O'Dell v. Kozee

• Decision Date: 28 September 2012
• Docket Number: No. 18851.,18851.
• Citation: 307 Conn. 231,53 A.3d 178
• Court: Connecticut Supreme Court
• Parties: John A. O'DELL, Administrator (Estate of Patrick C. O'Dell) v. Kenneth KOZEE et al.

307 Conn. 231
53 A.3d 178

John A. O'DELL, Administrator (Estate of Patrick C. O'Dell)
v.
Kenneth KOZEE et al.

No. 18851.

Supreme Court of Connecticut.

Argued April 18, 2012.
Decided Sept. 28, 2012.^*

[53 A.3d 179]

Ron Murphy, New Britain, for the appellant (plaintiff).

Elycia D. Solimene, Middletown, for the appellees (defendants).

Refai M. Arefin, Centerbrook, filed a brief for the Connecticut Restaurant Association as amicus curiae.

William M. Bloss and David M. Bernard, Bridgeport, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

David N. Rosen, New Haven, filed a brief for Mothers Against Drunk Driving Connecticut as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^**

HARPER, J.

[307 Conn. 234]The principal issue in this certified appeal is whether Connecticut's Dram Shop Act (act),¹General Statutes § 30–102, ² requires a plaintiff to prove [307 Conn. 235]that a patron was visibly or otherwise perceivably

[53 A.3d 180]

intoxicated ³ when sold alcoholic liquor in order to prevail on a claim against the purveyor of alcoholic liquor for injuries sustained as a result of the patron's intoxication. The plaintiff, John A. O'Dell, administrator of the estate of Patrick C. O'Dell (decedent), appeals from the judgment of the Appellate Court, reversing the judgment of the trial court in favor of the plaintiff on the ground that the trial court improperly denied the motion of the defendants, Kenneth Kozee, in his capacity as permittee for Deja Vu Restaurant, and others doing business as Deja Vu Restaurant,⁴ for a directed verdict and to set aside the verdict. O'Dell v. Kozee, 128 Conn.App. 794, 805, 19 A.3d 672 (2011). We conclude that, although the Appellate Court properly determined that the plaintiff was not entitled to judgment in his favor without proving that the patron was visibly or otherwise perceivably intoxicated at the time he was sold liquor, the court improperly concluded that the plaintiff was not entitled to a new trial. Accordingly, we affirm in part and reverse in part the judgment of the Appellate Court.

The jury reasonably could have found the following facts. On September 5, 2006, at approximately 7 p.m., Joel Pracher drove himself and the decedent to the [307 Conn. 236]Deja Vu Restaurant (bar) in Plainville. Pracher and the decedent participated in a billiards league, and their team competed at the bar every other Tuesday night. On this particular night, Pracher consumed at least fifteen alcoholic beverages, including beer, tequila and brandy.⁵ Pracher later admitted that his consumption of alcohol had caused him to become what he considered “drunk,” meaning sufficiently affected by alcohol to be over the legal limit for driving. No one that night, however, observed

[53 A.3d 181]

Pracher exhibiting any obvious physical signs of intoxication. Specifically, no one observed Pracher having difficulty walking, slurring his speech or engaging in any loud or boisterous behavior. On at least one occasion, Pracher purchased an alcoholic beverage from a bartender while he was drunk.

At approximately 12:45 a.m., Pracher and the decedent left the bar together. Although Pracher was too drunk to remember most of what occurred thereafter, he did recall that he was drunk when he left the bar to drive the decedent home. Approximately two miles from the bar, while traveling in the westbound lane of West Main Street, Pracher drove his vehicle directly into the left backend of a box truck that was parked under a lit streetlight on the shoulder of the road, [307 Conn. 237]although there was room to safely navigate around the truck without entering the eastbound lane. The speed limit on West Main Street was thirty-five miles per hour; Pracher's vehicle was traveling approximately sixty miles per hour at the time of the collision. The passenger side door and roof of Pracher's vehicle were torn off upon impact, and the decedent sustained serious physical injuries as he was ejected from the vehicle into the eastbound lane of West Main Street. A tow truck traveling east on West Main Street drove by almost immediately after the collision, and although the operator of the truck took evasive action to attempt to avoid contact, the truck ran over the decedent. He died as a result of his injuries. A toxicology report revealed that Pracher had a blood alcohol content of 0.187 shortly after the accident. It is unlawful to operate a vehicle with a blood alcohol content of 0.08 or greater.

