Robert Petrolito, Administrator v. Giovanni Cucullo et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 145)

FACTS

On February 8, 2011, the plaintiff, Robert Petrolito, administrator of the estate of Maryanne Loprete, filed a twenty-three-count amended complaint seeking recovery for the wrongful death of the plaintiff's decedent, a passenger in a motor vehicle driven by Giovanni Cucullo, who was allegedly intoxicated at the time of the accident.   The four and fifth counts, the only counts implicated here, are directed against defendants Sasa Mahr–Batuz, Barcelona Wine Bar & Restaurant (South Norwalk, CT),¹ and Two Faced Restaurant Group, LLC.² In count four, the plaintiff seeks recovery pursuant to General Statutes § 30–102, the Dram Shop Act.³ In count five, based on a common-law claim of recklessness, the plaintiff alleges the defendant engaged in reckless conduct by continuously serving alcoholic beverages to Cucullo when he was visibly and obviously intoxicated.

On August 5, 2011, the defendants filed an answer and five special defenses.   The first, second and third special defenses are raised as to the plaintiff's fourth count, brought pursuant to the Dram Shop Act. The first special defense alleges assumption of risk.   The second special defense alleges participation.   The third special defense alleges contributory recklessness.   The fourth and fifth special defenses are raised as to the plaintiff's fifth count, alleging recklessness.   The fourth special defense alleges assumption of risk, and the fifth special defense alleges contributory recklessness.

On August 11, 2011, the plaintiff filed a motion to strike the special defenses pleaded by the defendants on the ground that the special defenses raised by the defendants are legally insufficient.   The plaintiff filed a memorandum of law in support of his motion to strike.   On September 16, 2011, the defendants filed a memorandum of law in opposition to the plaintiff's motion to strike, arguing that the special defenses raised by the defendants are valid special defenses.   Oral argument was heard on September 19, 2011.

DISCUSSION

“Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.”  Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).  “[A] plaintiff can [move to strike] a special defense ․” Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978);  see also Connecticut National Bank v. Voog, 233 Conn. 352, 354–55, 659 A.2d 172 (1995).  “In ․ ruling on the ․ motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).

ASSUMPTION OF RISK AS TO COUNT FOUR

The plaintiff argues that the first special defense of assumption of risk is legally insufficient because it is not a valid defense to a claim brought pursuant to the Dram Shop Act. The defendants argue that assumption of the risk is a permitted defense under certain circumstances, and the plaintiff's decedent clearly assumed the risk of the service of alcohol by her alleged conduct.

There is no Connecticut appellate authority that has addressed assumption of risk as a special defense to an action brought pursuant to the Dram Shop Act. There is a split of authority among the judges of the Superior Court regarding whether assumption of risk may be used within the context of the Dram Shop Act. The contention centers around whether the Dram Shop Act is intended to protect the public at large or just innocent third parties.   Sego v. Debco, Inc., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 92 039650 (September 8, 1994, Skolnick, J.) (12 Conn L. Rptr. 415, 416).

Those judges who have disallowed such a defense conclude that “assumption of the risk is not a defense to an action based on a statutory violation when the statute was enacted to create an obligation to the public at large.”  (Internal quotation marks omitted.)   Rivera v. Micheli, Superior Court, judicial district of Middlesex, Docket No. CV 04 0104721 (April 15, 2005, Silbert, J.) (39 Conn. L. Rptr. 151, 152).  “Because assumption of risk acts as a complete bar to recovery by a plaintiff ․ allowing it to be asserted as a defense to a dram shop action would be inconsistent with the dual punitive and remedial purposes of the act.   An assumption of the risk defense carves out too broad an exception to the public policy underlying the dram shop act of policing the conduct of the liquor seller for the purpose of protecting the general public.”  (Citation omitted).   Blondin v. Meshack, Superior Court, judicial district of New Haven, Docket No. CV 08 5018828 (October 2, 2008, Lager, J.) (46 Conn. L. Rptr. 396, 398).

“While a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated ․ he cannot be held to have ‘assumed the risk’ that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated.  General Statutes § 30–102 does not regulate the driver of the vehicle, only the seller of the intoxicating beverage.   While a plaintiff may not be a totally ‘innocent third party’ with respect to the principal tortfeasor, he is such with respect to the party who allegedly sold the intoxicating beverage to an already intoxicated person.”  Rivera v. Micheli, supra, 39 Conn. L. Rptr. 153.

