Opinion
HHDCV156061566S
04-03-2018
Eileen REMILLARD, Administratrix v. RANCOURT ENTERPRISES, INC. et al.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE
On January 29, 2018, the court heard oral argument concerning the defendants’ motion for summary judgment (# 133). After consideration, for the reasons stated below, the motion is granted in part and denied in part.
As to count one, claiming negligence, the issue presented is whether the court should grant the defendants’ motion for summary judgment on the ground that the claim is barred by the Connecticut common-law rule prohibiting suit against the seller of alcohol by a voluntarily intoxicated individual for harms she incurred as a result of her intoxication.
As to count two, claiming recklessness, the issues presented are whether the court should grant the defendants’ summary judgment motion on the grounds that (1) the defendants’ conduct does not rise to the level required to constitute recklessness as a matter of law, (2) the plaintiff’s decedent was contributorily reckless, and (3) the plaintiff’s decedent assumed the risk of her conduct by knowingly, willingly, and voluntarily choosing to consume excessive amounts of alcohol, causing the harms alleged. The court deems the defendants’ first ground as abandoned because they failed to adequately brief this ground.
See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [W]e are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief an issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed abandoned ... These same principles apply to claims raised in the trial court" [citation omitted; internal quotation marks omitted] ).
In addition, as to counts one and two, the issue presented is whether the court should grant the defendants’ summary judgment motion on the ground that the harm suffered by the plaintiff’s decedent was beyond what was reasonably foreseeable. The court need not address this ground as to count one because, as discussed below, the court grants the motion as to count one on a different ground, noted above.
With respect to the defendant Lawrence Barile, Barile moves for summary judgment as to all counts asserted against him personally on the ground that he held no ownership interest in the bar at issue and had no involvement, duty, or other liability regarding the harms alleged.
FACTS
This action arises out of the untimely death of the plaintiff’s decedent, Coleen Bolduc, on the morning of February 13, 2015, after she attended a birthday celebration the night before at Pappy’s Café (the bar) in East Hartford. The plaintiff, Eileen Remillard, as administratrix of the estate of the plaintiff’s decedent, commenced this wrongful death action against the defendants, Rancourt Enterprises, Inc., Lawrence Barile, and Patricia Rancourt, on August 12, 2015. In her complaint, the plaintiff makes claims of negligence (count one) and recklessness (count two) against all three defendants and a claim of gratuitous assumption of the duty to act (count three) against Rancourt Enterprises, Inc., and Patricia Rancourt.
Patricia Rancourt passed away on May 7, 2016, and the plaintiff moved to substitute Barile as party defendant for her because Barile was named as the executor of her estate. Entry no. 116.00. The court granted the plaintiff’s motion on November 30, 2016. Entry no. 116.86.
On February 1, 2016, the defendants filed a motion to strike counts one, two, and three and the plaintiff’s second prayer for relief. On September 21, 2016, the trial court, Peck, J.T.R., granted the defendants’ motion to strike count three but denied the motion to strike counts one and two and the second prayer for relief . The defendants filed their answer and special defenses on November 28, 2016.
On August 18, 2017, the defendants filed a motion for summary judgment as to counts one and two of the plaintiff’s complaint. The defendants filed a memorandum of law and exhibits in support of their motion. The defendants submitted the following exhibits: (1) East Hartford Police Department reports, (2) the autopsy report of the plaintiff’s decedent (autopsy report), (3) Patricia Rancourt’s deposition testimony, dated March 18, 2016, (4) the affidavit of Arthur Rancourt, dated June 27, 2017, (5) the affidavit of Kristen Clark, dated June 27, 2017, and (6) the affidavit of Michelle Rancourt, dated June 27, 2017.
