Edward Poulin v. Jessica Laboy (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

On December 1, 2010, the plaintiff, Edward Poulin, filed a six-count complaint against the defendants, Jessica Laboy, Frank Maratta and Port Associates LLC. At all times relevant to the complaint, Maratta was permittee of Port Associates LLC, d/b/a Harbor Park, an establishment authorized to dispense alcoholic liquor, located in Middletown, Connecticut.   Pending before the court is a motion to strike count six of the plaintiff's complaint which alleges “negligent conduct of premises” by defendants Maratta and Port Associates LLC.¹

The complaint sets forth the following allegations.   On July 12, 2009, Laboy was a patron at Harbor Park, the permit premises.   The defendants, acting through their agents, servants or employees, sold alcohol to Laboy while she was intoxicated.   Shortly after midnight on July 13, 2009, as a consequence of her intoxication, Laboy caused her motor vehicle to strike the rear of the plaintiff's motor vehicle.   As a result of the collision, the plaintiff sustained numerous injuries and financial losses.   The collision, injuries and losses sustained by the plaintiff were caused by the defendants' negligent conduct of the permit premises in that, acting through their agents, servants or employees, they:  (1) failed to adopt or enforce policies and procedures for training staff on the responsible service of alcohol to patrons;  (2) failed to adopt or enforce policies and procedures for preventing intoxicated patrons from operating their motor vehicles after becoming intoxicated on the permit premises;  (3) failed to provide adequate management, supervision or staffing to recognize when patrons were too intoxicated to drive;  (4) failed to train bartenders and managers on overservice of alcohol to patrons;  (5) allowed a severely intoxicated Laboy to exit the permit premises without taking measures to ensure that she would not operate or attempt to operate her motor vehicle on the highway;  (6) failed to assist Laboy in obtaining alternate means of transportation from the permit premises;  (7) failed to have policies in place to assist intoxicated patrons with alternative transportation when they knew or had reason to know that such patrons would be unable to operate a vehicle safely on the highway;  and (8) did not attempt to determine how intoxicated Laboy was before allowing her to exit the permit premises to drive home.

“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 (2003).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “[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 defendants argue that the court should strike count six of the plaintiff's complaint because it alleges a cause of action for negligent sale of alcohol to an adult, which is barred by Connecticut's Dram Shop Act, General Statutes § 30–102.   In opposition, the plaintiff argues that count six alleges a cause of action for “negligence in the conduct of the permit premises,” not for the sale of alcohol, and so is not preempted by the Act.

Connecticut's Dram Shop Act 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, up to the amount of two hundred fifty thousand dollars ․ 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.”  General Statutes § 30–102.

In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the Supreme Court addressed the issue of whether the Dram Shop Act was the exclusive remedy for an individual who was injured as a result of negligent service of alcohol to an intoxicated adult, and held that the Act was not intended to be the exclusive remedy for the negligent sale of alcoholic beverages.   Shortly thereafter, however, the Connecticut legislature passed Public Act No. 03–91, which barred any common-law cause of action in negligence against a seller of alcohol to an intoxicated person twenty-one years of age or older.²  Public Act No. 03–91 therefore eliminated any common-law negligence causes of action by individuals entitled to recover under the Dram Shop Act, making action pursuant to the Act the exclusive remedy for a seller's negligence.   See, e.g., Lupak v. Tory, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 06 5002366 (May 19, 2008, Tobin, J.).

The plaintiff argues that the legislative abrogation of negligence causes of action effected by Public Act No. 03–91 applies only in cases of alcohol “sale.”   This argument is incorrect and misconstrues the language and legislative intent of the amended statute.   The legislative prohibition of negligence actions, enacted in response to the Supreme Court's decision in Craig, applies to actions brought against the seller.   See Raymond v. Duffy, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 03 0102444 (January 13, 2005, Quinn, J.) (38 Conn. L. Rptr. 562, 565) (“Unquestionably the Dram Shop Act, as amended by Public Act No. 03–91, legislatively overrules Craig as it applies to sellers of alcoholic beverages”).   The amended statute does not specify the particular conduct of the seller that must be charged as negligent.   Rather, it states that “[s]uch injured person shall have no cause of action against such seller ” for that seller's negligence in the sale of alcoholic liquor.  (Emphasis added.)   General Statutes § 30–102.

