Opinion
No. KNL-CV-10-6006881
October 14, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE REVISED COMPLAINT #115
I FACTS
On November 12, 2010, the plaintiffs, Frederick Stern (Frederick) and his wife, Kathleen Stern (Kathleen), commenced the present ten-count action against the defendants, Franklin McEwen, Franklin McEwen, d/b/a/ Lyme Tavern Cafe, Steven Carpenteri, Steven Carpenteri as registered agent for Caspers Ltd. and Rebecca Cahill. The plaintiffs filed a revised complaint on March 9, 2011, in which they allege the following facts.
The plaintiffs allege that McEwen was the permittee of the Lyme Tavern, a restaurant and bar located at 229 West Main Street in Niantic, and that Carpenteri, Caspers Ltd. and Cahill owned or operated Lyme Tavern.
On the evening of November 29, 2009, at 9:15 p.m., Frederick was driving north on Interstate-95 through East Lyme, Connecticut with Kathleen as his passenger. Meanwhile, Sheri Hunter was also driving north on the same highway. Hunter had worked that day at the Lyme Tavern, where she was employed as a waitress. She was intoxicated when she left the tavern in her vehicle and at 9:15 p.m., she crashed into the Sterns' vehicle. The collision caused the Sterns' vehicle to leave the highway and roll down an embankment. Both Frederick and Kathleen have suffered and continue to suffer damages as a result.
Kathleen and Frederick allege in counts one and four, respectively, identical claims under the Dram Shop Act, General Statutes § 30-102. Specifically, they allege that agents, servants and employees of Lyme Tavern, "served and/or provided alcoholic beverages" to Hunter while she was already intoxicated and that the collision and resulting injuries were "to a substantial degree in consequence of [Hunter's] intoxication." Frederick alleges identical claims for bystander emotional distress in counts three and eight. Specifically, he incorporates paragraphs one through seventeen of count one and further alleges that, as a result of the defendants' conduct, he suffered severe emotional distress "in that he saw [Kathleen] severely injured [and] trapped in their vehicle and had to climb up an embankment to obtain assistance."
Kathleen and Frederick allege in counts six and nine, respectively, nearly identical claims for negligence. Specifically, they incorporate paragraphs one through fifteen of count one and further allege that the collision and injuries were substantially caused by Hunter's intoxication upon leaving her workplace and that the defendants' negligence was a substantial factor leading to that intoxication as follows. The defendants negligently: (1) failed to supervise properly their employees, including Hunter, by allowing them to drink alcohol openly while on duty; (2) failed to train properly their employees, including Hunter, to refrain from drinking alcohol openly while on duty, to not serve alcohol to on-duty employees and to prevent service of alcohol to intoxicated employees; (3) failed to establish proper procedures to train employees to refrain from drinking alcohol while on duty or serving alcohol to other on-duty employees; (4) failed to establish proper procedures regarding alcohol consumption by employees while working; (5) failed to hire properly and or screen employees "for use of alcohol and/or other drugs or medications;" (6) with regard to Kathleen, "provided alcoholic beverages to employees at Lyme Tavern for no remuneration" and with regard to Frederick, "provided alcoholic beverages to employees at Lyme Tavern for little or no remuneration;" (7) allowed employees, including Hunter, to consume alcoholic beverages while working; (8) failed to monitor employees' alcoholic consumption; (9) permitted employees to consume alcohol while on duty; (10) permitted employees to consume alcohol immediately after their shift; and (11) failed to conduct an appropriate background check of Hunter which, in the exercise of reasonable care, should have led the defendants to decline to hire her or, alternatively, to supervise her more carefully in the use of alcoholic beverages.
On March 31, 2011, the defendants filed a motion to strike counts three, six, eight and nine of the revised complaint on the ground that these counts, as alleged, are insufficient as a matter law. Specifically, the defendants argue that: (1) causes of action for the negligent service of alcohol are expressly prohibited by § 30-102; and (2) the plaintiffs cannot establish a claim for bystander emotional distress because they did not witness the act complained of. The motion was accompanied by a memorandum of law. On April 28, 2011, the defendants filed a memorandum in opposition thereto. On June 20, 2011, the plaintiffs filed a reply memorandum.
II DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010). "[A] motion to strike must be considered within the confines of the pleadings and not external documents . . . [The court is] limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
A
Counts Six and Nine
The defendants move to strike counts six and nine, which sound in negligence, on the ground that the Dram Shop Act, § 30-102, prohibits causes of action for the negligent service of alcohol. The defendants argue that act's prohibition applies in the present case because "furnishing . . . alcohol without a charge . . . constitutes a `sale' "under the act pursuant to Pierce v. Albanese, 144 Conn. 241, 129 A.2d 606 (1957). The defendants further argue that the plaintiffs' reliance on Seguro v. Commiskey, 82 Conn.App. 186, 844 A.2d 224 (2004) is misplaced because Seguro has been legislatively overruled by Public Act 03-91 and it is inconsistent with the holding of Murdock v. Croughwell, 268 Conn. 559, 848 A.2d 363 (2004).
Section 30-102 provides, relevant part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the . . . persons injured in consequence of such intoxication . . . to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person's or person's intention to bring an action under this section . . . Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred . . . Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older."
In response, the plaintiffs argue that the motion to strike should be denied because counts six and nine assert claims for negligent hiring and supervision and, thus, are not precluded by § 30-102. They contend that "[c]ounts six and nine do not allege that Hunter was a purchaser or that defendants sold her drinks." The plaintiffs rely on Seguro v. Cummiskey, supra, 82 Conn.App. 198, to support their argument that "a claim for negligent supervision of an employee who drinks while on duty states a cause of action for negligence under the common law." The plaintiffs further argue that, "[h]ad the legislature intended the Dram Shop Act to apply broadly to provisions of alcohol other than by sale . . . it could have done so. It's failure to do so matters." Finally, the plaintiffs argue that the common understanding of the terms "seller" and "sale," should apply. They cite Merriam-Webster's Third New International Dictionary (1967), which defines "sale" as " `the act of selling: a contract transferring the absolute or general ownership of property from one person or corporate body to another for a price (as a sum of money or other consideration),' " and Pierce v. Albanese, supra, 144 Conn. 259, in which the Supreme Court held that "the purveying or furnishing of intoxicants for a price" is a sale under the Act.
Negligent hiring and negligent supervision are distinct causes of action. "To state a cause of action [for negligent hiring], a plaintiff must allege that the employer knew or should have known that the employee's activities before he was hired were such that the employer should have been aware that the employee was reasonably likely to engage in conduct of the general sort which caused the plaintiff harm . . . Negligent supervision requires pleading that the defendant had a duty to supervise and knew or should have known that a particular behavior would have caused injury of the general nature of the kind suffered by the plaintiff." Faggio v. Brown, Superior Court, complex litigation docket at Middletown, Docket no. X04 CV 05 4003488 (May 17, 2006, Beach, J.) ( 43 Conn. L. Rptr. 643, 647). See also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982) (Negligent hiring "extends to any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment").
This statement is only partially true. The plaintiffs represent that their claims in counts six and nine are identical. Memorandum in opposition to motion to strike, p. 4. There is, however, a discrepancy between the two. In count six ¶ 17(f), the plaintiffs allege that the defendants "provided alcoholic beverages to employees at Lyme Tavern for no remuneration." In count nine ¶ 17(f), the plaintiffs allege that the defendants "provided alcoholic beverages to employees at Lyme Tavern for little or no remuneration."
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010). "At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it . . . Common-law tort claims against purveyors routinely failed, therefore, because the consumption of the liquor was viewed as an intervening act breaking the chain of causation between the purveyor and the ensuing injury caused by the intoxication . . .
"In Connecticut, as far back as 1872, it came to be felt that the foregoing common-law rule was to some extent overly harsh and should be modified by statute. Such statutes, which were enacted in numerous other states, came to be known as civil damage or dram shop acts . . . Connecticut's first such statute is found in § 8 of chapter 99 of the Public Acts of 1872, and its enactment indicated a knowledge, by the General Assembly, of the foregoing common-law rule. The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for any damage or injury to any other person, or to the property of another done by the intoxicated person in consequence of his intoxication. Thus, this act, in situations where it was applicable, displaced the common-law rule that the proximate cause of intoxication was not the furnishing of the liquor but its consumption . . . In subsequent amendments to the act, the legislature expanded liability by including sales by the purveyor's agents and by eliminating the requirement of proof of a causal connection between the selling of the alcoholic liquor and the intoxication that caused the injury . . . The act, therefore, modified the common-law rule." (Citations omitted; internal quotation marks omitted; emphasis added.) Craig v. Driscoll, 262 Conn. 312, 322-23, 813 A.2d 1003 (2003).
