Opinion
No. 4102186
December 23, 2005
MEMORANDUM OF DECISION RE PLAINTIFF'S PREJUDGMENT REMEDY APPLICATION
Background
The above-entitled matter was commenced by writ and complaint returnable July 26, 2005 alleging injuries and damages to the plaintiff, Marc J. Coderre, Jr. as a result of a single car accident on January 25, 2005, in Storrs, Connecticut. The plaintiffs' complaint alleges that Marc J. Coderre, Jr, was a passenger in a vehicle operated by Eric P. Gates ("Gates") when the vehicle collided with a utility pole. The complaint consists of eighteen counts, of which counts one through seven, and ten through sixteen are directed against the co-defendants, Gates, Brian Gates and Herb Chambers Ford of Westborough, Inc. Counts eight and seventeen are "Dram Shop Act" claims brought pursuant to General Statutes § 30-102 against defendants WHGR, Inc. D/B/A Huskies Restaurant, and its permittee, Kevin Lavalee. Counts nine and eighteen allege a common-law claim for negligent sale of alcohol to a minor against the same defendants.
The plaintiffs' complaint alleges that on April 26, 2005, the plaintiffs Marc Coderre and Denise Coderre were appointed as co-conservators of the estate and person of Marc J. Coderre, Jr. by the District of Putnam Probate Court.
The plaintiffs commenced this action with a prejudgment remedy application against Brian Gates, which was heard by the court (Burley, J.) and denied on June 27, 2005. The plaintiffs thereafter moved for a prejudgment remedy against the defendant, WHGR, Inc., only, by prejudgment remedy application dated October 13, 2005 in the amount of $4,000,000. The plaintiff claims that the court should grant a prejudgment remedy based upon a finding of probable cause of a "Dram Shop Act" claim pursuant to General Statutes § 30-102 and a common-law claim for negligent sale to a minor against the defendant, WHGR, Inc.
Prejudgment Remedy Law
To prevail on their application for prejudgment remedy, the plaintiffs must demonstrate that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in a greater amount, taking into account all known defenses, counterclaims and setoffs, will be rendered in such matter in favor of them. General Statutes § 52-278c; see Cahaly v. Benistar Property Exchange Trust Co., 73 Conn.App. 267, 278 (2002), rev'd on other grounds, 268 Conn. 264 (2004). The burden of proof is a showing of probable cause, which "is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Emphasis in the original; internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., supra, 73 Conn.App. 278.
This court must determine whether the plaintiff has sustained his burden of proof for a prejudgment remedy under the dram shop statute and/or common-law negligent sale of intoxicating beverages to a minor claim. Each cause of action will be separately reviewed and analyzed.
Dram Shop Claim
The plaintiff alleges in count eight, that the defendant violated the "Dram Shop Act" by selling Gates alcohol while he was intoxicated and while he was a patron at Huskies Restaurant ("Huskies"). Additionally, the plaintiff alleges that his injuries were in consequence of the intoxication. The plaintiff alleges that written notice was given to the defendant's backer and permittee within sixty days of the injuries and losses.
"Connecticut's Dram Shop Act, General Statutes § 30-102 . . . authorizes a cause of action against a person who sells alcoholic liquor to an intoxicated person who causes injury to another person as a result of his or her intoxication." Craig v. Driscoll, 262 Conn. 312, 314 (2003). General Statutes § 30-102 provides in pertinent part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section . . ."
"To prevail on a dram shop claim, a plaintiff must prove: (1) the sale of the alcoholic liquor; (2) that the sale was to an intoxicated person; and (3) that the intoxicated person caused injury to another's person or property as a result of his or her intoxication . . . Proof of Sale to an intoxicated person requires proof of something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be dead-drunk. It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." (Citations omitted; internal quotation marks omitted.) Hayes v. Casper, Ltd., 90 Conn.App. 781, 801-02, cert. denied, 276 Conn. 915 (2005); see Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341 (1985).
The Dram Shop Act "establishes a cause of action that did not exist at common law . . . It creates a new tort liability which is based upon a specified course of conduct and the consequences of such conduct . . . The delict defined by [General Statutes] § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relation between the sale and the injury is required." (Citations omitted.) Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 348-49.
