Opinion
LLICV176015623S
02-20-2018
Kayte Krasow v. Wolfton, LLC dba The Rusty Nail
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bentivegna, James M., J.
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION TO STRIKE (#111)
Bentivegna, J.
I
STATEMENT OF CASE
This is a personal injury case resulting from a motor vehicle accident involving the plaintiff, Kayte Krasow, and a third party, Claire Villanova, who was a patron/invitee of the defendant bar/club, Wolfton, LLC d/b/a The Rusty Nail.
The operative complaint is the revised complaint, dated August 15, 2017 (#109), where the first count alleges recklessness against the defendant, Wolfton, LLC d/b/a The Rusty Nail (hereinafter " club" ), the second count alleges dram shop liability pursuant to General Statutes § 30-102 against the club, the third count alleges recklessness against the defendant, Dawn Hayes, Permittee (hereinafter " permittee" ), and the fourth count alleges dram shop liability pursuant to General Statutes § 30-102 against the permittee.
The defendants have filed a motion to strike, dated September 13, 2017 (#111), and memorandum of law in support of that motion, dated September 13, 2017 (#112). The defendants move to strike the first and third counts of the revised complaint on the ground of legal insufficiency because " [t]he plaintiff asserts a claim of common law recklessness against each of the defendants, but does not allege sufficient facts to support the legal conclusion that either defendant’s conduct was willful, wanton, and reckless; and does not allege sufficient facts to support the legal conclusion that Dawn Hayes has any liability solely on the basis of her status as permittee." The defendants move to strike the prayer for relief for punitive damages because " under Connecticut law [punitive damages] are only available for conduct that is outrageous or which demonstrates an indifference to the rights of others, and the allegations of the First and Third Counts do not fit either category. Further, punitive damages are not available under the Dram Shop Act, [General Statutes] § 30-102." (Defendants’ motion to strike, 1-2).
The plaintiff has filed an objection to the defendants’ motion to strike, dated November 13, 2017 (#115), and a memorandum of law in opposition to the motion to strike, dated November 13, 2017 (#116). The plaintiff contends that " [t]he First and Third counts [in the revised complaint]" and " the punitive damages claim in the Prayer for Relief ... are legally sufficient." (Plaintiff’s objection, 1.) In response to the plaintiff’s objection, the defendants have filed a reply, dated December 5, 2018 (#119). The matter was heard at short calendar on January 8, 2018.
DISCUSSION
" [W]henever any party wishes to contest ... the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ..." that party may do so by filing a motion to strike the contested pleading or part thereof. Practice Book § 10-39. " If a party wants to challenge the legal sufficiency of a complaint, the proper procedural vehicle is the motion to strike." Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any [pleading] ... to state a claim upon which relief can be granted ... A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ... [The court] take[s] the facts to be those alleged in the [pleading] ... and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied ... A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Citation omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
A
First Count Is Legally Insufficient To State A Claim For Common-Law Recklessness
The first count of the revised complaint alleges common-law recklessness against the club. In paragraph ten of the first count, the plaintiff alleges the following:
10. The injuries and other losses sustained by the plaintiff were caused by the wanton and reckless conduct of the defendant, Wolfton, its agents, servants and/or employees in one or more of the following respects:
a. In that it, its agents, servants and/or employees sold to and served Claire Villanova alcoholic beverages in such quantity so as to cause said invitee to be rendered heavily intoxicated;
b. In that it, its agents, servants and/or employees sold to and served Claire Villanova alcoholic beverages after said invitee had already been rendered heavily intoxicated;
c. In that it failed to promulgate proper written rules and/or regulations concerning the service of alcoholic beverages to intoxicated invitees;
d. In that it failed to enforce rules and/or regulations concerning the service of alcoholic beverages to intoxicated invitees;
e. In that it failed to train its employees regarding the enforcement of rules and regulations concerning the service of alcoholic beverages to intoxicated patrons; and
f. In that it failed to warn the plaintiff that said invitee, Claire Villanova, was heavily intoxicated at or about the time that both patrons left the club.
The defendants make several arguments regarding why the first count must be stricken, which the court finds persuasive.
