being under the influence of alcohol." (Internal quotation marks omitted.) Wentland v. American Equity Ins. Co., supra, 267 Conn. 603-04. Put succinctly, a violation of the Dram Shop Act may not be definitively proven merely by establishing one's ingestion of liquor or even one's blood alcohol content, as § 30-102 is not a per se offense. Coble v. Maloney, 34 Conn.App. 655, 664, 643 A.2d 277 (1994). Accordingly, to support a finding of intoxication, the evidence presented for the jury's consideration must sufficiently establish those indicia as set forth in Sanders.
The plaintiff argues that Caceras' admitted consumption of liquor, coupled with the resulting accident, is sufficient to prove intoxication. In analyzing a sufficiency of the evidence claim, the test to be employed is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. Maag v. Homechek Real Estate Services, Inc., 82 Conn.App. 201, 213, 843 A.2d 619, cert. denied, 269 Conn. 908, 852 A.2d 737 (2004). The only evidence presented in this case bearing on whether Caceras was intoxicated at the time she was served alcohol by the defendant came from Caceras herself. Caceras, however, repeatedly testified that she never felt intoxicated and never displayed any behavior suggesting otherwise. She further testified that she never staggered, slurred her speech, conducted herself inappropriately, appeared disheveled, had difficulty maintaining her balance, or had difficulty performing any tasks, including operating her vehicle. No witness was offered to either corroborate or refute this evidence. While Officer Jackson, the only other witness to testify as to the events of the night in question, noted that Caceras' eyes were bloodshot at the hospital and that she smelled of liquor, he did not indicate at any time that he observed behavioral abnormalities suggestive of intoxication. The smell of liquor, while corroborative of Caceras' ingestion of liquor at some point during the evening, cannot by itself support a finding of intoxication.
The blood alcohol readings taken at the hospital at 4:20 and 5:20 AM, more than four to five hours after leaving the Thirsty Turtle, absent expert testimony, were irrelevant as to whether Caceras was intoxicated at the time of service at the Thirsty Turtle. The jury was instructed, as such, and is presumed to have followed such instruction. Coble v. Maloney, supra, 34 Conn.App. 664.
Applying the law to the evidence in this case, the court finds that the plaintiff has failed to sustain her burden of proving that Caceras was intoxicated at the time she was served liquor at the Thirsty Turtle. The evidence as presented to the jury is devoid of any specifics as to Caceras' conduct other than her own testimony that she was not intoxicated, was not feeling any affects from liquor and was not exhibiting any behavioral abnormality at any time during the evening in question. "Proof of sale to an intoxicated person requires proof of something more than to be merely under the influence of, or affected to some extent by, liquor." (Internal quotation marks omitted.) Hayes v. Caspers, 90 Conn.App. 781, 801, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). Thus, while evidence that a party has imbibed liquor may be significant in a finding of intoxication, it does not, standing alone, sustain the plaintiff's burden of proving intoxication.
The plaintiff also advances the argument that the jury, having evaluated Caceras' testimony, could have determined it to be incredible. The plaintiff, therefore, contends that the jury, disbelieving Caceras, could find that she consumed in excess of the three to four beers she admitted to drinking and thus conclude that she was intoxicated. The plaintiff properly asserts that the jury was free to disbelieve the testimony of Carceras. Nonetheless, finding evidence incredible does not permit a finding that the opposite is true absent the introduction of evidence to establish such a factual finding. Our Supreme Court has consistently ruled that "the jury may not infer the opposite of a witness' testimony solely from its disbelief of that testimony." State v. Hart, 221 Conn. 595, 605, 605 A.2d 1366 (1992). See also Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979) (jury could not, even if it disbelieved testimony, infer the opposite to be true). "Our Supreme Court has stated that drawing logical deductions and making reasonable inferences from facts in evidence, whether that evidence be oral or circumstantial, is a recognized and proper procedure in determining, the rights and obligations of litigants, but to be logical and reasonable they must rest upon some basis of definite facts, and any conclusion reached without such evidential basis is a mere surmise or guess . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Crone v Connelly, 74 Conn.App. 788, 796-97, 813 A.2d 1084 (2003), aff'd, 267 Conn. 581, 840 A.2d 552 (2004). "Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation." Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). Accordingly, any inferences that the jury may permissibly draw must have its foundation in the evidence itself. While the jury was free to reject Caceras' testimony regarding how much she drank, it would not have been permitted to surmise how much she in fact did drink, as no such evidence was offered that she ingested additional liquor or behaved in a manner contrary to her testimony.
