Leighton Jillson, Admr. of the Estate of Taylor Jillson v. II (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 110

The defendants move to strike counts three and four of the complaint on the ground that they are legally insufficient because “there is no negligence cause of action against one who furnishes liquor to someone who voluntarily becomes intoxicated and subsequently injures himself or someone else.”   The defendants move to strike counts five and six because there are insufficient facts pleaded to support the recklessness counts as “the plaintiff has made identical allegations to support the recklessness counts as those made for negligence.”

FACTS

This action arises out of a fatal single-car crash on May 21, 2009, by the decedent, Taylor Jillson.   On April 30, 2010, Leighton Jillson, as the administrator of the decedent's estate, filed a six-count complaint alleging negligence and recklessness in the service of alcohol to the decedent.   The plaintiff claims that the fatal accident occurred due to the decedent becoming intoxicated after being served alcohol by the defendants, Swizzle, Inc. d/b/a Main Street Tavern and permittee/owner Richard Willis, II.¹ Specifically, the plaintiff alleges in counts three and four that due to the “negligence” of the defendants, the decedent was served alcohol while she was visibly and obviously intoxicated, when they knew, or should have known, that the decedent would operate a vehicle upon leaving the premises.   In counts five and six, the plaintiff alleges that due to the “reckless, willful and/or wanton misconduct” of the defendants, the decedent was served alcohol while she was visibly and obviously intoxicated, when they knew, or should have known, that the decedent would operate a vehicle upon leaving the premises.

On June 22, 2010, the defendants filed a motion to strike counts one through six of the plaintiff's complaint on the grounds that it is legally insufficient.²  Specifically, the defendants argue that counts three and four fail to state a claim upon which relief can be granted because there is no negligence cause of action against an alcohol purveyor by an imbiber who injures herself as a result of her own intoxication.   The defendants move to strike counts five and six on the ground that there are insufficient facts pleaded to support the recklessness counts.   In support of the motion to strike, the defendants filed a memorandum of law.   On October 7, 2010, the plaintiff filed an objection to the motion to strike, accompanied by a memorandum of law in opposition.   The motion was heard by the court on October 12, 2010.

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 take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17(2009).

The defendants claim that the complaint is legally insufficient to state a claim upon which relief may be granted.   Specifically, the defendants argue that counts three and four should be stricken because “the Connecticut Supreme Court has consistently held that there is no negligence cause of action against one who furnishes liquor to someone who voluntarily becomes intoxicated and subsequently injures himself or someone else.”   The defendants further argue that counts five and six should be stricken because they “fail to allege a sufficient basis for a recklessness claim.”   The defendants claim this is so because “the plaintiff has merely substituted the label of negligence for the label of reckless ․ [but] has failed to plead any facts to differentiate the recklessness and negligence counts.”

The plaintiff counters in its objection to the motion to strike that counts three and four alleging negligence are a cognizable cause of action, and that counts five and six are pleaded sufficiently to allege recklessness.   The plaintiff first claims that the Connecticut Supreme Court, in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), recognized a cause of action for the negligent service of alcohol, which results in an intoxicated person's own injuries or death, because that court found that “the voluntary consumption of alcohol on the part of the plaintiff does not relieve the defendant of his duty to act with reasonable care ․ and does not break the chain of causation.”   The plaintiff further claims that the legislature, in amending the Dram Shop Act subsequent to the Craig decision, intended only to preclude negligent service of alcohol claims by “a specific class of persons, i.e. third persons injured by intoxicated persons served in bars.”   Thus, the plaintiff argues that for “those who do not fall within the specific and limited class of plaintiffs established within [the amended Dram Shop Act], Craig v. Driscoll allows for a common law remedy.”   The plaintiff finally claims that counts five and six meet the level of specificity required to bring a claim for recklessness because each count “explicitly informs both the court and opposing counsel that both negligence and reckless misconduct are being asserted ․ Each count in the plaintiff's complaint is labeled with the cause of action being asserted.”

“At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another.   The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee.”  Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967).

