Joseph Fuscaldo v. Bradford Agonito et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 119 & 122)

Facts

The plaintiff, Joseph Fuscaldo, commenced this action against Bradford Agonito and two establishments that serve alcoholic beverages, the Sundown Saloon ¹ and the Ginger Man.² In his revised complaint dated June 5, 2009, he alleges the following.   On March 15, 2008, the plaintiff was a passenger in a motor vehicle operated by Agonito when the vehicle entered the shoulder of the roadway, struck a stone retaining wall and collided with a tree.   According to the revised complaint, Agonito was under the influence of alcohol at the time of the accident.   The plaintiff seeks to recover for his injuries and damages pursuant to the Dram Shop Act, General Statutes § 30–102, from the Sundown Saloon and the Ginger Man in counts three and four respectively.³  Before the court are motions for summary judgment filed by both the Sundown Saloon and the Ginger Man. The Sundown Saloon filed its motion for summary judgment on January 6, 2010 as to count three, on the ground that Agonito “was not served intoxicating liquors while visibly intoxicated” at that establishment.   It submitted transcripts of the deposition testimony of Agonito and of the plaintiff.   It filed two supplemental memoranda in support of its motion on June 12, 2011, and October 6, 2011, and as additional evidence in support of its second supplemental memorandum, it submitted the deposition testimony of a bartender at that establishment.   The Ginger Man filed its motion for summary judgment on March 1, 2010, as to count four, on the ground that “the plaintiff cannot prove the requisite elements of a Dram Shop cause of action.”   It filed a memorandum in support of its motion and submitted an excerpt of the plaintiff's deposition testimony.

On October 7, 2011, the plaintiff filed a consolidated memorandum in opposition to the motions filed by both defendants.   The plaintiff submitted a report prepared by his expert witness, Richard Parent, a toxicologist, dated September 29, 2011, a copy of Agonito's deposition testimony, including exhibits and a copy of the deposition testimony of a police officer, including exhibits.   On October 14, 2011, the plaintiff also filed a memorandum in response to the Sundown Saloon's second supplemental memorandum.

The parties appeared before the court at the short calendar on October 17, 2011.

Discussion

“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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law ․ Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party ․

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist ․ Because [l]itigants have a constitutional right to have factual issues resolved by the jury ․ motion[s] for summary judgment [are] designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365–66, 2 A.3d 902 (2010).

“The delict defined by [the Dram Shop Act] 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).

Proof of sale to an intoxicated person requires proof of “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.”   Id., 349–50.

In support of their respective motions for summary judgment, both the Sundown Saloon and the Ginger Man argue that Connecticut precedent requires that the alleged intoxicated person display visible signs such that a person coming into contact with him would readily perceive his intoxication.   Both argue that the plaintiff has failed to produce evidence that it served a visibly intoxicated person, entitling it to summary judgment.   The Sundown Saloon relies on Agonito's deposition testimony that he only had one beer at that establishment and that he did not display any signs of visible intoxication, and maintains that the plaintiff's deposition testimony confirms these facts.   The Ginger Man relies principally on the plaintiff's own deposition testimony that Agonito did not appear to be under the influence of alcohol while at that establishment.

In response, the plaintiff argues that whether Agonito showed visible signs of intoxication at the time the defendants served him alcohol was a question of fact for the jury.   The plaintiff maintains that his own observations of whether Agonito displayed signs of intoxication are unreliable because he, too, was intoxicated.   To support this assertion, he points to Agonito's repeated testimony in his deposition that he was tired on that night, and the plaintiff's deposition testimony that he never noticed that Agonito was tired.   He also submitted evidence of Agonito's elevated blood alcohol level shortly after the accident and the deposition testimony of a police officer who observed Agonito at the scene and concluded that he was intoxicated.