On November 2, 2017, the plaintiff filed a memorandum of law in opposition and the following exhibits: (1) Kristen Clark’s deposition testimony, dated September 25, 2017, (2) Patricia Rancourt’s deposition testimony, dated March 18, 2016, (3) Arthur Rancourt’s deposition testimony, dated December 21, 2016, (4) Eileen Remillard’s deposition testimony, dated December 22, 2016, (5) Garrett Ostafin’s deposition testimony, dated November 9, 2016, (6) East Hartford Police Department reports, (7) the affidavit of Robert Powers, Ph.D., dated October 31, 2017, (8) St. Francis Hospital records, (9) the autopsy report, and (10) Lawrence Barile’s deposition testimony, dated September 25, 2017.
The defendants filed a reply memorandum of law on November 22, 2017.
DISCUSSION
I
Practice Book § 17-49 provides that summary judgment " shall be rendered forthwith if the 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." " A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment ... [In the context of summary judgment,] [t]he facts at issue ... are those alleged in the pleadings ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Emphasis in original; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728-29, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 655, 137 A.3d 1 (2016); Conn. Code Evidence § 9-1(a). " Hearsay statements are insufficient to contradict facts offered by the moving party ... and if an affidavit contains inadmissible evidence it will be disregarded." (Citations omitted; footnote omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994). Along with the facts presented by the parties’ affidavits and exhibits, the court may consider the " inferences which could be reasonably and logically drawn from them ..." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
Section 9-1(a) of the Connecticut Code of Evidence provides that " [t]he requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be."
II
First, the defendants argue that count one, which sounds in negligence, is barred by the common-law rule prohibiting suit against a seller of alcohol by a voluntarily intoxicated individual for injuries she incurred as a result of her intoxication. The defendants also argue that none of the exceptions to the common-law rule, which are provided by the Dram Shop Act, General Statutes § 30-102 (dram shop act), apply in the present case because the plaintiff’s decedent was not under the age of twenty-one at the time of her intoxication and death, and she was voluntarily intoxicated.
The plaintiff contends that the defendants’ argument is simply a restatement of their motion to strike, which was denied, and that such an argument is improper under the law of the case doctrine because it is an attempt at a " second bite at the apple."
" The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked ... In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause ... Where a matter has previously been ruled upon interolocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ...
" A judge should hesitate to change his [or her] own rulings in a case and should be even more reluctant to overrule those of another judge ... Nevertheless, if the case comes before him [or her] regularly and he [or she] becomes convinced that the view of the law previously applied by his [or her] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he [or she] may apply his [or her] own judgment ... The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982).
Additionally, " the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading ... If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff ... [there is] no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
III
This court agrees with the analyses set forth in other Superior Court decisions which have concluded that the dram shop act, in its current form, and the common law do not provide a cause of action in negligence for an intoxicated individual over the age of twenty-one against a purveyor of alcohol for injuries the individual suffered as a result of being intoxicated. See Jillson v. Willis, Superior Court, judicial district of New Haven, Docket No. CV 10 6010685 (December 21, 2010, Fischer, J.) (citing Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), and granting motion to strike intoxicated individual’s negligence claims against tavern and tavern owner): " ‘’It is clear that [the Dram Shop Act] is the only modification of the common-law rule which the General Assembly has ever intended to make. Nothing in the history of the statute or the case law of Connecticut suggests that the intoxicated person over the age of twenty-one has a cause of action in negligence against the alcohol purveyor for injuries resulting from his own intoxication.’ Kupec v. Classic Rock Café, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5005586 (November 28, 2007, Alvord, J.) (44 Conn.L.Rptr. 574, 575)." See also Boucher v. Lebanon Restaurant, LLC, Superior Court, judicial district of Windham at Putnam, Docket No. CV 17 6011553 (October 11, 2017, Calmar, J.) (granting motion to strike intoxicated individual’s negligence claims against restaurant owner); Keeney v. Horsley, Superior Court, judicial district of New Haven, Docket No. CV 09 5029198 (January 28, 2010, Wilson, J.) (granting motion to strike intoxicated individual’s negligence claims against restaurant owner).