The rule has also been modified by the court. In Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), the court held that a vendor or social host may be held liable for reckless sale or service of alcohol. The court reasoned that "one ought to be required, as a matter of policy, to bear a greater responsibility for consequences resulting from his act when his conduct is reckless or wanton than when his conduct is merely negligent." Id., 361. In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), the court held that a social host or other purveyor of alcohol may be held liable for the negligent service of alcohol to minors, reasoning that a minor's "consumption of alcohol does not, as a matter of law, constitute [an] intervening act necessary to break the chain of proximate causation . . ." Id., 95.
In 2003, our Supreme Court also modified the common-law rule. In Craig v. Driscoll, supra, 262 Conn. 312, the court considered "whether the legislature, by creating an affirmative remedy [in the Dram Shop Act] . . . manifested an intention to occupy the field or whether a common-law remedy would conflict with or frustrate the purpose of the act, so as to stay [the court's] hand in recognizing an action at common law." Id., 323-24. It looked to Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), in which it stated: "There is no specific provision in [the Dram Shop Act] which bars a common-law action or otherwise preempts the field of liability of a seller of liquor . . . If [a] plaintiff has no cause of action against [a] bartender for negligence, it is not the statute but rather the common law which denies the plaintiff a right of recovery." (Emphasis added.) Id., 358-59. Accordingly, in Craig, the court held that the act does not occupy the field and does not preclude a common-law remedy.
Craig involved the following facts. On the evening of May 21, 1996, Steven Driscoll, an alcoholic, patronized a Norfolk establishment knows as The Pub and Restaurant, which sold him alcoholic beverages while he was intoxicated. Later that evening, Driscoll left The Pub in his vehicle and struck a pedestrian, Sarah Craig, who died two days later. Craig's family arrived at the scene of the accident very soon after it occurred and witnessed her severe injuries. They sued the owners and operators of The Pub alleging, inter alia, negligent and reckless infliction of bystander emotional distress. The issue on appeal was "whether, notwithstanding the [Dram Shop Act], the common law recognizes a cause of action for negligent infliction of emotional distress on a bystander against a purveyor of alcoholic liquor for injuries caused by an intoxicated adult patron." Craig v. Driscoll, supra, 262 Conn. 314.
The holding of Kowal conflicted with the holding of Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990), in which the court concluded that " the act precludes a common-law negligence action against a purveyor for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another." (Emphasis added.) Craig v. Driscoll, supra, 262 Conn. 326. Observing that its holdings in Quinnett and Kowal could not be reconciled, the Craig court held "[a]s between the two decisions, we conclude that Kowal more properly reflects our preemption jurisprudence." Id., 326.
In an exercise of its authority to amend the common law, the court then declared: "it is now time to discontinue the fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that relieves the liability of a vendor of alcohol even though the vendor's negligence is otherwise established." (Emphasis in original.) Craig v. Driscoll, supra, 262 Conn. 340. "[W]e expressly reject the claim that a purveyor who provides alcoholic beverages to an already intoxicated patron or a patron known to him to be an alcoholic cannot, as a matter of law, be the proximate cause of subsequent injuries caused by the intoxicated patron." (Emphasis in original.) Id., 334. "It seems self-evident that the serving of alcoholic beverages to an obviously intoxicated person by one who knows or reasonably should know that such intoxicated person intends to operate a motor vehicle creates a reasonably foreseeable risk of injury to those on the roadways. Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care and therefore may be held liable in negligence." Id., 339.
The legislature responded promptly with Public Acts 2003, No. 03-91 ( P.A. 03-91), which overruled Craig as to sellers of alcohol by amending § 30-102. The amendment prohibits a "cause of action against [a] seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older." (Emphasis added.) P.A. 03-91. "Significantly, the legislature did not change the common-law rules governing negligence in the sale of alcohol to a minor." Hayes v. Caspers, supra, 90 Conn.App. 787, n. 7. Thus, P.A. 03-91 reduced the scope of the common-law cause of action recognized in Craig. Whereas the court recognized a cause of action as to any purveyor who provides alcohol to someone who should not have been served, P.A. 03-91 abrogated that cause of action as to a seller for the negligent sale of alcohol to a person of legal drinking age.
