Janet Williams, Admx. of the Estate of Cathy Blinstrubas v. Thomas Adkins, Jr. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 213

ISSUE

Whether the court should grant the defendant's motion for summary judgment on the ground that there is no genuine issue of material fact in this case.

FACTS

On March 15, 2012, the plaintiff, Janet Williams as administratrix of the estate of Cathy Blinstrubas,¹ filed a thirteen-count amended complaint.²  The moving defendant, Joanne's Sit and Sip Café, LLC (Joanne's Café), is named in count four of the amended complaint, which is the operative count in the present motion.³  In the complaint, the plaintiff alleges the following facts.

On November 2, 2010, Cathy Blinstrubas was a passenger in an automobile being operated by a codefendant, Thomas Adkins, Jr. Adkins caused the vehicle to collide with a utility pole, severely injuring Blinstrubas and ultimately causing her death.   Earlier that evening, Adkins consumed alcoholic beverages at Joanne's Café, where he was served by the moving defendant's servants, agents, or employees.   The plaintiff further alleges that Adkins was visibly intoxicated at the time he was served alcohol.   The collision and Cathy's injuries and death were a result of Adkin's intoxication.   The defendant's agents were reckless in continuing to serve alcoholic beverages to Adkins despite having knowledge that he was intoxicated and was likely to operate a motor vehicle.   Further, that, Blinstrubas suffered injury and death as a result of the defendant's actions, and the plaintiff seeks monetary damages, costs, punitive damages, and attorneys fees on behalf of her estate.

On March 20, 2012, the defendant filed an answer and asserted special defenses, including assumption of risk by the plaintiff and contributory recklessness as to count four.⁴  On March 27, 2012, the defendant amended its answer to include, in relevant part, the special defense of participation to count four.   On April 10, 2012, the plaintiff filed a motion to strike all special defenses.   The court denied the motion to strike as to the special defenses applicable to count four.   The plaintiff then filed a reply to the special defenses on March 27, 2013.   On July 23, 2013, the defendant filed a motion for summary judgment as to count four, a memorandum of law in support of the motion, and copies of deposition testimony of Kristine Raytar, Norman Chacho, and Cheryl Ameden.   On October 16, 2013, the plaintiff filed an objection to the motion for summary judgment accompanied by a memorandum of law, copies of the depositions of Ameden, Raytar, Andrew Michael Grega, and Norman Chacho, an affidavit of Dona Civitello, and an exhibit referred to as a refusal of service form.   Oral argument was heard by the court at short calendar on October 21, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).  “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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).  “As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.”  (Emphasis omitted, internal quotation marks omitted.)  Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 296, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).  “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

The defendant argues that there is no genuine issue of material fact in the ‘claim that its agents recklessly served alcohol to Adkins while he was in an obviously intoxicated state.   Specifically, the defendant claims that the evidence provided fails to establish that Adkins' intoxication was clearly obvious at the time he was served alcohol, or that he was continuously served alcohol by the defendant's agents.   The plaintiff counters that the deposition testimony, affidavit, and exhibit provided in her objection establishes the existence of a genuine issue of material fact as to whether Adkins was obviously intoxicated when he was served alcohol at the defendant's establishment.   The plaintiff also asserts that because two additional witnesses have not yet been deposed, the defendant's motion should be denied.

“Recklessness is a state of consciousness with reference to the consequences of one's acts ․ The state of mind amounting to recklessness may be inferred from conduct.”  (Citations omitted;  internal quotation marks omitted.)   Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).  “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).

“[I]t is necessary to plead and prove facts which would indicate that the defendants, or their agents continued to serve a patron despite observable manifestations of intoxication in order to support a cause of action for reckless service of alcohol.”  (Citations omitted;  internal quotations omitted.)   Johnson v. Raffy's Café I, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–10–6002069–S (August 23, 2010, Fischer, J.).   See Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 509, 548 A.2d 728 (1988) (“[t]he defendant's conduct of continuing to serve alcohol to [a patron], who was already obviously intoxicated, was sufficient for the jury to find reckless and wanton misconduct by the defendant”);  see also Keeney v. Horsely, Superior Court, judicial district of New Haven, Docket No. CV–09–5029198–S (April 2, 2013, Wilson, J.) (denying summary judgment on reckless service claim where issue of fact existed as to whether patron of bar was obviously intoxicated when served alcohol).

In the present case, the defendant claims that no evidence has been discovered to show that Adkins was obviously intoxicated, or that he was continuously served alcohol by the defendants.   The plaintiff has offered deposition testimony and an affidavit which provide details of Adkins' behavior both at Joanne's Café and after he left.   Kristine Raytar stated in her deposition that she met up with Adkins at Joanne's Café.⁵  Her testimony states that Adkins was already drinking a bottle of beer when she arrived at Joanne's Café.   She also testified that Adkins continued to drink beer during the time they were both at Joanne's Café, and that he smelled like beer.   She did not know if Mr. Adkins had consumed any other alcohol beforehand.

