Opinion
CV176037288
01-29-2018
Melissa BLOCK v. Roman KOCHANSKI et al.
UNPUBLISHED OPINION
OPINION
Swienton, J.
The plaintiff, Melissa Block, moves to strike the special defenses filed by the defendants, BJT, Inc., and Jay Pelletier, on the ground that the special defenses are not valid defenses to the relevant claims. Specifically, the plaintiff contends that the special defense of assumption of risk has been abolished in Connecticut, and the special defenses of contributory recklessness and participation are not valid defenses to this action.
The reference in this memorandum of decision to " defendants" is made only as to BJT, Inc., and Jay Pelletier.
The plaintiff was the passenger in a car operated by the defendant, Roman Kochanski, when it collided with an unoccupied, parked motor vehicle, causing the plaintiff to sustain injuries. Prior to the accident, Kochanski and the plaintiff were at an establishment called Sportsman’s Café, in which the defendant, Jay Pelletier, was the permittee, and the defendant, BJT, Inc., was the backer. The plaintiff alleges that Kochanski was served alcoholic beverages while he was visibly intoxicated.
The plaintiff has brought this action against the defendants pursuant to the Dram Shop Act, General Statutes § 30-102, for the injuries resulting from the car accident, and also in common-law recklessness, alleging that the collision and damages resulting therefrom were caused by the reckless, wilful, and/or wanton misconduct of the defendants, their agents, servants, and/or employees. The defendants answered the complaint, including the special defenses of assumption of risk, participation, and common-law recklessness. In their special defense for assumption of risk, the defendants assert that the plaintiff voluntarily placed herself in a vehicle that Kochanski was operating when she knew or should have known that she was subjecting herself to danger due to Kochanski’s intoxication.
As to the special defense of participation, the defendants allege that the plaintiff’s injuries were caused by her own action in accompanying Kochanski throughout the evening and participated in, facilitated and encouraged Kochanski’s intoxication. As to the third special defense, contributory recklessness, the defendants assert the same basic allegations of the first two special defenses, and further contend that if Kochanski was intoxicated as alleged, the plaintiff’s decision to ignore the obvious dangers and potential consequences constitutes reckless indifference for her own safety.
The plaintiff filed a motion to strike the three special defenses, and the defendants have filed an objection.
The special defenses are not set forth in accordance with Practice Book § 10-51, which provides that " [w]here the complaint ... is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which is it designed to meet, in this manner: First Defense to First Count, Second Defense to First Count, First Defense to Second Count, and so on." The plaintiff has not objected to the designation, and the court shall assume that each special defense is as to each count against the defendants.
DISCUSSION
I
LEGAL STANDARD
Under Practice Book § 10-39(a)(5), a motion to strike may challenge the legal sufficiency of the allegations of any answer to any complaint or any part of that answer, including any special defense contained therein. Mingachos v. CBS, Inc., 195 Conn. 91, 109, 491 A.2d 368 (1985).
A special defense is used by a defendant who seeks the admission of evidence that is not inconsistent with the claim of the plaintiff, but nevertheless tends to show that the plaintiff has no cause of action. See Practice Book § 10-50. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); Pawlinski v. Allstate Insurance Co., 165 Conn. 1, 6, 327 A.2d 583 (1973).
" In ruling on a motion to strike, the court must accept as true the facts alleged in the special defense and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted, internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
II
ASSUMPTION OF RISK
In the defendants’ first special defense, they allege that the plaintiff assumed the risk when she voluntarily " placed herself in a vehicle that Kochanski was operating and remained a passenger until the time of the accident when she knew or should have known that she was subjecting herself to danger as the result of Kochanski’s alleged intoxication."