"[General Statutes § 30-102] requires no showing of a causal relation between the sale of intoxicating liquor and the subsequent injury . . . [It] was enacted to fill the void created by the old rule's disallowance of by action against the barkeeper grounded in negligence. The underlying premise of the dram shop statute is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication." Kowal v. Hofher, 181 Conn. 355, 358 (1980).
Intoxication under "[General Statutes] § 30-102 is not a per se offense that can be proven merely by establishing a blood alcohol level of 0.10 percent or greater at the time the elements of the offense occurred, the results of the blood alcohol tests nonetheless may indicate that a person had imbibed intoxicating liquors, which is a key factor in determining whether an individual is intoxicated. Clearly, then, the results of the blood alcohol tests are relevant to a determination of intoxication for the purposes of [General Statutes] § 30-102. Similarly, proof of common law wilful, wanton and reckless misconduct in the selling of alcohol does not require evidence of a specific blood alcohol level, but such evidence is nonetheless relevant to a determination whether the defendants acted in such a manner." Coble v. Maloney, 34 Conn.App. 655, 664 (1994).
Whether the party was intoxicated at the time of the sale is a question of fact. See Kelehear v. Larcon, Inc., 22 Conn.App. 384, 390 (1990); Milano v. Sayers, 6 Conn.App. 491, cert. denied, 199 Conn. 810 (1986). The "Dram Shop Act" does not specify whether the plaintiff must prove that the server knew or should have known that the party was intoxicated at the time of service, or simply that the party was intoxicated. Factual scenarios are possible under which the party may not manifest any behavior indicating intoxication while being served, yet other facts show that the party was, indeed, intoxicated at the time of service unbeknownst to the server.
Our Supreme Court has recently referred to a dram shop claim as a strict liability claim. "Accordingly . . . [General Statutes § 30-102] covers all sales of liquor that result in an intoxicated person causing injury, irrespective of the bar owner's knowledge or state of mind. The act thereby provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action and without the benefit of the broader scope of recovery permitted under such an action." Craig v. Driscoll, supra, 262 Conn. 328.
Contributory negligence is not a defense to a dram shop action. Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 352; Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 512 (1992). "[T]he sixty day notice requirement is a condition precedent to maintaining an action alleging only a violation of the Dram Shop Act. Failure to file a timely notice pursuant to [General Statutes] § 30-102 does deprive the trial court of subject matter jurisdiction." Davenport v. Quinn, 53 Conn.App. 282, 293 (1999).
In the present case, this court must determine whether the plaintiffs, through affidavits, testimony and exhibits presented at the hearing have established probable cause for a sale of intoxicating beverage to an intoxicated person and injuries flowing therefrom.
ANALYSIS
The plaintiffs have established that the defendant, Gates, was sold and/or served intoxicating beverages while a customer and/or patron at Huskies. (Testimony of Star Rodrigues and Jared Delerme.) The plaintiff also presented evidence that the defendant was legally and physically under the influence of alcoholic beverages when he was served as a patron at Huskies (Testimony of James O'Brien, M.D., a board certified internist). The plaintiff also submitted testimony from an accident reconstructionist as to the excessive speed of the Gates' vehicle (i.e., 70 mph in a 30 mph zone) when the vehicle hit the pole. (Testimony of Peter Plant.) The reconstructionist further testified that Gates took no evasive action prior to crossing the highway. The reconstructionist further opined Gates' significantly limited reaction time demonstrates that he was intoxicated. (Testimony of Peter Plant.) Furthermore, State Trooper Maniero testified that there were no skid marks at the scene, no ice on the road, and no evidence of any evasive action prior to hitting the pole. The trooper, in addition, testified that he noted Gates' eyes to be "glassy" when observed at the accident scene. He opined that Gates was intoxicated.
