*1
Sullivan, 161 Conn.
In we conclnsion, hold that 7-194 (26) Home Rule does not Act authorize a municipality include in its charter a provision sub- conferring poena its power on governing legislative body.
There error, set judgment aside and the case is with remanded direction to enter judgment for the defendant.
In this the other concurred. opinion judges
Linda Slicer David et al. Quigley, Cotter, J., Loiselle, C. Bogdanski, Healey, Peters Js.
Argued April 15, 1980 January 9 decision released Bieder, Richard A. with whom, brief, on the Katz, Lucy V. appellant (plaintiff).
Andrew with on the O’Keefe, J. brief, whom, Richard Rey- Kenny, J. (defendant for the appellee Burger, Jr.). nold brought Linda Slicer, The plaintiff, J.
Loiselle, David Quigley, the defendants this action against seeking Reynold Burger, Jr., Dennis caused by allegedly for personal damages returned jury defendants. negligence against Quig- in favor of the plaintiff a verdict Burger. in favor of defendant’s verdict but a leys, *3 rendered judgment from the The plaintiff appeals in several charge in the court’s error assigns respects. Bur- Reynold David Quigley
The defendants years nineteen and twenty Jr., minors, were ger, two took The events following place. when the old,1 at approxi- home on July 18, met at Burger’s as to conflicting was 5:30 The evidence mately p.m. they admittedly, time was there spent but, how much with p.m. at about 7 together left home Burger’s They stopped motor vehicle. operating Quigley two six- Burger purchased where at a store package Quigley. cans to five or six beer and gave packs They around. drove they the beer as Both drank consumed Quigley restaurant where at a stopped driving beer and drinking more then resumed beer, at 9:30 p.m. happened until the accident around at a passenger motor vehicle as was in the Burger was that night drank Quigley the beer times, all A it Quigley. who by Burger gave purchased blood Quigley’s showed report toxicologist’s police facie is prima which level at .13 percent alcohol influ- was under driving that Quigley evidence 1-1d established accident, Statutes § time of the General At the majority twenty-one. age at General Statutes liqnor. enee of intoxicating on the a passenger (3). plaintiff, 14-227a (c) col- which automobile Quigley’s with motorcycle A as a later, month injuries. suffered severe lided, below her amputated result of leg accident, the knee. is that the court first claim of error plaintiff’s complaint’s
refused to
in accordance with the
charge
allegation
negligence
gave
he
to the defendant David
when
beverages
Quigley,
knew
in the
Quigley had driven after drinking
past
driye
and knew that
during
going
and after
This
drinking
supplied.
is one of
This
allegation
common-law negligence.
court,
at least
three
has followed the
occasions,
common-law rule on the sale or
of intoxi
cating liquor. Nelson Steffens,
170 Conn.
A.2d 1174 (1976);
Bunk,
Moore 154 Conn.
drink
Morelli,
it.” Nolan v.
see also
supra, 436-37;
45 Am.
2d,
553-55;
Jur.
Intoxicating Liquors §§
C.J.S.,
gent that “he to the gave delivered defend- and/or ant David in Quigley, minor, violation of 30-86.”2 Connecticut General Statutes § to error to the court’s refusal plaintiff assigns in with this as accordance charge requested negli- that a violation of the statute was allegation se cause was for gence per proximate Bunk, In Moore v. jury supra, to determine. issue the claim very contrary was decided to common-law rule. based on the plaintiff, again, the time of David nineteen old at years years he was more than sixteen accident. Since he if he consumes old, liquor, be may presumed, Bunk, Moore v. supra, have done so voluntarily. is pre- 648. of beer consumption Since Quigley’s under the common- voluntary, sumed to have been Burger’s not rule it is Quigley’s consumption, law which 30-86, violation of General Statutes alleged intoxication Quigley’s was the cause of proximate therefrom. resulted and the claimed to have cause The common-law rule as to proximate Id., of negligence, common-law action applies any minors, intoxicated Sec. 30-86. sales “[General Statutes] persons himself, who, by his servant Any permittee and drunkards. any any minor, agent, liquor or to sells or delivers alcoholic drunkard, knowing him to be person, any habitual intoxicated or to except parent or drunkard, any person, such habitual an *5 liquors to such gives any such guardian minor, or of a who delivers sub practicing physician, shall be minor, except the order of a ject penalties to the of 30-113.” section
257 alleged includes one or more even that action though such violation of General violations, as a statutory of which the 30-86, furnishing prohibits Statutes The court to minors. liquor Id., intoxicating this court in charging followed the law as stated by on this element of negligence. rule,
