64 Conn. App. 699 | Conn. App. Ct. | 2001
Opinion
The plaintiffs, Valerie P. Craig and Samuel Craig,
At 12:10 a.m. on May 22, 1996, Sarah Craig was a pedestrian on the west shoulder of Route 272 near its intersection with Route 44 in Norfolk. At that time, Driscoll, who had left The Pub, was operating a motor vehicle south on Route 44 when he caused the vehicle to veer off the roadway and strike Craig. Very shortly thereafter, Valerie P. Craig, the mother of Sarah Craig, and Samuel Craig, the brother of Sarah Craig, arrived at the scene of the accident and viewed Sarah Craig before a substantial change in her condition or location had taken place. Sarah Craig died on May 24, 1996, of the injuries she sustained in the accident. As a result of having witnessed Sarah Craig’s severe and substantial injuries, the plaintiffs sustained severe emotional injuries.
“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” Practice Book § 10-39 (a).
Our standard of review for granting a motion to strike is well settled. “In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988).” Waters v. Autuori, supra, 236 Conn. 822. A motion to strike admits all facts well pleaded. See Practice Book § 10-39. “The allegations of the pleading involved are
I
The plaintiffs’ first claim is that the court improperly granted the defendants’ motion to strike by concluding that the allegations of counts three and five failed to state causes of action, specifically, negligent infliction of bystander emotional distress as enunciated in Clohessy v. Bachelor, supra, 237 Conn. 31. We agree with the plaintiffs.
The allegations in question are those contained in paragraph twelve of counts three and five in which Valerie P. Craig and Samuel Craig, respectively, pleaded: “The collision, the injuries to Sarah Craig, and the severe emotional injury sustained by [the plaintiffs], were caused by the carelessness and negligence of [the defendants] ... in one or more of the following ways: (a) in that they served numerous drinks to Steven Driscoll, which caused his intoxication, when the Defendants knew, or should have known, that Steven Driscoll would operate a motor vehicle upon leaving the [defen
In recognizing a claim for bystander emotional distress, the Clohessy court reexamined the history of the cause of action in this jurisdiction and the legal theories under which other jurisdictions have adopted it. Our Supreme Court rejected the zone of danger limitation on bystander emotional distress
Here, the defendants concede that the allegations of the plaintiffs’ amended complaint meet the four Clohessy criteria, and we agree. The defendants argue, however, that they owed no duty to the plaintiffs because their injuries were not reasonably foreseeable. We disagree with the defendants’ position because, as alleged, the plaintiffs’ injuries were reasonably foreseeable.
A
Our first inquiry is whether the defendants owed a duty to the plaintiffs. “Since the chief element in determining whether [a] defendant owes a duty or an obligation to [a] plaintiff is foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.” Id., 35-36, citing Dillon v. Legg, 68 Cal. 2d 728, 740, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). Clohessy articulated the concept of duty that applies to our analysis. “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty,
“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally ‘foreseeable,’ yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty
In her dissent in Quinnett v. Newman, 213 Conn. 343, 349-54, 568 A.2d 786 (1990) (Peters, C. J., dissenting), then Chief Justice Ellen Peters eloquently expressed the policy concerns that warrant the creation of a cause of action against the purveyors of alcoholic beverages who negligently contribute to the horrors of drinking and operating a motor vehicle: “I believe that the time has come for this court to recognize a common law cause of action, sounding in negligence, for the sale of intoxicating beverages to someone who, because of his intoxication, thereafter injures an innocent bystander on our public highways. Studies too numerous to replicate have demonstrated, time and time again, the strong connection between excessive consumption of alcohol and violent traffic accidents. See, e.g., Shore v. Stonington, 187 Conn. 147, 162, 444 A.2d 1379 (1982) [Peters, J., dissenting]; Slicer v. Quigley, 180 Conn. 252, 264-67, 429 A.2d 855 (1980) (Bogdanski, J., dissenting). The hapless victim in this case was simply another statistic in a long line of similar victims, killed by a driver who, after the consumption of a great deal of liquor at a bar, crossed the median line on the highway and drove his car into oncoming traffic. Enough is enough. This court should no longer be the roadblock that prevents a jury from considering whether, as a matter of fact, a commercial vendor of alcohol has taken suitable precautions, has observed reasonable care, to avoid injury to those who are foreseeably at risk and whose injuries are in fact proximately caused by the sale of alcohol.” Quinnett v. Newman, supra, 350 (Peters, C. J., dissenting).