The following year, in reliance on the holding of Craig, our Appellate Court held that "employers have a duty to supervise tavern employees at the workplace as to their consumption of intoxicating liquor." Seguro v. Cummiskey, supra, 82 Conn.App. 198. In so holding, the court found it foreseeable that "negligent supervision of an employee in a bar or restaurant that results in the consumption of intoxicating liquor on those premises may result in harm to third parties after the employee leaves the premises." Id., 193. The court concluded that "bar and restaurant owners could expect that they might be held liable if their employees cause harm to third parties after consuming intoxicating liquors on the job." Id., 195.
Seguro involved the following facts. On the evening of July 26, 1997, a bartender, William Leonard, drank several containers of beer during his shift and then, after closing the bar at 2:00am, he drove to a diner where he drank several more containers of beer. After leaving the diner, Leonard crashed his vehicle into a parked van, causing it to strike and seriously injure a newspaper delivery person. The delivery person sued Leonard's employer for negligent supervision, alleging, inter alia, that the employer failed to train properly and supervise Leonard and allowed Leonard to drink openly while on duty in violation of a workplace policy.
Trial courts have since applied the language of P.A. 03-91 and the holdings of Craig and Seguro in cases where alcohol was provided free of charge. In Raymond v. Duffy, Superior Court, complex litigation docket at New London, Docket No. X 04 CV 030102444 (January 13, 2005, Quinn, J.) [ 38 Conn. L. Rptr. 562], the court reasoned: "[ Craig] speaks to the serving of alcohol . . . [T]here is no legally relevant distinction between whether alcohol is provided to an obviously intoxicated individual for financial gain or is furnished by a social host gratuitously . . . Craig impliedly recognizes an injured person's right to sue a social host if that host negligently served alcohol to an obviously intoxicated person and such guest consequently caused injury to another . . . [O]ur law recognizes such a cause of action under the common law and that the voluntary consumption of alcohol by the tortfeasor no longer serves to bar the action." (Emphasis added.) Id. This court as well as others have also recognized a cause of action for negligent service of alcohol where a sale was not involved. Piontkowski v. Agan, Superior Court, judicial district of Windham, Docket No. CV 08 5003588 (July 7, 2009, Riley, J.) [ 48 Conn. L. Rptr. 209] ("[T]he dram shop act is the exclusive remedy for injuries arising from the sale of alcohol to an intoxicated adult. In all other respects, Craig remains good law. Most notably, its rejection of the presumption that the ingestion of alcohol by the patron acted as an intervening force sufficient to shift the entire causation element to some entity or entities other than the purveyor"); Silvia v. Wittinberg, Superior Court, judicial district of New London, Docket No. CV 0950011528 (September 29, 2010, Martin, J.) [ 50 Conn. L. Rptr. 575] ("[I]n light of the legal principle that proximate causation generally constitutes a question of fact, this court . . . holds that the voluntary consumption of alcohol by the tortfeasor no longer serves to bar an action against a social host for the negligent service of alcohol to an adult . . . Thus, a social host may be held liable for the negligent service of alcohol to an adult").
The court took note that, while there may be no legally relevant distinction with regard to the manner in which alcohol is provided, either by sale or otherwise, there is a significant distinction with regard to liability. "Arguably, it may be unfair to expose social hosts to a greater liability than businesses which are protected by the provisions of the Dram Shop Act, as amended by Public Act No. 03-91 . . . Whatever may be one's conclusions about the disparity between the potential legal liability of social hosts and businesses covered by the Dram Shop Act, the present state of our case law makes no allowances for these factors and it is within the province of the legislature to make such allowances, should it choose to do so." Raymond v. Duffy, supra, Superior Court, Docket No. X 04 CV 030102444 (January 13, 2005, Quinn, J.). This discrepancy was also noted in Craig as "an anomalous distinction between providers of alcohol who are merchants and other providers such as the social host — the former being shielded by the act from liability above the statutory limitation on recovery; the latter being unprotected and subject to limitless liability under the common law." Craig v. Driscoll, supra, 262 Conn. 329 n. 13, citing former Chief Justice Peters in her dissent in Quinnett v. Newman, supra, 213 Conn. 353.