A
DRAM SHOP ACT
There is no appellate authority that addresses whether assumption of the risk is a valid defense to a Dram Shop action and there is a split of authority at the Superior Court level. See Dimmock v. South Peking Restaurant, Superior Court, judicial district of Hartford, Docket No. CV-91-0393743-S (November 7, 1991) (5 Conn.L.Rptr. 241). Many of the cases upholding the assumption of the risk rely on a restatement of the trial court in Sanders v. Officers’ Club of Connecticut, Inc., 35 Conn.Supp. 93, 95 (1978), that, " [it] appears that such a defense is proper within the boundaries of voluntarily and willingly assuming the risk of another’s intoxication, for example accepting a ride from one known by the plaintiff to be drunk." Tarver v. Devito, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-91-0120282-S (January 25, 1992); Bagley v. Hazardvilla Restaurant, Superior Court, judicial district of Hartford, Docket No. CV-281625 (October 31, 1983) (4 Conn.L.Rptr. 101, 102).
In Bagley, the Superior Court denied the plaintiffs’ motion to strike the defendants’ special defense of assumption of risk and reasoned that that it did not believe that " the injured plaintiff should be excused from all responsibility for his own safety. If there was, or under the circumstances, should have been, a conscious awareness of the intoxicated condition of his driver, then the plaintiff-passenger was little more than a gambler who chose to take a chance. The defendants, who played no part in making the latter decision, which decision may have occurred at a point removed in time and events from the dram shop sale, should not be precluded from questioning the propriety of the decision in defense of an action by the decision-maker." Id.
However, trial courts that have rejected the defense of assumption of the risk in a Dram Shop Act claim rely upon L’Heureux v. Hurley, 117 Conn. 347, 355-58, 168 A. 8 (1933), wherein the Supreme Court held that assumption of the risk is not a defense to an action based on a statutory violation when the statute was enacted to create an obligation to the public at large. " The Dram Shop Act does not expressly limit recovery to innocent third parties, nor does it specifically exclude drinking companions or so-called participants." Rossini v. Decker, 39 Conn.Supp. 20, 22 (1983).
The statute at issue in L’Heureux required owners of tenement houses to provide lighting in all public halls at night.
The trend in the Superior Court, however, appears to be shifting toward prohibiting the defense of assumption of the risk. See Laflamme v. Phaneuf, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6010036-S (May 1, 2015) (60 Conn.L.Rptr. 314); Wilcox v. Provancher, Superior Court, judicial district of Tolland, Docket No. CV-13-6006141-S (December 9, 2014); Cote v. Gay, Superior Court, judicial district of New London, Docket No. CV-13-6015822-S (June 26, 2014) (58 Conn.L.Rptr. 453); Dominici v. Hazzard, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013346-S (January 11, 2013); Williams v. Adkins, Superior Court, judicial district of Waterbury, Docket No. CV-11-6011202-S (November 2, 2012) (55 Conn.L.Rptr. 49); Blondin v. Meshack, Superior Court, judicial district of New Haven, Docket No. CV-08-5018828-S, (October 2, 2008) (46 Conn.L.Rptr. 396); Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV-07-5014334-S (October 2, 2008) (46 Conn.L.Rptr. 399); Pont v. Barker, Superior Court, judicial district of New London, Docket No. CV-06-4002020-S (May 30, 2006) (41 Conn.L.Rptr. 445); Davila v. Casper, Superior Court, judicial district of Fairfield, Docket No. CV-91-0286349-S (June 8, 1992) (6 Conn.L.Rptr. 524); Passini v. Decker, supra, 39 Conn.Supp. 20. In its reasoning, the Davila court relied upon Pierce v. Albanese, 144 Conn. 241, 249 (1957), appeal dismissed, Albanese v. Pierce, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed. 21 (1957), in which our Supreme Court concluded that the purpose of the legislation is to aid the enforcement of Section 4293 (predecessor to the current Dram Shop Act) by imposing a penalty in the form of civil liability, and to protect the public. Superior Courts have held that the " assumption of the risk is not a valid special defense when asserted by the purveyor of the alcoholic liquor." Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No.CV-07-5002709-S (March 17, 2008) (45 Conn.L.Rptr. 200, 201); see also Jones v. Cross, Superior Court, judicial district of Waterbury, Docket No. CV-03-0176102 (December 8, 2003) (36 Conn.L.Rptr. 85). " [T]he assumption of risk doctrine is unavailable where the injury emanates from the defendant’s violation of a statutory obligation." Laflamme v. Phaneuf, supra, 314.