This common-law rule was modified in Connecticut by the legislative enactment of the Dram Shop Act. The Dram Shop Act imposes liability upon alcohol purveyors for the negligent service of alcoholic liquor to an intoxicated person who, as a result of such intoxication, injures the person or property of another.   Recovery under the Dram Shop Act is expressly limited to injuries suffered by third parties as a result of the conduct of the intoxicated person, and does not extend to any injuries suffered by the intoxicated person themselves.  Id., 438-40.

The Supreme Court, in Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), further modified the common-law rule and held that the policy considerations which protect an alcohol purveyor from liability arising from negligent service of alcohol to an intoxicated person who injures another, do not apply when the purveyor engages in wanton and reckless misconduct.  “This conclusion is based primarily on the notion that one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent.”   Id., 361.   Thus, after Kowal, an injured party could bring a common-law recklessness claim against a purveyor of alcohol, but Connecticut courts still did not recognize a common-law action sounding in negligence for the service of alcohol to an intoxicated adult who thereafter causes injury to himself or another.

In February 2003, the Supreme Court in Craig examined whether the Dram Shop Act was the exclusive remedy for a third party who was injured as the result of the negligent service of alcohol to an intoxicated adult.   The court held that the Dram Shop Act “does not occupy the field so as to preclude a common-law action in negligence against a purveyor of alcoholic beverages for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another.”  Craig v. Driscoll, supra, 262 Conn. 330.   The court however, in a footnote, specifically pronounced that it did “not address directly in this case the question of whether to recognize an action at common law on behalf of an intoxicated person against a seller of alcoholic liquor ․” (Emphasis added.)   Id. 329 n.14. Less than four months later, the legislature amended the Dram Shop Act with the passage of Public Act No. 03-91.³  Most pertinent, the legislature expressly prohibited negligence actions by injured third parties against sellers of alcohol to intoxicated persons twenty-one years of age or older.

In the present case, the party alleging negligent service of alcohol is not a third party injured by an intoxicated person.   It is instead brought on behalf of the intoxicated person who alleges that the defendants' negligence resulted in the imbiber's own injury and death.   Further, there are no allegations that the decedent imbiber was under twenty-one years of age.   Thus, by its plain language, and as conceded by the plaintiff in its memorandum of law, the Dram Shop Act is inapplicable to the factual allegations set forth in the plaintiff's complaint because the statute only encompasses injuries suffered by third parties.   Therefore, the dispositive issue is whether under the common law, an imbiber who is injured or killed as a result of her own intoxication can maintain a cause of action upon a theory of negligent service of alcohol.   The court finds that the common law does not recognize the negligence action as put forward by the plaintiff in counts three and four.   Contrary to the plaintiff's claim, the decision of the court in Craig neither explicitly, nor implicitly, allows for a common-law negligence action on behalf of the intoxicated injured imbiber.   As noted by the Craig court itself, that decision focused solely on whether Connecticut recognized a common-law right of recovery for injured third parties based upon a negligence theory, outside of the auspices of the Dram Shop Act, and did not address whether to newly recognize common-law negligence actions on behalf of intoxicated persons themselves against alcohol purveyors.  Craig v. Driscoll, supra, 262 Conn. 329 n14.   Thus, by its own unambiguous language, Craig did not address, nor effectuate any change, regarding common-law negligence claims brought by intoxicated persons seeking to recover for their own injuries.   Furthermore, the plaintiff's reliance on Craig is even further weakened because the “portion of the [amended Dram Shop Act] that bars negligence claims for serving intoxicated adults is a precise repudiation of Craig 's holding.”   Gorman v. Szewczak, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166633 (January 23, 2004, Alvord, J.).  “It is clear that [the Dram Shop Act] is the only modification of the common-law rule which the General Assembly has ever intended to make.   Nothing in the history of the statute or the case law of Connecticut suggests that the intoxicated person over the age of twenty-one has a cause of action in negligence against the alcohol purveyor for injuries resulting from his own intoxication.”   Kupec v. Classic Rock Café, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5005586 (November 28, 2007, Alvord, J.) (44 Conn. L. Rptr. 574, 575).   The motion to strike is granted as to counts three and four because they are legally insufficient to state a claim upon which relief can be granted.

