Bohan v. Last

• Decision Date: 23 April 1996
• Docket Number: No. 15232,15232
• Citation: 674 A.2d 839,236 Conn. 670
• Court: Connecticut Supreme Court
• Parties: Mary F. BOHAN, Administratrix (ESTATE OF Thomas F. BOHAN) v. John J. LAST et al.

Page 839

674 A.2d 839

236 Conn. 670

Mary F. BOHAN, Administratrix (ESTATE OF Thomas F. BOHAN) v. John J. LAST et al.

No. 15232.

Supreme Court of Connecticut.

Argued Feb. 15, 1996.

Decided April 23, 1996.

Ira B. Grudberg, with whom was David A. Leff, New Haven, for the appellants (defendants).

Mark R. Kravitz, with whom was Kevin M. Kennedy, New Haven, for the appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and PALMER, JJ.

PETERS, Chief Justice.

The dispositive issue in this civil action lies at the intersection of two lines of authority, one that, as a matter of common law duty, requires adults to exercise caution in supplying alcoholic beverages to intoxicated minors, and the other that, as a matter of statutory law, permits tortfeasors to diminish their liability for their own tortious conduct by requiring the apportionment of liability among all tortfeasors. The issue arises out of a motor vehicle accident in which an intoxicated minor caused a one car crash that led to the death of a passenger in the car that the minor was operating. In this wrongful death action, the operative question before us is whether there are circumstances under which a bar, the place where the intoxicated minor was served alcohol, may limit its potential liability by joining as defendants those patrons of the bar who, as social hosts or as purveyors of alcohol, furnished alcoholic beverages to the minor. Contrary to the ruling of the trial court, we conclude that a third party complaint joining such patrons states a cognizable cause of action.

The plaintiff, Mary F. Bohan, administratrix of the estate of Thomas F. Bohan (Bohan), filed a three count complaint against the defendants John J. Last and Randall's, Inc., ¹ in which she alleged that the defendants had intentionally, negligently and in violation of the Connecticut Dram Shop Act, General Statutes § 30-102, ² served or permitted the service of alcoholic beverages to Anthony W. Ferro (Ferro), a minor, and that Ferro, when driving a car while intoxicated, had caused Bohan's death. Pursuant to General Statutes §§ 52-102 and 52-572h(c) and (d) ³ and Practice Book § 103, ⁴ the defendants moved to cite in four additional defendants in order to permit a determination of the proportionate share of damages for which each defendant might be liable. The additional defendants sought to be joined were Ferro and three patrons of Randall's Restaurant, ⁵ namely, Michael Piroli, Michael Simeone and Michael Lombardi, each of whom allegedly had provided alcohol to Ferro. The trial court, Fracasse, J., permitted the joinder of the additional defendants but expressly declined to rule on the substantive merits of the defendants' third party complaint.

The plaintiff moved to strike those portions of the defendants' third party complaint that alleged tortious liability on the part of Piroli, Simeone and Lombardi. ⁶ The defendants' complaint alleged that these three individuals were social acquaintances of Ferro who had engaged in tortious conduct by intentionally or negligently causing alcohol to be furnished to him at Randall's Restaurant. ⁷ The trial court, Hodgson, J., granted the plaintiff's motion to strike those counts of the defendants' complaint that were directed toward Piroli, Simeone and Lombardi.

The defendants then filed a substitute third party complaint with respect to the relevant counts, in which they alleged that Simeone and Lombardi ⁸ had acted tortiously in their capacities as social hosts and as purveyors of alcohol to Ferro. In response, the plaintiff first filed a request to revise, alleging that the substitute complaint did not differ substantially from the previously filed complaint. After the trial court, Fracasse, J., sustained the defendants' objection to the request to revise, the plaintiff moved to strike the relevant counts of the defendants' substitute complaint. The trial court, Hodgson, J., granted the plaintiff's motion and thereafter rendered judgment against the defendants. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment of the trial court.

In an appeal from a judgment granting a motion to strike, we operate in accordance with well established principles. We take the facts to be those alleged in the complaint that has been stricken and we 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).

