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Thornberg v. Moody

Connecticut Superior Court Judicial District of Ansonia-Milford at Derby
May 3, 2011
2011 Ct. Sup. 10323 (Conn. Super. Ct. 2011)

Opinion

No. CV08-5004995S

May 3, 2011


MEMORANDUM OF DECISION


FACTS

The Plaintiff, Ilene Thornberg, brings this case in her capacity as Administratrix of the Estate of Jennifer L. McLeod.

On April 20, 2007, the Plaintiff's decedent was a passenger, in a vehicle which was being operated by the Defendant, Von R. Moody. The Defendant's vehicle struck a vehicle which was being operated by one Anthony Ruggerio, before it flipped over, causing the Plaintiff's decedent to sustain injuries, from which she ultimately died.

Prior to the accident, which occurred at approximately 11:18 p.m., Jennifer McLeod was among a group of approximately fifteen college age individuals, who had been participating in a "pub crawl."

The group began gathering at the home of Tom Warner at around 7 p.m. Warner was scheduled to be deployed to Afghanistan the following day, and the gathering was in the nature of a going away party.

According to Stephen Wampler, a member of the group, he was at the Warner home at approximately 8:30 p.m., when the Defendant Von Moody arrived. In his affidavit, Wampler maintains that Moody was drinking a beer when he arrived. In that same affidavit, he states that Moody appeared drunk, based upon unspecified "actions and antics."

Monica Smith, another member of the group, confirms that Moody was drinking, during the time spent at the Warner home.

According to Wampler, when the group left the Warner residence at 9 p.m., he was asked to ride in a car operated by Von Moody. He claims to have declined the invitation, because he believed that Moody was already drunk.

On the way to the first stop, an establishment known as Downtown Danny O's, located in Shelton, Moody is alleged to have stopped his vehicle. It is claimed that he switched seats with the decedent, Jennifer McLeod, and that she operated the vehicle for the remainder of the trip to Danny O's.

Before beginning the "pub crawl," the group dressed in white tee shirts, which could be written upon with the use of a magic marker.

While there is a discrepancy concerning the amount of time the group spent at Danny O's, it is conceded that Moody had at least one drink at the establishment.

The group split up at that point. A group which included Von Moody drove to Cuppy's Cafe. Wampler and Smith did not accompany the group to Cuppy's.

The accident occurred, while the group was en route to another destination. A blood alcohol content (BAC) test revealed that Moody's BAC level was 1.13 at the time of the accident.

The Plaintiff's Second Amended Complaint, dated May 7, 2008, contains eleven counts. In addition to counts alleging negligence, common-law recklessness, and statutory recklessness pursuant to § 14-295 of the General Statutes directed against Von R. Moody (Counts one, two and three), allegations of common law recklessness and violations of the Dram Shop Act, § 30-102 of the General Statutes, were pled against Brian Rodgers, d/b/a Oxford Ale House, a/k/a Kochie's Cafe (Counts four and five), Rob Figueroa, d/b/a Oxford Ale House, a/k/a Kochie's Cafe (Counts six and seven), David J. Orazietti, Permittee, d/b/a Downtown Danny O's a/k/a Danny O's Bar and Ginjess, LLC (Counts eight and nine) and Frank J. Capece, Jr. and Ann Marie Capece, d/b/a Cuppy's Cafe and F.J.C. Jr., Inc. (Counts ten and eleven).

The Defendant David J. Orazietti, d/b/a Downtown Danny O's, a/k/a Danny O's Bar and Ginjess, LLC has moved for summary judgment concerning count eight (dram shop) and count nine (common-law recklessness) of the Second Amended Complaint.

STANDARD OF REVIEW

A trial court may properly enter summary judgment, when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and that the moving party is entitled to judgment as a matter of law. Miller v. United Technologies Corp., 233 Conn. 732, 751 (1995); Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way. Haesche v. Kissner, 229 Conn. 213, 216 (1994).

The party moving for summary judgment has the burden of establishing the absence as to any genuine issue as to all material facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994). A material fact has been defined as one which will make a difference in the result of the case. Hurley v. Heart Physicians, PC, 278 Conn. 305, 314 (2006). The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts. Neuhaus v. DeCholnoky, 280 Conn. 190, 199 (2006).

In determining a motion for summary judgment, a court is required to construe all of the evidence in the light most favorable to the non moving party. Rawling v. New Haven, 206 Conn. 100, 104 (1988).

Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the defect cannot be cured through re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (1995).

GENUINE ISSUES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT ON COUNT EIGHT (DRAM SHOP ACT)

The Defendant, David J. Orazietti, d/b/a Downtown Danny O's, a/k/a Danny O's Bar Ginjess, LLC, claims that he is entitled to judgment as a matter of law, because there is no evidence that the Defendant, Von R. Moody exhibited any visible manifestation of intoxication. Hayes v. Caspera, Ltd., 90 Conn.App. 781, 802 (2005).

This claim is not persuasive.

The "Dram Shop Act," § 30-102 of the General statutes, reads, in relevant part 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, or 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 . . .

This statute establishes a cause of action, which was unknown as common law. It is primarily remedial, because it provides a remedy, enforceable by an individual in a civil action, permitting the recovery of damages in an amount commensurate with the injuries sustained. Pierce v. Albanese, 144 Conn. 241, 249-50 (1957). This statutorily created liability is not premised upon negligence, or wanton misconduct, but on conduct specifically proscribed by the statute. Staples v. Lucas, 142 Conn. 452, 456 (1955).

