Moises Simaj v. LLC (2013)

CONSOLIDATED CASES RE MEMORANDUM OF DECISION ON DEFENDANTS' (THE EXCHANGE GROUP, LLC, and EXCHANGE BAR AND GRILL) MOTION TO STRIKE

The complaints of the plaintiffs, Moises Simaj and Oscar Tejada, in these consolidated cases are both dated October 5, 2012.   The plaintiffs seek damages for injuries allegedly sustained in beatings they suffered on the night of October 5, 2010, and into the following morning, at Exchange Bar & Grill, a bar and restaurant in New London, Connecticut.   The same defendants are named in both complaints:  the two alleged attackers, Jacob Appleby and Nicholas Keramidas;  Exchange Bar & Grill;  The Exchange Group, LLC, as operator of Exchange Bar & Grill;  Kippery Paul Bochain, individually and as member/manager of The Exchange Group, LLC, and liquor permittee of Exchange Bar & Grill;  Hennegan Properties, Inc., owner of the Exchange Bar & Grill premises;  and Alexander Bochain, as officer of Hennegan Properties, Inc.

On February 19, 2013, the defendants The Exchange Group, LLC, and Exchange Bar & Grill (movants) filed a motion in each case to strike counts one through eight.   Because the motions are substantially identical, this decision refers to them in the singular.   In each case, the plaintiffs filed an opposing brief on May 6, 2013.   The motions were argued on May 28, 2013.

FACTS

For present purposes, the court takes the facts to be those alleged in the two consolidated essentially identical complaints, construed in favor of their legal sufficiency.   See New London County Mutual Ins Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (complaint is construed broadly;  necessarily implied allegations are accepted as true).   Viewing the consolidated complaints in this light, the essential facts, at the time of the alleged attacks and beatings, are as follows.   The defendants Keramidas and Appleby were off-duty employees and unofficial bouncers of Exchange Bar & Grill.   The Exchange Group, LLC, doing business as Exchange Bar & Grill, through Kippery Paul Bochain, was familiar with Keramidas and Appleby and knew of the need to control them—and its patrons generally.   Keramidas and Appleby were impaired and/or intoxicated due to alcohol.   Exchange Bar & Grill sold Keramidas and Appleby alcoholic beverages while they were so impaired and/or intoxicated.   Unprovoked by the plaintiffs, Keramidas and Appleby assaulted the plaintiffs and beat them with closed fists, shod feet and at least one bar stool.   The plaintiffs claim serious injuries.

DISCUSSION

A motion to strike challenges the legal sufficiency of the factual allegations of a pleading to state a claim upon which relief may be granted.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).   The court may not consider grounds not specified in the motion.  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).   As noted above, in ruling on a motion to strike, the court must accept as true all well pleaded facts and construe them in the light most favorable to pleader.  Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).   The court cannot rely on facts outside of the challenged pleading.  Liljedahl Bros, Inc. v. Grigsby, 215 Conn. 345, 347–48, 576 A.2d 149 (1990);  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).   If facts provable in a complaint would support a cause of action, a motion to strike must be denied.  Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002).

The motion to strike first targets counts one and four.   Count one alleges negligence of defendant The Exchange Group, LLC.¹ Count four alleges, in substantially identical terms, negligence of defendant Kippery Paul Bochain.   The movants claim that counts one and four are essentially claims of negligence in the service of alcohol, which are barred by Connecticut's Dram Shop Act, General Statutes § 30–102.²  The last sentence of the Dram Shop Act, added in 2003, reads as follows:  “Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older.”   That legislation eliminated any common-law negligence cause of action of anyone entitled to recover under the Dram Shop Act. Lupak v. Tory, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–06–5002366–S (May 19, 2008, Tobin, J.) (45 Conn. L. Rptr. 499, 500).