The defendant, Gates, called Huskies' business manager, Mr. Prokop, to testify that he did not notice the defendant to be intoxicated. The two companions of Gates, Star Rodrigues and Jared Delerme, who gave different accounts about the amount and kind of alcohol ingested by Gates, testified that Gates did not show visible signs of intoxication. The defendant, Gates, while on the stand, upon advice of counsel, refused to testify on the basis of the fifth amendment to the United States constitution due to pending criminal actions against him. The credibility of witnesses are left to the trier of fact. Keeney v. Buccino, 92 Conn.App. 496 (2005). The trier can also draw an adverse inference from a refusal of a party to testify in a case based on the fifth amendment claim. Tadros v. Tripodi, 87 Conn.App. 321 (2005).
Trooper Maniero also concluded that Gates' intoxication was a substantial factor in the production of the accident. He charged Gates with DUI for a minor (meaning that he was over .02, a violation of § 14-227g) as well as for violating § 53a-60, which is assault with a motor vehicle (causing serious injury to someone while intoxicated).
The court finds that the plaintiff has sustained his burden of proof as to probable cause that the defendant, Gates, was served alcohol while intoxicated. The Huskies business manager, who was at the door checking patron's identification, was not in a position to view the defendant, Gates, on a continual basis while he was drinking at his establishment. The witnesses, Star Rodrigues and Jared Delerme were at odds as to the type and quantity of alcohol consumed by Gates thus were not continually in his presence during their stay at Huskies.
This court further concludes that visibility of intoxication at the time of service of alcohol is not a specific requirement to prove intoxication based upon the case law cited above. The plaintiff has provided this court with sufficient evidence to find probable cause as to Gates' intoxication while served at Huskies.
As to the final requirement of proof, this court finds probable cause that the plaintiff sustained injuries as a result of the actions of an intoxicated person. It is reasonable to conclude that the defendant Gates' mental and physical ability to operate his motor vehicle were affected by his ingestion of alcohol as a patron at Huskies. (See testimony of James O'Brien, M.D., Trooper Maniero and Peter Plant, accident reconstructionist.)
Common-Law Negligent Sale of Alcohol to Minors Claim
The plaintiffs allege in count nine of their complaint, that Huskies negligently served alcohol to Gates, who was under the age of twenty one, and that the service was in violation of General Statutes § 30-86. Additionally, the plaintiffs allege that as a result of the service, injuries and damages to Marc J. Coderre, Jr. occurred. The plaintiffs assert that Gates was served sufficient quantities of alcohol to cause intoxication, and that the defendant knew or should have known that Gates was under twenty-one years of age. Additionally, the plaintiffs allege that Huskies failed to take steps necessary to determine Gates' age prior to serving him alcohol when they could and should have done so. The defendant asserts that pursuant to General Statutes § 30-86, an alcohol server is exculpated when an under age patron fraudulently misrepresents their age.
General Statutes § 30-86 states in pertinent part: "(b) Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing the person to be such a habitual drunkard, shall be subject to the penalties of section 30-113."
General Statutes § 30-86 provides an affirmative defense to a statutory violation if a permittee scans a patron's driver's license or identity card. General Statutes § 30-86(b) provides an affirmative defense if a permittee photographs a patron and photo copies the driver's license or identity card presented by the patron in order to prove their age. General Statutes § 30-86(a) provides a bar to penalties provided the permittee obtained a signed affidavit from the patron, and that the permittee introduces into evidence the affidavit and shows that the evidence presented to him to establish the patron's age was such as would convince a reasonable man.
C.G.S. § 30-86 provides the following definitions:
"Cardholder" means any person who presents a driver's license or an identity card to a permittee or permittee's agent or employee, to purchase or receive alcoholic liquor from such permittee or permittee's agent or
"Identity card" means an identification card issued in accordance with the provisions of section 1-1h.
"Transaction scan" means the process by which a permittee or permittee's agent or employee checks, by means of a transaction scan device, the validity of a driver's license or an identity card.
"Transaction scan device" means any commercial device or combination of devices used at a point of sale that is capable of deciphering in an electronically readable format the information encoded on the magnetic strip or bar code of a driver's license or an identity card.