The the common-law plaintiff argues against court, and followed recognized by claiming it should be this court it has been rejected by as substantial number other jurisdictions. cites a of cases plaintiff string argu- her support ment.3 In the cases cited examining plaintiff her support claim that the common-law rule should be modified, it is interesting that Califor- Vesely nia Supreme Court in the case leading v. Sager, 5 157, Cal. 3d 486 151 153, (1971), P.2d concluded that where a plaintiff party third injured, to the furnishing selling liquor defendant be the cause may proximate tortfeasor but that where the injury, injured plaintiff 3 plaintiff jurisdictions cites from other cases to show “at least in circumstances, furnishing some of alcoholic to another can proximate injury be actionable to a as cause of person.” third fur liability person New such eases involve the of a nishing, selling, intoxicating liquor then, not minor who to a under intoxicating injures party. liquor, influence of a third Solomon, 1973) (applying Giardina v. Sup. (M.D. 360 F. 262 Pa. Pennsylvania King law); Ladyman, 837, Cal. App. 3d 146 81 Cal. Rptr. (1978); Letterly, App. 782 Bennett v. 141 Cal. 74 Cal. 3d Rptr. Boyd Co., (1977); 682 Brockett v. Kitchen Motor 24 Cal. App. Herron, Rptr. 3d 159 (1972); 100 Cal. Brattain Finley, App. 663, Ind. 50 Mich. (1974); N.E.2d 150 Thaut v. Rand, Super. App. 611, 213 (1973); N.W.2d 820 Linn v. 140 N.J. Frat., Phi, (1976); 356 A.2d Wiener v. Gamma ATO Driver, (1971); App. Or. P.2d 18 Hulse v. Wash. uniformly uphold These such P.2d 255 cases do not liability, liquor is a particularly person where nothing give minor he did it minor and where more than to the injury. defendant whose acts were the direct Bennett cause Letterly, Driver, supra; supra. Hulse v. *6 drinking, person,
the intoxicated
and not
liquor
proximate
Cooper
is the
cause.
Passenger Corporation,
v.
R. R.
National
Cal.
citing
App.
Rptr.
(1975),
3d
389,
Cal.
394,
In DeWees, 70 A.2d (1949), this court followed the principle expressed 4 Torts Restatement, that harm §876 “[f]or resulting a third from the tortious con- person duct of if another, a is liable he . . . person (b) knows that the other’s conduct constitutes a breach of duty and substantial assistance or encour- gives agement to the other so to conduct himself.” “ Restatement comment on this principle states [i]f is or assistance a substantial encouragement it factor in tort, the one causing resulting giving himself and for responsible tortfeasor act.” consequences the other’s Id., comment Carney cited in DeWees, supra, (b), clause The error plaintiff claimed is that court’s instructions restricted the considera- jury’s those tion of that in the moments events occurred com- just collision, and did not include prior ment on the which Burger evidence showed that beer with two driving drinking Quigley from the evi- hours the accident. Aside prior included dence which upon by court, commented his com- plaintiff what the claimed said and no evi- collision, ment to the there was just prior than Burger’s purchase dence other the fact he rode with of beer to Quigley would that Burger which show evening encouragement had substantial assistance or given facts *8 The only to to drive while intoxicated. Quigley this to substantiate plaintiff points to which com- of other than the events allegation negligence, Quig- are that by court, Burger mented on times, knew that at Quigley, other friends ley’s of Burger drove after that bottles gave drinking; took that home; they beer to Quigley Burger’s at to the car Burger’s of from home more bottles beer bought any- had never left; Quigley when that they con- he had though a store even at thing package before; in Connecticut sumed alcoholic by store of at bought package that the cans beer by Quigley him rather than were bought Burger two; the older of Burger looking was because by Burger Quigley to the cans were given that to nothing said Burger that them; and drunk to dis- the evening during time any at Quigley Under while drinking. Quigley’s driving courage to beer Burger’s rule, the common-law be considered itself cannot in and of Quigley The intoxication. Quigley’s of cause proximate conduct that Burger’s show facts not do remaining in causing a “substantial factor constituted 4 Torts com- Restatement, tort.” resulting its court did not err in ment on clause The (b). charge on this of allegation negligence. also that plaintiff alleged negli-
gent that “he failed to discourage, protest and/or to the manner in which object the said David Quig- minor, a ley, said vehicle.” The operating court instructed the was difficult jury allegation because it prove required proof negative. a The court discussed the Bur- evidence regarding ger’s warnings to moments before the colli- sion, then said “it not would appear plain- tiff has the burden sustained that par- proving ticular allegation.” court continued its charge, however, by “That I saying: is the testimony as recall it. If your recollection from is different mine you feel that there were facts that would sus- tain that allegation, I it then will leave to your determination. I don’t but, recall any, again, it question fact. It is up you recall the testi- mony.” No exception to this portion charge in the appears briefs or in the transcript. There no error in the court’s charge on this allegation negligence.