A brief summary of the deposition testimony is warranted.   Agonito testified in his deposition that he consumed “four to five” vodka and cranberry drinks and “a beer” at a bar in New York City between approximately 6 p.m. and 8 p.m., and then he took a train home.   He stated that he drove to the Sundown Saloon at approximately 10 p.m. and to the Ginger Man, which is a few blocks away, at approximately 11 p.m. Although there is conflicting evidence,⁴ it is undisputed that Agonito had at least one drink at the Sundown Saloon.   He stated in his deposition that he had two beers at the Ginger Man and that he departed at approximately 12 a.m., and there is no evidence that he consumed more alcohol after he left the Ginger Man. There is evidence that the accident occurred at approximately 12:30 a.m. The police officer who responded to the accident testified in his deposition that Agonito's speech was slurred.   He concluded, based on his observations at the scene, that Agonito was intoxicated.   Agonito's blood was drawn at the hospital at approximately 1:05 a.m. His blood alcohol content was measured by the hospital to be 0.20 and by the state department of public safety and scientific service to be 0.24.   The court notes that although chemical tests are not conclusive on the issue of intoxication at a prior time, the result of a blood test is relevant to a determination of intoxication for purposes of the Dram Shop Act. Coble v. Maloney, 34 Conn.App. 655, 664, 643 A.2d 277 (1994).

The plaintiff submitted a report prepared by Parent, a toxicologist, who opines on the subject of Agonito's blood alcohol content at various points in the evening and opines that Agonito would have shown visible signs of intoxication when he was served in both establishments.   In the Sundown Saloon's second supplemental memorandum, it objected to the court considering Parent's report.   It concedes that Parent is a qualified expert, but maintains that his report is based on the “fabrication of untrue scenarios” that are inconsistent with other evidence and that his conclusions are “suspect.”   The Sundown Saloon primarily takes issue with a statement in the report that Agonito consumed two drinks at that establishment as contradicted by the evidence.   It also challenges Parent's assumption that Agonito consumed a greater quantity of alcohol prior to his arrival at the Sundown Saloon than he attested to in his deposition.   Finally, it challenges Parent's methodology in arriving at his conclusions.   The plaintiff argues in response that whether Parent's assumptions are reasonable and consistent with the deposition testimony and other evidence is the type of factual determination a jury should make, rendering summary disposition inappropriate.

“A trier of fact can reject an expert's opinion if it rests on facts that the trier finds are not established ․ [In order to raise a triable issue of fact, a party opposing summary judgment when the movant has offered an expert affidavit containing uncontested facts] would be obligated [to] ․ at least point to inconsistencies in the opinion or invalidity of assumptions made or conclusions reached [by the expert].”   Kahn v. Quinnipiac University, Superior Court, judicial district of New Haven, Docket No. CV 08 5022873 (September 10, 2010, Corradino, J.T.R.) (50 Conn. L. Rptr. 591, 592).   The Connecticut Code of Evidence § 7–4(a) provides, “[a]n expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion.”   The commentary thereto states, “[w]hether sufficient facts are shown as the foundation for the expert's opinion is a preliminary question to be decided by the trial court.”   Conn.Code Evid. § 7, commentary (a).

Whether Parent's assumptions and conclusions are supported by the evidence is precisely the type of factual determination that we entrust to a jury.  “As to expert witnesses, we typically instruct juries to consider a myriad of factors in deciding whether or not to accept an expert's opinion ․ We tell them that they should assess the methods employed and the reliability of the result achieved and ask themselves whether an expert's opinion has, ‘a rational and reasonable basis in the evidence.’   We then tell the jurors that they may believe all, some or none of the testimony of an expert.   Each and every one of the above factors that we regularly submit to jurors for resolution, present questions of fact, not issues of law.”  (Citation omitted.)   Etting v. Estate of MacDermid, Superior Court, judicial district of New Britain, Docket No. CV 07 5003868 (January 8, 2009, Trombley, J.).

Insofar as the Sundown Saloon challenges Parent's statement concerning the number of drinks Agonito consumed at the Sundown Saloon, as noted in the commentary to § 7–4(a), “[n]othing in [this section] precludes further exploration into the factual basis for the expert's opinion during cross-examination of the expert.”   Conn.Code Evid. § 7, commentary (a).   Moreover, the court cannot conclude that a disagreement over whether Agonito consumed either one or two drinks at the Sundown Saloon is a challenge to the factual basis of an opinion that raises “uncertainties in the essential facts on which the opinion is predicated ․ such as to make an opinion based on them without substantial value.”  (Internal quotation marks omitted.)  State v. Douglas, 203 Conn. 445, 452–53, 525 A.2d 101 (1987).