In the present case, in count one, the plaintiff essentially alleges that the defendants negligently served intoxicating liquor to the plaintiff’s decedent while she attended a birthday party at the bar, which caused her to drive drunk from the bar to her apartment and, later, she died due to acute alcohol intoxication complicated by environmental hypothermia. It is clear from the allegations that the plaintiff’s decedent was not a third party who was injured by an intoxicated patron but rather was an intoxicated patron of the bar who was injured as a consequence of her intoxication. Additionally, the autopsy report shows the age of the plaintiff’s decedent as being sixty-five years.
Accordingly, because the dram shop act and past precedent do not create an exception to the common-law rule for an injured, intoxicated, adult patron to sue a seller of alcohol for common-law negligence, and no amendment to the complaint or proffer of additional evidence will change the legally insufficient nature of the plaintiff’s claim, the plaintiff’s negligence claim must fail. The court grants the defendants’ motion for summary judgment as to count one on the basis that no genuine issues of material fact exist as to whether the plaintiff’s negligence claim is barred by the common-law rule, and the defendants are entitled to judgment as a matter of law.
IV
Next, the defendants argue that summary judgment should be granted as to count two, which sounds in recklessness, because the undisputed facts in the record demonstrate that the plaintiff’s decedent was contributorily reckless, and, in Connecticut, an affirmative defense of contributory recklessness has been held to constitute a complete bar to a recklessness claim. The defendants also argue that the undisputed facts establish that the plaintiff’s decedent assumed the risk of her conduct by knowingly, willingly, and voluntarily choosing to consume excessive amounts of alcohol, causing the injuries alleged.
As to the defense of contributory recklessness, the plaintiff argues that it is not recognized as a defense in Connecticut, the defendants pleaded the defense of comparative recklessness and not contributory recklessness, and the merits of a contributory recklessness defense are factual determinations for the jury. As to the defense of assumption of risk, the plaintiff argues that, essentially, it is the defendants’ contributorily recklessness defense, and it presents factual issues for the jury to determine. The plaintiff also contends that genuine issues of material fact exist with respect to whether the defendants’ employees or agents served alcohol to the plaintiff’s decedent while she was obviously or visibly intoxicated, the extent to which the defendants observed or ought to have observed her intoxication, and whether she drank elsewhere after leaving the bar.
A
" Under Connecticut common law, a plaintiff’s contributory negligence or recklessness operates as a complete bar to the plaintiff’s claims based respectively on negligence or recklessness. Through its enactment of General Statutes § 52-572h, the legislature changed this complete bar rule as to negligence claims and established comparative negligence. No such legislative change has been made as to a plaintiff’s contributory recklessness.
" Stated more fully, the general rule at common law is that ‘wanton, willful or reckless misconduct which materially [increases] the probabilities of injury and contribute[s] thereto [defeats] the plaintiff’s right of recovery.’ Murphy v. Ossola, 124 Conn. 366, 372, 199 A. 648 (1938) (nuisance action). Consequently, ‘contributory recklessness is a good defense to an action based on recklessness.’ Wright, Fitzgerald & Ankernman, Conn. Law of Torts (3d Ed) § 62; see also Restatement of the Law Second, Torts 2d § 503(3) (" [a] plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm" )." Rossi v. O’Brien, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 12 6010350 (May 1, 2015, Stevens, J.) (60 Conn.L.Rptr. 296).
In cases involving common-law recklessness claims that arise from injuries sustained by intoxicated individuals or third parties injured by intoxicated individuals, the Superior Court has allowed sellers of alcohol to assert contributory recklessness as a defense in some cases but not in others. See, e.g., Annunziata v. June’s Outback Pub, LLC, Superior Court, judicial district of Middlesex, Docket No. CV 11 6005980 (January 7, 2013, Morgan, J.) (discussing split but holding purveyor of alcohol may assert contributory recklessness defense to common-law reckless service of alcohol claim made by or on behalf of intoxicated driver); see also Goddu v. Flanagan, Superior Court, judicial district of Fairfield, Docket No. CV 13 6038828 (September 2, 2015, Arnold, J.) (denying plaintiff pedestrian’s motion to strike defendant tavern’s contributory recklessness defense to his common-law recklessness claim).
