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Penn v. Ebony Lounge, Inc.

Connecticut Superior Court Judicial District of New Haven at New Haven
Dec 27, 2007
2007 Ct. Sup. 22110 (Conn. Super. Ct. 2007)

Opinion

No. CV 07-5011938 S

December 27, 2007


MEMORANDUM OF DECISION RE MOTION TO STRIKE #101


FACTS

On June 18, 2007, the plaintiff, Samuel Penn, administrator for the estate of Samuel Mallory, filed a one-count complaint against the defendants, Ebony Lounge, Inc., and Paula M. Davis, aka Paula M. Robinson, permittee.

The complaint alleges that the defendants' service of alcohol on June 14, 2006, to an already intoxicated Larry Mabery led to Mabery's shooting the decedent, Samuel Mallory, multiple times in the head, chest, left arm, left leg, and left ankle. The plaintiff claims that the subsequent injuries, death and losses suffered by the decedent are due to the defendants' violation of the Dram Shop Act, Connecticut General Statutes § 30-102.

General Statutes § 30-102 provides in relevant part: "Dram Shop Act; liquor seller liable for damage by intoxicated person. No negligence cause of action for sale to person twenty-one years of age or older. 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 . . . 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."

On August 2, 2007, the defendants filed a motion to strike the plaintiff's complaint on the ground that the allegations of the complaint fail to support the proximate cause element necessary to state a claim pursuant to the Dram Shop Act. The defendants submitted a memorandum of law in support of their motion. On October 22, 2007, the plaintiff filed a memorandum of law in apposition to the motion.

DISCUSSION

"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). "We first set forth the applicable standard of review. 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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

In their memorandum of law in support of their motion to strike, the defendants argue that the plaintiff must prove that a causal relationship exists between a third party's intoxication and the plaintiff's injury for a defendant to be liable under General Statutes § 30-102. The defendants posit that Mabery's "intentional and criminal shooting" is an intervening and superseding cause of the injury", to the decedent which breaks the chain of causation. The number of times Mabery shot the decedent, including a shot to the head at close range, illustrates the act is "nothing less than cold-blooded murder" according to the defendants. They note that no Connecticut court has ruled on "whether a murder is beyond the scope of risk created by a defendant's service of alcohol to an intoxicated person," and cite out-of-state cases in support of their position.

The doctrine of superseding cause is still valid in Connecticut in some circumstances.

In Barry v. Quality Steel Products, Inc., [ 263 Conn. 424, 446, 820 A.2d 258 (2003), cert. granted, 280 Conn. 1, 905 A.2d 55 (2006),] our Supreme Court . . . determine[d] that the doctrine of superseding cause was to be abandoned in favor of a proximate cause analysis in some circumstances . . . As stated by the Barry court, "the rationale supporting the abandonment of the doctrine of superseding cause outweighs any of the doctrine's remaining usefulness in our modern system of torts . . . [W]e believe that the instruction on a superseding cause complicates what is essentially a proximate cause analysis and risks jury confusion. The doctrine also no longer serves a useful purpose in our tort jurisprudence, especially considering our system of comparative negligence and apportionment, where defendants are responsible solely for their proportionate share of the injury suffered by the plaintiff."

The Barry court did not, however . . . abolish the doctrine of superseding cause in all civil cases. In fact, the court specifically stated the contrary . . . Our conclusion that the doctrine of superseding cause no longer serves a useful purpose is limited to the situation in cases . . . wherein a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence. Our conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct. See Doe v. Manheimer, 212 Conn. 748, 761, 563 A.2d 699 (1989) (concluding that criminal attack on plaintiff was superseding cause of plaintiff's injuries notwithstanding plaintiff's claim that defendants allowed overgrowth of vegetation on property where attack occurred was substantial factor in both occurrence and duration of attack), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).

(Citations omitted; emphasis in original; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 754, 901 A.2d 1258, appeal granted, 280 Conn. 919, 908 A.2d 45 (2006).