The motion to strike would have merit if, as the movants argue, the gravamen of count one, particularly the eleven subparagraphs of paragraph 27, were The Exchange Group, LLC's, negligence in its policies, manner or actions in furnishing alcohol to the defendants Keramidas and Appleby.   That is not the case.   Count one is not, in name or substance, a Dram Shop Act count.   Neither by name nor citation is the Dram Shop Act mentioned in count one.  (See Practice Book § 10–3(a), which requires a claim grounded upon a statute to specify the statute number.)   Much more important, all of the eleven subparagraphs of paragraph 27,³ which allege particulars of negligence, sound in negligent supervision of Exchange Bar & Grill's staff and premises and none of them alleges The Exchange Group, LLC, furnished an alcoholic drink to either defendant Keramidas or defendant Appleby.   For these reasons, the motion to strike count one is denied.

To the extent count four is against Exchange Bar & Grill, the motion to strike is denied for the same reasons.   There are two other reasons for denying the motion as to count four.   First, disregarding apparent errors,⁴ count four is against an individual, defendant Kippery Paul Bochain, doing business as Exchange Bar & Grill.   The motion to strike count four was not filed by Kippery Paul Bochain or an attorney representing him.   Rather, the motion was filed by counsel for The Exchange Group, LLC, and Exchange Bar & Grill only.   The motion to strike count four is denied for lack of standing.   Second, the motion is denied for mootness:  although named in the complaint (at paragraphs 4, 5 and 6), Kippery Paul Bochain is not a defendant in this case.   He is not listed as a defendant in the summons or in the marshal's return of service of process.   He has not otherwise been cited in as a defendant.⁵

The present motion also seeks to have counts two and five stricken.   Count two is against The Exchange Group, LLC, for recklessness.   The Exchange Group, LLC, claims that count two fails to allege sufficient facts to state a cause of action for recklessness.⁶

“Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in 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.”  (Citations omitted;  internal quotation marks omitted.)  Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).   The Connecticut Supreme Court has recognized a common-law cause of action for the reckless service of alcohol.  Kowal v. Hofher, 181 Conn. 355, 360–61, 436 A.2d 1 (1980).  “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.”   (Internal quotation marks omitted.)  Coble v. Maloney, 34 Conn.App. 655, 661, 643 A.2d 277 (1994).

As stated above, the court must treat all well pleaded facts as true and must consider count two in the light most favorable to the plaintiffs.   In general, and particularly when so regarded, the court finds count two states sufficient facts to state a claim for recklessness.   Paragraphs 2, 3, 7, 12, 13 (and 24), 14, 16, 17, 25, 26, 27, 29(a), 29(b), 29(h) and 29(i) of count two, taken together, clearly state a claim of “more than negligence, more than gross negligence.”  (Internal quotation marks omitted.)  Dubay v. Irish, supra, 207 Conn. 532, quoting Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 (1929).   These allegations paint a picture of reckless disregard by the defendant The Exchange Group, LLC, for state liquor laws;  for the consequences of such disregard;  and, most specifically and importantly, for the rights or safety of its customers, including the plaintiffs.   The motion to strike count two is denied.

The motion to strike count five, which alleges recklessness of defendant Kippery Paul Bochain, is denied for the same reasons and also for the alternative reasons, stated above, for denying the motion to strike count four.

By agreement, the motion to strike count three (premises liability against “Exchange Café”) in each of the complaints is granted.

The plaintiffs, by counsel, stipulated that the motion to strike counts six (premises liability against Kippery Paul Bochain, doing business as Exchange Bar & Grill), seven (piercing the corporate veil/alter ego against Kippery Paul Bochain) and eight (piercing the corporate veil of The Exchange [Group], LLC, against Kippery Paul Bochain) may be granted.   That stipulation is rejected, and the motion to strike those counts is denied, because the motion filed by counsel for other defendants is improper as to counts against Kippery Paul Bochain.   Furthermore, any such motion would be moot, even if brought by counsel for Kippery Paul Bochain, because his omission from the summons in this case, and apparently from service of process, means he is not presently a defendant at all.

For the foregoing reasons, the motions to strike are granted as to count three of each of the consolidated complaints, and otherwise denied.

Cole–Chu, J.

FOOTNOTES

FN1. Though the plaintiff alleges at paragraph 3 that The Exchange Group, LLC, operates and conducts business as the Exchange Bar & Grill, defendant Exchange Bar & Grill is not named in the title of count one and the allegations of count one show that it is only against The Exchange Group, LLC..  FN1. Though the plaintiff alleges at paragraph 3 that The Exchange Group, LLC, operates and conducts business as the Exchange Bar & Grill, defendant Exchange Bar & Grill is not named in the title of count one and the allegations of count one show that it is only against The Exchange Group, LLC.