In the present case, the defendants first argue that counts six and nine should be stricken because "furnishing . . . alcohol without a charge . . . constitutes a `sale' " under the act pursuant to Pierce v. Albanese, supra, 144 Conn. 241, and therefore these counts are precluded by § 30-102. This argument is unavailing. Pierce was decided in accordance with the Uniform Sales Act, which has been superseded. General Statutes § 42a-2-314, which is part of Connecticut's adoption of the UCC, provides, in relevant part: "[T]he serving for value of food or drink to be consumed either on the premises or elsewhere is a sale." Cases interpreting § 42a-2-314 have held that the word "sale" means serving food or drink for value. See, e.g., Williams v. McDonalds of Torrington, Superior Court, judicial district of Hartford, Docket No. CV 96 0562657 (May 8, 1997, Hale, J.T.R.) ("This provision was adopted in response to those cases under the Uniform Sales Act which had concluded that the provision of food or drink to be consumed on the premises, as in a restaurant, did not constitute a sale within the meaning of that statute . . . Apparently the Code drafters wanted to end the age-old battle of whether an innkeeper or a restaurateur sells food or sells services.",
"Under the Uniform Sales Act, the Supreme Court of Connecticut determined that food sold in a restaurant for immediate consumption is a service, not a sale. See, e.g. Albrecht v. Rubinstein, 135 Conn. 243, 63 A.2d 158 (1948); Lynch v. Hotel Bond Co., CT Page 21849 117 Conn. 128, 167 A. 99 (1933); Merrill v. Hodson, 88 Conn. 314, 91 A. 533 (1914). These cases found that there were no warranties in the service of food because the transaction was not for the sale of food but was for the services rendered with food being a mere incident to that service. Because these cases were decided under the Uniform Sales Act, they are no longer applicable in light of the Legislature's adoption of General Statutes 42a-2-314." Williams v. McDonalds of Torrington, Superior Court, judicial district of Hartford, Docket No. CV 96 0562657 (May 8, 1997, Hale, J.T.R.) [ 19 Conn. L. Rptr. 427].
In relying on Pierce, the defendants seek to revive a legal theory that was abrogated in 1951. In Lynch v. Hotel Bond Co., supra, 117 Conn. 128, decided the same year the legislature adopted Cum.Sup. 1935, § 1088c, the Supreme Court determined that, under the Uniform Sales Act, food sold in a restaurant for immediate consumption was a service, not a sale, consistent with its holding in Merrill v. Hodson, supra, 88 Conn. 314.
The Merrill court explained this distinction as follows: " `[T]he analogy between the two cases of innkeeper and a victualler is so strong that it cannot be got over.' In neither case does the transaction, in so far as it involves the supply of food or drink to customers, partake of the character of a sale or goods . . . The customer does not become the owner of the food set before him, or of that portion which is carved for his use, or of that which finds a place upon his plate or in side dishes set about it. No designated portion becomes his. He is privileged to eat and that is all. The uneaten food is not his. He cannot do what he pleases with it. That which is set before him or placed at his command is provided to enable him to satisfy his immediate wants, and for no other purpose. He may satisfy those wants; but there he must stop. He may not turn over unconsumed portions to others at his pleasure, or carry away such portions. The true essence of the transaction is service in the satisfaction of a human need or desire — ministry to a bodily want. A necessary incident of this service or ministry is the consumption of the food required. This consumption involves destruction, and nothing remains of what is consumed to which the right of property can be said to attach. Before consumption title does not pass; after consumption there remains nothing to become the subject of title. What the customer pays for is a right to satisfy his appetite by the process of destruction. What he thus pays for includes more than the price of the food as such. It includes all that enters into the conception of service, and with it no small factor of direct personal service. It does not contemplate the transfer of the general property in the food supplied as a factor in the service rendered." Merrill v. Hodson, supra, 88 Conn. 317-18.
Comment 5 to this section explains: "Serving food or drink for value is a sale . . . Cases to the contrary are rejected." Conn. Gen. Stat. Ann. (West 2009) § 42a-2-314, comment 5, p. 138.
Furthermore, even if the Uniform Sales Act did apply, the holding of Pierce still would not support the defendants' conclusion. In Pierce, the court reasoned: "[W]e can assume that the legislature, by its use of the word `sell' in § 4307, which was adopted in 1933 (Cum.Sup. 1935, § 1088c), meant `purvey' or `furnish' rather than a sale in the strict sense of the term. Any other construction would have rendered the statute nugatory as applied to taverns or restaurants, because prior to the passage in 1951 of § 2859d of the 1955 Cumulative Supplement the dispensing of food or drink in a restaurant for consumption on the premises was a service, not a sale . . . We conclude that the purveying or furnishing of intoxicants for a price to a person, or to a group of two or more obviously together in one company, would be a sale to that person, or to each member of the group, within the terms of § 4307." (Emphasis added.) Id., 259. Accordingly, Pierce stood for the proposition that, under the act, a sale consisted of "purveying" or "furnishing" intoxicants "for a price." Thus, the defendants' reliance on Pierce is unavailing.
