Kathleen Stern et al. v. Franklin McEwen dba Lyme Tavern et al.

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Superior Court of Connecticut, Judicial District of New London.

Kathleen Stern et al. v. Franklin McEwen dba Lyme Tavern et al.

KNLCV106006881

Decided: January 27, 2016

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT/CONTINUED MOTION FOR DIRECTED VERDICT

Defense counsel moved at the close of evidence for a directed verdict in favor of the defendants regarding all negligence counts, as well as the Dram Shop counts as they apply to defendant Frank McEwen and Steven Carpentieri.  The court denied the motions, subject to reconsideration after receipt of the jury's verdict.  Following entry of the verdicts, defense counsel has moved to set aside the negligence verdicts as well as all Dram Shop verdicts, except the Dram Shop verdict imposed on Caspers, Ltd.

The defense argues that the Dram Shop Act, specifically C.G.S. 30–102, preempts the field regarding allegations of negligent service of alcohol and necessarily precludes all negligence counts and the damages claimed under them.  The court notes that the law of the case regarding this issue was established by Judge Martin in his Memorandum of Decision Re:  Motion to Strike Revised Complaint, pleading # 115, dated October 14, 2011 [52 Conn. L. Rptr. 817].  The court adopts that ruling insofar as it held that the Dram Shop Act does not preclude the negligence causes of action and verdicts in this case.  Accordingly, the defendants' motions to set aside all negligence counts are denied.

The jury found defendant McEwen personally liable as a permittee under both Dram Shop counts and all negligence counts.  The defense has moved to set aside these verdicts against McEwen on the grounds that there is no evidence he participated in the sale of alcohol which led to the traffic accident and injuries in this case.  McEwen does not dispute that he is listed on the liquor permit as the “permittee” of the Lyme Tavern Café.  As to a registered permittee of a bar, there is a statutory presumption of responsibility under the Dram Shop statute for the service of alcohol.  See Pierce v. Albanese, 144 Conn. 241, 252 (1957), holding, “If one desires to engage in the liquor business and secures upon his own application a permit to do so, he assumes of necessity the risk of a great variety of situations which could impose liability upon him.  He is bound to presume that the liquor which he sells will be consumed somewhere.”  As noted in Llera v. Heinz, 1998 WL 886779, Superior Court, JD New Britain, (December 7, 1998, Nadeau, J.) [23 Conn. L. Rptr. 499], under the Dram Shop Act “․ a permittee may be held liable as a ‘seller’ of alcoholic beverages to an intoxicated person, and therefore liable for injuries suffered by third parties ‘in consequence of such intoxication,’ even if the permittee or his or her agents did not sell or serve alcohol to the intoxicated person.”  See also Geib v. Sheraton Stamford Hotel, 2008 WL 5481712, Superior Court JD Stamford/Norwalk (Nov. 18, 2008) in which the defendants conceded that the permittee was “strictly liable” under the Dram Shop Act, even if he had no personal involvement in the sale.

However, while McEwen may have assumed responsibility and liability under the statute by becoming and holding himself out as the “permittee,” it does not follow that he is liable as a matter of law under the common-law negligence counts.  There was no specific evidence linking McEwen to the actual operation of the bar or its service of alcohol.  The plaintiffs' negligence case against McEwen rests on an assumption of “vicarious liability” with Carpintieri and Caspers, Ltd. It could be argued that McEwen's lack of supervision or awareness of the bar's operation as its permittee constitutes negligence, but the court is unwilling to make such a judgment absent some evidence of intentionally ignoring or participating in the negligent behaviors.  Accordingly, the jury's finding of negligence on the part of McEwen is vacated.

At the close of their brief seeking a directed verdict, the defendants argue that Casper's, Inc. should not be held liable under the negligence counts and Carpentieri should not be held liable either under the Dram Shop Act or in negligence.  To the extent that defendants' arguments rest of the assertion that the Dram Shop Act necessarily precludes negligence actions in cases such as these—and that appears to be their argument in regards to Casper's, Inc.—the court again cites Judge Martin's opinion as the law of the case and denies the directed verdicts requested on those grounds.

To the extent that the defendants argue that Carpentieri did not act as a “proprietor” for purposes of the Dram Shop Act and did not hold a position of control such that he would be exposed to negligence allegations, the evidence and testimony make clear that he was the day to day manager of the bar, sometimes working seven days a week.  The evidence was overwhelming that Carpentieri controlled the operations, did the hiring, established the working environment, and was in charge of employee discipline.  See cites in Defendant's Objection to Motion for Directed Verdict, 12/4/15, pp. 8–14.  Given these factual predicates, the jury was well within its authority to find him liable both under the Dram Shop and negligence counts.

As to the Defendants' motion for a directed verdict in favor of McEwen on the negligence counts, the motion is granted.  The remainder of the motion is denied.

Bates, J.

Bates, Timothy D., J.

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