John J. Komoroski v. Kenneth Deciccio (2011)

MEMORANDUM OF DECISION

On June 19, 2008, the plaintiff, John Komoroski, commenced this action against the defendants, Lin–Dan, LCC doing business as Danny O's Bar and Grill (“Danny O's”) and Daniel Orazietti.¹  On December 26, 2008, the plaintiff filed an amended complaint.   In count two of his amended complaint, the only count now before the court, the plaintiff alleges that the defendants violated General Statutes § 30–102, Connecticut's Dram Shop statute.

In count two, the plaintiff alleges the following.   On November 27, 2007, he was a passenger in a motor vehicle operated by Kenneth Deciccio.   Deciccio, under the influence of alcohol, lost control of the motor vehicle and rear-ended another motor vehicle.   The plaintiff suffered multiple injuries and damages as a result of this collision.   Prior to the collision, Deciccio was sold or served alcohol at Danny O's while he was intoxicated.   Orazietti was the permittee of Danny O's. The plaintiff's injuries were caused by Deciccio's intoxication.

On January 15, 2010, the defendants filed a motion for summary judgment with respect to count two of the plaintiff's amended complaint on the ground that Deciccio was not intoxicated when he was served alcohol at Danny O's.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleading, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendants argue that no genuine issue of material fact exists because they did not sell or serve alcohol to Deciccio while he was intoxicated.   The defendants argue that the plaintiff relies solely on his self-serving testimony as proof that Deciccio was “buzzed” when he was sold or served alcohol by the defendants.   In support of their motion for summary judgment, the defendants submit:  (1) the plaintiff's notice of intent to bring a claim under § 30–102;  (2) the plaintiff's disclosure of experts;  (3) a portion of a letter from one of the plaintiff's experts, Doctor James E. O'Brien, to the plaintiff's counsel;  and (4) portions of the transcript of the January 20, 2010 deposition of the plaintiff.

The plaintiff argues that there is sufficient evidence in the record exists to establish a genuine issue of material fact over whether the defendants sold or served alcohol to Deciccio while he was intoxicated.   Specifically, he cites his testimony that Deciccio was “buzzed” at Danny O's. He further argues that Deciccio's desire to continue drinking at the Copper Tavern is demonstrative of his intoxication.   In support of these arguments, the plaintiff attaches portions of the transcript of the January 20, 2010 deposition of the plaintiff.

In the second count of his amended complaint, the plaintiff claims that the defendants violated General Statutes § 30–102.²  “The delict defined by § 30–102 is not the sale of liquor to create a condition of intoxication.   It is rather the sale of liquor to one who is already intoxicated.   No causal relation between the sale and the injury is required ․ To recover under the statute, a plaintiff must bring himself squarely within its provisions ․ In each case, therefore, the trier must decide as a question of fact:  whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.”  (Citations omitted.)  Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348–49, 493 A.2d 184 (1985).

The defendants argue that no genuine issue of material fact exists that Deciccio was not intoxicated when they sold or served him alcohol.   Thus, they argue that the plaintiff cannot establish the second element of a claim under § 30–102, as set forth in Sanders.

“To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor.   Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies.   When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated.   He need not be ‘dead-drunk.’   It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so.”  Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349–50.   Thus, the key factor for determining whether a person is intoxicated, for purposes of § 30–102, is whether he is “visibly intoxicated.”  (Emphasis omitted.)  Hayes v. Caspers, Ltd., 90 Conn.App. 781, 802, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005) (directed verdict in favor of tavern affirmed, despite patron's testimony that he was intoxicated, where plaintiff presented no evidence patron was visibly intoxicated).

While the defendants submit several exhibits, the only pertinent evidence as to whether Deciccio was visibly intoxicated when he was sold or served alcohol at Danny O's is the transcript of the plaintiff's deposition.   In the transcript, the plaintiff recounts that he and Deciccio were served alcohol at Danny O's between 7:30 p.m. and 12:00 a.m. Between them, they consumed approximately four pitchers of beer, and Deciccio may have also had a mixed liquor drink.   At Danny O's, the plaintiff and Deciccio were having a conversation about expanding their business and were not shouting at each other.   The plaintiff never saw Deciccio stumble or sway while he was walking around at Danny O's. When asked what was Deciccio's state of intoxication at the time the two left Danny O's, the plaintiff responded, “I don't know.   I asked him is he all right to be driving.   He said he was fine.”  (Deposition of Komoroski, p. 79.)   Deciccio then drove he and the plaintiff to the Copper Tavern, where they continued to consume alcohol until approximately 1:00 a.m. The plaintiff did not observe any problems in Deciccio's operation of the motor vehicle between Danny O's and the Copper Tavern.

