Paul Bartlewski v. Black Bear Saloon Sono et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 118.00)

PROCEDURAL HISTORY

The plaintiff, Paul Bartlewski, filed the present action on March 17, 2010.   The defendants in this case are:  the Black Bear Saloon SONO, Todd Kosakowski and Sonoturtle, LLC.¹ The operative complaint, filed on November 15, 2010, sets forth three counts.   Count one alleges a violation of General Statutes § 30-102.   Count two alleges negligence.   Count three alleges recklessness.

The following facts have been alleged and are relevant to the pending motion to strike.   The defendants own and operate an establishment known as the Black Bear Saloon in Norwalk, Connecticut.   At this location on June 11, 2009, an intoxicated patron named Christopher Bateman attacked the plaintiff using broken glass and caused him numerous physical injuries.

The defendants filed a motion to strike count two of the operative complaint on January 6, 2011.   The motion was accompanied by a supporting memorandum of law as required by Practice Book § 10-42.   The plaintiff filed an objection with a supporting memorandum of law on January 18, 2011.   Oral argument on the motion was heard at short calendar on January 24, 2011.

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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   In ruling on the motion the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (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 have moved to strike the second count of the complaint on the ground that it seeks recovery for the negligent sale of alcoholic liquor and is therefore barred by the exclusive recovery provision contained within General Statutes § 30-102.   The plaintiff responds that the second count alleges the negligent supervision of employees and patrons and therefore falls outside the scope of Section 30-102.

Section 30-102 commonly known as the Dram Shop Act, states, 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 ․ 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.”

The origin of the exclusivity provision contained within the final sentence of § 30-102 is well documented.  “[I]n Craig v. Driscoll, [262 Conn. 312, 312, 813 A.2d 1003 (2003),] the Supreme Court modified the then common-law rule by recognizing a cause of action against a purveyor who negligently serves alcohol to an adult who, as a result of his intoxication, injures another.   In doing so, the Supreme Court held that the dram shop act was not the exclusive remedy for such injuries, and it expressly rejected the reasoning underlying the common-law rule, stating, ‘[I]t is now time to discontinue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor's negligence is otherwise established.’  “ (Emphasis in original.)   Silvia v. Wittenberg, Superior Court, judicial district of New London, Docket No. CV 09 5011528 (September 29, 2010, Martin, J.) (50 Conn. L. Rptr. 575).   Subsequent to Craig v. Driscoll, Section 30-102 was amended by the legislature to include the following language:  “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.”   Public Acts 2003, No. 03-91.  “Undoubtedly, Public Act 03-91 eliminated any common-law negligence causes of action by person entitled to recover under [§ 30-102].”   Lupak v. Tory, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002366 (May 19, 2008, Tobin, J.) (45 Conn. L. Rptr. 499).

This provision, while barring common-law claims for the negligent sale of alcoholic liquor, does not prevent a plaintiff from alleging the negligent supervision of patrons and employees.   Indeed, “[Connecticut recognizes] a cause of action for the negligent supervision of tavern patrons and employees ․ The cause of action for negligent supervision ․ is based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor's negligence in furnishing alcohol.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)   Potter v. American Legion, Superior Court, judicial district of New Haven, Docket No. CV 08 5016583 (January 7, 2009, Cronan, J.), quoting Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.).  “In cases that have recognized such a cause of action, the plaintiffs were injured by other patrons on the premises of the defendant, and the injuries were allegedly caused by the defendants' failure to supervise the other patrons and provide a safe business environment.”  (Internal quotation marks omitted.)   Widdows v. Crown Street Bar Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 07 5009467 (January 14, 2008, Zoarski, J.T.R.), quoting Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. 0115265 (March 21, 1995, Flynn, J.) (14 Conn. L. Rptr. 346).