In Laflamme, the defendants alleged, in their special defenses, that " the plaintiff s decedent accompanied and observed the operator, Morneau, consume alcohol. The defendant Pit Stop further [alleged] that the plaintiff’s decedent purchased and supplied alcoholic beverages to Moreau. The defendants [alleged] that as a result of her actions, the plaintiff’s decedent knew Morneau was intoxicated and knew of the risks associated with his intoxication, and despite this knowledge, she voluntarily chose to ride as a passenger on Morneau’s motorcycle." Id. The Superior Court granted the plaintiff’s motion to strike the defendants’ special defenses based on assumption of the risk and reasoned that the Dram Shop Act imposes a public duty in which sellers have an obligation not to serve alcohol to intoxicated persons. Id. " This statutorily created duty for the protection of the public cannot be avoided through an assumption of risk defense in a personal injury action seeking damages arising from a direct breach of this obligation." Id.
The court adopts the position of those courts that hold assumption of the risk is not a valid defense to a dram shop claim. The plaintiff’s " choice to ride with [Kochanski], while foolhardy, is unrelated to whether [the defendants] continued to serve [him] after she became intoxicated." Cole v. Gay, supra, Superior Court, judicial district of New London, Docket No. CV 13-6015822. Adopting this view is also consistent with the public policy behind our Dram Shop Act, which is regulating the conduct of establishments serving alcohol to already intoxicated persons, and protecting the public at large from drunk drivers. The plaintiff’s motion to strike the defendants’ assumption of risk special defenses to the fourth count is granted.
B
COMMON-LAW RECKLESSNESS
" While there is a split among judges of the Superior Court as to whether assumption of risk is a viable defense in a claim based upon recklessness, the more recent decisions support allowing the special defense to stand. The judges disallowing the special defense of assumption of risk have held that it is doubtful whether assumption of the risk applies as a defense to a claim of wilful, wanton or reckless misconduct under Connecticut law, and the majority rule in other states is that assumption of the risk is not a valid defense to such actions. Cheneski v. Barber, Superior Court, judicial district of Danbury, Docket No. CV-307083 (February 7, 1992) (7 Conn.L.Rptr. 92, 93); see also Zawadski v. Robbins, Superior Court, judicial district of Hartford, Docket No. 384518 (July 14, 1992) (7 Conn.L.Rptr. 92)." (Internal quotation marks omitted.) Petrolito v. Cucullo, Superior Court, judicial district of Hartford, Docket No. CV-10-6015391-S (December 30, 2011) (53 Conn.L.Rptr. 269, 271).
" Other judges have concluded that assumption of risk is a valid defense to recklessness, but have differed on their reasoning. Some judges hold that assumption of the risk is a valid defense to reckless misconduct because it is a variant of contributory recklessness, which itself is a recognized defense to a recklessness claim. White v. Harborside Bar & Grill, Superior Court, judicial district of Fairfield, Docket No. CV-07-05007030-S (August 18, 2008) (46 Conn.L.Rptr. 237). Wanton, wilful or reckless conduct by the plaintiff’s decedent which naturally increased the probability of injury and contributed thereto would be admissible under the pleadings and would constitute a defense to the claim of recklessness. Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-92-039650-S (September 8, 1994) (12 Conn.L.Rptr. 415, 416)." (Internal quotation marks omitted.) Petrolito v. Cucullo, supra, 53 Conn.L.Rptr. 271.
