Barbara J. Muchler, Administratrix et al.1 v. Windsor Golf Club et al.1 (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE # 120

This case arises out of a July 30, 2011, motor vehicle accident in which Ian Torres drove a vehicle while intoxicated, and one passenger died and two others were seriously injured.   On July 2, 2012, the plaintiffs filed a three-count complaint, alleging Dram Shop claims against the defendants.   The plaintiffs alleged that Torres was served alcohol before the accident at the defendants' property while in an intoxicated state.

Following discovery, on July 22, 2013, the plaintiffs filed a requested leave of the court to amend their complaint and simultaneously filed an amended complaint adding three claims for common-law reckless and wanton service of alcohol.   As a result of the new claims, the plaintiffs also added consortium damages and attorneys fees in their claims for relief, along with exemplary and treble damages.²

In counts four, five and six, the plaintiffs allege that the “reckless and wanton conduct of the defendant was a substantial factor in causing the loss, damage and harm” suffered by the plaintiffs.   The plaintiffs further allege that “[s]ervice of additional alcohol by the defendant ․ was made upon Torres, whose intoxication was readily and plainly evident.   Under all of the circumstances then and there existing, said service of alcohol constituted reckless and wanton service of alcohol.”  (Amended complaint, counts four, five and six, ¶ 14.)

The defendants filed a motion to strike counts four, five and six, along with the associated prayer for exemplary damages, treble damages, damages for recklessness, attorneys fees, and claims for consortium.   They argue that (1) the plaintiffs have failed to plead a duty running from the defendants to the plaintiffs; ³  (2) the alleged facts do not support a recklessness claim;  and (3) consortium is not recoverable under the Dram Shop Act.⁴

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.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alvers, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court.”   (Citations omitted;  internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Citations omitted;  intemal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “It is fundamental that ‘in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Citations omitted;  internal quotation marks omitted.)  Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).

“In Kowal v. Hofher, [our Supreme Court] held that the plaintiff could bring a cause of action against a restaurant owner and permittee, his agents and employees, for recklessly serving alcoholic beverages to a patron who was already intoxicated and who, thereafter, operated his vehicle in a negligent manner causing the resulting injuries to the plaintiff's decedent.   That holding was premised on the court's conclusion that the policy considerations that justify protecting a vendor ․ from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages did not apply with respect to wanton and reckless misconduct.”   (Citations omitted.)  Craig v. Driscoll, 262 Conn. 312, 334, 813 A.2d 1003 (2003).

The defendants' argument as to a lack of duty by the defendants is not persuasive because the Supreme Court has held that such a duty exists where reckless and wanton conduct is alleged, and the Dram Shop Act is not the exclusive remedy for individuals who suffered damages as the result of the negligent service of alcohol to an intoxicated adult.   See, O'Dell v. Kozee, 307 Conn. 231, 271, 53 A.3d 178 (2012);  Kowal v. Hofher, supra, 181 Conn. 359–62.

The defendants further argue that the facts as alleged do not support a recklessness claim, and therefore the plaintiffs have failed to sufficiently plead a claim for reckless service of alcohol.   The plaintiffs counter that they have sufficiently alleged a cause of action for reckless dispensing of alcohol by indicating that the defendants made service of additional alcohol to Torres “whose intoxication was readily and plainly evident.”  (Amended complaint, counts four, five and six, ¶ 14.)   This language, they contend, is sufficient to survive a motion to strike because it alleges that Torres' intoxication was obvious in that it was “readily and plainly evident.”

By alleging that Torres' intoxication was “readily and visibly apparent,” the plaintiffs have sufficiently alleged facts which, if proven, would sustain an action for reckless service of alcohol.   These allegations, together with the allegations concerning Torres' consumption of alcohol, go beyond a mere conclusion that the defendants served Torres while he was intoxicated.⁵

Because the court has found that the plaintiffs' recklessness claims are viable and legally sufficient, the consortium damages as well as exemplary damages, treble damages, damages for recklessness, and attorneys fees shall remain because counts four, five, and six all state claims for which relief can be granted.

CONCLUSION

Accordingly, the motion to strike is denied.

Swienton, J.

FOOTNOTES

FN2. The defendants objected to the request to amend, arguing that the changes to the complaint were not timely, the addition of new theories of liability and requested relief do not relate back, and allowance of an amendment would prejudice the defendants.   On August 19, 2013, this court overruled the defendants' objections, thereby granting the plaintiffs' request to amend (Swienton, J.)..  FN2. The defendants objected to the request to amend, arguing that the changes to the complaint were not timely, the addition of new theories of liability and requested relief do not relate back, and allowance of an amendment would prejudice the defendants.   On August 19, 2013, this court overruled the defendants' objections, thereby granting the plaintiffs' request to amend (Swienton, J.).

FN3. The defendants' motion states that the plaintiffs have failed to plead duty running from plaintiffs to defendants..  FN3. The defendants' motion states that the plaintiffs have failed to plead duty running from plaintiffs to defendants.

FN4. The defendants also argue that the statute of limitations bars the claims as the recklessness counts were not brought within the two-year statute of limitations and the reckless service of alcohol claim is based upon different facts than the Dram Shop claim and should not relate back.   These arguments were previously made in the defendants' objection to the request to amend the complaint.   The court overruled that objection, and will not address this argument again..  FN4. The defendants also argue that the statute of limitations bars the claims as the recklessness counts were not brought within the two-year statute of limitations and the reckless service of alcohol claim is based upon different facts than the Dram Shop claim and should not relate back.   These arguments were previously made in the defendants' objection to the request to amend the complaint.   The court overruled that objection, and will not address this argument again.

FN5. In Paragraph 13, the plaintiffs allege the exact amount of alcohol Torres drank between the hours of 9 a.m. and 4:30 p.m. Between those hours, Torres had “one energy malt liquor, nine beers, one hard alcohol ‘nipper,’ [and] a portion of a six-pack of Jeremiah Weed Sweet Tea (at least one) ․” Counts four, five and six, ¶ 13..  FN5. In Paragraph 13, the plaintiffs allege the exact amount of alcohol Torres drank between the hours of 9 a.m. and 4:30 p.m. Between those hours, Torres had “one energy malt liquor, nine beers, one hard alcohol ‘nipper,’ [and] a portion of a six-pack of Jeremiah Weed Sweet Tea (at least one) ․” Counts four, five and six, ¶ 13.

Swienton, Cynthia K., J.