*1 356
III The trial court did not reach a consideration of the propriety injunctive relief. In his prayer relief, the plaintiff first, an order requests, compel ling the defendants to make proper application the duly authorized hoards and officials of the town for legal authority to use the building, second, the event such authority is not an order granted, compelling defendants to remove the noncon forming building has been erected. The grant of an ing injunction rests within the sound discretion of the court. Jones Foote, 338 516, 521, A.2d 467; Scoville v. Ronalter, 162 Conn. 67, A.2d 222. The relief must be granted compatible with the the case. Moore Serafin, equities Park Conn. Improvement Gerald A.2d 238; Assn., Inc. Bini, 232, 236, Conn. 83 A.2d issue whether the relief demanded is appro priate that must circumstances is a question be considered and weighed trial. upon
There is error, judgment is set aside and case is remanded for a new trial.
In this the other opinion concurred. judges Winifred Nelson, Administratrix (Estate
Dane et al. Clark), v. Ernest S. Steffens Longo House, X, Loiselle, O. Bogdanski, Barber, Js. *2 Argued 9, 1975 December decision released March William F. Gallagher, for the appellants (plain- tiffs). on Jr., E.
George Tillinghast, whom, with Lynch, G. appellee Joseph brief, was (defendant). in the in this action, The complaint J. Loiselle, in common- action a cause of count, alleges
fourth plain- are alleged The facts law negligence. plain- other son, her Clark, Dane and decedent,
tiff’s in motor passengers were Clark, tiff Timothy the vehicle when Peter DeLise vehicle operated route trees off struck two out of control went suf- Timothy Clark Dane 145 Westbrook. ultimately Dane from which injuries fered serious suffer. Timothy continues from which died and A short time prior to the accident DeLise, minor, was a patron in the defendant’s establishment where DeLise was sold liquor while he was intoxicated. It is further alleged that the occurrence was due negligence the defendant in that: he served intoxicating liquor DeLise DeLise to causing become intoxicated, knowing that he minor was a and that he intended to drive from the defendant’s he establishment; violated state laws in serving to a minor, consequence of which intoxi- cation ; and he violated state *3 in laws serving liquor to a minor after he had become intoxicated. defendant demurred to this count because it stated a cause of action not at common recognized law. The court sustained the demurrer and the plaintiffs have appealed.
In Nolan Morelli,
v.
154 Conn.
226 A.2d
432,
383,
this state followed the common-law rule regarding
the issue of
liability
intoxicating
vendor of
liquors
one who has suffered
or
injury
damage
caused by the intoxication of the
purchaser of
It
liquor.
was therein stated
“At
(p. 436):
common
law it was the general
rule that no tort cause of
action lay
one
against
who furnished,
by
whether
sale or gift,
intoxicating
to a
who
liquor
person
thereby voluntarily became intoxicated and in con
of his
sequence
intoxication
or
injured
either of
property
himself or of another. The reason
generally given for the rule was that
the proximate
cause of the intoxication
was
the furnishing
not
but
of it
liquor,
consumption
by
pur
chaser
The rule
the obvious
or donee.
was based on
become
reason
fact that one could not
intoxicated
if
it.
.
him he did not drink
. .
furnished
liquor
;
Am. Jur. 2d, Intoxicating Liquors,
[45
553-555]
§§
note,
see
Intoxicating
430;
48 C.J.S. 716,
Liquors, §
The plaintiffs recognize in that the settled law this state and in the is majority jurisdictions the common-law rule. They claim, that however, “modern trend” is to impose on the liability They seller. reason that if a finds an jury unlawful sale was then it could negligent, reasonably find that the seller’s negligence was a substantial factor the plaintiff’s injury or damage. cases Morelli, Bunk, of Nolan and Moore supra, that, declare as a matter supra, law, act of a seller or donor of intoxicating beverages It factor in the plaintiff’s a substantial injury. that most of noteworthy the cases cited of their are from plaintiffs support juris claims where there is no act or shop dictions dram where act does not have extraterritorial effect. such an over one hundred those years, except For to the federal when amendment years eighteenth *5 has determined was in this state effect, constitution the common-law as modi- rule, adherence to by its by the shop act, reasoning the dram fied by the was best suited legislature both the courts and the of this in the best interests of citizens and was by There no reason compelling state. advanced rule the why these as to common-law plaintiffs should be It that an appears important abrogated. limited is that not be request they their
purpose their in the recovery by shop in dram ceiling act.2 limitation is matter Changing If the legislature. damage limitation is inadequate, then the proper statutory to increase remedy limitation than legislative enactment rather judicial established overturning principles court in error in was not sustain- precedents. to the fourth com- demurrer count
ing plaint.
There is no error. In Longo C. opinion House, J., Barbes, Js., concurred. In my judgment J. (dissenting).