Furthermore, regardless of whether the jury believed that Caceras consumed more than what she testified to, the number of drinks imbibed is not a determinative factor in evaluation of intoxication within the confines of § 30-102. "Alcoholic liquor may tend to affect some persons differently than it does others, depending on a number of factors, for instance, a person's body weight, a person's tolerance to alcohol, and what other food or beverages, if any, a person has consumed within the same time frame . . . [I]t is possible to be affected to some extent by alcoholic liquor, without being intoxicated." (Internal quotation marks omitted.) Wentland v. American Equity Ins. Co., supra, 267 Conn. 604-05. See also Catalani v. D'Occhio, Superior Court, judicial district of Waterbury, Docket No. CV 06 5003199 (Aug. 6, 2009, Brunetti, J.) (uncontradicted testimony that witness was not showing outward signs of intoxication failed to sustain burden of proof regarding intoxication regardless of number of drinks consumed); Carter v. Mason, Superior Court, judicial district of New Haven, Docket No CV 06 5006433 (October 2, 2007, Thompson, J.) (evidence of drinking, but not intoxication, not enough to satisfy burden of moving party).
The record is devoid of any evidence contrary to Caceras' testimony that she was not affected by the liquor she had consumed and that she did not display any signs of intoxication. As discussed above, our Supreme Court has made it clear that a person must have manifestations of intoxication. Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349-50. In Hayes v. Caspers, supra, our Appellate Court upheld the trial court's directed verdict in the plaintiff's claim under the Dram Shop Act because "[the trial court] found that, although [the defendant] himself testified that he had been intoxicated on the night in question, the plaintiff presented no evidence that [the defendant] was visibly intoxicated. In light of Sanders, this finding is fatal to the plaintiff's claim." Hayes v. Caspers, supra, 90 Conn.App. 802. Faced with the record in the instant case, the plaintiff has failed to sustain her burden of proof, and the jury could not have fairly and reasonably found that Caceras was intoxicated at the time of service at the Thirsty Turtle.
For instances where there was sufficient evidence to prove that the defendant was visibly intoxicated, see Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 341 (evidence that patron had consumed five to six drinks, had repeatedly been warned about his boisterous behavior while at the defendant bar, had driven without lights and was unable to recall the evening's events coupled with officer's opinion that driver appeared intoxicated was, in aggregate, sufficient to establish intoxication); Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 548 A.2d 728 (1998) (consumption of multiple shots and drinks coupled with an inability to maintain balance or keep head in an upright position and visibly erratic operation of a motor vehicle within 30 minutes of leaving the bar was sufficient to prove intoxication); Kelehear v. Larcon, Inc., 22 Conn.App. 384, 387, 577 A.2d 746 (1990) (evidence that patron was loud, sloppy and "hanging" on bar was sufficient to allow the jury to make a reasonable finding of being noticeably intoxicated); Geib v. Sheraton Stamford Hotel, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 05 5000466 (November 18, 2008, Jennings, J.) (observations contained in police report that patron was slurring speech, unable to properly count and smelled of liquor can sustain a finding of intoxication). The evidence in the above cases are markedly different than the record in the case at bar.
Without question, the loss of life under these circumstances is tragic beyond words. Not withstanding this fact, the law requires the plaintiff to meet her burden of proof. In this instance, based on the record before this court, there is a lack of' evidence, without speculation and conjecture, from which the jury could base its finding of intoxication. While the trial court should not set aside a verdict when some evidence exists from which the jury might reasonably reach its conclusion, the court "should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles." Auster v. Norwalk United Methodist Church, 286 Conn. 152, 159, 943 A.2d 391 (2008). Such is the case in this instance.
Accordingly, for the reasons stated above, the defendant's motions for directed verdict (#130) and to set aside the verdict (#131) are granted.