Opinion
No. CV 06-5001790 S
April 20, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #121
FACTS
On June 5, 2006, the plaintiff, Egzon Dauti, filed a three-count complaint, with the pertinent count being count three brought against the defendant Jacklin Rod and Gun Club, Inc. (defendant), under the Dram Shop Act, General Statutes § 30-102. Counts one and two, which have been withdrawn by the plaintiff, concern a deceased former defendant, Ronald Johnson, who is no longer a party to this action. In count three, the plaintiff alleges the following relevant facts. On July 10, 2005, while Johnson was intoxicated, the defendant served him alcohol. Subsequently, Johnson drove his motor vehicle, and he caused injury to the plaintiff in a motor vehicle accident.
On November 12, 2006, the defendant filed a motion for summary judgment on the ground that undisputed evidence establishes that the defendant did not serve alcohol to Johnson on the date of the accident. The defendant filed a memorandum of law in support of its motion and relies on the answers Johnson provided in his responses to the defendant's request for admissions. On November 29, 2006, the plaintiff filed a memorandum of law in opposition along with supporting documentation. The matter was heard on short calendar on January 22, 2007.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006).
"The courts hold the [summary judgment] movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Emphasis added; internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In support of its motion for summary judgment, the defendant relies on Johnson's responses to the defendant's request for admissions, in which Johnson admitted that "on July 10, 2005, [he was] never served alcohol by agents and/or employees of The Jacklin Rod and Gun Club, Inc. . . . [and that] on July 10, 2005, [he] never visited The Jacklin Rod Gun Club, Inc." In opposition to the motion, the plaintiff filed an uncertified copy of a police report, an affidavit from the plaintiff's attorney, a letter written by the plaintiff's attorney and Johnson's supplemental responses to the plaintiff's interrogatories. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997) citing Practice Book § 17-46. In the present case, the defendant's submissions are admissible, however, the plaintiff's are not.
"The request for admissions is an instrument of discovery governed by Practice Book §§ 13-22 through 13-25 . . . A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment." (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004). Although a judicial admission is binding only on the party making it; see Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 866, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); Johnson's statement in response to the defendant's request for admissions is admissible as an evidential admission and would be sufficient to satisfy the defendant's burden, as the moving party, to establish the absence of a genuine issue of material fact if the plaintiff fails to offer admissible evidence to the contrary.
The evidence offered by the plaintiff is not admissible and, accordingly, does not raise a genuine issue of material fact. "It is well settled that [a]n out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." (Internal quotation marks omitted.) Moran v. Morneau, 100 Conn.App. 169, 173, 837 A.2d 866 (2007). In order to contest the defendant's evidence demonstrating that Johnson was not served alcohol at the defendant's establishment, the plaintiff relies on an affidavit from his attorney. In the affidavit, the plaintiff's attorney asserts that Johnson's attorney told him that Johnson said that he had in fact been served alcohol at the defendant's place of business. The plaintiff submits a copy of an Appellate Court case, Addison v. Velez, 72 Conn.App. 402, 805 A.2d 762 (2002), in support of the proposition that his affidavit is admissible. In Addison, the attorney's affidavit concerned an issue of which the attorney had direct personal knowledge, whereas, in the present case, the plaintiff's attorney is relying on a statement made by Johnson's attorney, who was, in turn, quoting Johnson. This statement is being offered to prove the truth of the matter asserted and, therefore, is hearsay.
The plaintiff's attorney in Addison swore in an affidavit to as to the substance of a meeting, regarding a settlement agreement, in which he personally participated. That court ruled that the attorney could use his own affidavit as evidence to oppose a motion for summary judgment.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). In this case, no admissible evidence has been presented to demonstrate that any such issues exist.
"To recover under the [Dram Shop Act], a plaintiff must bring himself squarely within its provisions . . . In each case, therefore, the trier must decide as a question of fact: whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another." Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 492 A.2d 184 (1985). In the present case, the defendant has provided admissible evidence that Ronald Johnson was never served alcohol by the defendant Rod and Gun Club on the date of the motor vehicle accident, and also, that Johnson never visited the defendant's establishment on that date. This evidence demonstrates that the first element of a claim pursuant to the Dram Shop Act is lacking. The plaintiff, however, has provided no admissible evidence to demonstrate that a genuine issue of material fact exists with regard to this element. As such, the defendant is entitled to judgment as a matter of law. Accordingly, the motion is granted.
UPSON, J.