The final claim of error is that the court to failed instruct the jury on the credibility of the witnesses whose testimony obtained by No deposition. useful would be purpose served a detailed dis- cussion of this claim. The on charge this issue was adequate.
There is no error. In this opinion Cotter, C. J., and Healey, con- J., curred. erred The trial court (dissenting). J.
Bogdanski, the to submit request the in refusing plaintiff’s negli- specifications common-law statutory the jury. gence Reynold teenagers, two July 18, 1972,
On evening an David Quigley, spent Jr., Burger, around and driving drinking furnished the town of South Windsor. in ques- evening to Quigley throughout alcohol years nineteen Quigley, minors, tion. Both were driver, twenty. Quigley, Burger, age col- intoxicated, so intoxicated while and, became Linda motorcycle plaintiff a which lided with leg Linda Slicer’s was a passenger. Slicer accident. a result of the as amputated provides, 30-86 of the General Statutes Section “any or guard- person, except parent part, such any delivers or minor, gives of a who ian be . . . shall to such [intoxicating] liquors minor, 30-113.” (Empha- to the of section subject penalties fine for a 30-113 sis Section added.) provides $1000 or than one year for not more imprisonment both. a rule of con establishes legislature
When duct statute and its in so doing purpose from violation of that protect public injury, Kelson, Gonchar statute negligence. constitutes Pietrycka 158 A. Conn. 262, 264, (1932); Simolan, A. 490, 495, (1923); Ry. Monroe Street Co., Hartford 56 A. Whether negligence the cause in is for fact of injury jury determine. act The causal between the relationship
263 to be of fact. negligent claimed and the is one injury Mahoney Beatman, v. A. 762 184, 110 Conn. 147 (1929). must member injured, however, be a person
of the class for whose
the statute was
protection
enacted. The
of
consumption
activity
an
which
admittedly
dangerous
New
v.
Bania
morals.
public health,
safety
Hartford,
138
Conn.
In June, Special Report filed Third and Welfare Health. on Alcohol Congress United States “Traffic accidents are the greatest canse of violent death in the United States, and approximately one- third of the ensuing injuries one-half of fatalities are alcohol related. In 1975, many as as 22,926 traffic deaths involved alcohol. Experimental studies have demonstrated alcohol causes *12 degeneration of skills driving of impairment judgment. However, the full extent to which alcohol use results in traffic accidents due to these impair- ments is unknown.
“General research trends seem to the support facts following concerning relationships alcohol and traffic crashes: As as 25 (1) many per- cent of drivers in nonfatal crashes and 59 percent of drivers in fatal crashes had blood alcohol con- centrations (BAC’s) 0.10 percent higher. (2) to 29 Up percent of in passengers fatal acci- dents showed levels in BAC the legally impaired range. (3) Alcohol could be in involved to 83 up percent of pedestrian fatalities. As as 72 (4) many percent of in drivers single-vehicle fatalities 51 percent of drivers in multivehicle fatalities had BAC’s of 0.10 percent or higher. (5) Of in drivers multivehicle fatal crashes with BAC’s in high range, were percent judged by researchers to be responsible for the com- crashes, pared to percent judged not responsible. “Data on alcohol involvement in crashes based on police reports indicate proportion drivers who were at the time of a crash drinking increases relation to the of the crash. . . . severity “In relative general, of crash probabilities involvement and causation increased dramatically as the driver’s increases.” Third Special BAC Report, supra, p.
An official even more recent confirmation of of alcohol related traffic accidents severity appeared General of 21, 1979. February Comptroller report in his to the Congress, United States — Problem entitled “The What Drinking-Driver Done About It?” GAO (hereinafter Report), Can Be cost continuing tragic further documents driving. drinking levels, “Government at all begins:
The report and concerned citizen groups private organizations, various drinking- are millions of dollars on spending to indicate yet statistics continue driver programs, in the one-half of fatalities that, overall, highway are to alcohol.” GAO Report, United States related found i. The Office p. Accounting Government anti- successful major obstacles among *13 were: efforts “Social drinking-driver acceptability . Need increased judicial and use of alcohol. . . for . . . Need for effective methods support. to iden- who serve indi- those intoxicated tify penalize iv. GAO added.) Report, p. viduals.” (Emphasis the National continues, “According The report Transportation, .of Safety Council, Department now accidents alcohol-related sources, other as of all highway as much one-half account for 25,000 persons annually deaths —or about —and cost over annual economic of an estimated represent Education, Health, The Department billion. $5 economic the total annual that reports and Welfare billion.” about GAO abuse is $42 cost from alcohol 1-2. pp. Report, “more that F.B.I. statistics
Furthermore, show including under 18, than 17,000 young people arrested were younger, aged children under the influence in 1975. The increase driving over 1970 is estimated at about 160 cent.” U.S. per News and Report, 1977, p. World July 11,
It is clear that of an alcoholic furnishing beverage to an intoxicated be the person may proxi- mate cause of inflicted individual upon third If is a person. such furnishing proxi- mate it is cause, so because the result- consumption, ing intoxication, conduct are injury-producing foreseeable or at intervening least causes, conduct injury-producing one hazards which make such furnishing negligent.
