Opinion
No. CV-07-5009306
November 22, 2010
MEMORANDUM OF DECISION
The plaintiff has brought a complaint in two counts against Jack DeLieto, the permittee of The Wagon Wheel Cafe (The Wagon Wheel) and Jadoanc, Inc., the backer of the Wagon Wheel. Count Four is a dram shop action under General Statutes § 30-102 and count three is an action based on reckless and wanton conduct.
The plaintiff has established by a preponderance of the evidence that the defendant Jack DeLieto was duly licensed by the State of Connecticut as the permittee of The Wagon Wheel, and that the defendant Jadoanc, Inc. was the backer of The Wagon Wheel. The plaintiff has also established that the defendants received timely notice that the plaintiff was making a claim pursuant to General Statutes § 30-102.
The plaintiff was injured on February 4, 2006 at approximately 2:39 a.m., when he and his passenger were driving northbound in Interstate 95 in the left lane near Exit 44. The plaintiff was going approximately sixty miles per hour when he suddenly saw headlights rapidly approaching him. The plaintiff estimates that the vehicle (driven by one Patrick Butler) was going approximately sixty miles per hour, heading southbound in the northbound lane. At the last moment the plaintiff turned his vehicle slightly to the right and closed his eyes. Both cars were severely damaged as a result of the impact.
Detective David Gutierrez of the Connecticut State Police arrived upon the scene shortly thereafter. Within one-half hour, Gutierrez spoke to Butler at St. Raphael Hospital where he had been taken because of his injuries. Gutierrez testified that he immediately noticed a "most apparent" and strong odor of alcohol coming from Butler. Butler admitted in the hospital that he had been drinking alcohol prior to the accident. Butler also had blood-shot eyes and was slurring his speech. A test of Butler's blood done at 3:36 a.m. at the hospital showed a blood alcohol level of .23. Butler later pleaded guilty to Assault in the Second Degree and was incarcerated as a result.
Butler testified that on the day of the accident he lived in Westbrook, Connecticut, and that he was going through a painful divorce. Butler's wife was living in New Haven at the time. Butler also testified that he was not normally a heavy drinker, but around the date of the accident, he was drinking heavily, primarily because of his divorce.
On the night of February 3, 2006, Butler went by himself to Main Street Cafe in Old Saybrook at around 7:00 p.m. He was there for approximately three hours. During that time he consumed between seven and eight Absolut Vodka and orange juice screwdrivers. In addition, a patron had brought some "home-made moonshine" to the bar which tasted to Butler like grain alcohol. Butler had two or three shots of the "moonshine" in addition to the mixed drinks. At this point Butler testified that he "felt he was intoxicated," "was drunk" and "was feeling no pain." Butler also testified that "not being a drinker, [he] felt it," i.e. the effects of alcohol. From the Main Street Cafe, Butler drove to another bar called "Oliver's" to briefly look for a friend. From there, Butler drove to the Wagon Wheel Cafe in New Haven, and arrived between 10:30 and 11:00 p.m. When Butler arrived at the Wagon Wheel he testified that he was intoxicated from his earlier consumption of alcohol.
Butler states that he had previously patronized the Wagon Wheel, and that he anticipated that his wife would be there on the night of the accident. He says that a "girl or a fellow" served him drinks at the Wagon Wheel. Butler states that in the approximately three hours he was at the Wagon Wheel he had an additional "six, seven or eight" screwdrivers. As a result of consuming the now total of anywhere between fourteen and sixteen mixed drinks and two to three shots of "moonshine," Butler testified that he was now "hammered" and "highly intoxicated," at the time he was at the Wagon Wheel Cafe. From the Wagon Wheel, Butler went directly to his wife's house in New Haven in an attempt to reconcile. He testified that it took approximately ten minutes to drive from the Wagon Wheel to his wife's abode. Butler says that when he arrived at his wife's home, she attempted to remove him from the car due to his high level of intoxication. It was apparent to Butler's wife approximately ten minutes after Butler left the Wagon Wheel, therefore, that Butler was visibly intoxicated. As a result of his consumption of alcohol, Butler also testified that he was feeling "wobbly" and probably slurring his speech.
Butler's wife was not able to remove Butler from his car. Butler's intent was then to return to Westbrook on Interstate 95. This would have required him to head northbound on Interstate 95. Instead, Butler headed southbound in the northbound lane, ultimately colliding with the plaintiff near Exit 44. The Court credits all of Butler's testimony.
The defendant Jack DeLieto testified that he is the permittee and owner of The Wagon Wheel. The defendant states that he tended bar on the night of February 3/4, 2006, while his brother (who is now deceased) "ran the outside," meaning he was the bouncer in case anyone got "out of line." The defendant testified that it was "extra busy" on the night of the third into the fourth, and that he has "no memory" of serving Butler. Indeed, the defendant testified that he had never seen the plaintiff before this litigation. The defendant stated that it was his practice not to serve "someone who is falling down [drunk]," but he had no memory of ever seeing Butler on the night in question.