General Statutes (Rev. 1949) § 4307 provided: "If any person, by himself or his agent, shall sell any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, shall thereafter injure the person or property of another, such seller shall pay just damages to the person injured, to be recovered in an action under this section."
Black's Law Dictionary (9th Ed. 2009) defines "sale" as "[t]he transfer of property or title for a price." Id. Because furnishing alcohol without a charge does not constitutes a `sale' under the act, the court finds that the motion to strike counts six and nine should be denied as to the first ground.
Next, the defendants argue that counts six and nine should be stricken because Seguro v. Cummiskey, supra, 82 Conn.App. 186, has been overruled. In Seguro, the court considered "the scope of an employer's duty to supervise an employee;" id., 187; and held that "proprietors of establishments that serve alcohol do indeed have a duty to protect third parties from the conduct of bartenders and other servers who drink intoxicating liquor on the job." Id., 191. In so holding, the court reasoned as follows.
"Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action . . . 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 . . . A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Citations omitted; internal quotation marks omitted.) Seguro v. Cummiskey, supra, 82 Conn.App. 192-93.
Citing Craig, the court observed: "A connection between excessive consumption of alcohol and violent traffic accidents is well recognized." Seguro v. Cummiskey, supra, 82 Conn. 193. In addition, it is reasonably "foreseeable that [a tavern operator's] failure to prevent [its employee's] drinking could have resulted in [its employee's] driving home from work while intoxicated and injuring a third party." Id., 195. It is also "consistent with the development of our law to recognize a duty of employers at an establishment that serves liquor to third parties to supervise employees and to protect the public from an employee who drinks on the job." Id., 198. Accordingly, the court held that "employers have a duty to supervise tavern employees at the workplace as to their consumption of intoxicating liquor." Id.
The defendants argue, however, that Seguro was overruled by P.A. 03-91 because the act effected a "statutory bar to negligence causes of action" recognized in Craig v. Driscoll, supra, 262 Conn. 312. The language of P.A. 03-91 does not support this conclusion. As explained above, in Craig, the court recognized a cause of action in negligence as to any purveyor who provides alcohol to someone who should not have been served. P.A. 03-91 abrogated that cause of action only as to sellers for the negligent sale of alcohol to a person of legal drinking age. Thus, P.A. 03-91 reduced the scope of the common-law cause of action recognized in Craig but did not eliminate it. Because the cause of action recognized in Seguro does not involve the negligent sale of alcohol by a seller to a person of legal drinking age, it is not abrogated by P.A. 03-91. Accordingly, the court finds that the motion to strike counts six and nine should be denied as to the second ground.
Finally, the defendants argue that counts six and nine should be stricken because Seguro is inconsistent with the holding of Murdock v. Croughwell, supra, 268 Conn. 559. The defendants cite Cannizzaro v. Marinyak, Superior Court, judicial district of Fairfield, Docket No. CV 07 5007388 (February 18, 2011, Levin, J.) [ 51 Conn. L. Rptr. 496], to support their argument that "[i]n Murdock, the Supreme Court held that . . . tortious acts of the employer must occur on the employer's premises in order to impose a duty on the employer, implicitly overruling Seguro and its analysis of employer liability based on [Section 317 of the Restatement (Second) of Torts]."
Murdock involved a negligence action arising from bar fight between two off-duty police officers. The plaintiff, an officer who was injured in the fight, sued the chief of police for negligent supervision of his adversary. The plaintiff argued that the chief owed him a duty of care based upon, inter alia, § 315 of the Restatement (Second) of Torts. The court disagreed, reasoning: "[T]here is generally no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another." (Emphasis added.) Murdock v. Croughwell, supra, 268 Conn. 566. The court explained that, although there was a special relationship between the parties to the suit: "Section 317 imposes a duty on an employer to control the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes a chattel of the employer's . . ." Id., 570. Accordingly, the court held that § 317 did not apply in that case "because the altercation . . . occurred off department premises and did not involve any chattel of [the defendant] . . ." Id.
