Robert Vaccaro v. Archie Moore's Bar and Restaurant, Inc. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 113.00)

On May 28, 2010, the plaintiff filed a complaint against the defendants Archie Moore's Bar and Restaurant, Inc., Peter Dorsey and Massimo DelGreco.   The plaintiff alleges the following facts in count two of his second revised complaint, which states a cause of action for negligence against the corporate defendant:  On April 12, 2008, the plaintiff was a patron at a restaurant owned and operated by the defendant corporation;  a fight broke out between the individual defendants in the bar area of the restaurant at approximately 11:00 p.m.;   the defendant's employees failed to remove the individual defendants from the area outside the restaurant;  upon alighting from the restaurant, the individual defendants assaulted and battered the plaintiff;  and the defendant was negligent in that it “carelessly served alcohol on said premises to the defendants through its agents, servants and/or employees in such quantity and supply that said defendants were intoxicated prior to any assault and battery upon the plaintiff.”

On January 4, 2011, the corporate defendant filed the present motion to strike on the grounds that count two of the plaintiff's complaint is legally insufficient and a memorandum of law in support thereof.   The plaintiff filed an objection and a memorandum in support thereof on January 20, 2011.

“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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.   The court must construe the facts in the complaint most favorably to the plaintiff ․ If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Faulkner v. United Techologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

In its memorandum of law in support of its motion to strike, the defendant argues the Dram Shop Act, General Statutes § 30-102, “specifically prohibits any claim for negligence in the service of alcohol by a seller of alcohol unless the service was to a person under twenty-one years of age.   The plaintiff has not alleged that the co-defendants allegedly served ․ were under twenty-one years of age.”   Therefore, the defendant submits that the court should strike count two.

The plaintiff replies in his memorandum in support of its objection that count two does not purport to state a cause of action under § 30-102, but one for common-law negligence.   The plaintiff contends that the “current state of the law ․ is that a person who, when he knows or should have known a person is intoxicated and sells or gives intoxicating liquor to such a person, is guilty of a negligent act, and if such negligence is a substantial factor in causing harm to a third person, he should be liable with the drunken person under our comparative negligence doctrine.”   In support of this proposition, the plaintiff relies upon the holding of Craig v. Driscoll, 262 Conn. 312, 330, 813 A.2d 1003 (2003) (§ 30-102 “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”).   Accordingly, the plaintiff requests that the court sustain his objection to the defendant's motion to strike.

In its reply memorandum, the defendant contends that such a cause of action cannot lie.   In support of this conclusion, the defendant relies exclusively on the plain meaning of § 30-102, as amended by No. 03-91 of the 2003 Public Acts. The defendant maintains that the current iteration of § 30-102 reflects a legislative repudiation of the Supreme Court's holding in Craig v. Driscoll, supra, 262 Conn. 330.

Section 30-102 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 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.”   Furthermore, the “portion of the amended [§ 30-102] 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.).

In the present case, count two of the plaintiff's complaint plainly states facts that support a common-law cause of action for negligence against the corporate defendant for the sale of alcohol.   Count two does not allege that the individual defendants were under twenty-one years of age on April 12, 2008.   Accordingly, the cause of action for common-law negligence stated in count two is legally insufficient because it is barred by the plain language of § 30-102.

For the foregoing reasons, the plaintiff's objection to the defendant's motion to strike is overruled and the defendant's motion to strike is granted.

The Court

By Hiller, J.

Hiller, Arthur A., J.