Although there does appear to be a distinction between "intervening cause" and superseding cause, the terms have commonly been used interchangeably: "[T]he terms intervening cause and superseding cause have been used interchangeably . . . The Restatement of Torts makes clear that the doctrine is properly referred to as superseding cause, and that it embodies within it the concept of an intervening force . . . A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about . . . Regarding intervening cause, [our Supreme Court has] adopted the standard set forth in § 442B of [2 Restatement (Second), Torts (1965)], that [w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct." (Emphasis in original; internal quotation marks omitted.) Id., 753.

The defendants' motion to strike forces the court to read the plaintiff's complaint as implying that the alleged shooting was intentional, and that there was criminal intent. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Emphasis added; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). However, an allegation of a shooting does not necessarily require an implication that the shooting was intentional, or that there was criminal intent. "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). Thus, to the extent that the motion to strike is based on an assertion that Mabery intentionally murdered the decedent, it improperly assumes facts not pleaded in the complaint.

"Dram Shop Statutes impose strict liability, without negligence, upon the seller." Passini v. Decker, 39 Conn.Sup. 20, 21, 467 A.2d 442 (1983). "[T]he 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). "The underlying premise of the [act] is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication." Id., 325. "As we explained in [ American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 199, 530 A.2d 171 (1987)], a plaintiff seeking to prevail under the dram shop statute must establish that there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn. 748, 763 n. 15, 882 A.2d 44 (2005).

The plaintiff disagrees with the defendants' position that there must be a causal relationship between a third party's intoxication and the plaintiff's injury under § 30-102. The plaintiff argues that proximate cause is an element found in the common law, which if applied to the Dram Shop Act's statutory scheme would defeat the intent of the legislature.

The plaintiff is incorrect in asserting that proximate cause is not an element of the Dram Shop Act. While the plaintiff is correct insofar as there is no need to show a proximate cause between the actual sale of alcohol to an already intoxicated person and the injuries that person causes, the plaintiff still needs to show that there is a proximate cause between that person's intoxication and the injuries they cause. The Connecticut Supreme Court has made clear that proximate cause is a required element in the Dram Shop statute. "The statute . . . does require proof that the injuries complained of were in consequence of the intoxication of the person to whom the liquor was sold. The [lower] court in its charge used the statutory phrase `in consequence of such intoxication' and, later, the phrase `by reason of that intoxication,' in explaining to the jury the causal relationship between the intoxication of the person inflicting the injuries and the injuries themselves. In the absence of any statutory definition of these terms, they must be given their common meaning . . . For the plaintiffs to establish liability under the statute, it was essential for them to prove that the intoxication proximately caused the injuries for which they sought damages." (Citations omitted.) Pierce v. Albanese, 144 Conn. 241, 254, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). See also Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). ("A proximate cause is a direct cause. It is an act or failure to act, followed in its natural sequence by a result without the intervention of any other superseding cause . . . Where the sequence of events is unbroken by any intervening cause, an act or failure to act is a proximate cause of the result. Proximate cause is thus an act or failure to act which is a substantial factor in producing a result." Citation omitted.) Thus, while it is clear that Connecticut courts require the plaintiff to show that the third party's intoxication was a proximate cause of their injuries, "[t]he intoxication need not be the sole proximate cause, so long as it is a substantial factor in producing the injuries." Pierce v. Albanese, supra, 144 Conn. 255.

The Dram Shop Act "establishes a cause of action that did not exist at common law . . . It creates a new tort liability which is based upon a specified course of conduct and the consequences of such conduct . . . The delict defined by § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relation between the sale and the injury is required." (Citations omitted.) Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 348-49. While the Dram Shop Act did remove the requirement that the intoxicated person consume the alcohol he received, it did not remove proximate cause from the analysis of whether a bar can be liable for the acts of third parties it serves. The plaintiff's argument that the application of proximate cause to the Dram Shop Act defeats the legislature's intent rings hollow.

