Opinion
CV166009509S
09-17-2019
Robert PLOURDE v. George J. BUTLER et al.
UNPUBLISHED OPINION
OPINION
Nada K. Sizemore, Judge
The court, having reviewed and considered the Defendants’ Motion for Summary Judgment and supporting exhibits and the Plaintiff’s Objection with supporting exhibits, and having considered the oral arguments presented at short calendar on September 9, 2019, hereby DENIES the Defendants’ summary judgment motion and SUSTAINS the Plaintiff’s objection to such.
The court bases its ruling on the following.
PROCEDURAL BACKGROUND
By a four-count Complaint dated July 19, 2016 and returnable on August 30, 2016, Plaintiff Robert Plourde brings suit against the Defendants George Butler, Kevin Lemay, Moonshine Boys, LLC, Brandon Webb and Kyle Laurendeau as a result of an incident on August 5, 2014 at the Double Play Cafélocated at 278 West Main Street in Meriden, Connecticut.
Plaintiff Plourde alleges that he was severely attacked and permanently injured at the Double Play when he was punched and kicked repeatedly by intoxicated patrons. He seeks compensatory and punitive damages against the defendants. Plaintiff claims serious physical injuries from this incident including but not limited to traumatic brain injury, subdural hematoma, traumatic brain hemorrhaging, facial fractures, impaired cognitive function, memory loss and permanent loss of life’s enjoyment.
In Counts One and Two, he brings suit against the Defendants Butler, Lemay and Moonshine Boys, LLC alleging that they were the permittee, owner, backer, manager and operator of the Double Play Café .
In Count One, he specifically asserts a claim of negligence against these defendants claiming that the incident and his resulting injuries and losses were caused by their negligence in that: (1) they failed to establish and/or follow adequate procedures for removing drunk, violent and/or unruly patrons from the premises; (2) they failed to properly train its employees to remove drunk, violent and/or dangerous patrons from the premises; (3) they failed to adequately supervise and maintain the premises so as to prevent assaults on the premises; (4) they failed to provide adequate security on the premises; (5) they knew that Brandon Webb and Kyle Laurendeau were having verbal altercations with other patrons, yet failed to remove him or call the police; (6) they failed to warn the plaintiff that the premises was dangerous; (7) they failed to properly train the bartender and staff; (8) they knew that Brandon Webb and/or Kyle Laurendeau were intoxicated and that he had violent propensities, yet allowed him to enter, remain and consume alcohol on the premises and/or (9) they allowed the assault to continue and failed to aid the plaintiff.
In the Second Count, the Plaintiff asserts a claim of recklessness, willful and/or wanton misconduct against these same defendants. At paragraph 6 of the Second Count, he specifically alleges that the defendants were responsible as follows: (a) they maintained an alcohol service policy within the bar and/or restaurant in which intoxicated patrons would not be refused service; (b) they knew that patrons often fought within the bar yet failed to have staff prevent these fights; (c) they knew that the visibly intoxicated persons were interacting with other patrons in an aggressive manner, yet failed to address the situation; (d) they allowed the visibly intoxicated patrons to remain on the premises when they knew he was a danger to other patrons; (e) they knew fights were a problem at the Double Play Caféyet failed to enact and/or follow any procedures for security and service of alcohol; and/or (f) they served Brandon Webb and Kyle Laurendeau alcohol when they were visibly intoxicated and having verbal confrontations with other patrons.
Plaintiff in the Third and Fourth Counts has asserted negligence claims versus Defendant Webb and Defendant Laurendeau. These counts and these defendants are not involved with this current Motion for Summary Judgment.
By Answer and Special Defense dated January 10, 2017 the Defendants Butler, Lemay and Moonshine Boys, LLC generally deny all claims of negligence, recklessness and willful wanton misconduct and deny causing the plaintiff’s incident and/or his claimed injuries, losses and damages.
In three Special Defenses, they allege that they are not responsible because: (1) plaintiff’s own comparative negligence was the cause or substantial cause of his own injuries; (2) the negligence of a third person not a party to this action was the cause or a substantial cause of his own injuries; and (3) plaintiff’s injuries were caused by the intervening acts or superseding negligence of persons, parties or entities over whom the defendant had no control or responsibility, and for whose actions the defendants are not liable. They further claim plaintiff was injured as a result of violent and unlawful acts of the codefendants Webb and Laurendeau and/or other unknown individuals. The Plaintiff replied to said Special Defenses on or about March 15, 2017.
By Motion for Summary Judgment dated March 12, 2019 (#119) and amended and updated to June 20, 2019 (#125), the defendants move for judgment, arguing that they did not owe the plaintiff any duty of care with regards to the altercation and thus the claims of negligence and recklessness cannot stand. They submit a memorandum of law dated February 6, 2019 and supplemental filing as of June 20, 2019 with exhibits in support of this motion. Those exhibits include: (1) Deposition transcript of Kyle Laurendeau taken on August 17, 2017; (2) Arrest Warrant for Brandon Webb dated September 18, 2014; and (3) Meriden Police Department Case Supplemental Report dated September 2, 2014.
Plaintiff objects to this Motion for Summary Judgment by Objection dated May 6, 2019 (#123) along with supporting exhibits. Those exhibits include Defendant Lemay Compliance dated December 8, 2017 and signed as of November 14, 2017 to written discovery questions. The parties presented for oral argument at short calendar on September 9, 2019.