"Liability for service of alcohol to a minor is not unconditional." Hayes v. Casters, Ltd., supra, 90 Conn.App. 787. "[The Connecticut] Supreme Court has addressed the relationship between common-law negligence and . . . [General Statutes § 30-86] statutory prohibition. In Bohan v. Last, 236 Conn. 670, 680 (1996), the court held that, despite the statute, the common law liability of purveyors of alcohol [is limited] to those who knew or had reason to know that they were making alcohol available to a minor. That holding was recently reaffirmed in Craig v. Driscoll, supra, 262 Conn. 339, which held that a person who provides alcohol to someone who should not have been served bears legal responsibility for a reasonably foreseeable risk of injury arising out of the improper service." (Internal quotation marks omitted.) Hayes v. Caspers, Ltd, supra, 90 Conn.App. 787. Connecticut recognizes common-law negligence for sale of alcohol to under age patrons, subject to forseeability and reasonable person standards. Ely v. Murphy, 207 Conn. 88 (1988); Bohan v. Last, 236 Conn. 670 (1996); Rangel v. Parkhurst, 64 Conn.App. 372 (2001).
This court, in the present controversy, concludes that the use of an identification card and submission of what appears to be a valid ID card or driver's license does not bar the plaintiff from proceeding in his claim for negligent service of alcohol to a minor.
Analysis
The plaintiffs are entitled to offer proof that Mr. Prokop, the agent of the defendant, WHGR, Inc., relied on the procedure utilized on the night in question. It was admitted by Mr. Prokop that the plaintiff, Marc J. Coderre, Jr., entered Huskies together with the defendant, Gates. Mr. Prokop further testified that he personally knew the plaintiff, Marc J. Coderre, Jr., because he worked as an employee of Huskies in the past. The defendant WHGR, Inc., knew or should have known that the plaintiff was presenting a false ID to enter the establishment where he previously worked. The plaintiff, along with Gates, and another companion, all entered Huskies with a false IDs. According to Mr. Prokop, Gates was a regular customer at Huskies. Mr. Prokop further admitted that Huskies caters to U-Conn students with many students enrolled under the age of 21.
The plaintiff has submitted sufficient evidence for the court to find probable cause as to the failure in the exercise of due diligence in relying upon the use of driver's license as the sole means of determining whether to accept a patron. It would not be unreasonable at trial, for a judge or a jury to infer that the defendant WHGR, Inc.'s agents were not using reasonable diligence when all in the plaintiffs' party, i.e., Coderre, Gates, Rodrigues and Delerme and a fifth individual were admitted together when Mr. Prokop knew or should have known that Marc J. Coderre, Jr. was under age. Reliance solely on a driver's license as a basis of a defense of reasonable diligence as to ascertaining a patron's age is an issue to be determined at trial.
Prejudgment Remedy Amount
The plaintiffs have sought a prejudgment remedy in the amount of four million dollars against the defendant, WHGR, Inc. The court hereby finds that the plaintiffs have sustained their burden of proof for a prejudgment remedy in said amount. Marc J. Coderre, Jr. was found laying outside Gates' vehicle in a puddle of gasoline with severe head, chest and extremity injuries and was intubated and airlifted to the Hartford Hospital. His injuries include severe traumatic brain injury with severe DAI with multiple frontoparietal punctate contusions, severe cerebral edema, long bone fractures of the left femur, and fractures of both the left radius and ulna. He also suffered multiple facial fractures, a puncture ground in the left femur and fracture in the lateral mid thigh. He spent one month at Hartford Hospital and was then discharged to Gaylord Hospital where he presently resides. He has, to date, incurred over seven hundred thousand dollars in medical bills subject to a collateral source reduction for the bills paid by health insurance. He presently suffers from short-term memory loss and will not be able to return to college at the present time.
ORDER
Pursuant to the provisions of C.G.S. § 52-278(d) and a finding of probable cause, the plaintiff's prejudgment application is hereby GRANTED. The plaintiff may attach the real and/or personal property of the defendant, WHGR, Inc., by way of recordation on the land records in the municipality where the defendant, WHGR, Inc. owns an interest in real property and/or to secure the personal property by way of a filing securing this court-ordered lien in the office of the applicable state and/or local regulatory authority in the sum of four million dollars. The plaintiff's motion for prejudgment disclosure of property and assets filed pursuant to C.G.S. § 52-278n is hereby GRANTED.