Opinion
No. CV 10 6004615
January 25, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE [#126]
FACTS
On September 16, 2010, the plaintiffs, Dexter Herrera, as administrator of the estate of Carlos Herrera, the plaintiffs' decedent, and Dexter Herrera, individually, filed a four-count second amended complaint in the present wrongful death action against the defendants, Elizabeth A. Adams, Cue Corporation, Graham A. Thompson and Shub, LLC. In their complaint, the plaintiffs allege the following facts. Thompson is the duly licensed permittee and Shub, LLC is the duly licensed backer of Stash's Cafe, a public bar and restaurant located in New London, Connecticut. On October 25, 2009, Julian Arias was a patron of Stash's Cafe, where he consumed large quantities of alcoholic beverages supplied by the defendants acting by and through their agents, servants, managers, supervisors and/or employees. Thereafter, a motor vehicle operated by Arias, in which the plaintiffs' decedent was a passenger, collided into a residence located at 119 Old Norwich Road in New London, Connecticut. As a result of the accident, the plaintiffs' decedent suffered serious injuries, including death. Counts three and four, which are at issue in the present motion, seek recovery pursuant to the Dram Shop Act, General Statutes § 30-102, and common-law liability for reckless service of alcohol, respectively.
Adams and Cue Corporation are not parties to the present motion. Hereinafter the term the defendants refers to Thompson and Shub, LLC, collectively.
On October 26, 2010, the defendants filed an answer and two special defenses as to count four of the plaintiffs' complaint for common-law reckless service of alcohol. The defendants' first special defense alleges that "[l]iability is barred by the doctrine of assumption of risk in that . . . [the plaintiffs' decedent] voluntarily entered the vehicle driven by . . . Arias when he knew or should have known that . . . Arias was intoxicated . . ." The defendants' second special defense alleges that "[a]ny damages sustained by [the plaintiffs' decedent] were caused in whole or in part by his own recklessness in that he voluntarily entered the vehicle driven by . . . Arias when he knew that . . . Arias was intoxicated . . . and despite his knowledge of the damages associated with driving under the influence."
On October 28, 2010, the plaintiffs filed a motion to strike the defendants' first and second special defenses on the grounds that the defenses are legally insufficient. The plaintiffs filed a memorandum of law in support of their motion. On November 10, 2010, the defendants filed an objection to the plaintiffs' motion.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a)(5). "It is axiomatic that the purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) New England Retail Properties, Inc. v. Maturo, 102 Conn.App. 476, 489, 925 A.2d 1151, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the [pleading] and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
The plaintiffs argue that the defendants' special defenses for assumption of the risk and contributory recklessness, while potentially valid defenses as to Arias, the driver of the motor vehicle, are not proper defenses as to the defendants, the purveyors of alcohol, under a common-law reckless service of alcohol claim. Our appellate courts have not yet addressed this issue, and there exists a split of authority among the Superior Courts. In support of their argument, the plaintiffs cite Gatling v. Barleycorn, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 09 5013079 (May 6, 2010, Gallagher, J.) ( 49 Conn. L. Rptr. 793), in which the court struck the defendants' special defense for comparative recklessness as to the plaintiffs' recklessness claims pursuant to the reasoning set forth in Waldron v. Ohler, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002709 (March 17, 2008, Pickard, J.) ( 45 Conn. L. Rptr. 200). The court in Waldron found that the defenses of assumption of the risk and contributory recklessness are not valid defenses when asserted by the purveyor of alcohol as to a dram shop action, noting that under such a claim, "[w]hile a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated, as several cases have held, he cannot be held to have assumed the risk that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated . . . Similarly, 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." (Citation omitted; internal quotation marks omitted.) Id., 202. Pursuant to the Waldron court's holding, the court in Gatling found that "the same reasoning which precludes using `assumption of the risk' as a defense against the purveyor of alcohol applies to the defense of contributory recklessness. It may be a valid defense as to the intoxicated driver. It is not a valid defense as to the defendants here." Gatling v. Barleycorn, supra, 49 Conn. L. Rptr 795.
The plaintiffs, in turn, cite to several Superior Court decisions in which the courts held that the defenses of assumption of the risk and contributory recklessness are valid as to a claim for common-law reckless service of alcohol. For example, in Sego v. Debco, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 0039650 (September 8, 1994, Skolnick, J.), the court denied the plaintiff's motion to strike the defendant's assumption of the risk defense as to the plaintiffs' recklessness counts, noting that "[w]anton, willful 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." As a result, the court reasoned that where the "defendants contend that plaintiff's decedent voluntarily subjected himself to the risks involved in riding as a passenger . . . knowing that [the driver] was intoxicated . . . [s]uch an act in the eyes of a trier might be held to constitute wanton, willful or reckless conduct increasing the probability of injury and supporting a defense of assumption of the risk to a claim of recklessness as against the defendants." Id., see also Jacocks v. Monahan's Shamrock, Superior Court, judicial district of New Haven, Docket No. CV 92 0330268 (October 13, 1993, Zoarski, J.) (allowing assumption of the risk defense to stand as to reckless service of alcohol claim). Similarly, the court in Tarver v. DeVito, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0120282 (June 25, 1992, Rush, J.) denied the plaintiff's motion to strike the defendant's assumption of the risk defense as to the plaintiff's wanton and reckless conduct claim under a similar factual scenario by noting that "[c]ontributory recklessness would constitute a defense to an action based on recklessness."
Moreover, the plaintiffs counter that the defendant's reliance on Gatling v. Barleycorn, supra, 49 Conn. L. Rptr. 793, is not persuasive due to that court's decision to strike a defense of assumption of the risk as to a common-law reckless service of alcohol claim based on the court's decision in Waldron v. Ohler, supra, 45 Conn. L. Rptr. 200, to strike defenses of assumption of the risk and contributory recklessness as to a dram shop action. Specifically, the plaintiffs note that the Waldron court declined to extend either defense to dram shop claims because to 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." Waldron v. Ohler, supra, 45 Conn. L. Rptr. 201. By contrast, to prove a common-law reckless service of alcohol claim, "the plaintiff must demonstrate that the defendants acted in a manner that tended to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Coble v. Maloney, 34 Conn.App. 655, 661, 643 A.2d 277 (1997). The plaintiffs further cite Jacocks v. Monahan's Shamrock, supra, Docket No. CV 92 0330268, in which the court declined to extend defenses of assumption of the risk and contributory recklessness as to a dram shop action, but allowed the defenses to stand as to a common-law reckless service of alcohol claim.
Pursuant to the case law cited, and construing the defendants' pleading most favorably to sustaining its legal sufficiency, the court finds that the defendants' special defenses of assumption of the risk and contributory recklessness are valid defenses to the plaintiffs' claim for common-law reckless service of alcohol. As a result, the plaintiffs' motion to strike the defendants' first and second special defenses must be denied.
CONCLUSION
Based on the foregoing, the court hereby denies the plaintiffs' motion to strike the defendants' first and second special defenses.