Cheryl Ameden testified in her deposition that she served a group of four patrons, including Adkins, two pitchers of beer on the night in question.⁶  Ameden stated that the group of four was acting loud and boisterous, and that she asked them to settle down.   The group then ordered a second pitcher of beer, which Ameden testified that she served them.   Because they continued getting louder, Ameden eventually told them to leave.   She testified that Adkins and another individual were the loudest of the group.   The plaintiff also offers the affidavit of Dona Civitello,⁷ the deposition of Andrew Grega,⁸ and the refusal of service form.⁹  The sum of this evidence indicates that Adkins was visibly intoxicated upon arriving at the Pines Café and was refused service of alcohol because he was intoxicated.   Raytar's testimony indicates that the group went directly to the Pines Café after leaving Joanne's Café.

In a motion for summary judgment, the moving party bears the burden of showing there exist no genuine issue of material fact.   See Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, supra, 231 Conn. 796.   Under the applicable standard, the available evidence must be viewed in the light most favorable to the non-moving party, which in the present motion is the plaintiff.   See Patel v. Flexo Converters U.S.A., Inc., supra, 309 Conn. 56–57.   A fact finder could find from the testimony provided by Raytar and Ameden that Adkins was served and drank several beers while at Joanne's Café.   From the behavior of the group while at Joanne's Café and the evidence of Adkin's level of intoxication upon arriving at the Pines Café, a fact finder could also infer that Adkins was obviously intoxicated when he was served beer at Joanne's Café.

A reasonable fact finder could thereby conclude from the evidence provided that Adkins displayed observable manifestations of intoxication in the manner of his behavior, and that the defendant's agents nevertheless continued to serve beer to Adkins.  “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.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).   The defendant has failed to meet its burden of demonstrating that no genuine issue of material fact exist in the present case.

CONCLUSION

For the foregoing reasons, the Court denies the defendant's motion for summary judgment.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. Although Norman Chacho, Jr., is also a plaintiff, the only count at issue, count four, is brought by Williams alone.   For purposes of this memorandum, Williams will be referred to as the plaintiff..  FN1. Although Norman Chacho, Jr., is also a plaintiff, the only count at issue, count four, is brought by Williams alone.   For purposes of this memorandum, Williams will be referred to as the plaintiff.

FN2. The plaintiffs filed a further amended complaint on April 10, 2012.   The amendments contained in that complaint did not apply to the moving defendant or the present motion..  FN2. The plaintiffs filed a further amended complaint on April 10, 2012.   The amendments contained in that complaint did not apply to the moving defendant or the present motion.

FN3. Joanne's Café is also the defendant in count three, which asserts liability under General Statutes § 30–102.   Count two, which also asserts liability under § 30–102, is against Theresa Cleary as member and permittee of Joanne's Café.   The remaining ten counts name other parties not relevant to the present motion.   For purposes of this memorandum, Joanne's Café will be referred to as the defendant.   Although the motion states that Cleary is also moving for summary judgment on count four, Cleary is not named as a defendant in that count..  FN3. Joanne's Café is also the defendant in count three, which asserts liability under General Statutes § 30–102.   Count two, which also asserts liability under § 30–102, is against Theresa Cleary as member and permittee of Joanne's Café.   The remaining ten counts name other parties not relevant to the present motion.   For purposes of this memorandum, Joanne's Café will be referred to as the defendant.   Although the motion states that Cleary is also moving for summary judgment on count four, Cleary is not named as a defendant in that count.

FN4. The remaining special defenses did not apply to count four, and are therefore not relevant to this memorandum..  FN4. The remaining special defenses did not apply to count four, and are therefore not relevant to this memorandum.

FN5. The plaintiff attached portions of Raytar's deposition as exhibit B to their memorandum of law.   The defendant attached portions of the same deposition as exhibit A to their memorandum..  FN5. The plaintiff attached portions of Raytar's deposition as exhibit B to their memorandum of law.   The defendant attached portions of the same deposition as exhibit A to their memorandum.

FN6. Exhibit A to the plaintiff's memorandum, exhibit C to the defendant's memorandum.   Both parties appear to concede that Ameden was the bartender at Joanne's Café on the night in question, although the portions of the deposition testimony attached do not directly state that fact..  FN6. Exhibit A to the plaintiff's memorandum, exhibit C to the defendant's memorandum.   Both parties appear to concede that Ameden was the bartender at Joanne's Café on the night in question, although the portions of the deposition testimony attached do not directly state that fact.

FN7. Exhibit D to the plaintiff's memorandum..  FN7. Exhibit D to the plaintiff's memorandum.

FN8. Exhibit E to the plaintiff's memorandum..  FN8. Exhibit E to the plaintiff's memorandum.

FN9. Exhibit C to the plaintiff's memorandum..  FN9. Exhibit C to the plaintiff's memorandum.

Roche, Vincent E., J.