Opinion
No. CV 07-5014702-S
April 16, 2009
MEMORANDUM OF DECISION
On November 9, 2007 the plaintiff James Pierce, filed a four-count complaint against the defendants, Skyline Restaurant, Inc. (Skyline), John D'Amato and David Sapolis, with an amended complaint filed on October 9, 2008. Counts one and two are against Skyline, and count three is against D'Amato, pursuant to General Statutes § 30-102, alleging that Sapolis was sold alcoholic drinks while he was an intoxicated customer at the restaurant. Count four is against Sapolis, alleging that Sapolis assaulted and struck the plaintiff.
Count one is against Skyline as the backer of Skyline Restaurant, count two is against Skyline doing business as Skyline restaurant. Count three is against D'Amato as the permittee of Skyline Restaurant.
Skyline and D'Amato each pleaded the special defense of participation. On May 12, 2008, the court (Wagner. J.T.R.) denied a motion to strike the special defenses. Skyline and D'Amato now move for summary judgment based on the special defense of participation.
The plaintiff alleges the following. Late on the night of January 26, 2007 and early morning of January 27, 2007, Sapolis was served alcohol while intoxicated. The plaintiff was also a customer or patron of Skyline Restaurant at that time. In the morning hours of January 27, Sapolis assaulted and struck the plaintiff. In his deposition, the plaintiff testified that he and Sapolis had been buying each other drinks throughout their time at the restaurant. As the men were leaving the restaurant at around 2 a.m., Sapolis struck the plaintiff.
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "Only one of the defendants' defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
The plaintiff first presents what appears to be an argument more appropriate for a motion to strike, arguing that the defense of participation is not a legally valid defense. On May 12, 2008, citing Dimmock v. South Peking Restaurant, Ltd., Superior Court, judicial district of Hartford, Docket No CV 91 0393743 (November 7, 1991, Wagner, J.) [5 Conn. L. Rptr. 241] as well as a majority of Superior Court decisions holding that participation is a valid defense to a Dram Shop action, the court (Wagner, J.T.R.), denied the plaintiff's motion to strike.
The plaintiff second argues that his actions did not amount to "participation." The court in Breen v. Brother Bones Cafe, Inc., Superior Court, judicial district of Hartford, Docket No. CV 93 0523016 (October 14, 1994, Corradino, J.) reasoned that if the "`participant' merely drank along with the intoxicated person" then there would be a "powerful argument" for disallowing participation as a special defense. Id. The court concluded that the defendant has a "heavy burden in showing that the participation alleged rose to the level of complicity and in effect contributed substantially to causing the intoxication." Id.
"[P]articipation in this sense requires that the plaintiff actively procure to cause the tortfeasor's intoxication; that is, the plaintiff cannot merely participate in the drinking activities but must be actively involved in bringing about the inebriate's intoxication . . . Even active participation may not rise to the level of complicity; complicity depends on the specific facts of each case." (Internal quotation marks omitted.) Blondin v. Meshack, Superior Court, judicial district of New Haven, Docket No. CV 08 5018828 (October 2, 2008, Lager, J.). The court cites to an Illinois case, Graham v. United National Investors, Inc., 319 Ill.App.3d 593, 253 Ill. Dec. 753, 745 N.E.2d 1287 (2001), with facts somewhat similar to the present ease, where the plaintiff and defendant bought rounds of drinks for each other. In Graham v. United National Investors, Inc., the court found that there could be varying interpretations of behavior such as buying each other rounds, and summary judgment was not appropriate. Id., 598-99.
The defendants, in turn, point to Michigan and New York case law for the proposition that the plaintiff buying drinks for the tortfeasor is sufficient to establish participation as a matter of law. The Michigan Dram Shop Act requires "active participation" in the intoxication of the tortfeasor, and buying rounds of drinks satisfies that requirement. Plamondon v. Matthews, 148 Mich.App. 737, 385 N.W.2d 273 (1985). New York case law draws the line of participation even further, where even buying rounds of drinks are not required but mere accompanying the tortfeasor in drinking activities is enough. Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 (2d Dept. 1990); Michelle v. The Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21 (1st Dept. 1967). Connecticut, however, has not adopted such a strict standard of participation. Furthermore, because the existence of the participation defense itself is still in some dispute in Connecticut, applying the court's reasoning in Blondin v. Meshack, supra, Superior Court, Docket No. CV 08 5018828, is more appropriate in this case.
There is a genuine issue of material fact as to the plaintiff's participation, and, therefore the motion for summary judgment is denied.