Likewise, generally, assumption of risk has been deemed a valid defense to a common-law recklessness claim. See, e.g., Das v. Turkey Hill Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV 95 0552481 (January 11, 1996, Sheldon, J.) (16 Conn.L.Rptr. 13) (holding assumption of risk may be legally viable defense to reckless misconduct claim), citing Freedman v. Hurwitz, 116 Conn. 283, 287, 164 A. 647 (1933) (concluding assumption of risk can be special defense to reckless misconduct claim in proper case).
In cases similar to the present case, however, the Superior Court has held both ways. See Petrolito v. Cucullo, Superior Court, judicial district of Hartford, Docket No. CV 10 6015391 (December 30, 2011, Woods, J.) (53 Conn.L.Rptr. 269) (discussing Superior Court split as to whether assumption of risk is valid defense to recklessness claim); Annunziata v. June’s Outback Pub, LLC, supra, Superior Court, Docket No. CV 11 6005980 (same). Notably, the Superior Court has granted a motion to strike assumption of risk defenses because the statutory duty not to serve alcohol to intoxicated persons cannot be avoided in a personal injury action seeking damages arising from the direct breach of such an obligation. See Estate of LaFlamme v. Phaneuf, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 12 6010036 (May 1, 2015, Stevens, J.) (60 Conn.L.Rptr. 314), citing L’Heureux v. Hurley, 117 Conn. 347, 168 A. 8 (1933) (rejecting defendant’s assumption of risk defense because defense does not apply where plaintiff’s injury arose from defendant’s direct breach of statutory obligation).
B
In their " comparative recklessness" defense, the defendants state the following: " If the plaintiff’s decedent was damaged as alleged in plaintiff’s Complaint, then any such damages were caused, in whole or in part, due to plaintiff’s decedent’s own willful, wanton and reckless conduct, in that she: (a) recklessly and voluntarily consumed excessive amounts of alcohol; (b) recklessly and voluntarily operated a motor vehicle after consuming excessive amounts of alcohol." Although the defendants have titled their defense as " comparative recklessness," the substance of their defense is that of contributory recklessness, and the court will consider it as such. See, e.g., Presidential Village, LLC v. Phillips, 325 Conn. 394, 412 n.15, 158 A.3d 772 (2017) (" [t]he interpretation of pleadings is always a question of law for the court" [internal quotation marks omitted] ).
" [W]anton, willful or reckless misconduct which materially increase[s] the probabilities of injury and contribute[s] thereto ... defeat[s] the plaintiff’s right of recovery." Murphy v. Ossola, supra, 124 Conn. 372. " Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of consequences of the action ...
" While [the courts] ... have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends 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 ... It is at least clear ... that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, supra, 262 Conn. 342-43.
The evidence submitted by the defendant establishes that the plaintiff’s decedent was an experienced drinker; she would frequent the bar about three to four times per week; she was a family friend of the defendants who had known her for many years; on the evening of February 12, 2015, she showed no signs of being intoxicated and was served and consumed a total of two or three gin and tonics and two or three shots at the bar over an approximately three-hour period, from around 7 p.m. until around 10 p.m.; she drove away from the bar towards her apartment, located five minutes or so from the bar, showing no signs of being intoxicated; she was found lying in the snow in front of her apartment without her jacket on in the early morning hours of February 13, 2015; and, after being transported to the hospital, she was later pronounced dead due to environmental hypothermia complicated by acute alcohol intoxication. The evidence submitted by the defendants also establishes that, at the time of her death, the plaintiff’s decedent was sixty-five years old, was five feet, seven inches tall, weighed 169 pounds, and had a blood alcohol level of 309 mg/dl.