Both the Sundown Saloon and the Ginger Man rely principally on statements made by Agonito and/or the plaintiff in their respective depositions that Agonito was not slurring his words, displaying loud or boisterous behavior or having trouble with his balance at its establishment.   The plaintiff has submitted evidence that Agonito was observed slurring his words and that he showed visible signs of intoxication at the accident scene.   He also presented expert evidence that, if credited by a fact finder, tends to show that someone with Agonito's blood alcohol level at approximately 1 a.m. would display visible signs of intoxication at the times he was served at either establishment.   Accordingly, triable questions of fact exist.

Even if the Sundown Saloon is correct, and the court should completely disregard Parent's report, the court cannot conclude that either defendant is entitled to summary judgment.   Construing the evidence of the police officer's observations, the short time period between service and the accident, and Agonito's blood alcohol level shortly after the accident in a manner most favorable to the plaintiff, it cannot be said that the only reasonable inference that could be drawn is that Agonito was not visibly intoxicated when he was served at either establishment.⁵

Conclusion

The motions for summary judgment filed by the defendants, the Sundown Saloon and the Ginger Man, are denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. The court will refer to the defendants 403 Greenwich Avenue, LLC, and Philip DeStefano collectively as “the Sundown Saloon.”.  FN1. The court will refer to the defendants 403 Greenwich Avenue, LLC, and Philip DeStefano collectively as “the Sundown Saloon.”

FN2. The court will refer to the defendant Christian Burns d/b/a the Ginger Man as “the Ginger Man.”.  FN2. The court will refer to the defendant Christian Burns d/b/a the Ginger Man as “the Ginger Man.”

FN3. Counts one and two against Agonito were withdrawn on July 22, 2011, and the plaintiff filed a revised complaint on August 10, 2011, reflecting that fact, resulting in the counts against the remaining defendants to be renumbered as counts one and two respectively..  FN3. Counts one and two against Agonito were withdrawn on July 22, 2011, and the plaintiff filed a revised complaint on August 10, 2011, reflecting that fact, resulting in the counts against the remaining defendants to be renumbered as counts one and two respectively.

FN4. Agonito stated in his deposition that he purchased two beers with cash at the Sundown Saloon, one for him and one for the plaintiff.   A receipt from the Sundown Saloon indicates that the plaintiff purchased one beer and one gin and tonic with his credit card.   The parties disagree as to whether this evidence establishes that Agonito had both a beer purchased with cash and one of the drinks listed on the credit card receipt, or whether he had only one of the drinks stated on the receipt.   The bartender at the Sundown Saloon stated in his deposition testimony that he recalled the latter scenario..  FN4. Agonito stated in his deposition that he purchased two beers with cash at the Sundown Saloon, one for him and one for the plaintiff.   A receipt from the Sundown Saloon indicates that the plaintiff purchased one beer and one gin and tonic with his credit card.   The parties disagree as to whether this evidence establishes that Agonito had both a beer purchased with cash and one of the drinks listed on the credit card receipt, or whether he had only one of the drinks stated on the receipt.   The bartender at the Sundown Saloon stated in his deposition testimony that he recalled the latter scenario.

FN5. Compare with Zaneski v. Thirsty Turtle, 128 Conn.App. 829, 832, 835 n.3, 18 A.3d 688 (2011), in which the court upheld a directed verdict in favor of the dram shop defendant when, inter alia, the accident occurred more than two hours after the allegedly intoxicated driver left the establishment, the trooper who responded to the accident did not observe anything unusual about the driver's behavior at the scene, blood alcohol tests administered more than four hours after she left the establishment indicated that she had a blood alcohol content of 0.14, and there was no expert evidence presented to extrapolate the blood alcohol results back to the time that she was served..  FN5. Compare with Zaneski v. Thirsty Turtle, 128 Conn.App. 829, 832, 835 n.3, 18 A.3d 688 (2011), in which the court upheld a directed verdict in favor of the dram shop defendant when, inter alia, the accident occurred more than two hours after the allegedly intoxicated driver left the establishment, the trooper who responded to the accident did not observe anything unusual about the driver's behavior at the scene, blood alcohol tests administered more than four hours after she left the establishment indicated that she had a blood alcohol content of 0.14, and there was no expert evidence presented to extrapolate the blood alcohol results back to the time that she was served.

Bellis, Barbara N., J.