Bogdanski, demurrer should have been The plain overruled.
tiffs’ to be if found complaint alleged facts which, “ true, egli would constitute conduct. [N] to gence is failure conduct to conform one’s legislative authority standard duty proscribed by or to to conform it to the common-law requirement exercise reasonable care under circumstances.” Co., Guglielmo Klausner Supply not be 318, 259 A.2d would Certainly, jury owner had remiss that a tavern determining care duty ordinary breached his common-law an intoxicated beverages alcoholic to serving 30-86, Moreover, or a minor. General Statutes § minors of alcoholic sales prohibits solely enacted persons, or intoxicated injured damages $20,000 per person up 30-102 limits Section $50,000. aggregate amount of to an
362
protect
those
but
groups,
also to protect
the public
from the consequences of the excessive use
alco
holic liquor. Cf. Bania v. New
Hartford, 138
Conn.
172,
83 A.2d
177,
165. The
con
defendant’s alleged
duct
in making a sale in violation of
statute,
would
therefore,
constitute
se.
negligence
per
Panaroni v. Johnson,
The old rule precluded recovery from a vendor
for mischief
done
an intoxicated person
he
whom
had
sold
rule
negligently
liquor. That
was based
upon
premise
as
that,
a matter
it
law,
not the
sale of
but
liquor by
vendor,
consumption
its
by the
vendee,
was the proxi-
Morelli,
mate
Nolan v.
cause
resulting injuries.
154
432,
Conn.
A.2d 383.
436-37, 226
That premise
regarded
now
as
antiquated
illogical,
that old view has been
discarded or qualified
Chi
jurisdictions.
numerous
e.g., Way nick v.
See,
cago’s
Department
Last
Store,
269
322
F.2d
Vance v.
States,
United
(7th
Cir.);
355 F.
756
Sup.
Deeds v. United
States,
(D.
Alas.);
Sup.
306 F.
348 (D. Mont.);
Vesely
Sager,
153,
v.
5
Cal. 3d
Pike
George,
486 P.2d
626
151;
v.
434 S.W.2d
App.); Colligan
Cousar, 38 Ill. App.
(Ky.
v.
2d
Adamian
Inc.,
Three Sons,
392, 187 N.E.2d
292;
Christian,
Trail v.
353
233
498,
Mass.
N.E.2d
18;
298
213
v.
Rappaport
101,
618;
Minn.
N.W.2d
Park,
Nichols,
Berkeley
188,
1;
31 N.J.
156 A.2d
v.
Roberts,
Mason
381,
290;
Misc. 2d
N.Y.S.2d
v.
Ohio
35 Ohio
2d
300 N.E.2d
29,
211, aff’d,
App.
Phi,
Wiener
Gamma
St. 2d
294 N.E.2d
v.
884;
Darby
Jardine
v.
Upper
258 Ore.
485 P.2d
18;
1973, Inc.,
550; see
No.
626, 198 A.2d
Lodge
413 Pa.
Shiappacossee,
also Davis
645; Law of the King, Liability Liquor “Common 18 Res. L. 251. Vendor,” Western Rev.
“It
in
a
that,
negligence case,
is
a
elementary
causal
relation between a defendant’s breach
in
a
be established
duty and
must
plaintiff’s injury
.
.
a
order
for the
to recover.
.
plaintiff
Whether
cause of a plain
defendant’s conduct was
fact a
tiff’s
is
a
of fact
injuries
peculiarly
question
Co.,
McDowell v. Federal Tea
Conn.
128
jury.
Beatman,
v.
110
512; Mahoney
23
437, 440,
A.2d
A.
184, 195-97,
762; Prosser,
Conn.
147
[Law
Becker,
Merhi v.
Torts
(4th Ed.)] § 41, p. 237.”
have a
Litigants
164 Conn.
A.2d
Conn.
403;
that
concluding
A
is justified
A.2d 352.
court
of an
event is not the
cause
proximate
a particular
men could
if the minds of reasonable
only
injury
Nistico contrary
conclusion.
reach
A.2d
547, 550, 102
Stephanak,
is
cause
the test of proximate
In Connecticut,
is a substantial
the defendant’s
conduct
whether
injuries.
about
the plaintiff’s
factor
in bringing
of a third
intervening
an
act
“The
that
fact
manner
in negligent
or
done
in itself
is
is negligent
cause
harm
it a superseding
not make
does
another which the actor’s
negligent
conduct
substantial
factor in bringing
if
about,
(a)
actor
at
the time of his
conduct
should have
realized that a third person might so
or
act,
(b)
reasonable man
the situation
knowing
when
existing
act
the third person was done would not
regard it as highly
the third
extraordinary
person had so
acted,
(c)
act
intervening
a normal
of a
consequence
situation created by the
actor’s conduct
manner
in which it is done
is not
extraordinarily
negligent.”
