Boehm v. Kish

• Decision Date: 18 November 1986
• Docket Number: No. 12847,12847
• Citation: 201 Conn. 385,517 A.2d 624
• Court: Connecticut Supreme Court
• Parties: Gregory T. BOEHM v. Paul KISH et al.

Page 624

517 A.2d 624

201 Conn. 385

Gregory T. BOEHM v. Paul KISH et al.

No. 12847.

Supreme Court of Connecticut.

Argued Oct. 1, 1986.

Decided Nov. 18, 1986.

Louis Ciccarello, Norwalk, for appellant (plaintiff).

J. Kevin Golger, Fairfield, with whom, on brief, were Paul V. McNamara and Robert Zeisler, Bridgeport, for appellees (defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

SHEA, Justice.

The principal issue ¹ in this appeal is whether evidence of the defendants' reckless service of alcohol to the plaintiff, the plaintiff's intoxication, and the severe injuries subsequently sustained by the plaintiff while operating his automobile are sufficient to support an inference of causation in fact between the injuries and the defendants' actions, absent testimony or other evidence that explicitly concerned the nature of the accident that produced those injuries. We conclude that the plaintiff's failure to present any evidence of how the accident occurred in support of the causal inferences the jury might have drawn linking the plaintiff's intoxication to his injuries necessitated a judgment for the defendants. The plaintiff brought this action in two counts against the defendant cafe owner and his bartender. In the first count the plaintiff alleged liability for wanton and reckless conduct. In the second count the plaintiff alleged liability for gross negligence. Each count alleged that the defendants, in violation of General Statutes § 30-86, ² had served alcoholic beverages to the plaintiff while he was already in an intoxicated condition, and that such conduct had resulted in the injuries subsequently sustained by the plaintiff in operating his automobile. Each count further alleged that "the plaintiff lost control of the automobile and crashed into the guard rail," although no evidence was adduced at trial to support this allegation. ³

It is not disputed that the following facts are reasonably supported by the evidence: On May 7, 1981, the plaintiff, Gregory T. Boehm, drank a quart of beer and then drove for approximately ten minutes to the Brook Cafe in Westport, a bar owned by the named defendant, Paul J. Kish. At the cafe, the plaintiff ordered a total of six large drinks of rum and orange juice from the bartender, the defendant Michael Zieff, with each drink containing three to five ounces of eighty proof rum. After his third drink, the plaintiff showed signs of being intoxicated, slumping in his chair and slurring his speech, and, before ordering his sixth, he staggered about the bar and spilled his drink and some change. About four hours after arriving at the cafe, at approximately 7 p.m., having not quite finished his last drink, he stumbled to his car and then headed for the Connecticut turnpike. The plaintiff drove to a stoplight just before the entrance to the turnpike. As he turned onto the turnpike, he reached for his sunglasses "because the sun was real low on the horizon." He next found himself on the floor of the car, with people staring in the window.

The plaintiff was taken by ambulance to the Norwalk Hospital, where Edwin Mulford, a physician, determined that he had broken his neck and had been rendered a quadriplegic. Tests taken soon after the plaintiff had been admitted to the hospital indicated that his blood alcohol concentration was then .299, which corresponds to a content in the body of 15.25 ounces of eighty proof alcohol.

At the close of the evidence, the trial court, Spear, J., reserved decision on the defendants' motion for a directed verdict. The court charged the jury and then submitted the case to the jury, which deliberated for about three hours that afternoon. The following morning, after reviewing the evidence and hearing oral argument, the court directed the jury to return a verdict for the defendants because the plaintiff had failed to present evidence about the automobile accident sufficient to establish causation. The court denied the plaintiff's subsequent motions to set aside the verdict and for a new trial.

