Davenport v. Quinn, (AC 17648)

• Decision Date: 18 May 1999
• Docket Number: (AC 17648)
• Citation: 53 Conn. App. 282,730 A.2d 1184
• Court: Connecticut Court of Appeals
• Parties: TERRANCE DAVENPORT v. DANIEL J. QUINN ET AL.

53 Conn. App. 282

730 A.2d 1184

TERRANCE DAVENPORT v. DANIEL J. QUINN ET AL.

(AC 17648)

Appellate Court of Connecticut.

Argued January 28, 1999.

Officially released May 18, 1999.

Landau, Schaller and Dupont, Js. Kenneth J. Bartschi, with whom were Karen L. Murdoch and, on the brief, Harold R. Cummings, for the appellants (defendants).

Dennis P. O'Connor II, with whom were I. Edmund Hare, Jr., and, on the brief, Amelia G. Nord, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The plaintiff filed this action seeking to satisfy the default judgment that he had obtained in a prior action against the Pub of Manchester, Inc. (Pub, Inc.), for $75,000 in damages. Pub, Inc., was doing business as a bar under the name Bowties. The plaintiff sought to pierce the corporate veil, claiming that the defendant Daniel Quinn¹ was the alter ego of Pub, Inc., and that he had fraudulently transferred corporate assets in violation of General Statutes §§ 52-552a through 52-552l in order to avoid payment of the default judgment. The trial court held that the defendants could not successfully attack the underlying default judgment and that the plaintiff was entitled to pierce the corporate veil. The defendants appeal from that judgment claiming that the trial court improperly concluded that (1) the default judgment arose from a complaint stating a cause of action other than a violation of Connecticut's Dram Shop Act, General Statutes § 30-102,² and (2) that the defendants are liable to the plaintiff for a judgment in a case in which they were not parties and, therefore, had no opportunity to litigate. We affirm the judgment of the trial court.

The following facts found by the trial court are necessary to the resolution of this appeal. On June 6, 1992, the plaintiff was a patron at Bowties when, while he was standing on the sidewalk outside the bar, he was attacked by a group of individuals who had just left Bowties. The plaintiff sustained injuries in the attack.³ Pursuant to § 30-102, the plaintiff sent notice via certified mail to Pub, Inc., on August 11, 1992, notifying it that he intended to file a claim. That notice was returned to the plaintiff by the postal service as unclaimed. On or about May 25, 1993, the plaintiff filed his single count complaint in Superior Court. In the original action, the plaintiff alleged liability under the Dram Shop Act and common-law negligence for an assault and battery that occurred outside Bowties. The original writ of summons and complaint were served in hand on Harold R. Cummings, the attorney for the present defendants and the agent for service of process for Pub, Inc., on or about May 25, 1993. Service of process was also made on or about the same date on Bowties' permittee, Karl T. Oberlander.

The defendants in the underlying action failed to appear. Subsequently, the plaintiff filed a motion for default and sent copies of the motion to both Cummings and Oberlander. Neither Pub, Inc., nor Oberlander filed an appearance or pleadings. The plaintiff then moved for a hearing in damages and notified both Cummings and Oberlander that the hearing would take place on December 20, 1993.

On that date, the trial court held a hearing in damages, at which the defendant again did not appear. After the hearing, the trial court rendered a default judgment for the plaintiff, awarding damages in the amount of $75,000 plus $214 in attorney's fees. In March, 1994, the sheriff unsuccessfully attempted a property execution against Pub, Inc.

The plaintiff filed the complaint in the present action on November 21, 1994. The defendants in the present case filed an answer on February 20, 1995. No special defenses were filed. Prior to the trial in the present case, there had been no action on behalf of Quinn, Pub, Inc., or the defendant NNIUQ, Inc., a Connecticut corporation owned by Quinn, disputing either the trial court's jurisdiction or the default judgment in the underlying case. Additional facts will be set forth as they become necessary.

I

The defendants first claim that the underlying default judgment is void because (1) the original complaint alleges only a violation of the Dram Shop Act and (2) the plaintiffs notice pursuant to § 30-102 was untimely. We disagree.

This case presents an interpretation of the pleadings in the underlying action, which presents a question of law and is subject to de novo review on appeal. Grimes v. Housing Authority, 242 Conn. 236, 249, 698 A.2d 302 (1997). Additionally, we are called on to decide whether the trial court properly determined that the plaintiffs statutory notice under § 30-102 was defective. Our review is plenary concerning that issue also. See Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).