First, the defendants argue that " [t]he plaintiff [has] failed to allege any facts to support the alleged legal conclusion that [the bar’s] conduct was willful, wanton, and reckless." (Defendants’ memorandum, 5.) The defendants cite several cases in support of their argument. See Kowal v. Hofher, 181 Conn. 355, 360-61, 436 A.2d 1 (1980); Craig v. Driscoll, 262 Conn. 312, 334, 813 A.2d 1003 (2003), superseded by statute as stated in O’Dell v. Koze, 307 Conn. 231, 265, 53 A.3d 178 (2012); Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003); Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958); Biros v. B.A.R., LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-09-5005523-S (April 15, 2010, Fischer, J.); DeCarlo v. Dupuis, Superior Court, judicial district of New Haven, Docket No. CV-12-6032268-S (October 14, 2014, Nazzaro, J.) (59 Conn.L.Rptr. 81).
" [I]n order to sustain a cause of action alleging willful, wanton and reckless misconduct in the service of alcohol, the plaintiff must plead facts, and not mere conclusions, which indicate that the defendants knowingly served an intoxicated patron. [The case law demonstrates that the plaintiff must] plead facts to demonstrate how the defendant would have known that the individual was intoxicated, as opposed to simply pleading the conclusion ... An allegation that the server knew that the individual was intoxicated, without more, is insufficient ... the plaintiff must allege facts which would indicate that the defendants, or their agents, continued to serve a patron despite observable manifestations of intoxication." (Citations omitted; internal quotation marks omitted.) Biros v. B.A.R., LLC, supra, Superior Court, Docket No. CV-09-5005523-S.
" The complaint [must] state with desirable accuracy a cause of action based on wanton misconduct. There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on. The complaint in the instant case fell far short of alleging a cause of action for reckless or wanton misconduct. Simply using the word ‘reckless’ or ‘recklessness’ is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." (Citation omitted; internal quotation marks omitted.) Dumond v. Denehy, supra, 145 Conn. 91. " [I]t is necessary to plead and prove facts which would indicate that the defendants, or their agents continued to serve a patron despite observable manifestations of intoxication in order to support a cause of action for reckless service of alcohol." (Citation omitted; internal quotation marks omitted.) DeCarlo v. Dupuis, supra, 59 Conn.L.Rptr. 84.
In the first count of the revised complaint, the plaintiff makes legally insufficient and conclusory statements regarding Villanova being rendered heavily intoxicated without alleging any observable manifestations of intoxication or how the defendant and/or its agents, servants and/or employees would have known that Villanova was heavily intoxicated.
An example of a sufficient claim of recklessness under similar circumstances is found in Thornberg v. Moody, Superior Court, judicial district of Ansonia-Milford, Docket No. CV- 08-5004995-S (July 25, 2008, Hartmere, J.) (45 Conn.L.Rptr. 878). There, the plaintiff-administratrix brought suit against the defendants, a club and its permittee, alleging recklessness on the part of the defendants in serving alcohol to the decedent in count nine. Id. The defendants moved to strike the plaintiff’s ninth count, arguing that the allegations were insufficiently pled, resulting in a common-law claim of negligence, which was impermissibly joined with a statutory Dram Shop Act claim under § 30-102. Id. The court denied the motion to strike based on the specific allegations " that the defendants: 1) served numerous drinks to the driver, which caused his intoxication, when they knew or should have known that the driver would operate a motor vehicle upon leaving the defendants’ premises; 2) chose not to cut off the driver when they knew he was intoxicated and likely to drive a motor vehicle on the roads of this state with other drivers; 3) allowed the driver to operate a motor vehicle upon leaving the bar when they knew that the driver was in an intoxicated state; 4) continued to supply alcohol to the driver who lacked the capacity to fully understand the risks associated with intoxication due to his propensity to drink alcohol excessively; and 5) served alcoholic beverages to the driver while he was visibly and obviously intoxicated." Id., 879.