Section 315 is found in Chapter 7, Topic 7 of the Restatement (Second) of Torts, which covers duties of affirmative action. Topic 7 begins with § 314, which sets forth the general rule: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Comment a explains that this rule should be read together with the sections that follow.
Section 317 provides: "A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (I) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (I) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control."
The court recognized, however, that special relationships give rise to merely "one exception" to the general rule proscribing a duty to protect third parties. Murdock v. Croughwell, supra, 268 Conn. 566. In Craig, the court held that another exception arises from the common law: "[O]ne who serves alcoholic beverages [to an obviously intoxicated person knowing that they intend to operate a motor vehicle] . . . may be held liable in negligence." Craig v. Driscoll, supra, 262 Conn. 339-40. Because the holding of Seguro is grounded on this common-law exception, it is consistent with the holding of Murdock. Thus, the court finds that the motion should be denied as to this ground.
This exception is consistent with § 314, comment c, which provides, in part: "It appears inevitable that, sooner or later . . . extreme cases of morally outrageous and indefensible conduct will arise [and] there will be further inroads upon the older rule." Further, it is consistent with § 321, which provides: "(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. (2) The rule stated in subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk."
In sum, the court finds that the plaintiffs have set forth valid causes of action in counts six and nine, thus, the motion to strike should be denied as to these counts.
B Counts Three and Eight
In counts three and eight, Frederick asserts identical claims for bystander emotional distress. The defendants move to strike these counts on the ground that Frederick "did not witness the act complained of." Specifically, they argue that "the act complained of is negligent training and rules, none of which were contemporaneous with the subject collision, were perceived by the plaintiffs, or directly caused any injury to the plaintiffs."
The plaintiffs counter that the motion should be denied because they "need not witness all of the events that were substantial factors leading to the injury. It is enough that they witness the injury take place or see the results immediately thereafter."
In Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), our Supreme Court recognized a cause of action for bystander emotional distress as follows. "Under certain circumstances, which are hereinafter delineated, we conclude that a tortfeasor may owe a legal duty to a bystander. Consequently, a tortfeasor who breaches that duty through negligent conduct may be liable for a bystander's emotional distress proximately caused by that conduct." Id., 46. "[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." (Emphasis added.) Id., 56. Regarding the second element, the court further explained that "the bystander's emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury . . . or by viewing the victim immediately after the injury causing event if no material change has occurred with respect to the victim's location and condition." (Citations omitted.) Id., 52.
The court noted that "two principal schools of thought have emerged in support of allowing bystanders a cause of action for emotional distress — `zone of danger' and `reasonable foreseeability.' " Clohessy v. Bachelor, supra, 237 Conn. 38. "In 1965 . . . the American Law Institute adopted §§ 313 and 436 of the Restatement (Second) of Torts (1965), which generally allows recovery for emotional distress suffered by a bystander under the zone of danger theory. Simply stated, the zone of danger rule allows one who is himself or herself threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family . . . The rule is premised on the concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant's conduct." Id., 39-40.
The court explained the rule of foreseeability as follows: "We have long held that the ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Id., 47.
In holding that a bystander may recover damages for emotional distress under the rule of reasonable foreseeability, the court rejected the zone of danger theory. Thus, §§ 313 and 436 of the Restatement (Second) of Torts (1965) have little, if any, relevance.
In Craig v. Driscoll, 64 Conn.App. 699, 707, 781 A.2d 440 (2001), the Appellate Court affirmed an expansion of this doctrine, holding that, even in a claim predicated on the negligent service of alcohol, a plaintiff can recover for negligent infliction of emotional distress on a bystander. The court found that the allegations of the plaintiff's amended complaint, which are not distinguishable in any significant way from those alleged in the present case, met the Clohessy criteria. Id., 707. The Supreme Court affirmed this judgment. Craig v. Driscoll, supra, 262 Conn. 341, n. 21. In light of these holdings, the defendants' argument, that such a claim must fail because "the harm . . . occurred well before the motor vehicle accident took place," is unavailing. Here, Frederick claims that, after the car he was operating left the highway and rolled down an embankment, "he saw his wife, Kathleen Stern, severely injured, trapped in their vehicle . . ." This allegation, if proven, is sufficient to satisfy the second element of the claim. Thus, the court finds that the motion should be denied.
III CONCLUSION
In accordance with the foregoing, the court denies the motion as to all four counts.