The plaintiff further explained why he did not consider Deciccio to be drunk to the extent that he could not drive from Danny O's to the Copper Tavern.   He stated, [n]o, leaving Danny O's, I mean, [Deciccio] didn't drink more than—I mean—we were drinking, but we weren't to the point where—you know, I didn't think that he couldn't drive.”  (Deposition of Komoroski, p. 188.)   The plaintiff also distinguished Deciccio's condition when leaving Danny O's and the Copper Tavern.   He explained that he considered Deciccio to be too drunk to drive when leaving the Copper Tavern, citing indicia such as an argument Deciccio had on the phone with his girlfriend, Deciccio knocking a bar stool over and spilling his drink (Deposition of Komoroski, p. 191–93.)   The plaintiff did not describe Deciccio as exhibiting any of these characteristics while at Danny O's.

In his opposition to the defendant's motion for summary judgment, the plaintiff cites his own testimony.   When specifically asked whether Deciccio was inebriated at Danny O's, the plaintiff responded, “I believe he was buzzed, and that's it.”  (Deposition of Komoroski, p. 82.)   He distinguished his condition from Deciccio's, by explaining that he was drunk while Deciccio was “buzzed.”   In addition, the plaintiff testified that it was Deciccio who wanted to go to the Copper Tavern, while the plaintiff wanted to return home.

The plaintiff's own testimony demonstrates that Deciccio was not visibly intoxicated while he was sold or served alcohol at Danny O's. First, Deciccio did not exhibit any outward signs of intoxication while at Danny O's, in contrast to his behavior at the Copper Tavern.   The indicia of intoxication exhibited by Deciccio at the Copper Tavern—a loud telephone argument, knocking over a bar stool and spilling a drink—are all indicative of visible intoxication.   Deciccio displayed no such indicia while at Danny O's. Second, the plaintiff believed that Deciccio was not in a condition to drive after they left the Copper Tavern, but accepted Deciccio's judgment that he was “fine” to drive when they left Danny O's. Third, the plaintiff testified that he did not observe any problems with Deciccio's operation of his motor vehicle between Danny O's and the Copper Tavern.   Thus, there is evidence that Deciccio was not “so affected in his acts or conduct that the public or parties coming in contact with him [could] readily see and know” that he was intoxicated.   Sanders v. Officers Club of Connecticut, Inc. supra, 196 Conn. 350.

The only evidence submitted by the plaintiff to rebut this evidence is his own deposition testimony that Deciccio was “buzzed,” and that Deciccio wanted to go to the Copper Tavern to continue drinking when the plaintiff wanted to go home.   That Deciccio wanted to continue drinking at a second location is irrelevant as to whether he was visibly intoxicated when he was sold or served alcohol at Danny O's. The plaintiff's testimony that Deciccio was “buzzed” when leaving Danny O's is, on this record, equally unavailing.   At oral argument, the plaintiff's counsel defined “buzzed” to mean “feeling pretty good.”   Webster's Third New International Dictionary defines the noun “buzz” in definition number nine as “a reaction from alcohol or narcotics ․” However, the plaintiff did not consider Deciccio to be drunk;  he recalled that he was drunk, while Deciccio was “buzzed, and that's it.”  (Deposition of Komoroski, p. 82.)   Again, “[t]o be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor.”  Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349.   The plaintiff”s testimony, taken as a whole, demonstrates that Deciccio was not “visibly intoxicated” when he was served or sold alcohol at Danny O's.

Viewed in the light most favorable to the plaintiff, the only evidence is that Deciccio was not visibly intoxicated when he was sold or served alcohol at Danny O's. Without evidence of visible intoxication, the plaintiff cannot establish a claim against the defendants under § 30–102;  Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 348–50;  and the defendants are entitled to judgment as a matter of law.

The defendants' motion for summary judgment as to count two of the plaintiff's amended complaint is granted.

BY THE COURT,

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

FN1. The plaintiff also sued Kenneth Deciccio, Inisfree Corporation doing business as Copper Tavern, Katherine McDevitt, Jerzy Lubarski and Ryder Truck Rental, Inc. Deciccio has been removed as a defendant in this case.   The other parties are not involved on this present motion for summary judgment.   For this reason, “the defendants” refers only to Danny O's and Orazietti..  FN1. The plaintiff also sued Kenneth Deciccio, Inisfree Corporation doing business as Copper Tavern, Katherine McDevitt, Jerzy Lubarski and Ryder Truck Rental, Inc. Deciccio has been removed as a defendant in this case.   The other parties are not involved on this present motion for summary judgment.   For this reason, “the defendants” refers only to Danny O's and Orazietti.

FN2. General Statutes § 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 seller shall pay just damages to the person injured ․”.  FN2. General Statutes § 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 seller shall pay just damages to the person injured ․”

Levin, Bruce L., J.