Joel Stafford v. Albert Roadway et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 163)

FACTS

On March 4, 2011, the plaintiff, Joel Stafford, filed a twenty-four-count amended complaint against the defendants, Albert Roadway, Janet Gardner, Tony Gardner, Scott Zieber, Rick Zieber, Nancy Zieber, Shirley Dubicki, April Gregory, Heidi Killiany, Mayleen Soto, Monica Marocchini and Bora Kim, for personal injuries allegedly sustained by the plaintiff as a result of the defendants' negligence and recklessness.¹  Counts seven through twelve of the amended complaint, which are at issue in the present motion, allege the following facts.   On August 25, 2007, Stafford went to the residence owned by Janet Gardner, Tony Gardner and Roadway, located at 290 Browning Road in Norwich, Connecticut.   While at the residence, Stafford was provided and consumed alcohol to the point of visible intoxication.   Stafford and others then went to a vacant field adjacent to the residence owned by Rick Zieber and Nancy Zieber, located at 289 Browning Road in Norwich, Connecticut.   Rick Zieber and Nancy Zieber owned, controlled and maintained the vacant field, and Scott Zieber assisted in setting up a bonfire in the field prior to Stafford's arrival.   While at the field, Stafford consumed additional alcoholic beverages and became more visibly intoxicated while standing and/or sitting around the bonfire.   Stafford subsequently passed out and/or fell asleep in a chair next to the bonfire as a result of his intoxication.   When Stafford awoke, he discovered that he had been severely burned by the bonfire.

On June 30, 2011, Scott Zieber, Rick Zieber and Nancy Zieber filed a motion for summary judgment as to counts seven through twelve on the ground that there exists no genuine issue of material fact as to liability, and therefore, they are entitled to judgment as a matter of law.   The defendants filed a memorandum of law in support accompanied by the signed and sworn affidavits of Scott Zieber, Rick Zieber and Nancy Zieber, the plaintiff's responses to requests for admissions and excerpts of the certified deposition transcripts of the plaintiff, Scott Zieber, Kim, Roadway, Killiany, Brandon Glidden and Jason Dodson.   On November 29, 2011, the plaintiff filed an objection to the defendants' motion, accompanied by a memorandum of law in opposition and the plaintiff's signed and sworn affidavit and excerpts of the certified deposition transcripts of the plaintiff, Rick Zieber, Nancy Zieber, Dodson and Glidden.

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.   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.)  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 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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“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.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Averments contained in an affidavit that are merely denials of the allegations in a complaint “are an insufficient basis for the rendition of summary judgment.”  Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).   Moreover, “[s]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated.”   (Internal quotation marks omitted.)  Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006).

First, the defendants, Rick Zieber and Nancy Zieber, argue that there exists no genuine issues of material fact because the plaintiff's claims are premised on the ownership of the vacant field, and the defendants argue that they do not own the field.   The defendants also argue that the allegations of recklessness are a fortiori meritless as there is no evidence that Rick Zieber or Nancy Zieber acted recklessly.   The plaintiff counters that Rick Zieber and Nancy Zieber exercised control over the vacant field because they allowed their son, Scott Zieber, to build a fire pit and deck on the field.   The plaintiff argues the defendants were in control of the field because they granted permission to build a campsite and have a bonfire due to the mental incapacity of the owner, Dubicki, who was Nancy Zieber's mother and Scott Zieber's grandmother.   By exercising this control, the plaintiff argues that the defendants owed a duty to all invitees to the property.

“To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty ․ The existence of a duty is a question of law ․ Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).  “Although the determination of whether a duty exists is ordinarily a question of law ․ under some circumstances, the question involves elements of both facts and law.”   (Citation omitted.)  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).   Whether the defendant retained a sufficient amount of control over the property is a question of fact.  Id., 257.   Control, over the area, is defined as “the authority to manage, direct, superintend, restrict or regulate.”  Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822 (1971).

Additionally, “[i]n order to establish that the conduct of a defendant ․ was ․ reckless, the plaintiff must prove ․ the existence of a state of consciousness with reference to the consequences of one's acts ․ [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”   (Internal quotation marks omitted.)  Vitale v. Kowal, supra, 101 Conn.App. 698–99.

In the present case, the evidence submitted indicates that at the time of the incident the owner of the vacant lot where the bonfire occurred was Dubicki.   The evidence further reveals that at the time the fire pit and deck were built by Scott Zieber, Dubicki was suffering from Alzheimer's disease.   Nancy Zieber stated at her deposition that due to her mother's lack of mental capacity, she was responsible for the maintenance of the field along with her husband and her siblings.   She stated that she did not control the field.   In contrast, the plaintiff supported his allegations of the defendants' control by offering as evidence the excerpts of Nancy Zieber's deposition transcript, in which she stated that she gave Scott Zieber permission to build the fire pit rather than have him seek permission from Dubicki, and she stated that she reported the incident to her mother's insurance carrier.   Therefore, Rick Zieber and Nancy Zieber have not met their burden of proving the nonexistence of any issue of fact.   The control over the vacant field and the corresponding duties, if any, from that control are issues of fact to be decided by the fact-finder at trial.   In addition, there exists a genuine issue of material fact as to whether the conduct of Rick Zieber and Nancy Zieber rose to the level of recklessness because this requires a determination regarding the state or mind or consciousness of Rick Zieber and Nancy Zieber.

Accordingly, there are questions of material fact that cannot be resolved on a motion for summary judgment, and the defendants, Rick Zieber and Nancy Zieber, are not entitled to a judgment as a matter of law.

