Opinion
No. CV 07-5009467 S
January 14, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #120
On April 24, 2007, the plaintiff, Tiffany Widdows, filed a three-count revised complaint against the defendants, Crown Street Bar Limited Partnership d/b/a BAR (BAR), Elmo's Rocket Club, Inc. (Elmo's) and Nicole Perrotti (Perrotti). The plaintiff alleges that on February 10, 2005, she was assaulted at BAR by the allegedly intoxicated Perrotti, who hit her with a beer bottle causing a laceration above her left eye.
Because Perrotti is not a party to this action, the BAR and Elmo's will be referred to as "the defendants." They will be referred to as BAR, Elmo's, and Perrotti when they are acting alone.
In count one, the plaintiff alleges that her injuries resulted from, inter alia, the negligent service of alcohol and negligent supervision on the part of BAR for failure to properly supervise the bar, its employees and its patrons. In count two, the plaintiff makes the exact same allegations against Elmo's, as the owner d/b/a BAR. The plaintiff seeks damages for injuries and associated expenses from Perrotti in count three.
On September 27, 2007, the defendants filed a motion to strike counts one and two on ground that both counts were predicated upon the provision of alcohol to an intoxicated individual bringing the claim under the purview of the Dram Shop Act § 30-102, which the plaintiff did not plead. With the motion to strike, the defendants filed a supporting memorandum of law. The plaintiff filed a memorandum in opposition to the motion on October 15, 2007, to which the defendants replied on October 24, 2007. This matter was heard at short calendar on November 5, 2007.
On October 15, 2007, the plaintiff filed a request for leave to amend the complaint, to which the defendants objected. As the motion to strike was filed prior to the Plaintiff's request and because the objection has not yet been ruled upon by the court, this memorandum is limited to the motion to strike as applied to the April 24, 2007 revised complaint.
Practice Book § 10-39 provides in relevant part that "whenever any party wishes to contest . . . the legal sufficiency of the allegation of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegation and any facts provable thereunder." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendants move to strike counts one and two of the plaintiff's revised complaint on the ground that they are legally insufficient because Connecticut does not recognize a private cause of action for claims arising out of alleged negligent service of alcohol to a person twenty-one years of age or older. The defendants ground their argument on General Statutes § 30-102, known as the Dram Shop Act, as amended by Public Acts 2003, No. 03-91, which expressly precludes a common-law cause of action for negligent service of alcohol to persons twenty-one years of age or older. The defendants argue that the language and legislative intent of Public Act 03-91 bar the plaintiff from raising a separate cause of action based on common-law negligence. Thus, the defendants assert that the Dram Shop Act provides the exclusive remedy for claims arising out of negligent service of alcohol to persons twenty-one years of age or older.
General Statutes § 30-102 provides in 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 person injured . . . to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within one hundred twenty days of the occurrence of such injury to person or property of such person's or persons' intention to bring an action under this section . . . No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of. 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."
The defendants contend that their motion to strike should be granted because the plaintiff's claim for negligent supervision is predicated upon service of alcohol to an already intoxicated person as stated in paragraph 6(a) in both counts. The plaintiff's complaint, therefore, falls within the Dram Shop Act, which requires that any claims against the seller of alcohol must be brought within one year of the date of the alleged injury. They maintain that, not only was this action commenced more than one year from the February 10, 2005 incident, but the plaintiff also failed to comply with the statutory requirement to provide sixty days written notice of her intent to sue the defendants. Thus, although the defendants argue the complaint is not timely and should be stricken because it falls within the purview of the Dram Shop Act, the other allegations in counts one and two are claims of negligent supervision.
Service of process on the defendants was commenced on February 6, 2007.