Legal Standard
"To establish a violation of General Statutes 30-102, three elements must be proven. `In each case . . . 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 (1985)." Coble v. Mahoney, 34 Conn.App. 655, 662 (1994). The plaintiff has the burden of proving all three elements by a preponderance of the evidence.
As to the first element, the Court finds Butler's testimony entirely credible that he was sold intoxicating liquor by The Wagon Wheel Cafe on the night of February third and fourth of 2006. The defendant DeLieto's testimony that he does not remember seeing or serving Butler on the night in question is of scant probative value. "[N]ot having any recollection of serving a total stranger . . . is simply not probative of anything . . . `The court questions whether one can swear to the fact that he did not serve a particular individual when he does not even know that individual.'" (Citation omitted.) Matos v. Allstate Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. 5002298 (November 18, 2008). Butler gave detailed and credible testimony of his activities on the night in question, including the service and consumption of alcohol by him at the Wagon Wheel. The plaintiff, therefore, sustained his burden of proof on this issue.
The second element involves the sale of alcohol to an intoxicated person. In Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 349, 350 (1985), our Supreme Court defined intoxication as follows: "To be intoxicated is 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.'"
The evidence of Butler's intoxication when he was served alcohol at The Wagon Wheel is overwhelming. First, Butler repeatedly and credibly testified that he was highly intoxicated when he arrived at the Wagon Wheel. He testified, again credibly, as to the large amount of alcohol he consumed earlier in the evening at the Main Street Cafe. He also testified that he was "drunk," "feeling no pain," "highly intoxicated," and "hammered," while he was served at The Wagon Wheel. Butler also testified that he did not normally drink this much alcohol and that as a result he "felt it," in essence more acutely. Butler also stated that alcohol made him slur his words and feel "wobbly." This credible testimony is also corroborated by the fact that Butler's wife tried to remove him from his vehicle because of his acute intoxication a mere ten minutes after he left the Wagon Wheel. Further corroboration is found by the fact that Butler was traveling the wrong way on Interstate 95 a short time later, causing a terrific collision. The credible time-line is that Butler left The Wagon Wheel at approximately 2:00 a.m. He then went to his wife's home. The collision occurred at approximately 2:39 a.m. The Detective saw Butler approximately thirty minutes after the collision at the hospital. His testimony is that Butler was exhibiting the effects of intoxication including a strong odor of alcohol. Finally, Butler's blood alcohol level was measured at the hospital at .23 at 3:36 a.m. All of these factors, given their temporal proximity to Butler's departure from the Wagon Wheel further corroborate Butler's frank admissions as to his high level of intoxication at the Wagon Wheel. Clearly a person's admissions as to the amount of alcohol and his level of intoxication are admissible on the issue of intoxication at the time of service. See, Coble at 668. The above articulated corroborating evidence is exactly the type of evidence that is useful and probative of Butler's intoxication at the time of service, and was relied upon by the court in Coble. Based upon all of the above findings of fact and applicable law, it is clear that the plaintiff has sustained his burden of proof on the second element of intoxication.
The plaintiff also sustained his burden of proof with respect to the third element of the Dram Shop action. The evidence is clear that it was as a result of Butler's acute intoxication that he drove the wrong way on Interstate 95 and, as a result, caused the accident and resulting injuries to the plaintiff.
Damages
The plaintiff sustained a fractured right patella, and numerous cuts and abrasions to his face as a result of the accident. The plaintiff credibly testified as to the extreme fright he experienced as a result of this incident, and the fact that he suffered from nightmares in the months following the collision. Prior to this incident, the plaintiff actively engaged in, and enjoyed playing sports, including basketball. As a result of the injuries sustained in the accident, the plaintiff can no longer engage in sports and exercise. As a result, he has gained a significant amount of weight. The plaintiff missed one week of work, but testified that he went to work "half dead," for a period after he returned to work. The plaintiff had to wear a brace for his knee for approximately six weeks after the accident, and had difficulty bending and flexing his knee, which interfered with his ability to walk properly. The plaintiff did numerous exercises on his own in order to regain the strength in his knee, and he is still suffering some residual negative effects as a result of the injuries he sustained. Based upon the credible evidence adduced, the court finds the plaintiff damages as follows: Economic damages: $8,540.45 ($7,911.45 medical bills plus $629 lost wages); Noneconomic damages: $35,000. Total damages awarded: $43,540.45. The damages are awarded under Count Four (Dram Shop Count). The plaintiff did not sustain his burden of proof on recklessness in Count Three.
Judgment therefore enters in favor of the plaintiff against the defendants Jack DeLieto and Jadoanc, Inc. on Count Four in the amount of $43,540.45.