Second, with respect to Scott Zieber, the defendants argue that summary judgment should be granted because the claims against him, including the negligent/reckless service of alcohol to a minor and the negligent/reckless supervision of the plaintiff near a bonfire, fail as a matter of law.   Scott Zieber argues that he should not be held liable as a social host or purveyor of alcohol because he was, at most, merely a social acquaintance of the plaintiff.   Scott Zieber argues that he did not know how old the plaintiff was, that he did not serve the plaintiff any alcohol and that he was not present at the bonfire when the plaintiff's injury occurred.   Scott Zieber argues that he is entitled to judgment as a matter of law on the claims of recklessness because the element of scienter is missing.   The plaintiff counters that Scott Zieber is not entitled to summary judgment because Scott Zieber was a social host in that he planned the bonfire and obtained permission from his parents to have the bonfire on the property of his grandmother.   Additionally, the plaintiff argues that Scott Zieber was reckless when he disregarded the plaintiff's safety by leaving a highly intoxicated minor in the hazardous presence of a fire without supervision.

“The common-law rule regarding social host liability in Connecticut states that no tort cause of action [lies] against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property of either himself or another ․

“In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1998), our Supreme Court recognized this common-law principle;  however, the court then proceeded to carve out an exception for circumstances in which alcohol is furnished to a minor.”  (Citation omitted;  internal quotation marks omitted.)  Pike v. Bugbee, 115 Conn.App. 820, 828–29, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009).   Furthermore, the Supreme Court reasoned that this exception is consistent with the general rule that “absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another ․ The fact that the common law imposes no duty to act as a good Samaritan does not confer immunity on those who negligently choose to act.”  (Citation omitted;  internal quotation marks omitted.)   Bohan v. Last, 236 Conn. 670, 679, 674 A.2d 839 (1996).

“In appropriate circumstances, adults have a duty to refrain from negligently or intentionally supplying alcohol to minors, whether such adults act as social hosts in their homes or as purveyors in a bar, because minors are presumed not to have the capacity to understand fully the risks associated with intoxication.”  Bohan v. Last, supra, 236 Conn. 681.  “[A] social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured, if a court or a jury finds, as a matter of fact, a proximate cause relationship between the service of the alcohol and the damages ensuing from the minor's consumption of alcohol.”  Id., 677.  “[T]he matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect.”   Ely v. Murphy, supra, 207 Conn. 97.

In Reynolds v. McAvoy, Superior Court, judicial district of Danbury, Docket No. CV 02 0346701 (November 4, 2004, Nadeau, J.), the defendant moved for summary judgment on the plaintiff's social host liability claim on the ground that he did not serve or provide alcohol that he had purchased to anyone in his residence.   The court denied summary judgment and found that “whether [the defendant's] guests consume the alcohol stored at [the defendant's] home or only the alcohol brought by themselves or others, a genuine issue of material fact exists regarding whether [the defendant] knowingly or negligently provided a place for his guests to consume or overindulge with alcohol.”  Id. “[A]s a social host of a party that involved underage drinking, a duty of care exists, and a jury is permitted to determine whether that duty was breached ․” Id.

In the present case, the evidence submitted indicates that Scott Zieber planned and hosted a gathering of friends at a bonfire on the vacant lot owned by his grandmother, where alcoholic beverages were consumed.   The plaintiff has alleged that he was under twenty-one years of age at the time of the party.   Scott Zieber offered as evidence his conclusory denial in his affidavit that he did not know or have reason to know that the plaintiff was a minor, and the defendants support that denial with the fact that the plaintiff arrived at the party with Scott Zieber's older cousin, Roadway.   The conclusory statement and argument are not sufficient evidence to support a finding of summary judgment on this ground.   Therefore, it is for the fact-finder to determine if Scott Zieber knew or should have known that the plaintiff was a minor.

Moreover, the evidence reveals that Scott Zieber brought with him a cooler of beer.   There is a dispute in the evidence as to whether the plaintiff consumed some of this beer.   Scott Zieber stated in his affidavit that he did not provide any alcohol to the plaintiff, whereas the plaintiff's affidavit states that there was a cooler of beer at the party, and guests at the party were playing beer pong.   Dodson stated in his deposition that he saw the plaintiff playing beer pong.   Whether the plaintiff consumed only the beer he brought to the bonfire or also consumed the beer that Scott Zieber brought to the bonfire, a genuine issue of material fact exists regarding whether Scott Zieber knowingly or negligently provided a venue for his minor guests to indulge or overindulge in alcohol.

Lastly, the plaintiff has presented evidence that at least two party guests, Dodson and Glidden, recognized the level of the plaintiff's intoxication and implemented safety measures, such as having the plaintiff sit and having another party guest watch him.   The plaintiff argues that Scott Zieber disregarded the plaintiff's safety by leaving a highly intoxicated minor unsupervised near the hazards of a bonfire.   It is a question for the fact-finder, therefore, to determine whether Scott Zieber's conduct rose to the level of recklessness.

Accordingly, issues of material fact exist that cannot be resolved on a motion for summary judgment, and the defendant, Scott Zieber is not entitled to judgment as a matter of law.

CONCLUSION

Based on the foregoing reasons, the defendants' motion for summary judgment is denied.

Martin, J.

FOOTNOTES

FN1. Roadway, Janet Gardner, Tony Gardner, Dubicki, Gregory, Killiany, Soto, Marocchii and Kim are not parties to the present motion.   Hereinafter, the term “the defendants” refers to Scott Zieber, Rick Zieber and Nancy Zieber, collectively..  FN1. Roadway, Janet Gardner, Tony Gardner, Dubicki, Gregory, Killiany, Soto, Marocchii and Kim are not parties to the present motion.   Hereinafter, the term “the defendants” refers to Scott Zieber, Rick Zieber and Nancy Zieber, collectively.

Martin, Robert A., J.