Belanger v. Village Pub I, Inc.

• Decision Date: 04 February 1992
• Docket Number: No. 9850,9850
• Citation: 26 Conn.App. 509,603 A.2d 1173
• Court: Connecticut Court of Appeals
• Parties: Marjorie BELANGER, Administratrix (ESTATE OF Patrick BELANGER) v. VILLAGE PUB I, INC., et al. Marjorie BELANGER, Administratrix (ESTATE OF Patrick BELANGER) v. John J. CIMINO et al.

Page 1173

603 A.2d 1173

26 Conn.App. 509

Marjorie BELANGER, Administratrix (ESTATE OF Patrick BELANGER) v. VILLAGE PUB I, INC., et al.

Marjorie BELANGER, Administratrix (ESTATE OF Patrick BELANGER) v. John J. CIMINO et al.

No. 9850.

Appellate Court of Connecticut.

Argued Nov. 7, 1991.

Decided Feb. 4, 1992.

Elaine J. Kraucunas, Meriden, for appellants (defendants).

Michael C. Jainchill, Hartford, with whom, on the brief, was Everett H. Madin, Law Student Intern, for appellee (plaintiff).

Before DALY, FOTI and LANDAU, JJ.

DALY, Judge.

The defendants appeal from a jury verdict rendered for the plaintiff, the administratrix of the estate of her deceased son, Patrick Belanger. The plaintiff instituted two separate actions against the defendants. The first was based on General Statutes § 30-102, ¹ the second alleged reckless and wanton misconduct in the dispensing of alcoholic beverages by the defendants. The actions were ordered consolidated and resulted in verdicts in favor of the plaintiff. The defendants claim that the trial court improperly (1) prevented the defendants from raising contributory or comparative negligence defenses pursuant to General Statutes § 52-572h, (2) prohibited the admission of evidence of a settlement agreement with the operator of the motor vehicle who was testifying as a witness for the plaintiff, (3) determined that there was sufficient notice as required by General Statutes § 30-102, (4) refused to grant the defendants' motion to strike the substitute complaint, (5) prevented superseded complaints from being introduced into evidence and (6) charged the jury concerning the doctrine of respondeat superior. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 20, 1987, Patrick Belanger was operating a motor vehicle traveling north on Route 8 in Naugatuck. At approximately 1 a.m., Gary Grady was driving his jeep south on Route 8. The jeep crossed into the northbound lane causing a head-on collision that resulted in the death of Belanger. At 2:18 a.m., Grady registered a blood alcohol level of .313.

During the evening of August 27, 1987, and into the early morning of August 28, Grady had been drinking alcohol at Gabriella's Cafe in Southington. Grady and a friend both testified that the cafe employees served him excessive amounts of alcohol. At one point, Grady's friend asked the bartender not to serve any more drinks to Grady because he was intoxicated. The bartender, however, continued to serve alcohol to Grady until approximately 12:30 a.m. John Cimino was the permittee of Gabriella's Cafe, and Village Pub I, Inc., was the corporate owner of the bar. Cimino is the president and sole shareholder of Village Pub I, Inc.

I

The defendants first claim that the trial court's decision to strike its special defense of contributory negligence was improper. The trial court struck the special defense to both of the plaintiff's causes of action, concluding that because neither involved an allegation of negligence, General Statutes § 52-572h was not applicable.

General Statutes § 30-102 created a new cause of action not available at common law. Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). "The delict defined by § 30-102 is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relation between the sale and the injury is required." Sanders v. Officers Club of Connecticut Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985). Our Supreme Court has held that contributory negligence is not a defense in an action pursuant to § 30-102. Sanders v. Officers Club of Connecticut Inc., supra, at 352, 493 A.2d 184.

The second action alleged that the defendants were reckless by dispensing intoxicating liquor to Grady. The trial court struck the defendants' special defense of contributory negligence to this complaint also. An action that alleges the sale of intoxicating liquors in a "wanton and reckless manner" was recognized and allowed by our Supreme Court in Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). The terms wanton and reckless in practice mean the same thing. Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Both terms refer to " 'highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.' ..." Id., quoting W. Prosser & W. Keeton, Torts (5th Ed.) § 34, p. 214. A cause of action claiming wanton and reckless misconduct is "separate and distinct" from a cause of action alleging negligence. Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970). At common law, contributory negligence was not a defense to a cause of action alleging wanton and reckless misconduct. Id., at 93, 267 A.2d 452; Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939).