LEGAL STANDARD OF REVIEW- SUMMARY JUDGMENT GENERALLY
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ..." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
In this case based on negligence and recklessness theories, the defendants ask this court to apply the above analysis and to find that there are no genuine issues of material fact; and to find that no duty is owed to the Plaintiff Plourde to protect him from an altercation that occurred outside of Double Play on August 5, 2014. They do not cite any Connecticut appellate court authority in support of this argument, but they do cite a number of trial court decisions dealing with similar assault claims against bar establishments. See Navarro v. Santiago, Superior Court, judicial district of Windham at Putnam, CV 126005750 (Boland, J., Oct. 8, 2014) [SJ granted- sudden stabbing] 2014 WL 6461940; Coppola v. Plan B, LLC, Superior Court, judicial district of New Haven, CV 075012215 (Corradino, J., Oct. 7, 2010) 2010 WL 4352658; Daddana v. Mutual Benefit Society of the Marche Italy, Inc., Superior Court, judicial district of Fairfield at Bridgeport CV 0303995655 (Gilardi, J., Aug. 18, 2005) 2005 WL 2210650 [Sudden bar fight inside social club- no prior notice]; Deedon v. Friends of Jasper McLevy, Superior Court, judicial district of Fairfield at Bridgeport CV 000372489 (Wolven, J., Jan. 8, 2003) 2003 WL 190762 [patron suddenly knocked off bar stool]; Winston v. Pool Hand Luke’s, Inc., Superior Court, judicial district of New London, CV 555438 (Corradino, J., May 14, 2003) 2003 WL 21235288 [shooting outside bar involving dram shop liability]; and Flanagan v. The Grill, Superior Court, judicial district of Hartford at Hartford, CV 010808992 (Satter, J., Feb. 15, 2006) 2006 WL 494647 [judgment for plaintiff after trial on merits against bar- hit by cue stick while patron inside bar].
Plaintiff, in response, argues that this court should find a very clear duty owed to him as the harm suffered was foreseeable. He argues that it was foreseeable that patrons who have consumed alcohol and engage in heated verbal altercations inside the bar may result in an attack. He cites two trial court decisions supporting this and argues that the cases cited by the defense are distinguishable. See Flanagan v. The Grill, supra; and Jensen v. DePaolo, Superior Court- judicial district of New Haven at Meriden, CV 01-0277460 (Wiese, J., March 8, 2004) [sudden assault inside bar].
ANALYSIS
It is well recognized that the Connecticut courts recognize a common-law cause of action in negligence and/or recklessness against a proprietor or permittee of a restaurant or bar for failing to exercise reasonable care in the supervision of the conduct of the patrons or visitors within the establishment. Nolan v. Morelli, 154 Conn. 432, 440-41, 226 A.2d 383 (1967).
A fundamental part of any negligence case is the existence of a duty owed by the defendants to the plaintiff. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for duty has ever been formulated our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hanford, 259 Conn. 729, 754, 792 A.2d 752 (2002); Daddana, supra .
When applying the above trial court decisions to the case at bar, this court finds that there is a duty owed by these defendants to the Plaintiff Plourde under the facts presented in this action, and therefore summary judgment must be denied.
In reaching this conclusion, this court does not mean to imply that the Plaintiff automatically is entitled to judgment as a matter of law. But, the court does recognize that there are enough issues of fact to send this case to a jury, as the trier of fact, for ultimate determination if the conduct of the bar defendants breached that duty and, then further if that breach of duty proximately caused the incident and the resulting claimed injuries, losses and damages.
In this court’s review of the supporting documents provided by the defense, one sees an incident involving several male bar patrons that started inside the Double Play Cafe in a verbal altercation, and then culminated in a physical assault twenty (20) minutes later on Plaintiff Plourde outside during the late evening hours of August 15, 2014. Who was or was not intoxicated or impaired is not clear from the facts presented in the motion. The bartender on duty, Eddie Medina, was aware of the verbal altercation between the male patrons inside the bar and as the incident spilled to the outside area of the bar, it becomes potentially foreseeable for a jury to conclude that the bar’s conduct created a foreseeable duty to supervise this situation. This incident outside the bar was not the sudden unpredictable occurrence described by the trial courts in the many cases where summary judgment was granted in favor of the bar keeper.
The documents provided by the defense further support this conclusion. The information contained in the deposition transcript of Kyle Laurendeau; Meriden Police Report and Arrest Warrant for Defendant Brandon Webb’s arrest shows several variations of what happened inside and outside the bar on the night in question. The main players involved in this incident appear to be Kyle Laurendeau; Robert Plourde, Michael Woronick, Eric Teitelbaum, and Brandon Webb along with bartender Eddie Medina.
As to who the trier of fact will believe as to being the victim or the aggressor supports genuine issues of material fact on the liability of the defendant Café; and on the comparative negligence defenses raised by the defense on Plaintiff Plourde’s conduct.
Last, this court finds the trial court decisions relied upon by the defense distinguishable from the case at bar. In those decisions where summary judgment was granted, no facts were presented showing something to support more foreseeability than a sudden, unexpected intervening criminal act. Thus, the court finds the arguments of the plaintiff more persuasive.
CONCLUSION
Therefore, as a matter of law, this court is DENYING the Defendants’ Motion for Summary Judgment and SUSTAINING the Plaintiff’s Objection to the Motion.