The record reveals the following additional facts and procedural history. The plaintiff commenced an action against the defendants alleging that they were liable for the decedent's death pursuant to the act. Prior to trial, the plaintiff filed a motion in limine seeking to exclude argument or evidence that visible signs of intoxication are required to prevail. The court thereafter instructed the defendants in accordance with the plaintiff's motion. At trial, the plaintiff proffered testimony from Pracher and one of his companions at the bar on the evening of the accident, as well as testimony from a police officer regarding the circumstances of the accident. The plaintiff also proffered expert testimony from a medical toxicologist, Charles McKay. See footnote 5 of this opinion. McKay opined on the number of drinks that Pracher would have had to consume to reach the 0.187 blood alcohol content and that Pracher's blood alcohol content would have been in a range in excess of twice the legal limit for driving at various points in time before he left the bar. McKay further testified that [307 Conn. 238]a person with a blood alcohol content level of more than 0.10 would have “an abnormal mental or physical condition,” “an impairment of judgment” and “an impairment of physical functions and energies” due to intoxicating liquor. On cross-examination, McKay acknowledged that, although persons with such blood alcohol levels generally show visible signs of intoxication, persons with a history of alcohol abuse, like Pracher, can develop behaviors to mask their intoxication up to a certain point. After the plaintiff's case-in-chief, the defendants moved for a directed verdict, which the court denied. The defendants then proffered testimony from Kozee and bar employees who had worked on the evening of the accident regarding the training that bar employees received to detect intoxication, the bar policy not to serve patrons who manifest signs of intoxication, and the absence of signs that Pracher was intoxicated.

[53 A.3d 182]

The jury returned a verdict in favor of the plaintiff and awarded $4 million in damages. The defendants thereafter filed a motion to set aside the verdict, alleging that “there was no evidence presented that would support a finding that [Pracher] was served alcohol while intoxicated, because there was no evidence ... that ... he was more than merely under the influence or affected to some extent by alcohol, and/or that he exhibited any visible signs of intoxication....” The trial court denied the motion. The defendants also filed a motion to reduce the damages to $250,000 pursuant to the statutory cap under § 30–102, which the court granted.

The defendants appealed from the trial court's judgment to the Appellate Court, claiming that they were entitled to a verdict in their favor because no evidence had been presented from which the jury reasonably could have concluded that Pracher was “intoxicated,” pursuant to § 30–102 and this court's gloss of that term, [307 Conn. 239]at the time the bar sold him intoxicating liquor. O'Dell v. Kozee, supra, 128 Conn.App. at 799, 19 A.3d 672. The Appellate Court held that, under Supreme Court and Appellate Court case law, the plaintiff in an action brought pursuant to the act must “present evidence showing visible or perceivable intoxication.” Id., at 802, 19 A.3d 672 citing Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 493 A.2d 184 (1985), and Hayes v. Caspers, Ltd., 90 Conn.App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). Rejecting the plaintiff's claim that such a requirement was inconsistent with Craig v. Driscoll, 262 Conn. 312, 327–28, 813 A.2d 1003 (2003), in which this court had characterized the act as strict liability, the Appellate Court reasoned that “an establishment would be strictly liable ... if it sold intoxicating liquor to a patron who exhibited perceivable signs of intoxication, even if the permittee or bartender completely was unaware of and had no reason to know of such behavior.” O'Dell v. Kozee, supra, at 802, 19 A.3d 672. Because the Appellate Court's review of the record convinced it that the plaintiff had presented no evidence of visible or perceivable intoxication, it reversed the judgment and remanded the case to the trial court with direction to render judgment for the defendants. Id., at 805, 19 A.3d 672. The Appellate Court subsequently rejected the plaintiff's claim, raised in a motion for reconsideration, that his failure to present evidence of perceivable signs of intoxication was due to his reliance on the trial court's ruling on his motion in limine and, therefore, that he was entitled to a new trial at which he could present such evidence. Id., at 805 n. 12, 19 A.3d 672.

We thereafter granted the plaintiff's petition for certification to appeal to address the following questions: (1) “Did the Appellate Court properly determine that ... § 30–102 requires ... proof of [visible or otherwise perceivable] intoxication?”; and (2) “If the answer to question one is affirmative, did the Appellate Court [307 Conn. 240]properly determine that the case should be [reversed and remanded with direction to render judgment for the defendants] when the trial court has issued a ruling prior to trial that the plaintiff did not have to prove visible intoxication?” O'Dell v. Kozee, 302 Conn. 928, 28 A.3d 343 (2011). On the first question, we conclude that § 30–102 does...