It seems self-evident serving beverages to an intoxicated one obviously person by who knows that such intoxicated intends to person drive a motor vehicle foresee- creates a reasonably able risk of injury those on the highway. Simply put, one who serves alcoholic under such circumstances fails to exercise reasonable care.
With alcohol related accidents occurring daily court should have determined that could have reasonably foreseen the of fur- consequences alcohol nishing and that Quigley, alcohol to him could have been a substantial factor the accident causing resulting and the injuries. To be in consum- sure, act the alcohol can ing be considered a con- certainly *14 but tributing factor, whether it is such an interven- ing cause as would break the of foreseeable chain consequences from emanating Burger’s negligent act is a of fact for question the jury.
To be such an the intervening cause, however, the drinking by must Under operator voluntary. be the common the the law, voluntariness of consump-
tion of was At how- presumed. trial, alcohol often that a able to such con- ever, he show plaintiff may involuntary. implies Voluntariness sumption intent. a is person intoxicated, however, Once is whether a person then becomes such question intent more of an to consume capable forming that he not. alcohol. hold is Many jurisdictions intoxication is whether there test of voluntary of and voli- judgment was an independent exercise of the intoxicant. tion part person taking Becker, In Merhi A.2d 270 against court sustained a (1973), liability union defendant caused the intoxi- by cated of vehicle. Becker attended a motor operator furnished a union where he was sponsored picnic of Becker large beverages. amounts with into a another intoxicated, fight became got his car group and drove into a of picnicker, pic- striking injuring nickers Merhi. We there held with that intoxication and assault his auto- Becker’s that mobile not union’s preclude did finding cause Merhi’s negligence proximate Becker’s act con- though that even injuries, stating in itself, it did force, not, an intervening stituted for the harm liability, union of relieve the defendant Becker, Merhi supra, caused the plaintiff. the actor creates conduct of negligent Where the is a harm and particular the risk of a increases fact harm, factor causing substantial inter- about through the harm brought relieve actor vention another force does not intentionally the harm is except where liability, scope caused a third not within the person Restate- risk created the actor’s conduct. ment 2 Torts quoted with (Second), §442B,
269
approval Miranti v. Brookside
in
Center,
Shopping
Inc., 159
24, 28,
Conn.
In
the court’s
upholding
charge, Connecticut will
stand
alone in
virtually
to consider
refusing
of alcoholic
furnishing
violation
beverages
of a statute is the basis of a negligence action and
in its
unquestioning acceptance
old common-
law rule that
the person who furnishes
alcoholic
beverages to another can never be held liable for a
third person’s
that were caused
intoxicated
Most
person.
state and federal courts
which have considered these issues since 1971 have
rejected or modified the
immunity
a furnisher
from
beverages
liability,
holding
of alcoholic
be the
may
proxi
mate cause of injuries
sustained
third
parties.
Vance
United States, 355 F. Sup. 756
Alaska:
v.
(D. Alas.
(commercial
1973)
Arizona:
vendor);
Thompson
Bryson,
v.
Ariz.
505 P.2d
App.
572 (1973)
(commercial
vendor);
California:
Coulter v.
Superior Court,
Cal. 3d
577 P.2d
669 (1978)
Vesely
host);
3d
Sager,
(social
Cal.
P.2d 151
Del
(1971) (commercial vendor);
aware:
Taylor
Ruiz,
1978)
vendor); District of
(commercial
Columbia:
Columbia,
Marusa District
v.
The majority
if the common
suggests
law is
to be
it should be done
changed,
rather
legislation
*17
than judicial
In
opinion.
a field
left
to the
long
common law,
well come
the
change may
by
about
Lilly
Eli
development. Diaz &
same medium of
Co.,
Mass.
