Dexter Herrera, Administrator v. Elizabeth Adams et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO.129)

Facts and Procedural History

The present action arises from an automobile accident that occurred on October 26, 2009, when an intoxicated Julian Arias drove his vehicle over the centerline of Old Norwich Road in Waterford and directly into a residence located at 119 Old Norwich Road. Carlos Herrera was a passenger in Arias' car and died as a result of the accident.   Arias was allegedly drinking alcohol at the Brown Derby Lounge just prior to the accident.

On June 2, 2010, Herrera's estate, the plaintiff, filed suit against Elizabeth Adams, Cue Corporation, Graham Thompson, and Shub LLC. Adams and Thompson are permittees of the Brown Derby Lounge and Cue and Shub are its corporate backers.   The plaintiff's second amended complaint, filed September 16, 2010, is the operative complaint and alleges that Adams, Cue, Thompson and Shub are liable to the plaintiff pursuant to the Dram Shop Act and for reckless dispensing of alcohol.

On October 13, 2010, Adams and Cue, the defendants for the purposes of this motion, filed an apportionment complaint against Julian Arias.   The apportionment complaint alleges:  “If the plaintiff suffered injuries in the manner alleged in the complaint, which is denied, those injuries were caused by the negligence and/or recklessness of the apportionment defendant, Julian Arias, in that his negligent and/or reckless and/or willful conduct was the proximate cause of the alleged accident ․” On October 29, 2010, the plaintiff filed a motion to strike the apportionment complaint.   The defendants filed their objection on November 29, 2010, and the plaintiff filed its reply on December 8, 2010.

Discussion

“The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.”  Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f 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 plaintiff moves to strike the defendants' apportionment complaint because apportionment actions are limited to civil causes of action based on negligence and are not proper when the cause of action stems from a strict liability statute.   Additionally, the plaintiff argues that the defendants have not satisfied the apportionment procedural requirements of General Statutes § 52–102b.   The defendants counter that the court should deny the plaintiff's motion because their apportionment complaint sufficiently pleads negligence, the plaintiff's complaint is brought pursuant to § 52–555, and that they have satisfied the apportionment procedural requirements.

Section 52–102b(a) provides, in part:  “A defendant in any civil action to which Section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”  Section 52–102b(f) states:  “This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to Section 52–572h for a proportionate share of the plaintiff's damages as a party to the action.”

“Section 52–102b is merely the mechanism for enforcing the legislative policy embodied in § 52–572h.”   Worcester v. Salzillo, Superior Court, judicial district of New Haven, Docket No. CV 08 5019588 (May 29, 2009, Corradino, J.) (47 Conn. L. Rptr. 896, 897).  “[A] civil action to which Section 52–572h applies, within the meaning of § 52–102b, means a civil action based on negligence.”  (Internal quotation marks omitted.)  Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793–95, 756 A.2d 237 (2000).  “By its own terms, [§ 52–572h] applies only to causes of action based on negligence.”  (Internal quotation marks omitted.)  Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992).

Indeed, § 52–572h(o), in relevant part, provides:  “[T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to Section 52–555 ․” [Section 52–572h(o) ] limits apportionment of liability or damages only between negligent parties.”   Doe v. Stamford Marriott Hotel and Spa, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 08 5006891 (April 16, 2009, Tierny, J.T.R.).

“General Statutes § 52–102b, provides for apportionment only where the underlying action is predicated on negligence.”   ACMAT Corp. v. Jansen & Rogan Consulting Engineers, P.C., Superior Court, judicial district of New Britain, Docket No. CV 96 0474249 (August 23, 1999, Robinson, J.) (25 Conn. L. Rptr. 463, 465).  “[It] provides the procedural vehicle by which a defendant in a negligence action may cite in a party for apportionment of liability purposes.”  Id. “In determining whether a case is a negligence action, § 52–102b clearly states that the relevant claim sounding in negligence is the plaintiff's.”  (Internal quotation marks omitted.)  Id.;  see also New Center Corp. v. Golden, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 09 5030164 (August 11, 2010, Berger, J.).

By example, in Bohan v. Last, 236 Conn. 670, 671–72, 674 A.2d 839 (1996), the plaintiff brought a wrongful death action on behalf of the decedent, killed in a car accident caused by an intoxicated minor, against the defendants, the bar's permittee and backer.   In her three-count complaint, she alleged that the defendants had intentionally, negligently, and in violation of the Dram Shop Act, served or permitted the service of alcoholic beverages to the minor.   See id., 672.   Pursuant to §§ 52–102 and 52–572h(c) and (d), the defendants moved to cite in additional defendants, the minor and three patrons who allegedly had provided alcohol to him.   See id., 672–73.

