Opinion
No. 4002507
April 26, 2007
MEMORANDUM OF DECISION
On February 10, 2006, the plaintiff, Theresa Wylie, filed a two-count amended complaint against the defendants, Trio's Bar Grille, LLC (Trio's) and Cindy Currier individually, as permitee and backer of Trio's. The plaintiff alleges that she suffered injuries while a passenger in a motor vehicle driven by Kevin Sullivan who was intoxicated after the defendants served alcoholic beverages to Sullivan while he was in an intoxicated condition. In count one of the complaint, the plaintiff alleges that the defendants engaged in reckless conduct in serving alcoholic beverages to Sullivan. In count two, the plaintiff seeks recovery pursuant to General Statutes § 30-102, the Dram Shop Act.
Kevin Sullivan has not been named a party to this action. On September 26, 2005, the defendants filed a motion to cite in Kevin Sullivan as a party defendant. This court denied the defendants' motion on February 16, 2006.
Section 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, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication of up to an aggregate amount of two hundred fifty thousand dollars to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty 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 . . ."
On May 24, 2006, the defendants filed an amended answer and five special defenses. The defendants' first special defense alleges that the plaintiff's injuries and losses were a result of her own reckless conduct in that she agreed to get into the motor vehicle of an individual who she believed to be intoxicated, therefore her participation in reckless conduct bars her from recovery. The defendants' third special defense alleges that the plaintiff assumed the risk that she would sustain serious injury when she agreed to be a passenger in Sullivan's vehicle when she knew that he was intoxicated.
The first special defense alleges participation. The second special defense, alleging operator negligence, was withdrawn by the defendants at oral argument. The third special defense alleges assumption of the risk. The defendants' fourth and fifth special defenses, alleging a right to setoff and a statutory cap on recovery, respectively, are not the subject of the plaintiff's motion to strike.
On August 25, 2006, the plaintiff filed a motion to strike the special defenses of participation and assumption of the risk on the ground that the special defenses raised by the defendants are legally insufficient defenses. The plaintiff filed a memorandum of law in support of her motion to strike. On January 3, 2007, the defendants filed a memorandum of law in opposition to the plaintiff's motion to strike, arguing that (i) assumption of the risk is a valid special defense to the plaintiff's recklessness claim in count one, and (ii) participation and assumption of the risk are valid defenses to the plaintiff's dram shop claim in count two. Oral argument was heard on February 13, 2007.
DISCUSSION
A motion to strike a special defense is a proper vehicle for the purpose of testing the legal sufficiency of the allegations of a special defense. Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). In ruling on a motion to strike, the court has an obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). In ruling on a motion to strike, the trial court is limited to the facts alleged in the pleadings. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
I Assumption of the Risk as a Defense to Reckless Conduct
With respect to assumption of the risk as a defense to count one of the complaint sounding in recklessness, this court is inclined to follow the line of cases holding that a defense of assumption of the risk does not apply to actions based on claims of willful, wanton or reckless conduct. Cheneski v. Barber, Superior Court, judicial district of Danbury, Docket No. CV 307083 (February 7, 1992, Fuller, J.) [ 7 Conn. L. Rptr. 92]; see also Zawadski v. Robbins, Superior Court, judicial district of Hartford, Docket No. CV 384518 (July 14, 1992, Wagner, J.).
"We recognize that there are divergent opinions in our Superior Court on the issue of whether assumption of the risk may be pled as a special defense to a cause of action sounding in recklessness." Zawadski v. Robbins, supra, Superior Court, Docket No. CV 384518. Compare Cheneski v. Barber, supra, Superior Court, Docket No. CV 307083 ("Section 52-572h of the General Statutes applies only to ordinary negligence actions, and the legal doctrine of assumption of the risk is abolished only for purposes of that statute . . .
Despite this limitation, it is doubtful whether assumption of the risk applies as a defense to a claim of wilful, wanton or reckless misconduct under Connecticut law, and the majority rule in other states is that assumption of the risk is not a valid defense to such actions"). (Citation omitted.) With Fortier v. Hoban, Superior Court, judicial district of Waterbury, Docket No. CV 0119573 (November 21, 1994, Sylvester, J.) ("[t]here is no sound policy reason for allowing an individual who has willing[ly] engaged in conduct potentially injurious to the public and himself, in disregard to the consequences of such conduct, to absolve himself of responsibility. The court adopts this reasoning and holds that assumption of the risk is a valid defense to a claim of recklessness"). (Internal quotation marks omitted.)
In Anastasio v. Ladd, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160470 (January 29, 2001, Doherty, J.), the court granted the motion to strike the defendant's special defense of assumption of the risk as to the plaintiff's recklessness claim, stating that "the defendant fails to allege a legally sufficient special defense. What the defendant has alleged is a pure assumption of the risk special defense and the court finds . . . that the . . . motion to strike should be and is hereby granted because Connecticut has abolished this defense under General Statutes § 52-572h(1)."
General Statutes § 52-572h(1) provides that "[t]he legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished."
In the present case, the defendants allege in their third special defense that "[t]he plaintiff assumed the risk that she would sustain serious injury when she agreed to be a passenger in Sullivan's vehicle when she knew that he was intoxicated." The defendants fail to allege that the plaintiff acted negligently and/or recklessly in their special defense. The defendants have alleged a pure assumption of the risk special defense; Anastasio v. Ladd, supra, Superior Court, Docket No. CV 00 0160470; and, adopting the court's reasoning in Anastasio, the court finds that the plaintiff's motion to strike should be granted.
Accordingly, the motion to strike the defendants' third special defense is granted as to the first count sounding in recklessness.
II Participation and Assumption of the Risk as Defenses to the Dram Shop Act
Neither the Connecticut Supreme Court nor the Appellate Court has ruled upon whether participation and assumption of the risk are valid defenses to an action brought pursuant to General Statutes § 30-102, the Dram Shop Act. A split of authority on the issue exists within the Superior Court. Jacocks v. Monahan's Shamrock, Superior Court, judicial district of New Haven, Docket No. CV 92 0330268 (October 13, 1993, Zoarski, J.).
This court, however, has recently had occasion to consider and rule upon this issue in a line of cases that are factually similar to the present one. See Miller v. Lambert, Superior Court, judicial district of New London at Norwich, Docket No. CV 05 5100068 (June 14, 2006, Harley, J.T.R.) ( 41 Conn. L. Rptr. 512) (granting motion to strike special defenses of assumption of the risk and participation in an action brought pursuant to General Statutes § 30-102); Pont v. Barker, Superior Court, judicial district of New London, Docket No. CV 05 4002020 (May 30, 2006, Harley, J.T.R.) ( 41 Conn. L. Rptr. 445) (same); Buzon v. Ballard Kane, Superior Court, judicial district of New London, Docket No. CV 04 0568685 (September 6, 2005, Hurley, J.T.R.) ( 39 Conn. L. Rptr. 909) (granting motion to strike special defense of assumption of the risk in an action brought pursuant to General Statutes § 30-102).
There is no cogent reason for the court to reach a different result in this case. Accordingly, the motion to strike the defendants' first and third special defenses is granted as to count two of the complaint.