Jennifer O'Connor, Administratrix of the Estate of Daniel O'Connor and Jennifer O'Connor, Individually v. LLC (2010)

MEMORANDUM OF DECISION

This is an action by Jennifer O'Connor, Administratrix of the Estate of Daniel O'Connor, and Jennifer O'Connor individually against defendants Sly's Cafe', LLC, backer, Theresa A. Lemieux, permittee, and Sly's Cafe, a Connecticut corporation.   This action is in two counts.   In the first count, plaintiff seeks to recover against the defendants under the provisions of Connecticut General Statutes § 30-102, the Dram Shop Act. In the second count, plaintiff seeks to recover under the same statute for loss of consortium.

On plaintiff's motion, default for failure to plead was entered against appearing defendant, Theresa Lemieux, on June 2, 2008.   On April 16, 2010, default was entered against the remaining nonappearing defendants.   The matter came before the court for hearing and damages on June 8, 2010.

“In any action at law, the rule is that the entry of a default operates as a confession by the defendant of the truth of the material facts alleged in the complaint which are essential to the plaintiff to some of the relief prayed.   Cataliana v. Nicolelli, 90 Conn.App. 219, 221 (2005).

In count one of the complaint, plaintiff alleges that the decedent, Daniel O'Connor, Jr., was a patron at defendant's establishment and, while intoxicated, was sold alcoholic liquors by the defendants.   The complaint further alleges that thereafter the decedent was operating his vehicle while in an intoxicated condition on a public highway and that he failed to negotiate a curve in the road and struck a tree causing his death and the injuries and damages for which plaintiff seeks to recover under the provisions of Connecticut General Statutes § 30-102, the Dram Shop Act.

The material facts alleged in count one of the complaint, which the court must accept as proven, set forth a claim by the intoxicated person described in the statute against the seller of alcoholic liquor.

“General Statutes § 1-2z provides:  ‘The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’   The Act clearly identifies those who may bring a cause of action under it as ‘person[s] injured’ by ‘intoxicated person [s],’ not ‘intoxicated person[s]’ who injure themselves.   See also, e.g., Nolan v. Morelli, 154 Conn. 432, 435-36, 226 A.2d 383 (1967) (‘By its express terms, the Act authorizes a recovery, where its conditions are fulfilled, by one injured in person or property as a consequence of the intoxication of another person to whom intoxicating liquor has been sold while he was intoxicated, but it clearly does not authorize recovery for injuries or property damages sustained by the intoxicated purchaser himself.’);   Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002366S (May 19, 2008, Tobin, J.) (45 Conn. L. Rptr. 499, 500) (concluding that provision did not apply to plaintiff who injured himself by falling while intoxicated because ‘[t]he reference to “such injured person” in the 2003 amendment can only refer to the individual who suffers personal injury “in consequence of [the] intoxication” of the person wrongfully served alcohol while intoxicated’).

In Nolan v. Morelli, supra, cited by Judge Wilson, the Supreme Court went into a history of the Dram Shop Act in Connecticut and concluded that in amending the act, the General Assembly “has remained constant in limiting the statutory right of recovery to persons other than the intoxicated person himself.”  Id., 438.

The material facts essential to plaintiffs recovery under count one of the complaint, which must be accepted as proven, preclude any recovery of damages.   For this reason, no damages can be awarded under the first count of the complaint.

The second count of the complaint sets forth a claim by plaintiff Jennifer O'Connor individually for loss of consortium due to the wrongful death of her spouse, Daniel O'Connor.   In this count, as in the first count, plaintiff individually seeks to recover under the provisions of § 30.102, the Drain Shop Act.

“In Hopson v. St. Mary's Hospital, 176 Conn. 485, 496 (1979), our Supreme Court recognized for the first time a cause of action for loss of spousal consortium.   In recognizing such a cause of action, the court explained that because a consortium action is derivative of the injured spouse's cause of action, the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits.”  (Internal quotation marks omitted.)  Swanson v. Groton, 116 Conn.App. 849, 864 (2009).   Accordingly, in the present case, the loss of consortium claim must fail because the direct cause of action for a violation of the Dram Shop Act must fail.

Further, some of the judges of the Superior Court have held that derivative claims, such as loss of consortium, cannot be maintained under the Dram Shop Act at all.   See Capo v. Knybel, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 07 5008267 (May 13, 2009, Stevens, J.) [47 Conn. L. Rptr. 756].

As in the first count, the material facts essential to plaintiff's recovery under the second count, which the court accepts as proven, do not allow any recovery of money damages.

Accordingly, after hearing, no damages are awarded in this matter.

Joseph J. Purtill

Judge Trial Referee

Purtill, Joseph J., J.T.R.