In Widdows v. Crown Street Bar Ltd. Partnership, supra, Superior Court, Docket No. CV 07 5009467, the plaintiff alleged that she was struck with a beer bottle by an intoxicated patron while at the defendants' bar in New Haven.   The defendants moved to strike the negligence counts on the grounds that they were barred by the exclusivity provision contained within § 30-102.  Id. After reviewing the complaint, the court found that “some of the plaintiff's allegations ․ are based on negligent service of alcohol and would fail if standing alone.”  Id. It continued, however, to state that “those counts also contain other theories of liability that do not rely on negligent service of alcohol, and, therefore, are not legally insufficient.”  Id. As a result, the defendants' motion to strike was denied.  Id.²

In the present case, the second count contains fourteen allegations of negligence.   Specifically, it alleges that the defendants were negligent in that they:  (1) continued to serve Bateman alcohol despite clear signs of intoxication, (2) failed to use plastic bottles, (3) failed to determine that Bateman was intoxicated and a danger to himself and others, (4) knew or should have known that intoxicated individuals have a propensity for violence, (5) failed to determine that Bateman was in possession of a dangerous weapon, (6) failed to remove a dangerous person from the premises, (7) failed to ascertain Bateman's violent intentions, (8) failed to train its agents in proper procedure regarding the service of alcohol to intoxicated individuals, (9) failed to institute procedures for responding to intoxicated individuals, (10) failed to properly supervise its employees, (11) failed to provide adequate security at its premises, (12) failed to train its agents in proper procedure regarding dealing with intoxicated individuals, (13) failed to protect the plaintiff from intoxicated individuals and (14) failed, generally, to take reasonable and necessary precautions to avoid foreseeable harm to its patrons.

Although some of factual allegations contained within the second count allude to a cause of action premised upon the negligent sale of alcohol, it nonetheless states a claim upon which relief may be granted.   Specifically, the second count alleges that the defendants failed to supervise its employees and patrons.   Moreover, the second count also alleges that the defendants failed to provide adequate security.   These allegations would support a cause of action that, as established above, is separate and distinct from those claims which are barred by Section 30-102.   For these reasons, the motion to strike is denied.³

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. On July 9, 2010 the Black Bear Saloon SONO filed an apportionment complaint against Christopher Bateman.   For the sake of simplicity, references to Bateman will be made by name while the term “defendants” will be used to denote the Black Bear Saloon SONO, Todd Kosakowski and Sonoturtle, LLC, collectively..  FN1. On July 9, 2010 the Black Bear Saloon SONO filed an apportionment complaint against Christopher Bateman.   For the sake of simplicity, references to Bateman will be made by name while the term “defendants” will be used to denote the Black Bear Saloon SONO, Todd Kosakowski and Sonoturtle, LLC, collectively.

FN2. Likewise, in Collar v. Da Cruz, supra, Superior Court, Docket No. CV 03 0830138, the plaintiff claimed that he was assaulted by a fellow patron at a bar owned and operated by the defendants.  Id. The plaintiff alleged that the defendants were negligent in failing to provide an adequate amount of security.  Id. The defendants filed a motion to strike the negligence count on the grounds that it was barred by Section 30-102.  Id. After reviewing the allegations contained within the complaint the court denied the motion to strike to the extent a distinct common-law cause of action other than negligent service of alcohol was alleged.  Id..  FN2. Likewise, in Collar v. Da Cruz, supra, Superior Court, Docket No. CV 03 0830138, the plaintiff claimed that he was assaulted by a fellow patron at a bar owned and operated by the defendants.  Id. The plaintiff alleged that the defendants were negligent in failing to provide an adequate amount of security.  Id. The defendants filed a motion to strike the negligence count on the grounds that it was barred by Section 30-102.  Id. After reviewing the allegations contained within the complaint the court denied the motion to strike to the extent a distinct common-law cause of action other than negligent service of alcohol was alleged.  Id.

FN3. Because the second count supports a valid cause of action it is not vulnerable to a motion to strike.   See Bouchard v. People's Bank, supra, 219 Conn. 471.   Consequently, the court need not consider the validity of additional theories of liability at this time..  FN3. Because the second count supports a valid cause of action it is not vulnerable to a motion to strike.   See Bouchard v. People's Bank, supra, 219 Conn. 471.   Consequently, the court need not consider the validity of additional theories of liability at this time.

Adams, Taggart D., J.