Those judges who have allowed the special defense of assumption of risk to survive a motion to strike found that “[w]hen a plaintiff's conduct in assuming a risk is unreasonable, then the (assumption of risk) doctrine overlaps contributory negligence and the principle of comparative negligence ․ should apply.”  (Internal quotation marks omitted.)   Breen v. Brother Bones Café, Inc., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 93 0523016 (October 12, 1994, Corradino, J.) (12 Conn. L. Rptr. 518, 520).  “Since the statute is primarily remedial in nature, and apparently intended to limit recovery to innocent third party victims, the defense [of assumption of the risk] bars recovery in a Dram Shop action where the plaintiff comprehended the risk of harm and voluntarily subjected [him]self to it.”  (Internal quotation marks omitted.)  Sego v. Debco, Inc., supra, 12 Conn. L. Rptr. 416.

This court has determined that the law and policy of Connecticut hold that assumption of risk is not a valid special defense when asserted by the purveyor of alcoholic liquor.

PARTICIPATION AS TO COUNT FOUR

The plaintiff argues that the defendants' second special defense, participation in the risk, is legally insufficient in the context of a claim brought pursuant to the Dram Shop Act on the ground that allowing such a defense would thwart the public policy underlying the Dram Shop Act, and is generally inconsistent with the Act's language.   The defendants argue that participation is a valid defense brought pursuant to the plaintiff's Dram Shop Act claim, and that allegations of participatory conduct and complicity are sufficient to support such a defense.

There have been no Connecticut appellate decisions addressing the validity of the defense of participation when an action is brought pursuant to the Dram Shop Act. There is a split of authority among the judges of the Superior Court as to whether participation is recognized as a special defense to an action brought within the context of the Dram Shop Act.

Those judges disallowing the special defense of participation found that “to allow a defense of participation by a vendor of liquor would defeat by judicial amendment the legislative purpose in enacting the Dram Shop Act statute.”   Pont v. Barker, Superior Court, judicial district of New London, Docket No. CV XX 4002020 (May 30, 2006, Hurley, JTR) (41 Conn. L. Rptr. 445, 446).   “[D]ecisions allowing a ‘participation’ defense rely upon the rationale that as a participant in the consumption of alcohol with the intoxicated person, the participant is not ‘innocent’ of the intoxication of the intoxicated person, and thus is not entitled to relief from the act ․ This rationale fails to recognize that the participant would not be able to ‘participate’ in the consumption of alcohol with the intoxicated person without the vendor selling him or her the alcohol being consumed.”  (Citation omitted.)  Passini v. Decker, 39 Conn.Sup. 20, 25, 467 A.2d 442 (1983).

“The judicially created doctrine of participation is inconsistent with the legislative scheme of placing the economic burden of intoxication-related injuries on dram shops ․ A judicially created defense of participation would frustrate this purpose.   The public is manifestly endangered by intoxicated persons, particularly when those persons operate motor vehicles, and that danger is in no way lessened by the participation of others in the intoxication.   The risk to the public is reduced only if people refrain from selling alcohol to intoxicated persons in the first place.”  (Citations omitted;  internal quotation marks omitted.)   Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. 5014334 (October 2, 2008, Blue, J.) (46 Conn. L. Rptr. 399, 400).

Those judges of the Superior Court who allow the special defense of participation have denied a motion to strike if certain conduct on the part of the plaintiff is alleged in the special defense.  “A ‘participation defense’ which compares like conduct (the seller's conduct and the plaintiff's conduct in purveying to the intoxicated person) differs substantially from an assumption of risk defense which tries to compare apples (the plaintiff's conduct in getting into the car with an intoxicated person) with oranges (the seller's conduct in purveying to an intoxicated person).   Furthermore, it is consistent with the remedial and punitive purposes of the dram shop act because it does not fully relieve the liquor seller of responsibility.”  Blondin v. Meshack, supra, 46 Conn. L. Rptr. 398.  “[A] person advancing such a participation defense would have a heavy burden in showing that the participation alleged rose to the level of complicity and in effect contributed substantially to causing the intoxication ․ merely accompanying and drinking with an intoxicated person does not bar recovery by a plaintiff.   Rather, the plaintiff is barred from recovery only if he or she was an active participant in causing the intoxication ․” (Citations omitted;  internal quotation marks omitted.)  Breen v. Brother Bones Café, Inc., supra, 12 Conn L. Rptr. 519.  “[P]articipation in this sense requires that the plaintiff actively procure or cause the tortfeasor's intoxication;  that is, the plaintiff cannot merely participate in the drinking activities but must be actively involved in bringing about the inebriate's intoxication.”  Blondin v. Meshack, supra, 46 Conn. L. Rptr. 398.

As a result of the public policy underlying the Dram Shop Act this court finds that participation is not allowed as a special defense to an action brought pursuant to the statute.