Unlike Moody, the plaintiff, here, has failed to allege sufficient facts in the first count of the revised complaint that the bar’s service was reckless and not merely negligent. In paragraph 10 of the first count of the revised complaint, the plaintiff alleges reckless conduct based on the defendants’ failure to promulgate written rules/regulations " concerning the service of alcoholic beverages to intoxicated invitees," failure to enforce such rules/regulations, failure " to train its employees regarding the enforcement" of such rules/regulations, and failure " to warn the plaintiff" that " Villanova was heavily intoxicated at or about the time that both patrons left" the bar. The defendants argue that either there is no duty for that alleged conduct or the allegations are vague and not well pleaded. See Nolan v. Morelli, 154 Conn. 432, 442-43, 226 A.2d 383 (1967); Craig v. Driscoll, supra, 262 Conn. at 342-43; Kupec v. Classic Rock Café, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-07-5005586-S (November 28, 2007, Alvord, J.) (44 Conn.L.Rptr. 574); Welton v. Ferrara, Superior Court, judicial district of New Haven, Docket No. CV- 5014334-S (October 2, 2008, Blue, J.) (46 Conn.L.Rptr. 399).
The court agrees that the plaintiff has either failed to allege the violation of a duty recognized under Connecticut law or failed to plead sufficient facts that such conduct constituted recklessness and not mere negligence.
For the above-stated reasons, the motion to strike the first count must be granted.
B
Third Count Is Legally Insufficient To State A Claim For Common-Law Recklessness
In the third count of the revised complaint, the plaintiff alleges common-law recklessness against the permittee. The defendants move to strike the third count of the revised complaint based on the insufficiency of the allegations. In paragraph five of the third count, the plaintiff alleges that " the defendant, Dawn M. Hayes, was the Permittee of the business known as Wolfton, LLC d/b/a The Rusty Nail operating a bar/club under the name The Rusty Nail."
First, the third count of the revised complaint fails to allege sufficient facts that the permittee’s conduct was willful, wanton and reckless. Being a permittee does not subject a person to liability for recklessness without more. See General Statutes § 30-1(4) and Shafer v. Sullivan, Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04-CV-03-4001301-S (May 22, 2006, Beach, J.) (41 Conn.L.Rptr. 403, 404) (" Permittees of course are responsible in the regulatory arena for acts of the establishment’s agents and employees. The Liquor Control Commission requires an individual to be responsible for the activities of the licensee. The reckless provision of alcohol is, however, a common-law tort, and no common-law motion imposes vicarious liability on a permittee solely by virtue of being a permittee. Nor is there a statutory provision imposing vicarious liability, as there appears to be in the context of the Dram Shop Act. [The Court did] not find that ... permittee, sued only in the capacity of permittee, [to be] personally liable for the establishment’s reckless behavior." [Footnote omitted.] )
Second, the third count of the revised complaint fails to allege sufficient facts that the permittee was also the owner, backer, proprietor or manager of the club. The count alleges insufficient facts regarding who was the owner, backer, proprietor or manager of the club. In paragraph 6 of the third count, the plaintiff fails to allege specific facts that the permittee was acting through her servants, agents and/or employees.
For the above-stated reasons, the motion to strike the third count must be granted.
C
Prayer For Relief For Punitive Damages Must Be Stricken
Although the court has stricken the first and third counts of the revised complaint, the prayer for relief for punitive damages must be stricken as well.
Punitive damages are not authorized under the Dram Shop Act, General Statutes § 30-102. In LaPlante v. Vasquez, 136 Conn.App. 805, 815-16 n.10, 47 A.3d 897 (2012), our Supreme Court found that " [t]he [D]ram [S]hop [A]ct imposes a ‘tort liability’ not a penal liability. Sanders v. Officers Club of Connecticut, Inc., [ 196 Conn. 341, 348, 493 A.2d 184 (1985)]. Although it is designed to aid in the enforcement of state liquor laws as well as to protect the public, the main objective of the statute is to afford compensation for injuries to an individual. ‘While it may be said that in one sense the statute is penal, nevertheless it is primarily remedial because it gives a remedy enforceable by an individual in a civil action and allows the recovery of damages in an amount commensurate with the injuries suffered.’ Pierce v. Albanese, 144 Conn. 241, 249-50, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). This interpretation follows from the explicit limitation of General Statutes § 30-102 that damages properly recoverable constitute ‘just damages’ not in excess of [$250,000]. ‘Just damages’ means simply compensatory rather than exemplary or punitive damages." Gionfriddo v. Gartenhaus Café, [ 15 Conn.App. 392, 399-400, 546 A.2d 284 (1988)]." Accordingly, the second and fourth counts of the Prayer for Relief seeking punitive damages must be stricken as well.
III
CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion to strike the first and third count of the revised complaint and the punitive damages claims in the prayer for relief.
SO ORDERED.