The plaintiff on appeal has assigned error in the denial of his motion to set aside the verdict. In reviewing the ruling on this motion, we view the evidence in the light most favorable to the plaintiff. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed; Petyan v. Ellis, supra, 244, 510 A.2d 1337; McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963); or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. Mott v. Hillman, 133 Conn. 552, 555, 52 A.2d 861 (1947). Although the elements of a cause of action may be established on the basis of inferences drawn from circumstantial evidence; see, e.g., Cayer v. Salvatore, 150 Conn. 361, 363, 189 A.2d 505 (1963); such inferences "must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture." Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959). An inference must have some definite basis in the facts. See Latham v. Hankey, 117 Conn. 5, 10-11, 166 A. 400 (1933). When an element necessary to a cause of action cannot be established without conjecture, the evidence presented cannot withstand a motion for a directed verdict.

Unlike General Statutes § 30-102, our Dram Shop Act, the statutory prohibition against serving alcohol to an intoxicated person contained in § 30-86, which the plaintiff invokes, does not authorize a private cause of action for damages. Thus the plaintiff's action is necessarily at common law. "We have held in a number of cases that there is no common-law action in negligence against one who furnished, whether by sale or gift, 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.... The reason underlying the rule is that the proximate cause of the intoxication was not the sale or furnishing of the liquor but the consumption of it by the purchaser or donee." Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980). We held in Kowal, however, that the policy considerations that justify protecting a vendor or social host from common law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages do not apply with respect to wanton and reckless misconduct. Id., 360-61, 436 A.2d 1.

A legal, or proximate, causal connection between the conduct and the resulting injury is a necessary element of causes of action in gross negligence or in recklessness. See, e.g., Shinville v. Hanscom, 116 Conn. 672, 674, 166 A. 398 (1933) ("to furnish a basis of recovery, reckless misconduct must have been a substantial factor in bringing about the injuries complained of"). A prerequisite to a determination of proximate causation is a finding of causation in fact. The decisive question in the present case, then, is whether the facts presented by the plaintiff are sufficient to support an inference of causation in fact.

This court was faced with the absence of evidence about the cause of a motor vehicle accident in Palmieri v. Macero, supra. In that negligence action, the trial court rendered judgment for the defendant, whose decedent had been driving the car, notwithstanding the jury's verdict for the plaintiff passenger. The plaintiff had testified that he had been asleep in the car and was awakened only when it struck a guardrail before going over an embankment. There were no witnesses to the accident, which the driver did not survive, though marks on the highway indicated that the car had been traveling at a fast rate of speed and was out of control. Because any one of a number of forces might have impelled the car along its erratic course, this court said that the conclusion of the jury that negligence of the driver was the proximate cause of the accident "was without evidential basis and could only have resulted from guesswork. Latham v. Hankey, [supra, 11]." 117 Palmieri v. Macero, supra, 146 Conn. 707 708, 155 A.2d 750. Accordingly, the Palmieri court found no error below. In several other single vehicle accident cases where there were no eyewitnesses we have similarly held that evidence is insufficient to support a verdict for the plaintiff where the issues of fault or proximate cause have not been removed from the realm of conjecture. Meade v. Warehouse Transport, Inc., 165 Conn. 553, 556, 338 A.2d 111 (1973); Toomey v. Danaher, 161 Conn. 204, 207, 286 A.2d 293 (1971); Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960).

The plaintiff in the present case asserts, as he must, that his is a stronger case than was Palmieri's. The plaintiff points to his drunken condition upon leaving the Brook Cafe, which resulted in his impaired ability to operate his car. He also relies heavily on our discussion of causation in Kowal v. Hofher, supra, 181 Conn. 360, 436 A.2d 1, where we said that "[r]esponsibility for greater consequences may be considered justified in the case of intentional or reckless conduct than for mere negligence." We stated further that § 501, comment (a), of the Restatement (Second) of Torts "makes it clear that a jury may be permitted to find causation in cases of reckless misconduct even though no such finding would be permissible were the defendant's conduct merely negligent." Kowal v. Hofher, supra, 181 Conn. 360, 436 A.2d 1.

It is only by confounding the notion of proximate cause with that of causation in fact that our discussion in Kowal can be seen as supporting a finding of proximate cause in the present case. The ordinary test for causation in fact is, simply, "would the injury have occurred were it not for the actor's conduct." Kowal v. Hofher, supra, ...