The plaintiff counters, in her brief, that Public Act 03-91 addresses only the negligent service of alcohol and, consequently, does not extend to include this complaint which is "not based upon the Dram Shop Act. Rather, it is an action in negligence predicated upon the defendants' failure to supervise its patrons and control the premises." The plaintiff contends that her negligence claim is based on negligent supervision and not upon negligent service of alcohol; counts one and two of the plaintiff's complaint also contain allegations (b)-(i) of negligent supervision by BAR and Elmo's. Although some of the plaintiff's allegations in counts one and two are based on negligent service of alcohol and would fail if standing alone, however, those counts also contain other theories of liability that do not rely on negligent service of alcohol, and, therefore, are not legally insufficient for the reasons set forth by the defendants. "If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient." Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989). In the present case, the plaintiff argues that the claims of negligent supervision in counts one and two are separate and distinct from a claim brought under the Dram Shop Act. BAR and Elmo's do not dispute that Connecticut recognizes a cause of action distinct from the Dram Shop Act for negligent supervision; rather, they argue that the language of the plaintiff's complaint falls within the purview of the Dram Shop Act.
A Connecticut court has interpreted the unambiguous language of Public Act 03-91 to eliminate the common-law right to sue a seller for negligence in selling alcohol to someone at least twenty-one years old. Under current interpretation, "The court finds that P.A. 03-91 established the Dram Shop Act as the exclusive remedy for claims involving the negligent service of alcohol to those persons twenty-one years of age or older . . ." Collar v. Da Cruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.).
In her supporting memorandum of law, despite her argument that her claim is not based on the negligent service of alcohol, the plaintiff cites Craig v. Driscoll, 262 Conn. 312, 813 A.2d 312 (2003), officially released on February 4, 2003, in which the Supreme Court held that there is a common-law cause of action in negligence against the seller of alcoholic beverages, and that the Dram Shop Act is not the exclusive remedy for negligence against the seller of alcohol. After Driscoll, the legislature overruled Driscoll by amending § 30-102, effective June 3, 2003. Public Act 03-91, inter alia, prohibits a negligence cause of action against a seller of alcohol to a person twenty-one or older. The plaintiff's reliance on Driscoll is, therefore misplaced, because there is no longer a private cause of action against a seller for negligent service of alcohol to a person twenty-one years of age or older.
A claim for negligent supervision has been recognized by Connecticut courts as distinct from claims for negligent service of alcohol to intoxicated individuals. "The cause of action for negligent supervision . . . is based on conduct amounting to the defendant proprietor's failure to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment, rather than the proprietor's negligence in furnishing alcohol." (Emphasis added; internal quotation marks omitted.) Collar v. DaCruz, Superior Court, judicial district of Hartford, Docket No. CV 03 0830138 (August 13, 2004, Booth, J.); accord Jensen v. DePaolo, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0277460 (March 8, 2004, Wiese, J.) ( 36 Conn. L. Rptr. 665). Such a cause of action is legally sufficient if it is grounded in negligent supervision and not negligent service of alcohol. Clinch v. Maratta, Superior Court, judicial district of New Britain, Docket No. CV 99 0498020 (April 17, 2002, Quinn, J.) [ 32 Conn. L. Rptr. 77].
In her amended complaint, the plaintiff alleges seven instances of negligent supervision of the premises by BAR, Elmo's, the employees and the patrons in the Revised Complaint, paragraph 6 (b)-(I). Specifically, she alleges that BAR and Elmo's: (b) failed to provide adequate security to prevent the violence that caused the plaintiff's injuries; (c) caused or allowed and permitted the premises to be overcrowded and to have noisy and unruly patrons, when they had inadequate staff to control them; (d) failed to warn the plaintiff when under the circumstances they knew or should have known that she could have been harmed by an intoxicated patron, such as Perrotti; (e) failed to properly monitor the actions of their patrons, including Perrotti; (f) failed to adopt and implement proper procedures and have adequate personnel to implement actions to prevent unruly patrons from causing harm; (g) failed to adequately train their agents, servants and employees to prevent patrons from harming other patrons and persons in attendance at the premises; (h) failed to intervene to protect the plaintiff although they were reasonably aware of the need for such protection; and (i) failed to use due care as a reasonably prudent person would under the same or similar circumstances. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003).
