Opinion
NNHCV126032268S.
12-12-2012
Dina DeCARLO v. Joseph DUPUIS, et al.
UNPUBLISHED OPINION
ROBERT E. YOUNG, J.
FACTS:
In this action, the plaintiff, Dina DeCarlo, claims that she sustained injuries and damages as the result of a motor vehicle accident. She alleges that defendant Joseph Dupuis struck her vehicle in the rear and that Dupuis was intoxicated. She further alleges in the First Count, a dram shop action, that defendant Metropolis of Connecticut, LLC, d/b/a Mardi Gras II [" Metropolis" ] served Dupuis that evening despite Dupuis' visible intoxication.
Defendant Metropolis has moved to dismiss this count on the ground that the plaintiff failed to provide adequate notice to Metropolis as required by General Statutes § 30-102, depriving this court of subject matter jurisdiction. The notice, by way of letter, states, in relevant part, " Mr. Dupuis claims that he rear-ended the vehicle of [the plaintiff] on [February 24, 2012 at approximately 11:30 p.m.] after he had been served 12 beers within an hour at Mardi Gras II, which is located in Enfield, Connecticut."
The plaintiff has filed an objection to the motion, claiming that technical deficiencies are not sufficient to deprive the court of jurisdiction. The parties presented their respective positions at oral argument on December 3, 2012.
The plaintiff, in her complaint, has failed to comply with Practice Book § 10-68 by either reciting the notice in the complaint or annexing a copy thereto. Defendant Metropolis has not raised this failure as a basis and moreover has attached a copy of the notice to an affidavit filed in support of the motion to dismiss. Therefore, the court will presume that Metropolis is waiving this procedural defect and will address the merits of the claims made in support of, and opposition to, the motion to dismiss. Pursuant to Practice Book § 10-1, the court orders that the notice provided by the defendant be deemed attached to the complaint without the necessity of repleading.
LEGAL STANDARD OF REVIEW:
" A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction ." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). " Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Citation omitted; internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008).
The standard governing a trial court's review of a motion to dismiss is well established. " [I]n ruling [on] whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader[.]" (Citation omitted; internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 290, 933 A.2d 256 (2007). Where subject matter jurisdiction is involved, it may also consider any affidavits or other uncontroverted evidence, and even conduct an evidentiary hearing when appropriate. See, e.g., Fennelly v. Norton, 103 Conn.App. 125, 139 n. 11, 931 A.2d 269 (2007), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007); Bellman v. Town of West Hartford, 96 Conn.App. 387, 394, 900 A.2d 82 (2006); Manifold v. Ragaglia, 94 Conn.App. 103, 121, 891 A.2d 106 (2006).
" [I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008). " The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted.) Fink v. Golenbock, 238 Conn. 183, 199, n. 13, 680 A.2d 1243 (1996).
ANALYSIS:
In order to obtain relief under the Dram Shop Act, General Statutes § 30-102, a person must comply with its notice requirements, which state, in relevant part, as follows:
... [T]he aggrieved person or persons shall give written notice to such seller of such person's or persons' intention to bring an action under this section ... Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred.
The plaintiff, through counsel, sent a letter to the defendant which stated the date and time of the motor vehicle accident and the name of the person who was served. The notice did not set forth the time and date of the sale of alcohol, although it can be inferred from the notice that the date was the same as that of the accident. The notice did not set forth the place where the injury took place. Defendant Metropolis argues that these deficiencies in the notice are fatal to the claim. The plaintiff argues that the letter provided sufficient constructive notice to Metropolis.
Although the notice was sent to the wrong entity, the defendant concedes it received constructive notice of the claim. See Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 515-16, 603 A.2d 1173 (1992).
" The purpose of the notice required by § 30-102 is to enable a prospective defendant to begin marshaling his evidence while memories are still fresh. Zucker v. Vogt, 329 F.2d 426, 428 (2d Cir.1964) ... Even where notice requirements have not been literally met by giving a name, if under all the circumstances it nevertheless appears that the party entitled to notice was neither misled nor hampered by that defect, then he may not avail himself of the defect in his defense of the action. Greenberg v. Waterbury, 117 Conn. 67, 70-71, 167 A. 83 (1933)." Kirby v. Rusty Nail Café of Bristol, Inc., 40 Conn.Supp. 331, 332 (1985). In support of its motion to dismiss, the defendant has offered no claim or evidence that it was misled or hampered by the defects in the notice.
In support of its argument, Metropolis favorably cites a memorandum of decision in Estate of York v. Patti, Superior Court, judicial district of New London at New London, Docket No. 552518, (June 15, 2000, Corradino, J.). The defendant owner and permittee filed a motion to strike in that action on the basis that the § 30-102 notice was both inadequate and misleading. Judge Corradino granted the motion because the plaintiff estate mistakenly identified its decedent as the intoxicated patron, thus misleading the defendant.
That is not the situation in the case at bar. Metropolis does not assert that it was misled. Although Metropolis argues that it was seriously hampered by the plaintiff's failure to set forth the time of the sale and the location of the accident, it offers no substantiation of these assertions. In receipt of the notice, Metropolis was aware of the name of the alleged intoxicated patron, the date and location of service, that the service was last made within the hour of the accident and that the alleged quantity of service, twelve beers, was significant.
As to the first assertion, unquestionably, the notice was poorly drafted and phrased by the plaintiff's prior counsel. Despite its literal reading, it is not likely that counsel was attempting to convey that Dupuis was served 12 beers within one hour. Rather, the notice can be reasonably interpreted to mean that Dupuis was last served by Metropolis' bartenders within an hour of the accident.
Whether interpreted literally or reasonably, notice was given to Metropolis that Dupuis was alleged to have been served twelve alcoholic beverages, either by (1) chain-chugging within one hour or (2) being last served within an hour of the accident. Neither interpretation would seriously hamper Metropolis in marshaling its evidence against the claim. Metropolis could readily identify the bartenders on duty that day.
As to the second assertion, it is unclear how the lack of knowledge of the location of the accident would hamper Metropolis in its ability to marshal its evidence. Metropolis had knowledge of both the alleged intoxicated patron and of the alleged victim. Neither of Metropolis' assertions is supported by affidavit or other documentation.
§ 30-102 is " remedial in character and [thus] should be liberally construed to suppress the mischief and advance the remedy." (Internal quotation marks omitted.) Pierce v. Albanese, 144 Conn. 241, 251, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). There was sufficient information provided in the notice such that substantial compliance with the notice requirements of the statute was made and the purpose of the statute and of the notice was satisfied. Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 515-16, 603 A.2d 1173 (1992).
CONCLUSION:
The defendant Metropolis' motion to dismiss (117.00) is denied. The plaintiff's objection to same (132.00) is sustained.