Kathleen Stern et al. v. Franklin McEwen dba Lyme Tavern et al. (2016)

MEMORANDUM OF DECISION RE DENIAL OF MOTION FOR REDUCTION OF VERDICT

The defendants, in a postjudgment motion, have asked that the Dram Shop damages be reduced in the accordance with the jury's 60/40 apportionment of the negligence verdict.  They base this request on their claim that the jury was instructed that “the entire award will be reduced by the percentage of Ms. Hunter's (the apportionment defendant's) negligence.”  See defendants' motion, dated November 15, 2015.  They assert, in their motion, that this instruction is reflected on page 28 of the jury instructions.

However, a review of the apportionment charge indicates that it only applied by its terms to the “negligence counts.”  The jury was told that apportionment applied to “claims of negligence and causation.”  See page 27.  The court further instructed the jury that they only address apportionment once they determine that the defendants were negligent.  Id. The court then instructed the jury that, to the extent it did find Ms. Hunter negligent, they should allocate “․ the percentage of negligence attributable to the defendant and the negligence attributable to Ms. Hunter ․” Id. Nothing in the apportionment instructions refers to the Dram Shop counts.

These instructions accord with the law of the case established by Judge Martin in Stern v. McEwen, 2012 Conn.Super. LEXIS 477, at *8 (Feb. 16, 2012) [53 Conn. L. Rptr. 538], when he stated “․ the Dram Shop Act counts against the defendants are statutory claims that are not based on negligence;  thus, apportionment of liability between Hunter and the defendants is precluded by Sec 52–572h(o).”

Further, the jury verdict form approved by the defendants made clear that apportionment calculations did not apply to the statutory Dram Shop counts.  The first question in the jury verdict form asked whether or not the defendants had violated the Dram Shop Act, yes or no.  The second question pertained to the negligence counts, asking whether the defendants were negligent, yes or no.  The third and fourth questions applied to apportionment and specifically referred back to the second question, not the first, reading:

3. If you answered YES to any part of Question 2, has that defendant proved that the apportionment respondent Sheri Hunter was negligent and that her negligence was also a substantial factor in causing injuries to the plaintiffs?

4. If the answer to Question 3 is YES, what percentage of fault does Sheri Hunter bear for the injuries to the plaintiffs and what percentage does one or more of the defendants bear? ․

Accordingly the defendants' motion to apply apportionment to the damages awarded pursuant to the jury verdict finding a violation of the Dram Shop Act is denied.

Bates, J.

Bates, Timothy D., J.