"After Prohibition, the basic form of the current Dram Shop Act was adopted, and it now `imposes liability irrespective of any causal relation between the sale of the intoxicating liquor to an intoxi[c]ated person and the injury which follows as the result of the intoxication.' Since then, there is no req[u]irement that the seller's furnishing of the intoxicating liquor was the cause of the tortfeasor's becoming intoxicated." R. Newman J. Wildstein, Tort Remedies In Connecticut (1996 2007) § 3-5(d), p. 29.

While proximate cause is a required element under the Dram Shop Act, it does not necessarily follow that the defendant's motion to strike should be granted. "The question of proximate cause generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." Demers v. Rosa, 102 Conn.App. 497, 500, 925 A.2d 1165, cert. denied, 284 Conn. 907, 931 A.2d 262 (2007). "The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . ." (Citations omitted; internal quotation marks omitted.) Demers v. Rosa, supra, 102 Conn.App. 501-02.

The question remains as to whether the complaint at issue is legally sufficient, where the defendants argue that Mabery's act of shooting Mallory "was a superseding and intervening cause of Samuel Mallory's injuries." They claim this "intervening act" of "cold-blooded murder" is "not within the normal scope of the risk created by service of alcohol to an intoxicated person" because "[u]nlike a death caused by an intoxicated driver, it is not reasonable to foresee an intentional murder as being the type of consequence flowing naturally from intoxication."

The defendants cite case law from other jurisdictions, including Hebert v. Club 37 Bar, 145 Ariz. 351, 701 P.2d 847 (App. 1984), to support this argument. However, courts in some jurisdictions have held criminal acts to be just as foreseeable an outcome of intoxication as car accidents. "[T]avern owners were liable in [ S A Beverage Co. of Beaumont, No. 2 v. DeRouen, 753 S.W.2d 507 (Tex.App.-Beaumont 1988)], when a plaintiff was sexually assaulted by another tavern customer, who was intoxicated. Based on common law negligence principles and on violation of statute, a licensee owes a duty to the general public, not merely the motoring public, not to serve alcoholic beverages to intoxicated persons. The sexual assault of the plaintiff was a foreseeable result of defendant's negligence, and was not superseded by the intoxicated patron's criminal conduct." (Internal quotation marks omitted.) J. Mosher, Liquor Liability Law (Vol. 1 Matthew Bender and Co., Inc., 2007) § 14.04[1][b], p. 14-47.

In Hebert, the court of appeals affirmed the trial court, which had directed a verdict in favor of the tavern; evidence at trial showed that the intoxicated tortfeasor had been convicted of first-degree murder, and the court of appeals found that the murder was a superseding, intervening cause.

In other jurisdictions, courts have held that the issue is factual, and for the jury to decide. In an Ohio case involving the stabbing of a patron by the supposed intoxicated party, the "Defendant-Appellee [bar sought] to avoid a proximate cause inquiry by arguing that the assault and stabbing which occurred were intentional torts that cut off any liability it might have. [The court found] no support for the proposition that intentional torts, which a bar fight unquestionably involves, at least with respect to an assailant's conduct, is outside the acts or omissions of intoxicated persons that [the relevant Ohio dram shop statute] comprehends. Further, in order to cut off liability, any intervening, superseding cause of an injury and loss must be one which could or should have eliminated the hazard that the prior liability created, and must be disconnected from it . . . Whether the assault was or was not connected from the permit-holder's alleged negligence is the very question that [the statute] requires the jury to decide." (Citation omitted.) McKinley v. Chris' Band Box, 153 Ohio App.3d 387, 393, 794 N.E.2d 136 (2003).