With respect to alcohol related tragedies that occurred in the final decade of the twentieth century, we cannot accept the defendants’ contention that a reasonable person could not foresee the tragic consequences of serving liquor to an intoxicated person who thereafter will operate a motor vehicle on the roadways of this state. We think that it is foreseeable to a purveyor of alcoholic beverages who serves liquor to an intoxicated person who will operate a motor vehicle that the victim’s relatives will witness an accident or its immediate aftermath. We therefore recognize, on the facts alleged in this case, that purveyors of alcoholic beverages owe a duty to bystanders who suffer emotional distress on the basis of the foreseeability of the risk. Whether that duty extends to those victims when the harm is caused by adults who were served alcohol rather than by minors is the next question we must address.
B
In objecting to the plaintiffs’ complaint, the defendants have asserted a timeworn argument that the com
“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. ... As [our Supreme Court] observed . . . [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .
“The second component of legal cause is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm .... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] mies which are feasible to administer, and yield a workable degree of certainty. . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. ... In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. . . .
“[Our Supreme Court] has often stated that the test of proximate cause is whether the defendant’s conduct
“The scope of the risk analysis of proximate cause similarly applies where, as here, the risk of harm created by the defendant’s negligence allegedly extends to an intervening criminal act by a third party. . . . [Our Supreme Court has] consistently adhered to the standard of 2 Restatement (Second), Torts § 442B (1965) that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant’s conduct. . . . The reason [for the general rule precluding liability where the intervening act is intentional or criminal] is that in such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him. . . . Such tortious or criminal acts may in themselves be foreseeable, [however,] and so within the scope of the created risk . . . .” (Citations omitted; internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757-59, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).
C
Until recently in Connecticut, no common-law action sounding in tort lay against a purveyor of intoxicating
In Ely,
In Bohan, our Supreme Court permitted the defendant purveyors of alcohol to seek apportionment of the tortfeasor liability to innocent third party victims of intoxicated minors. Bohan v. Last, supra, 236 Conn.
In recognizing a common-law tort action against individuals who negligently furnish alcoholic beverages to individuals they knew or should have known were minors, the court in Ely held that “[t]his is not to say, however, that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect.” Ely v. Murphy, supra, 207 Conn. 97. Bohan also did not “engraft strict liability on this common law duty.” Bohan v. Last, supra, 236 Conn. 681.
The defendants argue that Connecticut does not recognize a common-law negligence action against a purveyor of alcoholic beverages to an intoxicated adult and point to our Supreme Court’s holding in Quinnett v. Newman, supra, 213 Conn. 347, where the court concluded that in the case of a “tavern seller-adult patron situation,” the victim’s remedy does not include a cause of action in negligence or public nuisance because of the enactment of the Dram Shop Act.
We, however, need not go beyond the jurisdictional boundaries of Connecticut to find authority that, in a criminal setting, purveyors of intoxicating beverages defy the law by serving liquor to alcoholics or habitual drunkards. General Statutes § 30-86 provides in relevant part: “Any permittee or any servant or agent of a permit-tee who sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113. . . .”
Violation of a statute often forms the legal basis of an action sounding in negligence per se. See Gore v. People’s Savings Bank, 235 Conn. 360, 368, 665 A.2d 1341 (1995). The two-pronged test of negligence per se is (1) whether the plaintiffs are within the class of persons protected by the statute and (2) whether the injury suffered is of the type that the statute is intended to prevent. Id., 368-69. “While in general the violation of a statute is negligence per se, there are limitations to this rule. In order to base a recovery upon negligence in violation of a statute, it must appear that the injury suffered was of a nature which the statute was intended to guard against. ... It is extremely doubtful if these provisions in our Liquor Control Act were intended to guard an intoxicated person from personal injury. Rather, they were passed in pursuance of a broader public policy for the protection of the public at large.”
Our common law has a long history forbidding the sale of intoxicating liquor to those individuals who, as the result of illness, disability or predisposition, are unable to control their consumption of alcohol. Cases exist from the mid-nineteenth century concerning the prohibition against selling liquor to habitual drunkards. See, e.g., Barnes v. State, 20 Conn. 232, 237 (1850) (“legislature, for the purpose of protecting, in some measure, the community from the many crimes committed by common drunkards, while under the maddening influence of ardent spirits, may have made it the duty of the rum-seller to see to it, at his peril, that he does not sell to such persons”).
We conclude, therefore, that the allegations of a complaint against purveyors of alcohol who serve liquor to alcoholics or habitual drunkards who are intoxicated when the purveyor knew or should have known that the alcoholic would operate a motor vehicle are sufficient to state a negligence cause of action and, therefore, to survive a motion to strike. Counts three and five of the plaintiffs’ complaint, to the extent that they allege the foregoing, should not have been stricken.