General Statutes § 52-572h specifically applies to negligence actions. For example, § 52-572h(b) provides: "In causes of action based on negligence, contributory negligence shall not bar recovery...." Another section of the statute refers to a "negligence action" when determining the proportionate share of damages. General Statutes § 52-572h(c). The statute further states that it applies to "all parties whose negligent actions were a proximate cause of the injury...." General Statutes § 52-572h(d). When the language of a statute is clear, a court "must interpret the statute as written." Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). Thus, according to its plain language, § 52-572h applies only to negligence actions.

There is no cause of action "in negligence against one who furnished ... intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another." Kowal v. Hofher, supra, 181 Conn. at 357, 436 A.2d 1. Because this cause of action is not based on negligence, the principles of comparative negligence of § 52-572h are not applicable to limit the plaintiff's recovery in this case. In the present case, the defendants were not entitled to raise the defense of contributory negligence by the plaintiff to the cause of action alleging wanton and reckless misconduct. Thus, the trial court properly struck the special defense of contributory negligence raised by the defendants.

II

The defendants' second claim concerns the trial court's failure to admit evidence of a settlement agreement between the plaintiff and Grady. Grady testified on behalf of the plaintiff. During cross-examination, the defendants wanted to use evidence of this settlement agreement to show that Grady was biased. The defendants argue that the plaintiff's causes of action are really negligence actions that should be controlled by § 52-572h. According to the defendants' argument, § 52-572h would allow the admission of the settlement agreement in this case to enable the factfinders properly to apportion liability by having full knowledge of all potential tortfeasors. We find no merit to the defendants' argument.

As noted above, § 52-572h is not applicable to this case because neither cause of action involves a claim of negligence by the defendants. General Statutes § 52-216a prohibits the introduction of evidence about a settlement agreement or a release of a claim by any party during a jury trial. General Statutes § 52-216a. A settlement agreement is not admissible for any purpose in a jury trial. Id. The purpose of this statute is to "ensure that jury verdicts would not be influenced by the knowledge of a partial settlement." Civiello v. Owens-Corning Fiberglass Corporation, 208 Conn. 82, 93, 544 A.2d 158 (1988).

Section 52-216a provides for the proper apportionment of damages through a court order of either additur or remittitur. General Statutes § 52-216a. The trial court, not the jury, is responsible for ensuring that a party is not unjustly enriched. In the present case, the court properly applied § 52-216a and reduced the plaintiff's verdict by the amount received from Grady's insurer.

III

The defendants' third claim involves the trial court's denial of the motion to strike the plaintiff's dram shop complaint filed on the ground of the plaintiff's failure to notify the seller as required by § 30-102. The defendants assert that Cimino did not receive notice as the permittee. Village Pub I, Inc., the corporate owner of the cafe, received proper and timely notice. Cimino was named in the notice to Village Pub I, Inc., but was not referred to as the permittee in that notice. He did not claim that he lacked actual notice of the plaintiff's cause of action. Cimino is the president and sole shareholder of Village Pub I, Inc. Cimino first raised this claim in his motion to dismiss on November 23, 1988, three months after an appearance was entered by defense counsel. The trial court held that Cimino was the alter ego of the corporation, Village Pub I, Inc., which received proper notice.

In order to maintain an action pursuant to § 30-102, the plaintiff must give written notice to the seller of alcohol within sixty days from the date of the injury. The notice requirement of § 30-102 enables a defendant to gather evidence while witnesses' memories are still fresh. Zucker v. Vogt, 329 F.2d 426, 428 (2d Cir.1964). Because § 30-102 is remedial in nature, it should be interpreted liberally " 'to suppress the mischief and advance the remedy.' " Pierce v. Albanese, supra, 144 Conn. at 251, 129 A.2d 606.

The purpose of the notice provision of the dram shop act was satisfied in this case. The plaintiff notified both the corporation and Cimino, the permittee, when it sent the notice to Village Pub I, Inc. Cimino was not hindered from gathering evidence to prepare a defense in this case. The plaintiff did not have to refer specifically to Cimino as the permittee to...