The trial court granted the plaintiff's motion to strike the apportionment complaint as to the three patrons.   See id., 674.   The Supreme Court, however, reversed this decision.   See id.   The court concluded:  “[T]he substitute third party complaint filed by the defendants ․ states a cognizable cause of action.   In appropriate circumstances, adults have a duty to refrain from negligently or intentionally supplying alcohol to minors, whether such adults act as social hosts in their homes or as purveyors in a bar, because minors are presumed not to have the capacity to understand fully the risks associated with intoxication.   In accordance with well established principles of proximate cause, this common law duty encompasses responsibility to innocent third party victims of intoxicated minors ․ We are not, however, prepared to engraft strict liability on this common law duty.   Accordingly, we hold further that, unless the purveyors of alcohol knew or had reason to know that the person to whom they supplied alcohol was a minor, they have no common law duty to third party victims of the minor's intoxication.”  Id., 681.

Similarly, in Vincenzi v. BET, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 04 0184682 (January 31, 2006, Matasavage, J.) (40 Conn. L. Rptr. 680), the plaintiff filed a four-count complaint against the defendants, a bar and its permittee, alleging that she was physically assaulted by two other patrons.   Count one alleged liability pursuant to the Dram Shop Act, counts two and three alleged negligence on the part of the defendants for their failure to provide adequate security and for their service of alcohol to minors, and count four alleged recklessness.

Pursuant to §§ 52–102b and 52–572h, the defendants filed an apportionment complaint against the patrons who assaulted the plaintiff.   The plaintiff moved to strike the entire apportionment complaint.   The court denied the plaintiff's motion concluding that “a fact finder could assign a percentage of negligence attributable each to [the defendants and the apportionment defendants] pursuant to § 52–572h (f)(4).   The effects of the defendants' alleged negligence and [the apportionment defendants'] alleged negligence do not overlap completely ․ Some of the plaintiff's injuries could be attributable to the defendants and some to [the apportionment defendants].   Consequently, apportionment of liability can be determined by the fact finder.”  Id., 682.

Therefore, resolution of this motion depends on the court's analysis of the allegations set forth in the plaintiff's complaint.   The plaintiff brings this action pursuant to § 52–555(a), which, in pertinent part, provides:  “In any action ․ brought by an ․ administrator for injuries resulting in death, whether instantaneous or otherwise, such ․ administrator may recover from the party legally at fault ․” “The plaintiff, in this suit under our wrongful death statute, stands in the shoes of the decedent and can recover only if the decedent, had his injuries not proven fatal, could himself have recovered.”   Nolan v. Morelli, 154 Conn. 432, 435, 226 A.2d 383 (1967).   Therefore, the court must determine whether the plaintiff has made any allegations of negligence on the part of the defendants, which would allow them to file an apportionment complaint against Arias.

As to count one, the plaintiff alleges that it “brings this action under § 30–102 ․ entitled ‘Liquor Seller Liable for Damage by Intoxicated Person.’   “ Section 30–102, in relevant part, provides:  “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 ․” The full title of the statute is “Dram Shop Act;  liquor seller liable for damage by intoxicated person.   No negligence cause of action for sale to person twenty-one years of age or older.”   Indeed, the “Dram Shop Statutes impose strict liability, without negligence, upon the seller.”   Passini v. Decker, 39 Conn.Sup. 20, 21, 467 A.2d 442 (1983).   As to count two, the plaintiff alleges that the decedent's death was “a direct result and consequence of the reckless and/or willful conduct of the defendants ․” The complaint goes on to list specific acts of recklessness on the part of the defendants.

In light of these allegations, the court is satisfied that the defendants' apportionment complaint should be stricken.  General Statutes § 52–102b provides for apportionment only where the underlying action is predicated on negligence.   In the present case, the plaintiff's wrongful death action is predicated solely upon allegations of the strict liability and recklessness of the defendants.   The terms “negligence” or “negligent” cannot be found anywhere in the plaintiff's complaint.   This case is distinguishable from the allegations addressed by the Supreme Court in Bohan and the Superior Court in Vincenzi, where the plaintiffs alleged intentional, reckless and negligent conduct on the part of the defendants.

Moreover, it is irrelevant that the defendants' apportionment complaint against Arias sounds in negligence, given that the allegations of the plaintiff's underlying complaint simply do not fall within the purview of § 52–572h.   Finally, given that the court finds that the defendants' apportionment complaint against Arias should be stricken, it need not address whether the defendants have complied with the procedural requirements of § 52–102b(c),¹ the alternative ground upon which the plaintiff's motion is based.

Conclusion

For all of the foregoing reasons, the court grants the plaintiff's motion to strike the defendants' apportionment complaint.

Martin, J.

FOOTNOTES

FN1. Section 52–102b(c) provides:  “No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to Section 52–572h.   If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released.   Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages.   No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.”.  FN1. Section 52–102b(c) provides:  “No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to Section 52–572h.   If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released.   Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages.   No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.”

Martin, Robert A., J.