II
The plaintiffs’ second claim is that the court improperly granted the defendants’ motion to strike counts four and six by concluding that they failed to state a cause of action, specifically, reckless infliction of emotional distress. We agree.
The allegations of paragraph twelve of counts four and six are as follows: “The collision, the injuries to Sarah Craig, and the severe emotional injury sustained by [the plaintiffs], were caused by the willful, wanton and/or reckless actions of the [defendants] in one or
The defendants argue that counts four and six are merely a repetition or rewording of the negligence allegations contained in the third and fifth counts of the plaintiffs’ amended complaint, but realleged as wilful, wanton or reckless misconduct. We conclude, however, that the allegations of counts four and six are not as broad as the allegations of negligence in counts three and five. Counts three and five contain ten subpara
To determine whether the plaintiffs’ amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. “Recklessness is a state of consciousness with reference to the consequences of one’s acts. Commonwealth v. Pierce, 138 Mass. 165, 175 [1884], . . . It is more than negligence, more than gross negligence. Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 [1929]. 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. Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. Bordonaro v. Senk, [supra, 431]. Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985); see also Brown v. Branford, 12 Conn. App. 106, 108, 529 A.2d 743 (1987). . . .
“While we have attempted to draw definitional distinctions between the terms wilful, 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
“The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.” Practice Book § 10-25. See Marrin v. Spearow, 35 Conn. App. 398, 401, 646 A.2d 254 (1994) (party may plead alternative and even inconsistent theories in same action). “There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.” Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940). “One is guilty of reckless misconduct when ‘knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.’ Restatement, 2 Torts, § 500.” Brock v. Waldron, supra, 84. “Whether defendant’s conduct constituted heedless and reckless disregard of the plaintiffs’ rights was a question of fact for the jury whose verdict, based upon conflicting evidence, will not be disturbed unless reasoning minds could not reasonably have reached such conclusion.” (Internal quotation marks omitted.) Id., 83.
Furthermore, our Supreme Court has recognized that although there is no common-law action sounding in negligence against purveyors of alcohol, the Dram Shop Act is not an injured plaintiffs exclusive remedy. Kowal v. Hofher, supra, 181 Conn. 358. The Kowal court held that the policy considerations that protect vendors of alcohol from the consequences of their negligent conduct in the sale of liquor do not apply when the conduct
The allegations of counts four and six of the plaintiffs’ amended complaint allege that Davis instituted a policy, an intentional act. We conclude that the allegations of counts four and six go beyond the allegations of carelessness and negligence alleged in counts three and five. Counts four and six, therefore, allege a separate cause of action. Whether the evidence will support a reckless cause of action is not to be decided here. See DeVita v. Esposito, 13 Conn. App. 101, 105, 535 A.2d 364 (1987) (alternative pleading justified when pleader does not know all facts necessary to make election), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988). The question is whether the complaint states a cause of action. We conclude that counts four and six state a cause of action, that a jury should determine whether the defendants proximately caused the plaintiffs’ injuries and, if so, whether their acts were reckless or merely negligent. The court therefore improperly granted the defendants’ motion to strike counts four and six.
In this opinion the other judges concurred.
The original plaintiffs were Valerie P. Craig, John S. Craig and Samuel Craig, respectively the parents and brother of the deceased victim, Sarah Craig. John S. Craig withdrew the action in the trial court. In this opinion, we refer to Valerie P. Craig and Samuel Craig as the plaintiffs unless otherwise noted.
The plaintiffs commenced the action against Steven Driscoll, David L. Davis, Hawk’s Nest, Inc., and Allstate Insurance Company. Davis and Hawk’s Nest, Inc., filed the motion to strike that is at issue in this appeal. In this opinion, we refer to Davis and Hawk’s Nest, Inc., as the defendants.