"Connecticut has recognized a cause of action for the negligent supervision of tavern patrons and employees." Castillo v. Brito, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 394099 (October 28, 1991, Hennessey, J.) [ 5 Conn. L. Rptr. 201]. In the present case the plaintiff's cause of action for negligent supervision is based on BAR and Elmo's failure to exercise reasonable care while supervising the conduct of patrons within its premises, rather than BAR's negligence in furnishing alcohol. "In cases that have recognized such a cause of action, the plaintiffs were injured by other patrons on the premises of the defendant, and the injuries were allegedly caused by the defendants' failure to supervise the other patrons and provide a safe business environment." (Internal quotation marks omitted.) Bioski v. Castelano, Superior Court, judicial district of Waterbury, Docket No. 115265 (March 21, 1995, Flynn, J.) ( 14 Conn. L. Rptr. 346). Here, the plaintiff argues that Connecticut courts have recognized such a cause of action where the plaintiffs were injured by other patrons, and the injuries were allegedly caused by the defendants' failure to supervise the other patrons and provide a safe business environment.
This court denied a motion to strike a count alleging negligent supervision of a patron who allegedly assaulted another patron outside a restaurant in Whoolery v. Archie Moore's Cafe, Superior Court, judicial district of New Haven, Docket No. CV 04 4000006 (December 15, 2006, Zoarski, J.). In Whoolery, this court acknowledged that although the plaintiff's allegations of negligent supervision appeared to relate directly to the service of alcohol to an adult, bringing it under the purview of the Dram Shop Act, the plaintiff successfully argued that the defendant acted recklessly when it "consciously ignored [a] substantial risk of harm to [the plaintiff Whoolery] based on the amount of alcohol they served to the named rash, threatening, violent, drunken patrons." Id. The court in Whoolery based its decision on the defendant's policy of encouraging their employees to serve intoxicated patrons and not to "cut anyone off," which led the court to find that the defendant knew or had reason to know that such a policy would create an unreasonable risk of harm, that the alleged attackers were intoxicated based on "observable manifestations of intoxication."
Here, like in Whoolery, some of the plaintiff's allegations are based on negligent service of alcohol to an already intoxicated patron. Also like in Whoolery, the plaintiff alleges negligent supervision because BAR and Elmo's knew or should have known that they created a substantial risk of harm when they allowed the premises to become overcrowded with unruly, noisy patrons, for which they did not have an adequate number of properly trained staff to supervise, and when they continued to serve alcohol to Perrotti who was obviously "impaired by the consumption of alcoholic beverages." Unlike Whoolery, however, the plaintiff does not specifically allege that the defendants acted recklessly, but, the language of the complaint alleges the same behavior by BAR and Elmo's in its negligent supervision claim as does the plaintiff in Whoolery arguing that Archie Moore's Cafe "consciously ignored [a] substantial risk of harm to [the plaintiff Whoolery] based on the amount of alcohol they served to the named rash, threatening, violent, drunken patrons." Id. In the present case, the plaintiff argues negligent supervision as a cause of action because BAR and Elmo's negligently failed to keep the premises safe for the plaintiff as a business invitee.
The court concludes that both counts set forth a cause of action not exclusively within the provisions of the Dram Shop Act, and therefore finds that it adequately states a cause of action for which relief may be granted. Because the plaintiff's claims in count one and two are for negligent supervision in addition to negligent service of alcohol to patrons, the court denies the motion to strike.
The defendants also assert that the plaintiff failed to plead a "plain and concise statement of material facts" in paragraph 6(I), where the plaintiff alleged that the defendants "failed to use due care as a reasonably prudent person would under the same or similar circumstances." The defendants maintain that without any specific description of how the defendants failed to meet their duty of care, this paragraph is legally insufficient. The plaintiff does allege facts sufficient to establish a duty of care as a business owner to provide a safe environment for a business invitee, which the plaintiff was when she entered BAR.
Connecticut Practice Book § 10-1 requires a plaintiff to plead "plain and concise statement[s] of the material facts on which the pleader relies . . . If any such pleading does not fully disclose the grounds of claim or defense, the judicial authority may order a fuller and more particular statement."
For the foregoing reasons, the defendant's motion to strike counts one and two of this complaint are denied.