David Ellison v. Nicholas Gerrity et al. (2015)

MEMORANDUM OF DECISION ON MOTION (# 105) OF BIG NIGHT VENUES, LLC, d/b/a SHRINE NIGHTCLUB, TO STRIKE COUNT FIVE

The defendant Big Night Venues, LLC, doing business as Shrine Nightclub (movant),¹ moves to strike count five of the plaintiff, David Ellison's, complaint.   The plaintiff filed an opposing brief on January 26, 2015.   The motion was argued on March 2, 2015.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.  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) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).   A motion to strike does not admit legal conclusions or the correctness of opinions.   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Viewing in this light the pertinent allegations of count five, entitled “Wanton, Willful and Reckless Service as to Shrine Nightclub and Big Night Venues, LLC,” the essential facts are as follows.

The movant operated a public restaurant, bar, nightclub and/or drinking establishment (the premises) at Foxwoods Resort Casino.²  On August 2, 2013, the plaintiff, an invitee and customer at the premises, was assaulted, battered, and seriously injured by the defendant Nicholas Gerrity.   The wilful conduct of the movant, by its agents or employees, caused the plaintiff's injuries in one or more of thirteen ways, including that it and/or they wilfully continued to serve alcoholic beverages to Gerrity “despite ․ manifest signs of intoxication”;  count five, para. 12(c);  and “despite the knowledge of [Gerrity's] intoxication ․” Count five, para. 12(h).

DISCUSSION

Granting a motion to strike is proper if the complaint alleges mere conclusions of law that are unsupported by allegations of sufficient facts specific to the incident.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   A pleading must be construed reasonably to include full, fair meaning, not contorted to strain rational comprehension.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).   In ruling on a motion to strike, the court must construe the challenged pleading in the manner most favorable to sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   The allegations are entitled to the same favorable construction as a trier would be required to give them in admitting evidence under them.   Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).   If any facts provable under the stated and implied allegations support a cause of action, the motion must be denied.   See Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   If any part of a count is sufficient, it is neither necessary nor appropriate to strike superfluous allegations.   See Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06–CV–12–6014260–S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 889).

Count five is intended as a common-law claim of reckless service of alcohol.³  Our Supreme Court has recognized a separate common-law cause of action for the reckless service of alcohol.   See 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).   Specifically, the plaintiff must establish that “the defendants, or their agents, continued to serve [a person] despite observable manifestations of intoxication.”  (Emphasis omitted;  internal quotation marks omitted.)   Gumkowski v. U.S.S. Chowder Pot III, Ltd., Superior Court, judicial district of New Haven, Docket No. CV–94–0361840–S (September 19, 1995).   “[T]o recover on a reckless service of alcohol claim a plaintiff must prove that the intoxication was patently obvious.  O'Dell v. Kozee, [307 Conn. 231, 271, 53 A.3d 178 (2012) ].”   McGeever v. Mulready, Superior Court, judicial district of Waterbury, Docket No. CV–12–6012741–S (July 18, 2013).

A plaintiff may sustain a cause of action alleging reckless, wilful, and wanton misconduct of a defendant in the service of alcohol if he pleads facts showing that the defendant knowingly served an intoxicated patron.   Gumkowski v. U.S.S. Chowder Pot III, Ltd., supra, Superior Court, Docket No. CV–94–0361840–S.   The plaintiff need not allege specific characteristics of intoxication.   Swift v. My Brother's Place Ltd., Superior Court, judicial district of Middlesex, Docket No. CV–92–65595 (March 8, 1993, Higgins, J.) (8 Conn. L. Rptr. 424, 426–27).   The allegations in count five of wilful conduct of the movant, by its agents or employees, in wilfully continuing to serve alcoholic beverages to Gerrity “despite ․ manifest signs of intoxication”;  count five, para. 12(c);  and “despite the knowledge of [Gerrity's] intoxication ․”;  count five, para. 12(h);  suffice.   Indeed, the latter allegation is a more clear and sound foundation for reckless service than intoxication being “obvious at the time of service,” a description of the standard approved in Futterleib v. Mr. Happy's, Inc., supra, 16 Conn.App. 510.

Accordingly, the defendant's motion to strike count five denied.

Cole–Chu, J.

FOOTNOTES

FN1. Shrine Nightclub is separately listed in the caption of count five but, according to the caption of the complaint and the summons, is only sued as a business name of Big Night Venues, LLC..  FN1. Shrine Nightclub is separately listed in the caption of count five but, according to the caption of the complaint and the summons, is only sued as a business name of Big Night Venues, LLC.

FN2. The complaint alleges the premises are located in the Town of Ledyard rather than on the Mashantucket Pequot Indian Reservation..  FN2. The complaint alleges the premises are located in the Town of Ledyard rather than on the Mashantucket Pequot Indian Reservation.

FN3. Compare count five with Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 498, 548 A.2d 728 (1988) (claims for both common-law reckless service of alcohol and for General Statutes § 30–102 Dram Shop Act violation)..  FN3. Compare count five with Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 498, 548 A.2d 728 (1988) (claims for both common-law reckless service of alcohol and for General Statutes § 30–102 Dram Shop Act violation).

Cole–Chu, Leeland J., J.