CONTRIBUTORY RECKLESSNESS AS TO COUNT FOUR

The plaintiff argues that the defendants' third special defense, contributory recklessness as to count four, is legally insufficient with respect to an action brought pursuant to the Dram Shop Act. The defendants argue that there is no substantive basis for disallowing the defense of contributory recklessness where the allegations are such that the plaintiff contributed to the consumption of alcohol by a person known to be intoxicated and/or facilitated the operation of a vehicle by the intoxicated person.

The same logic underlying the court's reasoning for denying the defendants' special defense of assumption of risk applies equally to the special defense of contributory recklessness.  “[W]hile the plaintiff may properly be alleged to be reckless in choosing to accompany a driver that she knew or should have known to be intoxicated, the plaintiff cannot be held to have contributed to the reckless service of alcoholic liquor to a person known to be intoxicated.”   Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002709 (March 17, 2008, Pickard, J.) (45 Conn. L. Rptr. 200, 202).

Therefore, pursuant to the public policy underlying the Dram Shop Act this court grants the plaintiff's motion to strike the defendants' special defense of contributory recklessness.

ASSUMPTION OF RISK AS TO COUNT FIVE

The defendants' fourth special defense as to the plaintiff's common-law recklessness claim is based on assumption of risk.   The plaintiff argues that this defense is legally insufficient for the same reasons as the defendants' first special defense, assumption of risk, brought pursuant to the plaintiff's Dram Shop Act claim.   The defendants argue that assumption of risk is a valid defense to a common-law reckless service of alcohol claim.

While there is a split among judges of the Superior Court as to whether assumption of risk is a viable defense in a claim based upon recklessness, the more recent decisions support allowing the special defense to stand.   The judges disallowing the special defense of assumption of risk have held that “it is doubtful whether assumption of the risk applies as a defense to a claim of wilful, wanton or reckless misconduct under Connecticut law, and the majority rule in other states is that assumption of the risk is not a valid defense to such actions.”   Cheneski v. Barber, Superior Court, judicial district of Danbury, Docket No. CV 307083 (February 7, 1992, Fuller, J.) (7 Conn. L. Rptr. 92, 93);  see also Zawadski v. Robbins, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. 384518 (July 14, 1992, Wagner, J.) (7 Conn. L. Rptr. 92).

Other judges have concluded that assumption of risk is a valid defense to recklessness, but have differed on their reasoning.   Some judges hold that “assumption of the risk is a valid defense to reckless misconduct because it is a variant of contributory recklessness, which itself is a recognized defense to a recklessness claim.”   White v. Harborside Bar & Grill, Superior Court, judicial district of Fairfield, Docket No. CV 07 5007030 (August 18, 2008, Frankel, J.) (46 Conn. L. Rptr. 237, 237).  “Wanton, willful or reckless conduct by the plaintiff's decedent which naturally increased the probability of injury and contributed thereto would be admissible under the pleadings and would constitute a defense to the claim of recklessness.”  (Internal quotation marks omitted.)  Sego v. Debco, Inc., supra, 12 Conn. L. Rptr. 416.

Other judges, relying on the Supreme Court's decision in Freedman v. Hurwitz, 116 Conn. 283, 164 A. 647 (1933), have found that there is existing Connecticut appellate authority authorizing, “in a proper case,” the use of the assumption of risk defense in a recklessness case.⁴  See Das v. Turkey Hill Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV 95 0552481 (January 11, 1996, Sheldon, J.) (16 Conn. L. Rptr. 13, 15) (“[I]n a proper case, the established common-law defense of assumption of the risk can be invoked and relied upon as a defense to reckless misconduct”).

The court finds that based on the law in Connecticut the defendants' special defense of assumption of risk is a valid defense to the plaintiff's claim for common-law reckless service of alcohol.

In the present case, the defendants allege in their fourth special defense that the plaintiff's decedent observed Cucullo's consumption of alcohol throughout the night, knew or should have known he was in an intoxicated stated, and voluntarily entered the vehicle driven by him prior to the accident.   The defendants further allege that the plaintiff's decedent obtained the keys to Cucullo's vehicle for the purpose of preventing him from driving while intoxicated, and then voluntarily returned the keys before riding with him.   This alleged conduct by the plaintiff's decedent can be construed reckless conduct that voluntarily assumed the risk of Cucullo's intoxication, and is therefore legally sufficient to assert a special defense for assumption of risk.