Nevertheless, the defendants have not presented evidence to show how the consumption by the plaintiff’s decedent of six drinks over a three-hour period was an " excessive amount of alcohol" for a person of her size and stature and with her drinking experience such that her conduct amounted to an extreme departure from ordinary care. Therefore, the defendants have not established the absence of genuine issues of material fact with respect to whether the plaintiff’s decedent was contributorily reckless, and, therefore, they have not met their initial burden of proof on summary judgment. More specifically, the evidence submitted by the defendants does not show that the state of mind of the plaintiff’s decedent was that of recklessness in the hours leading up to her death. Accordingly, the defendants’ motion for summary judgment on the ground that the plaintiff’s decedent was contributorily reckless is denied.
C
In their assumption of risk defense, the defendants state the following: " Liability is barred by the doctrine of assumption of risk because, on February 12, 2015, the plaintiff’s decedent knowingly, willingly and voluntarily chose to consume excessive amounts of alcohol, causing the damages alleged in plaintiff’s Complaint."
For the defense of assumption of risk to apply, " the injured person must or ought reasonably to have perceived that [the risk] existed, and[,] because it is the risk which is assumed[,] the injured person must have appreciated it, or the situation must be such that he ought reasonably to have appreciated it and realized that unless he took steps to protect himself he would be liable to injury ... Of its application in an action by a servant against his master, we have said: ‘A servant assumes the risk when he knows the defective condition of an instrument, appreciates the danger from its use, and voluntarily encounters the risk ... Knowledge in this connection means either actual or constructive knowledge ... Moreover, the incurring of the risk must be really voluntary. If the continued exposure of the injured party to the risk is due to his inability reasonably to escape after he becomes or should become aware of it and appreciates or should appreciate the danger, or if the continuance of his subjection of himself to it is the result of influences or circumstances which are the real inducement to his course of conduct, the doctrine does not apply ... The doctrine is based entirely upon voluntary exposure to danger, and can only be applied in cases where the person may reasonably elect whether or not he shall expose himself to it. The exposure may be without physical coercion, yet the circumstances may be such as would render it unreasonable for a person to exercise his election not to proceed in that way ...
" One is entitled to assume that another will exercise proper care until he perceives or ought reasonably to perceive that that other is not doing so, and he does not assume the risk that another will by some sudden negligent act or omission subject him to danger ... A pedestrian crossing a highway and injured by the negligent operation of an automobile upon it, or the driver of one car injured by collision with another, may be guilty of contributory negligence, but he does not assume the risk of the sudden negligent act or omission of the party who caused the collision ... So the mere fact that there is a possibility known to the guest in an automobile that the driver may be guilty of a negligent act or omission may not be a sufficient basis upon which to hold that he has assumed the risk ... And the doctrine can only apply where the particular situation or condition producing the risk has continued for such a length of time that the party alleged to have assumed it can be found to have known it or been charged with knowledge of it, to have appreciated the risk to which he was subjected by it, either actually or because he ought reasonably to have done so, and to have had an opportunity to avoid it." (Citations omitted; internal quotation marks omitted.) Freedman v. Hurwitz, supra, 116 Conn. 287-88.
In addition to the evidence mentioned above, the evidence submitted by the defendants establishes that the plaintiff’s decedent arrived at the bar around 5 p.m. on February 12, 2015, and that she was drinking water at the time so that she would be able to stay to attend Arthur Rancourt’s birthday party at the bar that evening. The evidence submitted by the defendants also shows that the plaintiff’s decedent left the bar around 10:15 p.m. because she was tired and had to go to work the next day. In light of the foregoing, the defendants have not established the absence of genuine issues of material fact as to whether the plaintiff’s decedent knowingly, willingly, and voluntarily consumed " excessive amounts" of alcohol, thereby assuming the risk of her death by acute alcohol intoxication. The defendants’ motion for summary judgment on this ground is, therefore, denied.