We have consolidated the plaintiffs’ claims from the statement of the issues in their brief, specifically, “1. [w]hether the facts [pleaded] by the plaintiffs support a claim for bystander emotional distress against the defendant purveyors of alcohol under the doctrine of Clohessy v. Bachelor, 237 Conn. 31 [675 A.2d 852] (1996) [en banc] . . . 2. [w]hether the plaintiffs’ allegations of negligent service of alcohol can form the basis for a bystander emotional distress claim ... 3. [w]hether the plaintiffs’ allegations of negligence against the defendant purveyors of alcohol, other than those premised upon negligent service of alcohol, can form the basis for a bystander emotional distress claim ... 4. [w]hether the plaintiffs’ allegations of negligent service of alcohol to a known alcoholic, who lacked the capacity to fully understand the risks associated with intoxication, can support a claim of negligently inflicted bystander emotional distress against the defendants as an extension of the doctrines of Ely v. Murphy, 207 Conn. 88 [540 A.2d 54] (1988), and Bohan v. Last, 236 Conn. 670 [674 A.2d 839] (1996); [and] 5. [w]hether the plaintiffs’ allegations of recklessness against the defendant
At the time the plaintiffs brought this appeal, their claims against Driscoll, who is not a party to the appeal, were still pending. The judgment rendered in favor of Davis and Hawk’s Nest, Inc., however, is a final judgment for purposes of appeal pursuant to Practice Book § 61-3 because it disposed of all causes of action against the defendants. See Turner v. Croman, 52 Conn. App. 445, 446, 726 A.2d 1168 (1999).
The appellate courts of this state have addressed claims for negligent infliction of emotional distress in the context of various factual scenarios. See, e.g., Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978) (release of address for unlisted telephone number); Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952) (removal of hot water heater from home on false charge that it was not paid for); Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 746 A.2d 184 (prosecuting claim for breach of contract), cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000); Pavliscak v. Bridgeport Hospital, 48 Conn. App. 580, 711 A.2d 747 (termination of employment), cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).
See, e.g., 2 Restatement (Second), Torts §§ 313, 436 (1965).
See, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989) (en banc).
“In 1989, the state department of transportation released ‘Connecticut Traffic Accident Facts’ indicating that, in 22 percent of fatal accidents on Connecticut highways, the driver was influenced by alcohol or drugs. The National Safety Council’s Accident Facts, 1989 Edition, reports that each year, nationwide at least 24,000 people are killed and about 534,000 people are injured by alcohol-related motor vehicle accidents.” Quinnett v. Newman, supra, 213 Conn. 350 n.1 (Peters, C. J., dissenting).
See Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967).
General Statutes § 30-102 provides: “If any person, by himself or his 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 twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of 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 his or their intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of his estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. 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. 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.”
The legislature also recognized the relationship between the service of alcohol and injuries that are the result of drunkenness by enacting the Dram Shop Act, General Statutes § 30-102. See footnote 10.
Throughout this opinion, the terms alcoholic, habitual drunkard and one who tends to drink excessively are used interchangeably. We intend no distinction between the terms.
The tragic facts of Ely concerned the negligent service of alcohol to minors at a high school graduation party. The defendant was the host father who collected $3 from each of the 400 teenagers who attended the party. An eighteen year old guest became drunk, and as he left the party in his mother’s station wagon, he struck and killed another minor guest. Ely v. Murphy, supra, 207 Conn. 89-90.
Kowal v. Hofher, supra, 181 Conn. 358-59, however, establishes that § 30-102 is not an exclusive remedy. “There is absolutely no indication, however, that where causation is adequately traced back to the barkeeper who served an intoxicated person an alcoholic beverage the legislature, nevertheless, intended the dram shop act to be the injured plaintiffs exclu
General Statutes § 30-113 provides: “Any person convicted of a violation of any provision of this chapter for which a specified penalty is not imposed, shall, for each offense, be fined not more than one thousand dollars or imprisoned not more than one year or both.”
In paragraph twelve of counts three through six of their amended complaint, the plaintiffs alleged, alternatively, that the defendants were negligent or reckless in serving alcohol to Driscoll, an alcoholic, and in other ways. Paragraph twelve contains numerous subparagraphs alleging that, in addition to serving alcohol to Driscoll, the defendants negligently or recklessly maintained a certain policy with respect to the service of alcohol, failed to warn patrons of the dangers of drinking and driving, failed to implement a designated driver program and failed to have a Breathalyzer within The Pub. Our holding today is limited to the allegations of negligent and reckless service of alcohol to an alcoholic and does not reach the other allegations of tortious conduct.
In their motion to strike, the defendants did not distinguish the various allegations of tortious conduct in the subparagraphs of paragraph twelve. On appeal, the defendants contend that all of the subparagraphs relate to the service of alcohol. The plaintiffs argue that the defendants’ policy regarding alcohol service, and their failure to warn, to implement a designated driver program or to have a Breathalyzer within The Pub are separate and distinct allegations of negligence or recklessness. We agree with the plaintiffs.
We do not reach the issue of whether those additional allegations of tortious conduct state a claim because they were not addressed adequately