The defendants next claim that counts five and six are legally insufficient because the plaintiff has failed to allege facts sufficient to support a recklessness claim.   Common-law recklessness claims are cognizable against alcohol purveyors by both intoxicated imbibers and third parties, and were unaffected by either the Craig decision or the legislative amendment to the Dram Shop Act. Gorman v. Szewczak, supra, Superior Court, Docket No. CV 01 0166633;  see also Lindsay v. Benevolent Protective Order, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000828 (August 6, 2007, Gallagher, J.) (44 Conn. L. Rptr. 20, 21-22) (collecting cases holding that an intoxicated person can recover for his/her own injuries on a theory of reckless service of alcohol).   In Craig, the Supreme Court expressly stated that “[a]lthough there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that ․ reckless misconduct [is] being asserted.”  Craig v. Driscoll, supra, 262 Conn. 343.

When read in the light most favorable to the plaintiff, the language in counts five and six allege facts sufficient to support a cause of action sounding in recklessness.   The plaintiff alleges in counts five and six that the defendants continually served the decedent alcohol, even after the tavern had formally closed for the night, while the decedent was visibly and obviously intoxicated, and that the defendants knew she would operate a vehicle upon leaving the premises.   Further, the plaintiff claims that despite observing that the decedent had become highly intoxicated, and knowing that her ability to operate a vehicle was impaired and her health and safety would be endangered, the defendants intentionally continued in that course of conduct, and the decedent's subsequent injuries and death were caused by the recklessness of the defendants.   Finally, it is alleged that the defendants failed to implement or observe a policy regarding alcohol service to intoxicated patrons who would thereafter drive while intoxicated.

These factual allegations, taken as a whole, sufficiently assert, “conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger ․ reflect[ing] willful, wanton and reckless conduct sufficient to survive a motion to strike.”   See Craig v. Driscoll, supra, 262 Conn. 343.   While it is true that the plaintiff's negligence and recklessness counts essentially mirror each other in substance, similar to Craig, “[r]ather than adopting the defendants' conclusion that the allegations are not sufficient to state a cause of action for recklessness, however, we suggest that the plaintiffs' allegations of negligence were over inclusive.”   Id., 343 n.22. Furthermore, the plaintiff's complaint in counts five and six are legally sufficient to inform the court and the defendants that recklessness is being alleged because those counts expressly state that their basis is the defendants' alleged wanton and reckless conduct.   Not only are both counts five and six entitled “recklessness,” but each contain paragraphs specifically alleging that the decedent's “intoxication was caused by the reckless, willful and/or wanton misconduct of the defendant.”

Thus, counts five and six of the plaintiff's complaint are legally sufficient to state a cause of action in wanton and reckless misconduct against the defendants.

CONCLUSION

For the foregoing reasons, the motion to strike is granted as to counts three and four of the plaintiff's complaint.   The motion to strike counts five and six is denied.

Brian T. Fischer, Judge

FOOTNOTES

FN1. Jack's American Bistro & Wine Bar and John S. Flaws were also named as defendants in the complaint, but were removed as parties by the plaintiff on September 10, 2010..  FN1. Jack's American Bistro & Wine Bar and John S. Flaws were also named as defendants in the complaint, but were removed as parties by the plaintiff on September 10, 2010.

FN2. The plaintiff, in its memorandum of law in objection to the motion to strike, states that it will withdraw counts one and two of its complaint, brought under General Statutes § 30-102 (“Dram Shop Act”), because the provisions of that statute do not apply to the plaintiff's case.   As such, this memorandum does not address the first and second counts of the plaintiff's complaint..  FN2. The plaintiff, in its memorandum of law in objection to the motion to strike, states that it will withdraw counts one and two of its complaint, brought under General Statutes § 30-102 (“Dram Shop Act”), because the provisions of that statute do not apply to the plaintiff's case.   As such, this memorandum does not address the first and second counts of the plaintiff's complaint.

FN3. The Dram Shop Act provides in relevant part:  “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 ․ 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.”.  FN3. The Dram Shop Act provides in relevant part:  “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 ․ 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.”

Fischer, Brian T., J.