CONTRIBUTORY RECKLESSNESS AS TO COUNT FIVE

The defendants' fifth special defense as to the plaintiff's recklessness count is based on contributory recklessness.   The plaintiff argues, as it argued with the defendants' fourth special defense, that the reasoning set forth in the defendants' third special defense (contributory recklessness) is applicable to the defendants' special defense brought pursuant to the plaintiff's common-law recklessness claim.   The defendants argue that there is no question that the defense of contributory recklessness exists and is valid as to a claim based in common-law recklessness.

“Contributory recklessness would constitute a defense to an action based on recklessness.”   Tarver v. Devito, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 91 0120282 (June 25, 1992, Rush, J.) (7 Conn. L. Rptr. 631, 632);  see also D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.1991) § 62, p. 160.

In the present case, the defendants allege in their fifth special defense that, inter alia, the plaintiff's decedent observed Cucullo's consumption of alcohol throughout the night, knew or should have known he was in an intoxicated state, and voluntarily entered the vehicle driven by him prior to the accident.   The defendants further allege that any damages sustained by the plaintiff's decedent were caused, in whole or in part, by her own recklessness in that she voluntarily entered a vehicle operated by Cucullo when she knew or should have known he was intoxicated, she voluntarily returned Cucullo's keys to his vehicle when she knew or should have known he was intoxicated, and actively encouraged his consumption of alcoholic beverages when she knew he was intoxicated and likely to be operating a motor vehicle.   This alleged conduct by the plaintiff can be construed as wanton, willful or reckless conduct that increased the probability of the plaintiff's decedent's injuries, and is therefore legally sufficient.

CONCLUSION

For the foregoing reasons, the court grants the plaintiff's motion to strike as to the defendants' first, second and third special defenses, and denies the plaintiff's motion to strike as to the defendants' fourth and fifth special defenses.

Woods, J.

FOOTNOTES

FN1. In the amended complaint filed on February 8, 2011, the plaintiff named Barcelona Wine Bar & Restaurant (New Haven, CT) as the defendant in counts four and five.   The plaintiff subsequently filed a request for leave to file an amended complaint on April 5, 2011, naming Barcelona Wine Bar & Restaurant (South Norwalk, CT) as the defendant in counts four and five of the complaint..  FN1. In the amended complaint filed on February 8, 2011, the plaintiff named Barcelona Wine Bar & Restaurant (New Haven, CT) as the defendant in counts four and five.   The plaintiff subsequently filed a request for leave to file an amended complaint on April 5, 2011, naming Barcelona Wine Bar & Restaurant (South Norwalk, CT) as the defendant in counts four and five of the complaint.

FN2. Sasa Mahr–Batuz is the permittee and Two–Faced Restaurant Group, LLC is the backer for Barcelona Wine Bar & Restaurant..  FN2. Sasa Mahr–Batuz is the permittee and Two–Faced Restaurant Group, LLC is the backer for Barcelona Wine Bar & Restaurant.

FN3. 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, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person's or person's intention to bring an action under this section.”.  FN3. 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, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person's or person's intention to bring an action under this section.”

FN4. In Freedman v. Hurwitz, 116 Conn. 283, 284–85, 164 A. 647 (1933), the plaintiffs, passengers in the defendant's car, brought an action to recover for injuries suffered when the defendant's car collided with another car after the defendant fell asleep at the wheel.   The jury returned verdicts for the plaintiffs, finding that the defendant engaged in reckless misconduct by continuing to drive his car when he knew or should have known that he would likely fall asleep.  Id., 285–86.   The defendant filed a special plea of assumption of risk, asserting that the plaintiffs knew of the defendant's condition and “had assumed the risk of injury incident to traveling with him.”  Id., 286.   The Court found that the doctrine of assumption of risk is appropriate in certain, narrow circumstances, such as when the injured person ought to have reasonably perceived the risk and voluntarily incurred the risk, but was not applicable in the present case.  Id., 287–89..  FN4. In Freedman v. Hurwitz, 116 Conn. 283, 284–85, 164 A. 647 (1933), the plaintiffs, passengers in the defendant's car, brought an action to recover for injuries suffered when the defendant's car collided with another car after the defendant fell asleep at the wheel.   The jury returned verdicts for the plaintiffs, finding that the defendant engaged in reckless misconduct by continuing to drive his car when he knew or should have known that he would likely fall asleep.  Id., 285–86.   The defendant filed a special plea of assumption of risk, asserting that the plaintiffs knew of the defendant's condition and “had assumed the risk of injury incident to traveling with him.”  Id., 286.   The Court found that the doctrine of assumption of risk is appropriate in certain, narrow circumstances, such as when the injured person ought to have reasonably perceived the risk and voluntarily incurred the risk, but was not applicable in the present case.  Id., 287–89.

Woods, Glenn A., J.