In this case, the facts alleged are notable for their sparsity. For the purposes of our ruling, we assume that the defendants will be able to establish that, on August 11, 1991, Ferro was a minor who had been permitted entry into Randall's Restaurant, a bar where alcoholic beverages were being served. The defendants do not allege, however, that Ferro's presence at Randall's Restaurant resulted from the conduct of Simeone or Lombardi, singly or jointly, in inviting Ferro to accompany them there or to meet them there. At oral argument in this court, counsel for the defendants expressly disavowed any claim that Simeone and Lombardi had acted as "social hosts" in that sense.

The crucial factual allegations in the defendants' substitute complaint are, therefore, the allegations that Simeone and Lombardi acted as purveyors of alcoholic beverages to Ferro. The complaint alleges only that each of these men tortiously "procured alcoholic beverages and gave and purveyed them" to Ferro. The complaint's only other relevant allegations state nothing more than that, "by procuring and purveying alcoholic beverages to Anthony Ferro, a minor," Simeone and Lombardi "contributed to and helped cause the behavior of Anthony Ferro, and further contributed to the injuries and death of Thomas F. Bohan." In counts three and five, Simeone and Lombardi are alleged to have engaged in negligent misconduct, and in counts four and six, each is alleged to have engaged in intentional tortious misconduct.

For their claim that their substitute complaint states a cognizable cause of action, the defendants rely on the following allegations of fact and law. Ferro was the driver of a car that was involved in a one car collision that resulted in the death of the passenger in the car, Bohan. At the time of the accident, Ferro was a minor and was intoxicated. On the night of the accident, Simeone and Lombardi purveyed alcoholic beverages to Ferro at Randall's Restaurant. The alcohol that Simeone and Lombardi purveyed to Ferro caused Ferro to become intoxicated. Ferro's intoxication was the cause of the one car collision. According to the defendants, these allegations are sufficient to allow them to pursue the claim that Simeone and Lombardi bear some legal responsibility for Bohan's death.

For many years, the law of this state provided broad immunity from legal liability for those who contribute to the carnage that drunk drivers inflict on innocent users of our highways and byways. Although we have never held that purveyors of alcohol have no common law duty to exercise due care to protect the foreseeable victims of those who drink and drive, we have, nonetheless, declined to recognize a claim in negligence. Such a claim " 'has uniformly failed for the reason that the subsequent injury has been held to have been proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about intoxication and the subsequent injury.' " Quinnett v. Newman, 213 Conn. 343, 345-46, 568 A.2d 786 (1990); Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980); Slicer v. Quigley, 180 Conn. 252, 255-56, 429 A.2d 855 (1980); Nelson v. Steffens, 170 Conn. 356, 358, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967). Until recently, the only derogation of this rule of common law immunity was the limited statutory remedy provided by the Dram Shop Act, presently codified at § 30-102. See footnote 2.

In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), we reexamined the logic of our common law decisions in the context of the liability of social hosts who allegedly had provided alcohol to underage guests at a graduation "keg" party. For two interrelated reasons, we concluded that the hosts were liable in tort because one of the minor guests, who was intoxicated, drove his car and killed another guest as both he and the victim were leaving the party. First, we questioned whether, in the case of a minor, there was logic to the common law presumption that intoxication results from the voluntary conduct of a person who has exercised a knowing and intelligent choice to consume intoxicating liquor. Id., at 93-94, 540 A.2d 54. We noted that, in other areas of the law, minors have been held not to have assumed the same degree of responsibility as we assign to adults. Id., at 97, 540 A.2d 54; see, e.g., Blancato v. Feldspar Corp., 203 Conn. 34, 40-41, 522 A.2d 1235 (1987) (minor exempted from exclusive operation of workers' compensation law because of youth and immaturity in context of illegal and hazardous employment). Second, we found it persuasive that our state's public policy, as manifested in numerous relevant civil and criminal statutes, ⁹ "reflect[s] a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol." Ely v. Murphy, supra, at 94, 540 A.2d 54. With respect to minors, therefore, we concluded that a social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured,...