Robert Hubinger v. Milford Brewing Co. et al. (2011)

MEMORANDUM OF DECISION RE (# 131) AND (# 135) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This is an action brought by the plaintiff, Robert Hubinger, Fiduciary of the Estate of Christopher Hubinger, following the decedent's death as a result of an automobile collision on or about December 7, 2007.

The defendants are the Milford Brewing Company, William DaSilva, Sophia of Milford, d/b/a Daniel Street Cafe and Michael Campanelli.

The complaint was brought in four counts.   Count One and Count Two allege a violation of the Dram Shop Act (§ 30–102 C.G.S.) and Recklessness against Milford Brewing Company and DaSilva.   Count Three and Count Four allege the same conduct on the part of Daniel Street Cafe and Campanelli.

The defendants have each made a motion for summary judgment raising the identical two claims.   The first claim is that the plaintiff's suit is essentially a wrongful death suit and the plaintiff has failed to properly cite the statute, § 52–555, C.G.S., and that it is too late to make such an allegation in that more than two years has passed since that cause of action arose.   The second claim is that the plaintiffs have failed to proffer any evidence to establish intoxication to create liability either under the Dram Shop Act, § 30–102 C.G.S. or under common-law recklessness.

I. PLAINTIFF'S CLAIMS ARE TIME–BARRED UNDER § 52–555 C.G.S.

In order to grant the relief sought by the defendant the Court would be required to agree that the failure to expressly refer to the wrongful death statute by name and number, the plaintiff has failed to properly apprise the defendants of the nature of his action.

A review of the plaintiff's complaint discloses that it is replete with references to the fact of the decedent's death and that his death is alleged to have been caused by the acts of the defendants as a result of liquor being provided to a patron of both establishments, Franklin Mattice, on the night of the automobile collision.

If the defendants believed that the complaint lacked sufficient allegations to substantiate a wrongful death claim they could have requested that the plaintiff revise his complaint.   If they believed that the plaintiff lacked standing to bring the action due to the fact that the statute governing wrongful death actions had expired they could have brought a motion to dismiss.   If they wished to contest the legal sufficiency of the allegations in the complaint they could have made a motion to strike.   They did none of those things.

This action was brought on December 5, 2008, within one year of the decedent's death.   From the date of the commencement of this action until the date of the filing of the motions for summary judgment, the defendants were fully apprised that the allegation was that the decedent's death was due to the alleged wrongful conduct of the defendants, albeit not by express reference to § 52–555.

See State v. Amaro, 448 A.2d 1257, 1259 (R.I 1982) (wrongful death statutes are “remedial in nature, and ․ thus properly subject to a liberal application” while a “statute that is clearly penal in nature ․ must ․ be narrowly construed”).

In the matter of Catalani v. D'Occhio (CV No. 06–5003199 Waterbury Superior Court, March 4, 2010, Gallagher, J.), the Court held that, “In order for the representative [of the decedent] to maintain a legally sufficient cause of action for wrongful death he or she must allege (1) that the defendant committed a wrongful act—an act for which he or she is legally at fault;  and that (2) such act was the proximate cause of (3) the death of the decedent.”   Citing Ward v. Greene, 267 Conn. 539, 546–47, 839 A.2d 1259 (2004), and T. Merritt, 16 Connecticut Practice Series:  Elements of an Action (2009) § 22.1, p. 1178.

The Court in Catalani v. D'Occhio went on to find that while the plaintiffs had failed to comply with P.B. § 10–3(a) by not alleging that they were relying on § 52–555, it was noted that “ § 10–3(a) provides, ‘When any claim made in a complaint ․ is grounded or a statute, the statute shall be specifically identified by its number,’ This requirement is directory as long as a defendant is sufficiently apprised of the nature of the plaintiff's claim.   See Caruso v. Bridgeport, 285 Conn. 618, 628 (2008).”

The Court in this case finds that the defendants were sufficiently apprised of the nature of the plaintiff's claims.   The motion for summary judgment for the failure to allege within two years that the action was a wrongful death action pursuant to § 52–555, C.G.S. is denied.

II. THERE IS NO GENUINE ISSUE OF MATERIAL FACT IN DISPUTE CONCERNING THE LIQUOR AND DRAM SHOP LIABILITY OF THE DEFENDANTS.

The defendants maintain that in order for the plaintiff to prevail on his allegation of violation of the Dram Shop Act, § 30–102 C.G.S., he must be able to prove all three prongs of that statute:  (1) the sale of alcoholic liquor;  (2) that the sale was to an intoxicated person;  and (3) that the intoxicated person caused the injuries and damages to the decedent.

The movants seek summary judgment against the plaintiff for the reason that as of the time of the filing of the motion, the plaintiff had not proffered any evidence in support of its allegations that the tortfeasor, Franklin Mattice, was served alcoholic beverages while already intoxicated at either the Milford Brewing Company or at Daniel Street Cafe. In fact, they argue that there has been no evidence proffered that Mattice was served any alcoholic beverages whatsoever in either establishment on the evening in question.

For that reason, the movants argue that there is no genuine issue of fact in dispute concerning the liquor and Dram Shop liability of either establishment or of either of their employees.

The plaintiff, in his brief, points out that there is one potential witness who could offer competent evidence and testimony concerning events of December 2, 2007.   That witness is Franklin Mattice, himself.

There is a scheduling order in this case which set time parameters for pretrial events including the deposition of fact witnesses—which was listed as December 6, 2010.   Argument on this motion was held on November 8, 2010.

The plaintiff, in his brief and at the time of argument, noted that there have been some serious and highly unique impediments to scheduling a deposition of Mattice, including his constitutional right not to incriminate himself prior to his criminal prosecution for charges arising out of his conduct on the night in question, as reinforced by a protective order issued by a judge of the Superior Court, and by his subsequent incarceration and medical condition.

In view of those impediments this Court is of the opinion that a deposition of Mattice could provide the Court with facts necessary to permit it to make a responsible decision regarding the relief sought in the defendants' motions.

For that reason, the Court reserves decision on that portion of the movants' motions which argues that the plaintiff has not proffered sufficient evidence to rebut the claim that there is no genuine issue of fact concerning the liability of the defendants.

The Court orders that a deposition of Mattice be scheduled at a date and time mutually agreeable to the parties but in no event later than April 25, 2011, noting that the suggested trial dates in the scheduling order range from mid-June to late July 2011.

Following the deposition, the motions for summary judgment are to be reclaimed and reassigned for further argument.

Should the plaintiff determine that he does not intend to seek to depose Franklin Mattice, that fact is to be reported to the Court without delay and a determination will be made as to whether the Court will need to conduct any further proceedings before ruling on the outstanding issues.

BY THE COURT

Joseph W. Doherty, Judge

Doherty, Joseph W., J.