V
The defendants argue that the court should enter summary judgment in their favor as to counts one and two because the harm suffered by the plaintiff’s decedent, i.e., her slip and fall and eventual death, was beyond what was reasonably foreseeable to the defendants. Specifically, the defendants contend that the present case, at its core, is a slip and fall arising on the premises of the residence of the plaintiff’s decedent and not on the premises of the defendants’ bar. The defendants argue that they were not and could not reasonably be expected to be aware of the icy conditions existing outside of the entrance to the plaintiff’s decedent’s apartment and that they did not have any duty to clear whatever ice had accumulated there. As discussed above, the court need not consider this issue as it pertains to count one, since summary judgment is granted on the ground discussed above.
The plaintiff contends that the harm suffered by the plaintiff’s decedent, i.e., her death related to acute alcohol intoxication, was reasonably foreseeable by the owners and agents of the bar. Furthermore, the plaintiff argues that Connecticut courts have universally held that foreseeability is a question for the trier of fact except in the rarest of circumstances.
" To establish a claim of negligence, a plaintiff must demonstrate that the defendant was under a duty of care, that the defendant’s conduct breached that duty, and that the breach caused an actual injury to the plaintiff." Brooks v. Powers, 328 Conn. 256, 272 (2018). " [A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." (Internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied., 284 Conn. 904, 931 A.2d 268 (2007); see also State v. Camera, 132 Conn. 247, 250, 43 A.2d 664 (1945) (" [a] person is guilty of reckless misconduct when he intentionally does an act, or fails to do an act in violation of his duty, with knowledge of the serious danger to others involved in it or of facts which would disclose that danger to a reasonable man" ).
" The test for whether a legal duty exists is an objective one and seeks to determine, first, whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result and, second, whether, on the basis of a public policy analysis ... the defendant’s responsibility for [his] negligent conduct should extend to the particular consequences or particular plaintiff in the case ...
" The first step in any duty analysis requires a determination of whether the plaintiff’s injury was a reasonably foreseeable result of the defendant’s conduct ... Although, typically, this is a question of fact for the jury ... it becomes an issue of law for the court if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it ... In other words, foreseeability becomes a conclusion of law ... when ... a fair and reasonable [person] could reach only one conclusion ... Moreover, it is well established that an injury is not reasonably foreseeable as a matter of law when the undisputed facts, considered in the light most favorable to the plaintiff, establish that the connection between the defendant’s conduct and the harm suffered by the plaintiff is simply too attenuated." (Citations omitted; internal quotation marks omitted.) Brooks v. Powers, supra, 328 Conn. 272-73.
As discussed above, the defendants’ evidence establishes that, at no point during the night of February 12 did defendants’ witnesses see the plaintiff’s decedent exhibit any signs of intoxication and that, as far as they were aware, the plaintiff’s decedent consumed no more than the equivalent of six drinks over a three-hour period while she was at the bar. As the lone bartender that night, Kristen Clark testified that her shift began at 5 p.m., she first served the plaintiff’s decedent a gin and tonic around 7 or 7:30 p.m., she probably served the plaintiff’s decedent her second drink, which was a shot, when Arthur Rancourt arrived- which, according to his deposition testimony, was around 8:15 or 8:20 p.m.- and she served the plaintiff’s decedent her last drink before 10 p.m. Additionally, Arthur Rancourt testified that after the first round of shots at 8:15 or 8:20 p.m., the plaintiff’s decedent ordered the next round of shots probably around 9 p.m. Clark also testified that she served the plaintiff’s decedent a couple of gin and tonics and a couple of shots while she was at the bar that evening and no more.
Moreover, when Patricia Rancourt was asked about video surveillance footage that seemed to show the plaintiff’s decedent wobbling after she stood up from a bar stool, Patricia Rancourt said that she thought the reason the plaintiff’s decedent wobbled was because of her leg; specifically, she stated that the plaintiff’s decedent needed to have an operation on one of her feet again, possibly that following week. At his deposition, Arthur Rancourt expressed that the plaintiff’s decedent walked with a limp or waddled because she had foot problems.
