Opinion
No. WWM CV 06-5000108S.
November 15, 2006.
MEMORANDUM OF DECISION RE MOTION TO STRIKE ISSUE
The defendants have both moved to strike the third count of the plaintiff's amended complaint (#107). They claim that Connecticut does not recognize a cause of action in gross negligence as set forth in the third count of the amended complaint. For reasons more fully developed herein, the defendants' motions are granted.
FACTS
On February 2, 2006, the plaintiff, Shawn R. Audet, filed a three-count complaint against the defendants, Windham Hotel Company, LLC (Windham Hotel) and Ricky Martin, the permittee. This action arose out of injuries and losses allegedly sustained as a result of an assault and battery on the plaintiff by an intoxicated patron of the defendants.
In count one, the plaintiff alleges a cause of action under General Statutes § 30-102, the Dram Shop Act. In count two, the plaintiff alleges willful and reckless service of alcohol by the defendants to an already intoxicated patron. In count three, the plaintiff alleges gross negligence on the part of the defendants.
On April 27, 2006, the defendant Martin filed a motion to strike count three of the complaint on the ground that no cause of action for gross negligence exists in Connecticut. On May 15, 2006, the plaintiff filed a request to amend the complaint to substitute the defendant Laurel House Restaurant, LLC (Laurel House), for the defendant Windham Hotel, noting in his request that the parties had agreed to the substitution of Laurel House. On July 13, 2006, the defendant Martin filed an amended motion to strike, requesting that the court treat his motion to strike as a motion to strike count three of the amended complaint. On July 13, 2006, the substituted defendant, Laurel House, also filed a motion to strike count three of the amended complaint on the ground that count three is insufficient as a matter of law because there is no cause of action for gross negligence under Connecticut law. The plaintiff has filed a memorandum of law in opposition to the defendants' motions to strike.
On June 15, 2006, the plaintiff withdrew his claim against the defendant Windham Hotel.
The amended complaint is the operative complaint. The defendant Martin's original motion to strike, amended motion to strike and the motion to strike filed by Laurel House all contain the same ground and supporting arguments.
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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike . . . requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
The defendants argue in their motions to strike count three that no cause of action for gross negligence exists in Connecticut. In response, the plaintiff argues that the defendants' motions should be denied because it has not been established, as a matter of law, that there is no cause of action in gross negligence against a seller of alcohol to an intoxicated person under Connecticut law. The plaintiff further argues that, after the courts in Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), and Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), ruled that the Dram Shop Act did not bar a common-law cause of action for negligent service of alcohol, the legislature did not specifically "preclude a cause of action in gross negligence — or any other classification of negligence" when it amended the act to bar a cause of action in negligence against a seller of alcohol in 2003. Lastly, the plaintiff argues that there is a split of authority in the Superior Court as to the issue of whether a common-law cause of action in gross negligence against a seller of alcohol should be allowed.
The Connecticut Supreme Court decisions in Craig v. Driscoll, supra, 262 Conn. 312, and Kowal v. Hofher, supra, 181 Conn. 355, do not indicate that Connecticut recognizes a cause of action for gross negligence against a purveyor of alcohol. See Lucas v. JNS, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0187731 (August 9, 2005, Wilson, J.) ( 39 Conn. L. Rptr. 764, 766). In Kowal v. Hofher, supra, 355, the court held that the plaintiff's remedies were not limited to those provided by the Dram Shop Act and that the reckless count could proceed. In holding so, however, the Kowal court explicitly stated that "[w]e confine our ruling in this case to the allegations of wanton and reckless misconduct," acknowledging that the plaintiff also alleged gross negligence. Id., 359 n. 3. Reaffirming Kowal, the court in Craig v. Driscoll, supra, 312, held that the act does not preclude a common-law action in negligence against a purveyor of alcoholic beverages. The Craig court also held that "the allegations in the plaintiffs' complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander." Id., 341. Yet "the court's decision in Craig neither implicitly nor explicitly recognize[d] a cause of action for gross negligence." Lucas v. JNS, LLC, supra, 39 Conn. L. Rptr. 766.
In 2003, the legislature narrowed the holding in Craig v. Driscoll, supra, 262 Conn. 312 by the passage of No. 03-91 of the 2003 Public Acts which bars a common-law cause of action in negligence against a seller of alcohol to an intoxicated person twenty-one years of age or older. "The language of the act, however, only affects Craig's holding regarding negligence claims . . . Common-law actions alleging recklessness . . . as established in . . . Kowal, survive the amendment." Gorman v. Szewczak, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166633 (January 23, 2004, Alvord, J.).
Public Acts 03-91, § 1, provides in relevant part: "Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older."
The fact that P.A. 03-91 does not explicitly bar a cause of action in gross negligence, however, does not establish that such a cause of action has been recognized in Connecticut. It is well settled that "Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability." Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 337, 885 A.2d 734 (2005). The Connecticut Supreme Court "ha[s] never recognized degrees of negligence as slight, ordinary, and gross in the law of torts." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 833 n. 10, 836 A.2d 394 (2003). The courts in Connecticut "[do] not differentiate between negligence and gross negligence." Baker v. Palm's, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 92 0292760 (February 11, 1993, Leheny, J.) ( 8 Conn. L. Rptr. 332).
"Although there are a few decisions in Connecticut which have recognized a cause of action in gross negligence against a server of alcohol . . . the majority of Superior Court decisions [in recent years] have held that there is no cause of action in gross negligence against a server of alcohol because Connecticut does not recognize different gradations of negligence." Lucas v. JNS, LLC, supra, 39 Conn. L. Rptr. 766. Moreover, the court in Lucas, which addressed this particular issue for the first time since the passage of the 2003 Public Acts, granted the defendant's motion to strike that portion of the plaintiff's complaint, which alleged a cause of action in gross negligence. See id.
See Dufficy v. Mohring, Superior Court, judicial district of Danbury, Docket No. 311091 (December 7, 1993, Moraghan, J.) ( 9 C.S.C.R. 29) ( 10 Conn. L. Rptr. 457); Sumara v. Loyal Order of Moose, Superior Court, judicial district of Tolland, Docket No. CV 91 49012 (January 15, 1993, McWeeny, J.) ( 8 Conn. L. Rptr. 230).
See Hussein v. Five Forty Associates, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0147252 (January 22, 1996, Tobin, J.); Gumkowski v. U.S.S. Chowderpot, III, Ltd., Superior Court, judicial district of New Haven, Docket No. CV 94 0361840 (September 19, 1995, Hartmere, J.) (1 Conn.Ops. 1142); Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. CV 94 115265 (March 21, 1995, Flynn, J.) ( 14 Conn. L. Rptr. 346); Baker v. Palm's, Inc., supra, 8 Conn. L. Rptr. 332; Olson v. Tompkins, Superior Court, judicial district of Litchfield, Docket No. 0054161 (August 28, 1991, Pickett, J.) ( 6 C.S.C.R. 850) ( 4 Conn. L. Rptr. 786).
In the present case, the third count of the plaintiff's amended complaint alleges a cause of action in gross negligence as a separate basis of liability. As a matter of law, there is no cause of action in gross negligence under Connecticut law. Accordingly, defendants' motions to strike count three of the plaintiff's amended complaint are granted.