Dax Torres v. LLC (2011)

MEMORANDUM OF DECISION RE # 115 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This is an action by the plaintiff, Dax Torres, against the defendants Milford Black Bear, LLC, Albert J. Silverman, individually as permittee, PRE Partners, LLC, and Albert J. Silverman, Donald Kelly and Todd Kosakowski d/b/a Post Road Entertainment.

At the time this motion for summary judgment was argued, the parties reported to the court that the action was being withdrawn as to PRE Partners, LLC and as to Silverman, Kelly and Kosakowski d/b/a Post Road Entertainment.   The remaining defendants are Milford Black Bear, LLC, and Albert J. Silverman, individually.

The action is brought in three counts.   The First Count alleges negligence on the part of the defendant Black Bear, LLC;  the Second Count alleges a violation of the Dram Shop Act (§ 30–102, C.G.S.) on the part of Kelly, Silverman and Kosakowski, d/b/a Post Road Entertainment Partners and Silverman, individually, as permittee;  the Third Count alleges negligence on the part of PRE Partners, LLC.

The action is one for personal injuries and other losses allegedly sustained by the plaintiff, Torres, when he was struck by a chair thrown by a patron of the Black Bear Saloon in Milford.

As a result of the above-mentioned withdrawals of action, the First Count remains unchanged, but the Second Count now applies only to Albert J. Silverman, individually, as permittee and the Third Count applies only to PRE Partners, LLC.

At the time of oral argument, counsel for the plaintiff conceded that the plaintiff did not have sufficient evidence or testimony which could overcome the claim of' the defendant PRE Partners, LLC that it is a separate management company without possession or control of the subject premises.   For that reason, the court hereby grants the defendant's motion for summary judgment as to the Third Count as to PRE Partners, LLC.

The parties appeared and were heard regarding the relief sought in the motion for summary judgment and the court reserved decision.

“Practice Book ․ [§ 17–49] provides that summary judgment shall be rendered forthwith if the pleadings, 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.”  Miles v. Foley, 253 Conn. 381, 385–86 (2000).

“In opposing a motion for summary judgment, a party is not required to present evidence necessary to prevail, at trial, only evidence sufficient to raise issues of fact.”  Vaillancourt v. Latifi, 81 Conn.App. 541, 544 (2004).

“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.”  Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).

“Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.”  Haesche v. Kissner, 229 Conn. 213, 217 (1994).

AS TO THE FIRST COUNT:

In their motion for summary judgment as to the First Count alleging negligence on the part of the defendant Milford Black Bear, LLC, the defendants argue that there is no genuine issue of material fact that the subject altercation occurred suddenly and without warning that would provide the defendant with notice.

In his brief in opposition to that argument, the plaintiff maintains that the defendant, Black Bear, LLC, knew or should have known that the patron who threw the chair at him posed a threat to the plaintiff and to the other patrons in the bar.   There was sworn deposition testimony provided by a patron who was part of the assaultive patron's entourage, that the assaultive patron and his companions were intoxicated and acting “very loud,” “very rough” and “not very cautious of their surroundings.”   She further testified that their behavior was growing worse and that they were becoming more and more visibly intoxicated.

An employee of the defendant in the coat check area was deposed and testified that she became aware of the assaultive patron's behavior and brought it to the attention of some fellow employees because he, in her opinion, was so intoxicated.   Despite their observations, none of them called for a bouncer or did anything to inform the management.   Then the chair got thrown.

The First Count sounds in negligence which is not predicated on the provisions of the Dram Shop statute.   It alleges that the defendant, through its employees, knew or should have known that the assaultive patron posed a danger to others and did nothing to address that threat.

The plaintiff cites Flanagan v. The Grill, LLC, judicial district of Hartford, Docket No. CV 01 0808992 (Feb. 15, 2006, Satter, J.), a case wherein a bar patron was struck in the head by a pool cue following his argument with his assailant.   The argument had been overheard by an employee of the bar, but she did not call for a bouncer.   The court held that the injured patron had a viable cause of action in negligence against the bar for its failure to exercise reasonable care in the supervision of its bar and restaurant.   See also, Nolan v. Morelli, 154 Conn. 432 (1967).

In the instant case it is alleged that the assaultive patron and members of his entourage were loud, disruptive and combative toward other patrons before the chair was thrown, but that no staff members alerted the security personnel to the growing concern.   The plaintiff also alleges that there apparently was no formal training or written procedures provided by the management to the defendant's employees on how to handle situations that involved aggressive, intoxicated patrons.   The plaintiff argues that those allegations were corroborated by the deposition testimony of Alex Kenyhercz, a former security guard for Milford Black Bear.

Connecticut courts have held that “A store owner owes a duty to an invitee to keep the premises in a reasonably safe condition ․ Furthermore, a possessor of property must act as a reasonable (person) to avoid harm ․ even from the intentional acts on the part of such third persons.”  Davenport v. Quinn, 53 Conn.App. 282, 288 (1992).

Based upon the foregoing facts, the court cannot find that there is no genuine issue of fact as to whether the defendant, Milford Black Bear, was negligent in one or more of the ways alleged in the First Count of the plaintiff's complaint.   For that reason, the defendants' motion for summary judgment as to the First Count is hereby denied.

AS TO THE SECOND COUNT:

As to the motion for summary judgment as to the Second Count alleging a violation of the Dram Shop Act (§ 30–102 C.G.S.) on the part of Post Road Entertainment Partners and Silverman, individually, the defendants argue that there is no genuine issue of material fact that there has been no evidence or testimony adduced to establish that the chair was thrown by a patron of the saloon who had been served alcoholic beverages in violation of § 30–102.

In his objection to the defendants' motion for summary judgment, the plaintiff maintains that there is sufficient evidence in this case to refute the defendants' argument.

The plaintiff has included in his objection the deposition testimony of Caitlyn Hayden who was in the company of a member of the assaultive patron's entourage.   She stated, inter alia, that she witnessed a bartender make drinks for the group which were handed to one of them and which were consumed by the group.   When asked about the entourage including her friend and the assaultive patron, to the question, “Were they all drinking when you arrived?” she responded “All of them.”   When asked, “Did any of them appear to be intoxicated to you at that time?” she responded, “All of them.”

The plaintiff relies on the holding in Pierce v. Albanese, 144 Conn. 258–59 (1957), wherein it was found that, “Purveying or furnishing of intoxicants for a price to a person, or to a group of two or more obviously together in one company, would be a sale to that person, or to each member of the group, within the terms of § [30–120].”

In Pierce, the court went on to add, “In the absence of any evidence to the contrary, the jury could reasonably have inferred that the sale of at least one beer was made to [the patron in question] ․ to say that the proof must show by direct evidence that [he] ordered the beer and paid for it is to insist upon a refinement which would make the statute practically inoperative under the circumstances.”  Id.

“The court's function in deciding a motion for summary judgment is to determine whether any issues exist, not to resolve them.”  Barasso v. Hill, 81 Conn.App. 798, 803 (2004).

Based on the foregoing, the court finds that the defendants have failed to demonstrate the absence of any issue of material fact as to whether the assailant patron was served intoxicating liquors while visibly intoxicated.   For that reason, the defendants' motion for summary judgment as to Count Two is hereby denied.

BY THE COURT

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.