John Paul Roesler et al. v. Sully's Restaurant, Inc. et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 115)

FACTS

On November 21, 2011, the plaintiffs, John Paul Roesler and Laurence Petersen, filed a fourteen-count second amended complaint against the defendants, Sully's Restaurant, Inc., Janice Connolly, Richoni's Italian Restaurant and Lounge, LLC, Dana Foltz, The Grotto Café, Inc., Chris Zingus, Five Six Eight Poquonnock Avenue Corporation, Shane Avery and On Ice, LLC. In counts three through six of the second amended complaint, which are directed at the defendants Richoni's Italian Restaurant and Lounge, LLC, and Dana Foltz (the defendants),¹ the plaintiffs allege the following relevant facts.   On September 17, 2010, a motor vehicle operated by Edwin Vasquez collided with the plaintiffs' motor vehicle on Poquonnock Road in Groton, Connecticut.   The plaintiffs suffered various injuries as a result of the collision and as a result of the intoxication of Vasquez.   Prior to the accident, Vasquez was a patron of Richoni's Italian Restaurant and Lounge, an establishment or public bar located in Groton.   While at the bar, Vasquez was sold alcoholic liquors by the defendants, their agents, servants and/or employees while he was intoxicated.   At all relevant times, Richoni's Italian Restaurant and Lounge was owned, backed and operated by Richoni's Italian Restaurant and Lounge, LLC, and Foltz was its permittee.   In counts three and five, the plaintiffs, Roesler and Petersen, respectively, allege that the defendants are liable pursuant to General Statutes § 30–102.²  In counts four and six, the plaintiffs allege that the defendants are liable for the reckless provision of alcohol to Vasquez, which caused the plaintiffs' injuries.   Specifically, in counts four and six, the plaintiffs allege that the defendants sold Vasquez alcoholic liquors while he “was so intoxicated as to constitute recklessness” and continued to sell intoxicating liquors to Vasquez “despite his being visibly intoxicated and disoriented in a wanton and reckless manner, with a complete disregard for the likely consequences of ․ their reckless conduct.”

On November 21, 2011, the defendants filed a motion to strike counts four and six on the ground that the allegations are legally insufficient because the plaintiffs failed to allege facts sufficient to support a claim for recklessness.   Additionally, the defendants moved to strike the claims seeking punitive damages in paragraphs two and three of the plaintiffs' claims for relief because such relief is dependent on the reckless intoxication claims alleged in counts four and six.³  The defendants also filed a memorandum of law in support.   On November 30, 2011, the plaintiffs filed a memorandum of law in opposition, and the defendants filed a reply on December 21, 2011.   The matter was heard at short calendar on February 14, 2012.

DISCUSSION

“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 1188 (2003).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

The defendants argue that the plaintiffs have failed to allege facts sufficient to support a claim for recklessness.   Specifically, they argue that the plaintiffs' allegations “do not rise to the required level of ‘highly unreasonable conduct’ or an extreme departure from ordinary care in a situation where a high degree of danger is apparent.”   The defendants argue that the plaintiffs rely on the conclusion that Vasquez was intoxicated when he was allegedly sold alcohol by the defendants, rather than alleging facts to demonstrate how Vasquez was visibly intoxicated.   Further, the defendants argue that a claim for punitive damages cannot be sustained by the allegations of the complaint if the counts alleging recklessness are stricken.   The plaintiffs counter that in order to withstand a motion to strike, the recklessness claims need only contain language that informs the defendants and the court that reckless misconduct is being asserted.   They argue that their allegations are sufficient because the conduct alleged “constitutes an extreme departure from ordinary care in a situation entailing a very high degree of apparent danger.”   The plaintiffs also argue that if the recklessness counts are found to be legally sufficient, the arguments moving to strike the claim for punitive damages would be moot.