For instance, in Petrolito, the Superior Court denied the plaintiff’s motion to strike the defendant’s assumption of the risk special defense where the defendants alleged that " the plaintiff’s decedent observed Cucullo’s consumption of alcohol throughout the night, knew or should have known he was in an intoxicated state, and voluntarily entered the vehicle driven by him prior to the accident ... [and] further [alleged] that the plaintiff’s decedent obtained the keys to Cucullo’s vehicle for the purpose of preventing him from driving while intoxicated, and then voluntarily returned the keys before riding with him." Id., 271-72. The court concluded that " [t]his alleged conduct by the plaintiff’s decedent can be construed reckless conduct that voluntarily assumed the risk of Cucullo’s intoxication, and is therefore legally sufficient to assert a special defense for assumption of risk." Id., 272.
The court finds that the defendants’ special defense of assumption of risk is a valid defense to the plaintiff’s claim of common-law reckless service of alcohol. The motion to strike the assumption of risk special defense as to count five is denied.
III
PARTICIPATION
In their second special defense, the defendants assert that the plaintiff " participated in, facilitated, and encouraged the alleged intoxication of Kochanski."
A
DRAM SHOP ACT
There is no appellate authority that addresses whether the defense of participation may apply to a Dram Shop Act claim and there is a split of authority on the issue at the Superior Court level. " The majority of superior court decisions have allowed a participation defense in cases brought pursuant to the Dram Shop Act." Archambault v. Pascual, Superior Court, judicial district of Litchfield, Docket No. CV-0052477 (December 19, 1990) (3 Conn.L.Rptr. 36, 36); Cookingham v. Sullivan, 23 Conn.Supp. 193, 196, 179 A.2d 840 (1962); Dimmock v. South Peking Restaurant, Superior Court, judicial district of Hartford, Docket No. CV-91-0393743-S (December 9, 1991) (5 Conn.L.Rptr. 241). Specifically, these courts have concluded that participation is a valid defense to a Dram Shop action where it alleges that the plaintiff actively participated in the tortfeasor’s intoxication. See Goddu v. Flanagan, Superior Court, judicial district of Fairfield, Docket No. CV-13-6038828-S (September 2, 2015); Blodin v. Meshack, supra, 46 Conn.L.Rptr. 398-99; Cote v. Gay, supra, Superior Court, Docket No. CV-13-6015822-S. " [A] person advancing such a participation defense would have a heavy burden in showing that the participation alleged rose to the level of complicity and in effect contributed substantially to causing the intoxication ... merely accompanying and drinking with an intoxicated person does not bar recovery by a plaintiff. Rather, the plaintiff is barred from recovery only if he or she was an active participant in causing the intoxication." (Citations omitted; internal quotation marks omitted.) Breen v. Brother Bones Café, Inc., Superior Court, judicial district of Hartford, Docket No. CV-93-0523016-S (October 12, 1994) (12 Conn. L. Rptr. 519). " [P]articipation in this sense requires that the plaintiff actively procure or cause the tortfeasor’s intoxication; that is, the plaintiff cannot merely participate in the drinking activities but must be actively involved in bringing about the inebriate’s intoxication." Blondin v. Meshack, supra, 398; see also Goddu v. Flanagan, supra, Superior Court, Docket No. CV-13-6038828-S.
For example, in Richetelli v. Tiso, Superior Court, judicial district of New Haven, Docket No. CV-14-6051049-S (August 4, 2015) (60 Conn.L.Rptr. 713, 716), the defendants alleged that " the plaintiff encouraged, facilitated, and participated in Tiso’s intoxication." The Superior Court reasoned that these allegations sufficiently demonstrated that " the plaintiff [did not] merely participate in the drinking activities, but [was] actively involved in bringing about the inebriate’s intoxication." (Internal quotation marks omitted.) Id. The Superior Court, thus, denied the plaintiff’s motion to strike the defendant’s participation special defense and concluded that the defendants had alleged sufficient facts to state participation special defenses to the plaintiff’s Dram Shop claims, and such special defense " is consistent with the remedial and punitive purposes of the Dram Shop Act because it does not fully relieve the liquor seller of responsibility." (Internal quotation marks omitted.) Id.