FN2. General Statutes § 30–102 provides:  “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 persons' intention to bring an action under this section.   Such notice shall be given (1) within one hundred twenty days of the occurrence of such injury to person or property, or (2) in the case of death or incapacity of any aggrieved person, within one hundred eighty days of the occurrence of such injury to person or property.   Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred.   No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.   Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older.”.  FN2. General Statutes § 30–102 provides:  “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 persons' intention to bring an action under this section.   Such notice shall be given (1) within one hundred twenty days of the occurrence of such injury to person or property, or (2) in the case of death or incapacity of any aggrieved person, within one hundred eighty days of the occurrence of such injury to person or property.   Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred.   No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.   Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older.”

FN3. Paragraph 27(a) through (k) of the complaint provides:  “Said occurrence was due to the negligence and carelessness of the defendant The Exchange Corporation, their agents, servants or employees, in one or more of the following ways:  it caused or allowed and permitted unruly and intoxicated or impaired, when it had inadequate staff to control the same;  it caused or allowed and permitted said premises to have insufficient number of employees to control patrons who it knew or should have known may become unruly and behave inappropriately;  it caused or allowed and permitted said premises to become crowded when at the same time it had inadequately trained staff to control the patrons on said premises from harming other patrons and persons in attendance on said premises;  it maintained the aforesaid premises at said time and place in aforesaid conditions;  it failed to warn the plaintiff when under the circumstances it knew or should have known that he would have been harmed by patrons consuming alcohol while impaired or intoxicated;  it failed to prevent said occurrence;  it failed to promptly break up said occurrence;  it failed to prevent further injury to the plaintiff following the initial outbreak of said occurrence;  it failed to properly control its off-duty employees;  it failed to correct the pattern of repeated violations of the Liquor Control Act of the Connecticut General Statutes and Regulations;  it failed to prevent future injury to its employees and patrons by allowing said conduct to continue.”.  FN3. Paragraph 27(a) through (k) of the complaint provides:  “Said occurrence was due to the negligence and carelessness of the defendant The Exchange Corporation, their agents, servants or employees, in one or more of the following ways:  it caused or allowed and permitted unruly and intoxicated or impaired, when it had inadequate staff to control the same;  it caused or allowed and permitted said premises to have insufficient number of employees to control patrons who it knew or should have known may become unruly and behave inappropriately;  it caused or allowed and permitted said premises to become crowded when at the same time it had inadequately trained staff to control the patrons on said premises from harming other patrons and persons in attendance on said premises;  it maintained the aforesaid premises at said time and place in aforesaid conditions;  it failed to warn the plaintiff when under the circumstances it knew or should have known that he would have been harmed by patrons consuming alcohol while impaired or intoxicated;  it failed to prevent said occurrence;  it failed to promptly break up said occurrence;  it failed to prevent further injury to the plaintiff following the initial outbreak of said occurrence;  it failed to properly control its off-duty employees;  it failed to correct the pattern of repeated violations of the Liquor Control Act of the Connecticut General Statutes and Regulations;  it failed to prevent future injury to its employees and patrons by allowing said conduct to continue.”

FN4. For example, instead of referring solely to Kippery Paul Bochain, paragraph 26 of count four alleges “the defendant corporation was familiar with the need to control ․ Keramidas and Appleby.”   Emphasis added..  FN4. For example, instead of referring solely to Kippery Paul Bochain, paragraph 26 of count four alleges “the defendant corporation was familiar with the need to control ․ Keramidas and Appleby.”   Emphasis added.

FN5. Alexander K. Bochain, named in paragraph 9 of the complaints, is also not a defendant..  FN5. Alexander K. Bochain, named in paragraph 9 of the complaints, is also not a defendant.

FN6. Several of the allegations in count two refer to “defendants”—plural—but the count is clearly only against The Exchange Group, LLC..  FN6. Several of the allegations in count two refer to “defendants”—plural—but the count is clearly only against The Exchange Group, LLC.

Cole–Chu, Leeland J., J.