However, the plaintiff may use Powers as an expert witness at trial, and he is expected to testify that the plaintiff’s decedent would have shown visible signs of intoxication during her time at the bar and at the time she left the bar, assuming she did not consume more alcohol after her departure, and that the plaintiff’s decedent would have had to ingest at least twelve standard drinks plus some additional alcohol to achieve her registered blood alcohol level. Such testimony would call in to question what the defendants’ evidence shows that they knew or should have known while the plaintiff’s decedent was at the bar. Such testimony would raise at least two possible scenarios, namely that the plaintiff’s decedent consumed more alcohol at the bar on the night of February 12, 2015 than the defendants have admitted or that the plaintiff’s decedent consumed more alcohol after she left the bar and before she arrived at her apartment. Thus, the court cannot say that a fair and reasonable person could reach only one conclusion in light of such testimony.
Therefore, upon review of all of the evidence submitted by both parties, the plaintiff has put forth evidence which creates a genuine issue of material fact as to whether an ordinary person in the defendants’ position, knowing what the defendants knew or should have known, would anticipate that the death of the plaintiff’s decedent was likely to result after she left the bar on the night of February 12, 2015.
As to the second part of the test for whether a legal duty exists, whether public policy supports the conclusion that the defendants’ responsibility for their conduct should extend to the particular consequences or particular plaintiff in the case, the Supreme Court has considered " the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Munn v. Hotchkiss School, 326 Conn. 540, 550, 165 A.3d 1167, 1175 (2017).
The defendants did not present discussion of these factors. Instead, they argue that to hold a seller of alcohol liable for harms accruing to a patron under the circumstances would deter others from engaging in the restaurant and/or bar industry. The defendants have not shown that the circumstances are " unique and/or compelling" so as to excuse purveyors of alcohol from reckless conduct which is forseeable. See Munn v. Hotchkiss School, supra, 326 Conn. 555.
Accordingly, the defendants’ summary judgment motion on the ground that harm suffered by the plaintiff’s decedent was not reasonably foreseeable by the defendants is denied.
VI
Lastly, the defendants request that the court enter summary judgment on all counts asserted against Barile in his individual capacity because the undisputed facts establish that Barile holds no ownership interest in the bar and that he exercised no possession or control over the bar and its operations on the night of February 12, 2015. Additionally, the defendants assert that, although he was physically present at the bar on February 12, Barile sat in an entirely different part of the bar from the plaintiff’s decedent, in his habitual seat, had little or no interaction with the plaintiff’s decedent, and did not serve her alcohol or direct others to serve her with alcohol.
In opposition, the plaintiff contends that Barile testified explicitly to his ownership of the bar at his deposition. The plaintiff argues that it is impossible for the court to decide that Barile was not an owner of the bar when he has admitted, under oath, that he is.
In his affidavit, Arthur Rancourt attests that he has managed the bar known as Pappy’s Café, located at 37 Burnside Avenue in East Hartford for many years and continues to work there to this day. Furthermore, he attests that his late mother, Patricia, owned the bar; that Barile owns a separate, neighboring business; and that Barile " does not and did not on February 12, 2015, hold any ownership interest in Pappy’s." Nevertheless, the excerpts of Barile’s deposition testimony, submitted by the plaintiff, create genuine issues of material fact as to whether Barile was an owner of the bar during the time period in which the plaintiff’s decedent attended the bar for a birthday party and later perished due to acute alcohol intoxication complicated by environmental hypothermia. Before cutting off mid-sentence, a single page of the deposition transcript contains the following discussion between counsel and Barile:
" Q: Are you an owner of Pappy’s?
" A: Yes.
" Q: How did you come to purchase it?
" A: Well, me and Pat purchased it together. I hung around the place since I was 21 and their ..."
Therefore, the defendants’ motion for summary judgment as to any and all counts pertaining to Barile in his individual capacity on the ground that Barile holds no ownership interest in the bar and did not exercise possession or control over the bar and its operations on the night of February 12, 2015, is denied.
CONCLUSION
For the reasons stated above, the defendants’ motion for summary judgment is granted as to count one and denied as to count two.