In the present case, the plaintiff's action is against the defendants, “sellers” of alcohol, and thus is subject to the provisions of the Dram Shop Act contained in General Statutes § 30–102.   The statute clearly states that an individual injured by an intoxicated person has no cause of action against the seller for its negligence in the sale of alcoholic liquor to an adult.   General Statutes § 30–102.   The plaintiff, having been injured by an intoxicated Laboy, is statutorily barred from bringing any cause of action against the defendants for negligence in the sale of alcohol.

The plaintiff alleges that the defendants, through their employees or agents, served alcoholic beverages to Laboy while she was visibly and obviously intoxicated.   Count six of the plaintiff's complaint alleges that the defendants, through their employees or agents, were negligent in that “they failed to adopt or enforce policies ․ for training of staff on responsible service of alcohol to patrons;” “they failed to provide adequate management ․ to recognize when patrons were too drunk to drive on their own;” and that “they failed to train bartenders and managers on overservice of alcohol to patrons.”   Complaint, ¶¶ 6(a), (c) and (d).  These allegations all concern the sale of alcohol to patrons.   Despite its creative moniker (“negligent conduct of premises”), count six clearly alleges negligence in the sale of alcohol to Laboy.   Accordingly, it is barred by the Dram Shop Act.³

CONCLUSION

For the foregoing reasons, because count six fails to state a cause of action upon which relief can be granted, the motion to strike count six of the plaintiff's complaint is hereby granted.

Peck, J.

FOOTNOTES

FN1. In addition to count six, the count at issue in the present motion to strike, the plaintiff asserts the following additional claims:  negligence as to Laboy (count one);  common law recklessness as to Laboy (count two);  violation of General Statutes § 14–295 as to Laboy (count three);  violation of General Statutes § 30–102 as to Maratta and Port Associates LLC (count four);  and wanton, willful and reckless service as to Maratta and Port Associates (count five).In this memorandum, Maratta and Port Associates LLC are referred to collectively as “the defendants.”.  FN1. In addition to count six, the count at issue in the present motion to strike, the plaintiff asserts the following additional claims:  negligence as to Laboy (count one);  common law recklessness as to Laboy (count two);  violation of General Statutes § 14–295 as to Laboy (count three);  violation of General Statutes § 30–102 as to Maratta and Port Associates LLC (count four);  and wanton, willful and reckless service as to Maratta and Port Associates (count five).In this memorandum, Maratta and Port Associates LLC are referred to collectively as “the defendants.”

FN2. Public Act No. 03–91, § 1, effective June 3, 2003, amended the Dram Shop Act by adding the following sentence:  “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.”   See General Statutes § 30–102..  FN2. Public Act No. 03–91, § 1, effective June 3, 2003, amended the Dram Shop Act by adding the following sentence:  “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.”   See General Statutes § 30–102.

FN3. It is noted that the legislative amendment to General Statutes § 30–102 barring actions for negligent conduct does not affect the plaintiff's claim of reckless conduct (count five).   See Audet v. Windham Hotel Co., Superior Court, judicial district of Windham, Docket No. CV 06 5000108 (November 15, 2006, Riley, J.) (42 Conn. L. Rptr. 377, 378)..  FN3. It is noted that the legislative amendment to General Statutes § 30–102 barring actions for negligent conduct does not affect the plaintiff's claim of reckless conduct (count five).   See Audet v. Windham Hotel Co., Superior Court, judicial district of Windham, Docket No. CV 06 5000108 (November 15, 2006, Riley, J.) (42 Conn. L. Rptr. 377, 378).

Peck, A. Susan, J.