In Johnson v. C & G of Groton, Inc., Superior Court, judicial district of New London, Docket No. CV 07 5007253 (May 20, 2009, Martin, J.), this court explained the relevant law as follows:  “In order to prove that a sale of intoxicating liquor was made in a wilful, wanton and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended 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 ․ A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made ․ [T]he plaintiff must allege facts which would indicate that the defendants, or their agents, continued to serve a patron despite observable manifestations of intoxication ․ [The] mere use of the words obviously intoxicated [in a complaint alleging wanton, wilful or reckless conduct] is enough.”  (Citations omitted;  internal quotation marks omitted.)  Id.

In the present case, the plaintiffs allege that the defendants, through their agents, sold alcoholic liquors to Vasquez while he “was so intoxicated as to constitute recklessness.”  (Emphasis added.)   The plaintiffs further allege that the defendants “continued to supply and/or sell intoxicating liquors to ․ Vasquez despite his being visibly intoxicated and disoriented in a wanton and reckless manner, with a complete disregard for the likely consequences of ․ their reckless conduct.”  (Emphasis added.)   Despite the defendants' arguments to the contrary, the allegations that the defendants continued to serve a visibly intoxicated and disoriented Vasquez meet the minimum pleading requirements set forth in Johnson.   Accordingly, the court finds that the plaintiffs have alleged sufficient facts to support a claim for recklessness in counts four and six.   Accordingly, the motion to strike is denied as to those counts.   Further, as the defendants' grounds for striking paragraphs two and three of the plaintiffs' claims for relief were based on the legal insufficiency of counts four and six, the motion is denied as to those paragraphs as well.

CONCLUSION

Based on the foregoing, the defendants' motion to strike is denied.

Martin, J.

FOOTNOTES

FN1. As the other defendants are not parties to this motion to strike, in this memorandum “the defendants” will refer only to Richoni's Italian Restaurant and Lounge, LLC and Dana Foltz..  FN1. As the other defendants are not parties to this motion to strike, in this memorandum “the defendants” will refer only to Richoni's Italian Restaurant and Lounge, LLC and Dana Foltz.

FN2. Section 30–102 provides in relevant part:  “If any person, by such person or such person's agent, sells any intoxicating 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 ․.  FN2. Section 30–102 provides in relevant part:  “If any person, by such person or such person's agent, sells any intoxicating 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 ․

FN3. In addition, the defendants moved to strike the claims for punitive damages to the extent that those claims are based on General Statutes § 14–295 on the ground that the plaintiffs did not plead sufficient facts pursuant to § 14–295 to support an award for punitive damages.   Section 14–295 allows for a trier of fact in a civil action to award double or treble damages, if an injured party has specifically pleaded one of the enumerated traffic violations.   As the court, Parker, J.T.R., noted in the December 2, 2011 court order, “the plaintiffs have removed the offending language by an amendment to the complaint.”   Therefore, this argument is now moot.   Lastly, the defendants moved to strike the claims for punitive damages to the extent those claims are based on General Statutes § 30–102 on the ground that a cause of action pursuant to § 30–102 does not allow for an award of punitive damages.   Since the court finds the recklessness counts to be legally sufficient, the claims for punitive damages do not depend upon liability pursuant § 30–102, and therefore, the claims for punitive damages will not be stricken on this ground..  FN3. In addition, the defendants moved to strike the claims for punitive damages to the extent that those claims are based on General Statutes § 14–295 on the ground that the plaintiffs did not plead sufficient facts pursuant to § 14–295 to support an award for punitive damages.   Section 14–295 allows for a trier of fact in a civil action to award double or treble damages, if an injured party has specifically pleaded one of the enumerated traffic violations.   As the court, Parker, J.T.R., noted in the December 2, 2011 court order, “the plaintiffs have removed the offending language by an amendment to the complaint.”   Therefore, this argument is now moot.   Lastly, the defendants moved to strike the claims for punitive damages to the extent those claims are based on General Statutes § 30–102 on the ground that a cause of action pursuant to § 30–102 does not allow for an award of punitive damages.   Since the court finds the recklessness counts to be legally sufficient, the claims for punitive damages do not depend upon liability pursuant § 30–102, and therefore, the claims for punitive damages will not be stricken on this ground.

Martin, Robert A., J.