A

At common law, there was no cause of action stemming from the service of alcohol to a tortfeasor because the chain of causation was determined to be broken by the person's voluntary consumption of the intoxicating beverage. Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980). "[The Dram Shop Act], in situations where it was applicable, displaced the common-law rule that the proximate cause of intoxication was not the furnishing of the liquor but its consumption." Nolan v. Morelli, 154 Conn. 432, 437, 226 A.2d 383 (1967). There presently is no need for an injured party to show causation; § 30-102 dispenses with that need. Our Supreme Court has mandated that the only cause of action arising from the negligent service of alcohol to intoxicated persons shall arise under the Dram Shop Act. Quinnett v. Newman, 213 Conn. 343, 345, 568 A.2d 786 (1990); Kowal v. Hofher, supra, 357.

While our Supreme Court has limited causes of action arising from injuries sustained as a result of the negligent service of intoxicating beverages to intoxicated persons to § 30-102, it has not abrogated causes of action arising from reckless and wanton misconduct. Kowal v. Hofher, supra, 181 Conn. 362. "The Act is concerned only with the liability of a seller, as such, of intoxicating liquor. But if, under any circumstances, any alternative common-law right against a seller, as such, exists, it would, to the extent that it exists, necessarily permit the avoidance, through use of a common-law action, of the provision of the Act restricting the amount of damages recoverable .... The Act itself, however, contains no provision expressly making it an exclusive remedy against sellers, as such, of intoxicating liquor for damages to person or property caused by the intoxication of a purchaser, whether those damages are sustained by the purchaser himself or by innocent third parties." Nolan v. Morelli, supra, 154 Conn. 439 n.2.

The plaintiffs complaint alleges numerous facts that sound in a violation of the Dram Shop Act. See footnote 3. The underlying complaint, however, also alleges that Pub, Inc., and Oberlander were negligent in failing (1) to call the police in a timely manner and (2) to intervene in the ongoing assault.

The plaintiff alleges essentially that the defendants in the underlying action breached the duty they owed to the plaintiff as a patron of Bowties. The general rule in Connecticut is that a party is not under a duty to aid unless a special relationship exists between it and the victim. State v. Miranda, 245 Conn. 209, 221, 715 A.2d 680 (1998). A store owner owes a duty to an invitee to keep the premises in a reasonably safe condition. Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Furthermore, a possessor of property must "`act as a reasonable [person] to avoid harm ... even from intentional attacks on the part of such third persons.' Prosser, Law of Torts (4th Ed.) § 61, p. 395." Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).

When reviewing the facts alleged in a complaint, we consider them in the light most favorable to the plaintiff. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). The plaintiff has, in essence, alleged that the defendants in the underlying case failed to meet their duty of care as possessors of property.⁴ The plaintiff alleges that he was a lawful patron on the premises of the defendants. He has alleged, therefore, that he was a business invitee of Bowties. Accordingly, Bowties and Oberlander owed him, as a business invitee, a duty to act as reasonable persons to avoid harm. This claim does not sound in dram shop liability. The allegation that a possessor of property failed to keep the premises safe from dangers applies to all possessors of property, sellers of alcoholic beverages and others alike.⁵

Additionally, the trial court in the underlying action awarded damages in the amount of $75,000. The statutory maximum allowed under § 30-102 is $20,000.⁶ We conclude that the trial court's award in the default judgment in excess of $20,000 indicates that the judgment was based on a theory of liability beyond a violation of the Dram Shop Act. Furthermore, we agree with the trial court that "[a]ll of these allegations go beyond the allegations required to make out a claim under § 30-102."

The defendants claim, in their brief, that the plaintiff did not allege the existence of a special relationship between him and Bowties nor did he allege that the assault occurred on the premises of Bowties. In essence, the defendants are now challenging the legal sufficiency of the plaintiffs original complaint. This is not an appropriate time for such a challenge. Practice Book § 10-6 provides in relevant part: "The order of pleading shall be as follows:

"(1) The plaintiffs complaint.

"(2) The defendant's motion to dismiss the complaint.

"(3) The defendant's request to revise the complaint. "(4) The defendant's motion to strike the complaint...."

Practice Book § 10-39 (a) provides in relevant part: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... that party may do so by filing a motion to strike the...