Several superior courts, however, have held that participation is not a defense to a Dram Shop Act suit. See Goddu v. Flanagan, supra, Superior Court, Docket No. CV-13-6038828-S; Williams v. Adkins, supra, Superior Court, Docket No. CV-11-6011202-S; Pont v. Barker, supra, 41 Conn.L.Rptr. 445; Jones v. Cross, supra, 36 Conn.L.Rptr. 85; Stowe v. Margaritas of Branford, Inc., Superior Court, judicial district of New Haven, Docket No. CV-940367595-S (September 11, 1996); Jacocks v. Monahan’s Shamrock, Superior Court, judicial district of New Haven, Docket No. CV-92-0330268-S (October 13, 1993). " [T]o allow a defense of participation by a vendor of liquor would defeat by judicial amendment the legislative purpose in enacting the Dram Shop Act statute." (Internal quotation marks omitted.) Petrolito v. Cucullo, supra, 53 Conn.L.Rptr. 270. " [T]he participant could not be able to participate in the consumption of alcohol with the intoxicated person without the vendor selling him or her the alcohol being consumed ... The legislature has placed the onus on the vendor for selling alcohol to the intoxicated persons ... Reading a requirement of innocence into the statute does not comport with the public policy prompting its passage or its express language." (Citations omitted; internal quotation marks omitted.) Pont v. Barker, supra, 446.
The defendants have asserted participation special defenses in manners similar to the defendants in Richetelli and Cote . The defendants have alleged that the plaintiff encouraged, facilitated and participated in Kochanski’s intoxication. Assuming these allegations are true, they sufficiently demonstrate that " the plaintiff [did not] merely participate in the drinking activities, but [was] actively involved in bringing about the inebriate’s intoxication." Blondin v. Meshack, supra, Superior Court, Docket No. CV 08 5018828. These allegations show that the plaintiff may have been complicit in Kochanski’s intoxication. The court finds that the defendants have alleged sufficient facts to state a participation special defense to the plaintiff’s dram shop claim. The motion to strike the defendants’ participation special defense as to the fourth count is denied.
B
COMMON-LAW RECKLESSNESS
Few courts have addressed a participation defense in the context of a common-law reckless service of alcohol claim. Some superior courts have recognized participation as a defense to a common-law recklessness claim. See Williams v. Adkins, supra, 55 Conn.L.Rptr. 49; Jacocks v. Monahan’s Shamrock, supra, Superior Court, Docket No. CV-92-0330268-S; Sego v. Debco, Inc., supra, 12 Conn.L.Rptr. 416. In Jacocks, the Superior Court construed participation broadly and determined that " the defendants’ special defenses sound in comparative negligence [and] relate directly to [the] plaintiff’s failure to comprehend a risk ..." Jacocks v. Monahan’s Shamrock, supra, Superior Court, Docket No. CV-92-0330268-S.
For the same reasons stated above, the court finds that the defendants have alleged sufficient facts to show that the plaintiff may have been complicit in Kochanski’s intoxication. Therefore, the plaintiff’s motion to strike the defendants’ participation special defense as to the fifth count is denied.
IV
CONTRIBUTORY RECKLESSNESS
In the defendants’ third special defense, they assert that " the plaintiff’s decision to ignore the obvious dangers and potential consequences constitutes reckless indifference for her own safety." The Supreme Court has yet to determine whether contributory recklessness is a legally recognized defense. Stafford v. Roadway, 312 Conn. 184, 188 n.4, 93 A.3d 1058 (2014).