A Minnesota appellate court held that it could hear a case on whether a bar could be held responsible, under the state's Civil Damages Act, for serving alcohol to someone who later sexually assaulted a minor. The court held that the "district court's focus on the fact that [the intoxicated third party's] conduct was an intentional criminal act was improper. The language [of Minnesota's statute] imposes liability simply where the requisite causal connection between the illegal sale of alcoholic beverages and the resulting intoxication and injuries is met. The district court reasoned that an intentional criminal act would break the chain of causation, thereby suggesting that such a criminal act is a superceding cause. We note that superceding cause is relevant more in negligence actions . . . In fact, many dram-shop cases follow criminal acts, including some criminal acts that need a willful and/or intentional component, e.g., reckless driving." (Citation omitted; internal quotation marks omitted.) J.B. v. Mounds Vista, Court of Appeals of Minnesota, Docket No. C0-01-1017 (December 18, 2001), review denied, Supreme Court of Minnesota, Docket No. C0-01-1017 (February 28, 2002).

While some jurisdictions do bar recovery under their Dram Shop Acts against businesses that serve alcohol to intoxicated patrons who later shoot plaintiffs, injuries caused by shootings involving intoxicated bar patrons have sometimes been held to come within the scope of dram shop statutes. In Edenburn v. Riggins, 13 Ill.App.3d 830, 301 N.E.2d 132 (1973), an Illinois court upheld a verdict finding sufficient evidence that a stepfather was intoxicated and there was no reason to believe he would have shot his wife had he not been intoxicated.

While there are no decisions on point involving dram shop claims, courts in Connecticut have generally left it to the fact finder to determine whether the alleged intentional criminal acts of a tortfeasor extinguishes liability for the defendant. For example, Certain Underwriters v. O'Leary Limited Partnership, Superior Court, judicial district at Hartford, Docket No. CV 01 0808766 (October 9, 2003, Hennessey, J.) ( 35 Conn. L. Rptr. 623), involved a fire allegedly set by a third party. The plaintiff asserted that the defendant was negligent in caring for his property which was nearby the plaintiff's property and was therefore responsible for the fire damage to the plaintiff's property. The court denied the defendant's motion for summary judgment, holding that "[w]hether the intentional criminal conduct of a third party constitutes a superseding cause that would relieve [the defendant] of its liability is a question of fact that must be determined by the fact finder. The court cannot determine as a matter of law whether [the defendant's] alleged negligent conduct was a substantial factor in causing the damage to [the plaintiff's] property. Moreover, whether [the defendant's] alleged negligent conduct was within the scope of risk is a question of fact . . ." Id. See also Hamilton v. Park City Sports, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 05 5000293 (August 30, 2006, Richards, J.) (in a trial to the court, the court found for the plaintiff who sued the bar where he had been shot, where the owner of the bar searched patrons for contraband prior to allowing them entry, but somehow let the assailant in without detecting the gun; the court held that "[t]he defendant's failure to adequately check patrons at the door allowed one of the patrons to enter the bar with a handgun discharging a bullet which injured the plaintiff. Consequently, the defendant's conduct was both the actual and proximate cause of the plaintiff's injuries." Id.).

In Vogel v. State, Superior Court, judicial district of Hartford, Docket No. CV 990588391 (April 18, 2002, Beach, J.), a woman sued the state of Connecticut after she was injured by a boulder an assailant threw at her car from an overpass which lacked fencing to prevent such an event. The State moved to strike the plaintiff's complaint on the ground that "that there [was] no duty to prevent the intervening criminal acts of unknown third parties nor [was] there a duty to make the highway safe for the plaintiff. Specifically, the State contend[ed] that the unknown third party's criminal acts were not within the scope of the risk created by its alleged negligent acts and, therefore, not foreseeable." Id. The court denied the motion to strike, reasoning that other cases involving criminal acts by third parties have been "decided after trials, when the facts were fully fleshed out." The court held that "[t]here may be facts which are sufficient to support the conclusion that the harm was within the foreseeable scope of the risk created by not providing fencing."