Restatement
see Merhi (Second),
Torts § 447,
p. 478;
*8
Becker, supra. Cf.
Stulginski
Rolling
Waterbury
Co.,
Mills
In the horse-and-buggy days, when the rule adhered to by the took majority a reasonable root, would not barkeeper have foreseen an intoxi- cated minor patron he sold whom had liquor might cause serious harm other That persons. is no drunken true longer today. The of problem is one of driving national Alcohol proportions. was related to more than 46,200 half of the motor 1974, vehicle accident fatalities which occurred and a similar ratio is believed to with respect exist to the more 1,000,000 than accidents. nonfatal National Safety Council, (1975 Ed.), Accident Pacts p. tragic 52. With intoxication-caused accidents which a reasonably occur could deter- daily, jury mine that the defendant in the could present case reasonably have foreseen the possible consequences of serving of liquor and that the minor, serving to a minor was a substantial in causing factor the alleged resultant injuries.1 The act of a patron in consuming liquor may certainly be considered reasoning Supreme leading of the Jersey Court of New in the Rappaport Nichols, ease 188, 1, N.J. 156 A.2d squarely point. “If, on stage pro as we must at assume ceeding, keepers unlawfully negligently the defendant tavern sold beverages causing intoxication, alcoholic to Nichols his turn caused or negligent operation contributed to his of the motor vehicle at reasonably jury time of fatal accident, then could find that plaintiff’s injuries ordinary in the course resulted events from negligence negligence defendants’ and that sueh was, in fact, a bringing substantial faetor in them And about. jury reasonably could also negligent operation find that Nichols’ his leaving motor vehicle after normal defendants’ taverns awas they incident of they the risk could created, or an event which reasonably foreseen, consequently have and that no effec there was foregoing, tive breach in light the chain of causation. In the of the position arewe in no to hold that matter of could as a law there proximate have been no causal relation between the defendants’ unlawful injuries.” plaintiff’s conduct and the worthy Vesely Also Sager, 163-64, note Cal. 3d P.2d Supreme where the California Court stated: “To *9 nonliability concepts extent that the common law rule of is based on proximate cause, persuaded of by reasoning we are eases the of the that have that principles abandoned rule. . . . these an actor Under may negligence causing be liable if an his is a faetor in substantial injury, intervening and he is liability not relieved of because of the of a if person reasonably act third at the such act was foreseeable time of his conduct. . . . proximate “Insofar as concerned, cause for we find no basis a solely consumption distinction of an founded on the fact that the beverage voluntary alcoholic a link is a the and is act of consumer beverage in the chain to furnishing of causation from the of the injury resulting principles the from intoxication. Under the above proximate of it furnishing is clear that of an alcoholic cause,a beverage person of may proximate to an a intoxicated be cause injuries If by sueh upon person. inflicted that individual a third furnishing consumption, proximate cause, is a it is so because the resulting intoxication, injury-producing are conduct foreseeable intervening eauses, at injury-producing or least is one conduct of the furnishing negligent.” hazards which makes sueh
a factor to contributing injuries sustained in an but it automobile an inter- accident, whether is such cause as would break the vening chain foresee- able results from the emanating original negligent act is for the a question jury. have majority concluded, that however,
old view as modified the dram by act shop expresses a of this inter- policy state which is best to the suited They ests of our citizens. if the suggest damage that limitations 30-102 of the are General Statutes § relief should be in the sought legisla- inadequate, in the ture, not courts.
I There reasoning. am unable to in that join no 30-102 bars specific provision which § field preempts common-law action otherwise 30-102, Moreover, of a seller liability liquor. § of a causal relation no requires showing fill enacted to injury, between the sale and any left the old rule’s disallowance the void The thrust of from the recovery barkeeper. interest public is that it is dram statute shop be compensated to of the citizens of state of alcoholic received when vendor injuries brings who intoxicated an sells alcohol be shown, need causation about Since injuries. be may appro statute in the limitations damage however, indication, no absolutely There is priate. shop act dram intended the legislature is able remedy plaintiff where exclusive be an a caused were proximately injuries show that Berkeley Park, See negligence. barkeeper’s *10 Ins. Co. Automobile Mutual Farmers cf. supra; view, In my Gast, 17 Wis. 117 N.W.2d 2d and determining responsibility the primary with the court. applying common law remains court If the law is to retain its vitality, common I there- must it to the times. keep would, responsive remand judgment, find set aside the fore, error, the demurrer. the case with direction to overrule Apuzzo Robert Sharon Anne Robertson Longo J., Loiselle, Bogdanski, MacDonald, Js. House, C.
Argued 10, 1975 December decision March 16, released