A
DRAM SHOP ACT
The issue is whether contributory recklessness is a valid special defense to a Dram Shop Act claim. " Whether contributory recklessness may be raised as a defense to a claim brought under the [Dram Shop] Act remains an open question. Nonetheless, some courts have rejected the defense for reasons similar to those articulated by courts rejecting an assumption of risk defense. See Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No. CV07-5002709-S (March 17, 2008) (45 Conn.L.Rptr. 200, 202) (‘while the plaintiff may properly be alleged to be reckless in choosing to accompany a driver that she knew or should have known to be intoxicated, the plaintiff cannot be held to have contributed to the reckless service of alcoholic liquor to a person known to be intoxicated’); Petrolito v. Cucullo, supra, 53 Conn.L.Rptr. 269, 271 (‘pursuant to the public policy underlying the Dram Shop Act this court grants the plaintiff’s motion to strike the defendants’ special defense of contributory recklessness’); Williams v. Adkins, supra, Superior Court, Docket No. CV-11-6011202-S. The reasoning is that [t]o prevail [under the statute], a plaintiff need not show negligence, recklessness, wilfulness or wantonness on the part of the seller, only that the sale took place under circumstances where the seller knew, or should have known, of the patron’s state of intoxication ... and, therefore, contributory recklessness is not a valid special defense when asserted by a purveyor with respect to a claim under the Dram Shop Act." (Emphasis in original; internal quotation marks omitted.) Richetelli v. Viso, supra, 60 Conn.L.Rptr. 715; see also Fedorka v. Billy Wilson’s, LLC, supra, Superior Court, Docket No. CV- 12-6012902-S.
The same logic underlying the court’s reasoning for denying the defendants’ special defense of assumption of risk applies equally to the special defense of contributory recklessness. " [W]hile the plaintiff may properly be alleged to be reckless in choosing to accompany a driver that she knew or should have known to be intoxicated, the plaintiff cannot be held to have contributed to the reckless service of alcoholic liquor to a person known to be intoxicated." Waldron v. Ohler, supra, Superior Court, Docket No. CV 07 5002709. The motion to strike the special defense of contributory recklessness as to the dram shop claim is granted.
B
COMMON-LAW RECKLESSNESS
" Under ... common law, a plaintiff’s contributory ... recklessness operates as a complete bar to the plaintiff’s claims based respectively on negligence or recklessness. Through its enactment of General Statutes § 52-572h, the legislature changed this complete bar rule as to negligence claims and established comparative negligence. No such legislative change has been made as to a plaintiff’s contributory recklessness." Rossi v. O’Brien, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6010350-S (May 1, 2015) (60 Conn.L.Rptr. 296, 297). " Contributory recklessness would constitute a defense to an action based on recklessness." (Internal quotation marks omitted.) Petrolito v. Cucullo, supra, 53 Conn.L.Rptr. 269, 272. " Stated more fully, the general rule at common law is that wanton, wilful or reckless misconduct which materially [increases] the probabilities of injury and contribute[s] thereto [defeats] the plaintiff’s right of recovery. Consequently, contributory recklessness is a good defense to an action based on recklessness." (Internal quotation marks omitted.) Rossi v. O’Brien, supra, 297; see also, Petrolito v. Cucullo, supra, 53 Conn.L.Rptr. 269; Herrera v. Adams, Superior Court, judicial district of New London, Docket No. CV-10-600461-S (January 25, 2011) (51 Conn.L.Rptr. 357); see also Restatement (Second), Torts § 503(3) (1975) (" [a] plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm" ).
The defendants’ have alleged sufficient facts to constitute a special defense of contributory recklessness. She " accompanied Kochanski throughout the course of the evening of the accident and observed or otherwise became aware of Kochanski’s consumption of alcohol. [She] knew or should have known of the danger of Kochanski’s alleged intoxication yet voluntarily entered the vehicle that Kochanski was operating at the time of the accident." (Third special defense.) This alleged conduct by the plaintiff can be construed as wanton, wilful, or reckless conduct that increased the probability of the plaintiff’s injuries, and is therefore legally sufficient. The motion to strike the third special defense as to the fifth count is denied.
CONCLUSION
For the reasons stated above, the motion to strike the first and third special defenses as to the fourth count is granted. The motion to strike the second special defense as to the fourth count is denied. The motion to strike the first, second and third special defenses as to the fifth count is denied.