In order to prevail in a dram shop action, a plaintiff must provide three elements: 1) the sale of alcoholic liquor, 2) to an intoxicated person, 3) which intoxicated person causes injury to another's person or property, as a consequence or result of his or her intoxication. Craig v. Driscoll, 262 Conn. 312, 328 (2003); Nelson v. Steffens, 170 Conn. 356, 360 (1976).

It is not incumbent upon a plaintiff to prove that a person became intoxicated, as a result of the sale of liquor. All that the statutory cause of action requires is proof that liquor was sold to one who is already intoxicated. London v. Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 59 (1955). Liability is established if injury to person or property is caused as a consequence of intoxication. It is not necessary to establish any causal connection between the sale of liquor, and the resulting injury. Saunders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349 (1985).

In Saunders, the Connecticut Supreme Court stated that intoxication means "an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of judgment, or a derangement or impairment of physical functions and energies." The court went on to say "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." Saunders v. Officers Club of Connecticut, Inc., supra, 349-50.

The Saunders court reviewed the evidence, which included that the operator of the motor vehicle had begun drinking at noon, had resumed after work, was loud and boisterous and had to be warned by the management, that he drove without headlights after dark, took a roundabout route to his destination, and never saw the vehicles with which he collided. This evidence was sufficient, the court found, to satisfy the element of "intoxication." Saunders v. Officers Club of Connecticut, Inc., supra, 351.

Although the indicia of intoxication recited in Saunders provide illustrations of what will be sufficient to support the factual finding that a person who was provided alcohol was intoxicated when the alcohol was provided, they do not constitute a definition of intoxication as a matter of law. Wetland v. American Equity Ins. Co., 267 Conn. 592, 609 (2004). Intoxication may be defined in a number of ways, in a number of contexts. Wetland v. American Equity Ins. Co., supra, 610.

Here, the evidence, when construed most favorably to the Plaintiff, demonstrates that Von R. Moody was drinking before he arrived at Danny O's. One of the individuals taking part in the "pub crawl" stated that he was unwilling to ride in his car, because he believed him to be drunk, due to his "actions or antics."

Moody admits to having a drink while at Danny O's, and there is evidence to suggest that he was drinking before he arrived at the Warner home, due to his allegedly having a beer in his hand.

An inference can also be drawn from the fact that he exchanged places with a passenger on the way to Danny O's.

Furthermore, following the accident his BAC level was 1.13. Although chemical tests are not conclusive on the issue of intoxication at a prior time, the result of a blood test is relevant to a determination of intoxication for purposes of the dram shop act. Coble v. Maloney, 34 Conn.App. 655, 664 (1994).

Any weight to be given to the test, is for the trier of fact.

Hayes, supra, can be distinguished from this case, based upon the factual situation.

In Hayes, a minor died following the consumption of both alcoholic beverages, and a substance known as Invigorate. Following a trial, the court directed a verdict on the Dram Shop Act count.

The Plaintiff had claimed that another patron at the bar, while intoxicated, had been served liquor, and while intoxicated, had given Invigorate to the minor decedent.

The trial court in Hayes noted that the patron, one Kevin Gibbs, testified that he was intoxicated. However, the court also noted that there were no visible signs of intoxication. A search of the trial record produced no evidence of intoxication, independent of the conclusory testimony of Gibbs. Hayes v. Caspera, Ltd., supra, 802.

The Defendant reads Hayes as requiring that the element of intoxication may only be proven by visible signs of intoxication. Danny O's seems to argue that visible intoxication is the exclusive means through which the element of intoxication in the dram shop may be satisfied.

This construction is inconsistent with the remedial purpose of the statute, and effectively imposes a requirement that the person serving the alcoholic beverage knows or has reason to know of the intoxication of the patron. This negligence standard is not compatible with a strict liability statute.

Although this case does present sufficient evidence to satisfy the visible intoxication requirement, intoxication may be proven by evidence other than visible intoxication.

Therefore, the Defendant's motion for summary judgment as to Count eight is denied.

ISSUE OF RECKLESSNESS PRESENTS QUESTION OF FACT

In order to prevail on her claim of common-law recklessness, the Plaintiff must demonstrate that the Defendant, Danny O's, acting through its agents and employees, acted in a manner that tended to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, where a high degree of danger is present. Dubay v. Irish, 207 Conn. 518, 533 (1986); Coble v. Maloney, supra, 661.

The Plaintiff must argue that serving liquor to a group of fifteen college age students in a celebratory mood, while engaged in a "pub crawl" represents reckless and unreasonable conduct.

While this presents a difficult hurdle for the Plaintiff to surmount at trial, for purposes of a motion for summary judgment, a genuine issue of material fact remains.

CONCLUSION

The motion for summary judgment of the Defendant David J. Orazietti, Permittee, d/b/a Downtown Danny O's a/k/a Danny O's Bar Ginjess, LLC, as to both count eight and count nine, is DENIED.


Summaries of

Thornberg v. Moody

Connecticut Superior Court Judicial District of Ansonia-Milford at Derby
May 3, 2011
2011 Ct. Sup. 10323 (Conn. Super. Ct. 2011)
Case details for

Thornberg v. Moody

Case Details

Full title:ILENE THORNBERG, ADMINISTRATRIX OF THE ESTATE OF JENNIFER L. MCLEOD v. VON…

Court:Connecticut Superior Court Judicial District of Ansonia-Milford at Derby

Date published: May 3, 2011

Citations

2011 Ct. Sup. 10323 (Conn. Super. Ct. 2011)