In Guy v. Reed, Superior Court, judicial district of New London, Docket No. 51 94 25 (November 10, 1992, Teller, J.) ( 7 CSCR 1332) [ 7 Conn. L. Rptr. 850], the defendant bar moved for summary judgment, claiming it was not responsible when a patron it allegedly recklessly served alcohol to killed the plaintiff's decedent; the patron subsequently entered an Alford plea to murder. The court held that the intent of the patron was an issue of fact for the jury to decide and reasoned that "[a] criminal defendant's intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime . . . but it is not dispositive of the issue. It is for the jury to decide . . . [i]t is also well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions."

In Monk v. Temple George Associates, 273 Conn. 108, 869 A.2d 179 (2005), the court reversed the trial court, which had granted summary judgment in the defendant's favor; the court held that "the defendants' reliance on the fact that the attack was intentional and therefore constituted an intervening cause is unavailing because, in Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 609, 662 A.2d 753 (1995), this court: (1) affirmed a judgment against a parking garage owner on whose unattended premises a woman was murdered; and (2) expressly disavowed any intention to elevate the burden of proof in premises liability claims involving criminal or intentional acts beyond foreseeability. One of the determining factors in our conclusion in Stewart that the murder was foreseeable was the history of criminal activity in and around the garage . . . Accordingly, it was reasonably foreseeable that a criminal assault of the general nature of the one perpetrated against the plaintiff in the present case might occur on the premises." Id., 116.

In the present matter, the complaint alleges that the defendants sold alcohol to Mabery while he was intoxicated, and, in consequence of the intoxication, Mabery caused the injuries, death, and losses to the plaintiff. It is quite possible that Mabery intentionally murdered the plaintiff and that any intoxication had nothing to do with it. It is also quite possible that Mabery was intoxicated, and that the intoxication was a proximate cause of his shooting, and the resulting injuries and death of, the plaintiff, and in fact, that is in essence what is alleged in the complaint. The complaint does not allege that Mabery murdered Mallory or acted with criminal intent. Perhaps Mabery deliberately, with criminal intent, killed Mallory, or perhaps Mabery was extremely intoxicated and accidentally, unintentionally discharged the gun; what is alleged in the complaint, however, is the focus for the purposes of this motion to strike. Here, the allegations of the complaint sufficiently support the proximate cause element necessary to state a claim under the Dram Shop Act. The issue of whether the shooting was an intervening or superseding cause of the plaintiff's injuries and death should be decided at trial.

There is also a strong public policy argument supporting the denial of the motion to strike. The Dram Shop statute "was enacted to fill the void created by the old rule's disallowance of any action against the barkeeper grounded in negligence. The underlying premise of the Dram Shop statute is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication." Kowal v. Hofher, 181 Conn. 355, 358, 436 A.2d 1 (1980). "The Dram Shop Act, being remedial, should be construed liberally to suppress the mischief and advance the remedy." Kirby v. Rusty Nail Cafe of Bristol, Inc., 40 Conn.Sup. 331, 332, 499 A.2d 85 (1985). Although perhaps we are more accustomed to seeing a dram shop action in a case involving a drunk driver, the protection of the Dram Shop Act is not limited to the "motoring public" but may also extend to victims of assault including deadly assaults such as is alleged here. The court is cognizant of the harm that can occur at the hands of an intoxicated tortfeasor and the court sees no reason, at this stage of the proceedings, to preclude the plaintiff from proceeding with the dram shop claim when the weapon, in this matter, is a gun, rather than a motor vehicle, or someone's fists.

CONCLUSION

For the foregoing reasons, the motion to strike is denied.


Summaries of

Penn v. Ebony Lounge, Inc.

Connecticut Superior Court Judicial District of New Haven at New Haven
Dec 27, 2007
2007 Ct. Sup. 22110 (Conn. Super. Ct. 2007)
Case details for

Penn v. Ebony Lounge, Inc.

Case Details

Full title:SAMUEL PENN, ADMINISTRATOR FOR THE ESTATE OF SAMUEL MALLORY, DECEASED v…

Court:Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Dec 27, 2007

Citations

2007 Ct. Sup. 22110 (Conn. Super. Ct. 2007)
44 CLR 776