153, 158,
N.E.2d 555 (1973);
Millington v. Southeastern
Co.,
Elevator
22 N.Y.2d
Both duty and proximate causation are issues of law to be decided the by court and not trier of facts. Prosser, Torts (4th Ed. 1971), pp. 206, 244-45. Vance v. United States, supra, 761. Proxi- mate causation, however, a matter of public policy and is therefore subject to the changing attitudes and needs of society. Vance v. United States, supra, 761. See Prosser, op. 244-45. The cit., law of torts is concerned with the allocation losses arising out of human activities. Its purpose is to adjust these losses, compensation affording sustained by one person as a result of the conduct of another. Prosser, op. cit., The development of the law of torts has been and is now a peculiarly function of the common-law “When judge. most or few horses carriages, and had
people walked a when horse and buggy even in days it have been that travel, may mode of customary from non-liability rule of arising common law an intoxicated was satis- person sale of liquor in the situation then and factory. problem But upon public of the imbiber today’s society going machine that requires highways operating mind muscle and capable quick response vastly are mass death and destruction producing Freeman, different.” Meade 389, 400, 93 Idaho opinion). 54 (1969) (dissenting P.2d reform can be achieved without Sensible here detail or the creation of administra- articulation of tive that customarily mechanisms comes about Indeed, legislature may enactment. legislative if it at rather act, all, acts rationally prefer after, has itself than the common law fulfilled before, “Legal Friedmann, Philosophy See way. *18 L. Lawmaking,” 61 Colum. Bev. 821, Judicial (1961).
The
when substantial
must be sacri
justice
days
ficed for
to strict
techni
the sake
blind adherence
calities
in this
passed
since outmoded have
long
Hen
state. As Justice Frankfurter
remarked in
slee &
Co.,
Planters
Bank
Trust
Union
National
335 U.S.
L. Ed. 259
595, 600,
(1949),
S. Ct.
ought
often
and so one
comes,
too
never
“[w]isdom
not to
it
it
comes late.”
reject merely because
Hal
Mr. Chief
dissenting opinion of
Justice
lows in Garcia Hargrove,
46 Wis. 2d
737, 176
time
N.W.2d 566
merits
reflection:
“The
(1970),
has arrived when this court should
exercise
again
its inherent
as the
of the common
power
guardian
common-
upon general principles
law and hold
when he knows or
negligence
who,
law
a person,
have
is
sells or
intoxicated,
should
known a person
guilty
to such a
gives intoxicating liquor
person,
if such
is a sub
negligent act;
negligence
a
he
harm to
third person,
stantial
factor
causing
under our
should be liable with the drunken person
Conceded,
doctrine.
comparative-negligence
common law in
for almost
hundred
this state
one
omitted],
has been to the
years
contrary,
[citations
decided
but the basis
which these
were
upon
cases
alco
commingling
eroded
the shift from
sadly
horse
alcohol and
hol and horses to commingling
The main characteristic
of the common
power.”
is its
It does not remain static.
law
dynamism.
to be
common law is not a
of chiseled marble
thing
in the com
left
for centuries.
“Inherent
unchanged
it to
which allows
dynamic principle
mon law is a
needs
itself
to meet changing
and to tailor
grow
stare decisis,
if cor
which,
within the doctrine of
forever
static
did not
was not
rectly understood,
themselves
the courts
from reversing
prevent
to new
of common law
from applying principles
not so,
If this were
situations
as the need arose.
let
should
judge
we must succumb to a rule that a
problems
unaware of the
others
dead and
‘long
him.’
his
lives,
in which he
do
thinking
the age
49 Columbia
Decisis,
Mr. Justice
Stare
Douglas,
omitted).
(footnote
Review
736.”
(1949),
Law
Schulze,
Bielski 114 N.W.2d
2d
1, 11,
Wis.
*19
I
not
with
agree
do
(dissenting).
J.
Peters,
correctly
the trial court
majority
holding
negli-
that Reynold
to charge
refused
minor,
David
a
Quigley,
beer to
in providing
gent
in
of
violation
General Statutes
30-86.1 Despite
§
Bunk,
Moore v.
154 Conn.
Company, Healey Loiselle, Bogdanski, Peters, Parskey, Js. minors, part: provides, Section 30-86 relevant “sales persons except . [A]ny person, . . drunkards. intoxicated any such gives guardian minor, or parent or a who delivers of practicing except a liquors minor, on the order of to such [alcoholic] 30-113.” subject penalties section physician, shall be “penalties. Any person convicted provides: 2 Section 30-113 specified any chapter, for which provision a violation more not offense, fined shall, for each be imposed, not penalty is or year one imprisoned not more than one thousand than dollars both.”