Bosco
v.
Reagan

Connecticut Superior Court Judicial District of Waterbury Complex Litigation Docket at WaterburyFeb 27, 2006
2006 Ct. Sup. 3929 (Conn. Super. Ct. 2006)

No. CV02-0171571S

February 27, 2006


MEMORANDUM OF DECISION


On April 19, 2000, the plaintiff Heather Bosco and the defendant Lynn Dunn were patrons at a bar/restaurant called Melissa's Cafe located at 175 Church Street in Naugatuck. The plaintiff alleges that at some time in the course of the early morning hours of April 19, 2000, she was struck in the face by a broken bottle or glass object by Lynn Dunn, and that Ms. Dunn was intoxicated as a result of the negligence and carelessness of the defendants Daniel B. Reagan, the permittee, and Melissa's Cafe, LLC.

On January 19, 2006, the defendants Daniel B. Reagan and Melissa's Cafe, LLC, filed a motion for summary judgment as to Counts One, Two and Three of the plaintiff's amended complaint dated January 6, 2006. The plaintiff filed an objection to this motion dated February 14, 2006. The defendant's contention is that there is no issue of genuine fact in that Count One which alleges Common Law Negligence, Count Two which alleges Gross Negligence and Count Three which alleges Negligent Supervision are all barred by Public Act 03-91, which amended Connecticut General Statute § 30-102 commonly called the Dram Shop Act. The legislature's action on June 3, 2003 was clearly in response to Craig v. Driscoll, 262 Conn. 343 (2003), where the Connecticut Supreme Court overruled decades of precedent and allowed a common law cause of action of negligence to be maintained against bar owners and their employees.

The plaintiff argues that the defendant's motion for summary judgment should be denied on several grounds. The gravamen of the plaintiff's objection is that Craig v. Driscoll should be applied retroactively and that Public Act 03-91 which bars action of this type based on negligence only applies to cases filed after June 3, 2003.

Pursuant to Connecticut Practice Book § 17-49, summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact that the moving party is entitled to judgment as a matter of law." A material fact is one that will make a difference in the outcome of the case. Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979). Summary judgment should be granted if the "moving party would be entitled to a directed verdict on the same facts." Wilson v. New Haven, 213 Conn. 277, 279-80 (1989). "The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Id. at 279.

"The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitled [that party] to a judgment as a matter of law." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994). "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217 (1994) "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court." Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 12 (1983).

As to the retroactivity of Craig, no appellate court decision has been issued but several Superior Courts have had the opportunity to discuss the issue. This court, after reviewing the cases submitted and the argument of counsel, agrees with line of cases that have found that Craig, should not be applied retroactively. In particular the court adopts the reasoning of Moraghan, JTR found in Stavola v. Costa, CV03-0350462S Judicial District of Danbury, (Jan. 18, 2005) 38 Conn. L. Rptr. 530. The court further finds that the substantive rights of the plaintiff were established on the date of the incident, Champagne v. Raybestos-Manhattan Inc., 212 Conn. 509, 520-21 (1989), in this case April 19, 2000. Since no common law cause of action for negligence existed in April 2000 and the Connecticut legislature has specifically prohibited by Public Act 03-91 a cause of action based on negligence, the court finds that no factual issue exists. The plaintiff is clearly barred from pursuing an action based on common law negligence. The plaintiff's motion for summary judgment as to Counts One and Two of the amended complaint is granted.

As to Count Three which alleges negligent supervision which is not dependent on intoxication, the court finds there is a genuine issue of material fact as to the whether the defendants breached a duty owed to a patron of the cafe. The defendants' motion for summary judgment as to count three is denied.