O'dell v. Kozee, 31771.

• Decision Date: 24 May 2011
• Docket Number: No. 31771.,31771.
• Citation: 128 Conn.App. 794,19 A.3d 672
• Court: Connecticut Court of Appeals
• Parties: John A. O'DELL, Administrator (Estate of Patrick O'Dell)v.Kenneth KOZEE et al.

128 Conn.App. 794

19 A.3d 672

John A. O'DELL, Administrator (Estate of Patrick O'Dell)

v.Kenneth KOZEE et al.

No. 31771.

Appellate Court of Connecticut.

Argued Jan. 20, 2011.Decided May 24, 2011.

Elycia D. Solimene, Middletown, for the appellants (defendants).Ron Murphy, New Britain, for the appellee (plaintiff).Jan C. Trendowski and Mirza Refai Arefin, certified legal intern, filed a brief for the Connecticut Restaurant Association as amicus curiae.William M. Bloss, Bridgeport, and David M. Bernard filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.DiPENTIMA, C.J., and BEACH and BEAR, Js.BEACH, J.

The defendants, Kenneth Kozee, Lori Bard and L.C.B. Entities, LLC,¹ appeal from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, John A. O'Dell, administrator of the estate of Patrick O'Dell. On appeal, the defendants claim that the court abused its discretion by (1) granting the plaintiff's motion in limine, (2) failing to instruct the jury regarding visible intoxication, (3) denying their motion to set aside the verdict and for a directed verdict and (4) making various erroneous evidentiary rulings. We agree with the defendants' third claim and, accordingly, reverse the judgment of the trial court.²

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendants' appeal. On September 5, 2006, at approximately 7 p.m., Joel Pracher drove himself and Patrick O'Dell to the Deja Vu Restaurant in Plainville. Pracher and Patrick O'Dell participated in a billiards league, and their team competed at the restaurant every other Tuesday night.³ On this particular night, Pracher had consumed five beers, two shots of alcohol and one round of blackberry brandy before approximately 11 p.m.⁴ Pracher admitted that his consumption of alcohol caused him to become what he considered to be “drunk.” Although Pracher admitted that he was drunk, he was not exhibiting any physical signs that would indicate such. For example, Pracher had no difficulty walking, he was not slurring his speech, nor did he engage in any noticeably loud or boisterous behavior. On at least one occasion, Pracher purchased an alcoholic beverage from a bartender of the restaurant while he was drunk.

At approximately 12:45 a.m., Pracher and Patrick O'Dell left the restaurant. Although Pracher was too intoxicated to remember most of what occurred, he did recall that he was drunk when he left the bar, and he also remembered getting in his vehicle with Patrick O'Dell so he could give him a ride home. Pracher drove in the westbound lane on West Main Street. Approximately two miles from the restaurant, at the intersection of West Main Street and Strong Court, Pracher's vehicle collided with the left end of a box truck that was parked legally on the north shoulder of the westbound lane on West Main Street.⁵ The speed limit on West Main Street was thirty-five miles per hour, and Pracher was estimated to have been traveling at a speed of sixty miles per hour. The passenger side door of Pracher's vehicle was torn off upon impact, and Patrick O'Dell was ejected from the vehicle and landed in the eastbound lane of West Main Street. A tow truck traveling in the eastbound lane of West Main Street drove by almost immediately after the collision had occurred, and although it took evasive action to avoid contact, the truck ran over Patrick O'Dell's chest. He was rushed to Hartford Hospital, but he died as a result of his injuries. A toxicology report subsequently revealed that Pracher had a blood alcohol content of 0.187 shortly after the accident had occurred.

On June 4, 2007, the plaintiff filed a one count wrongful death claim alleging, inter alia, that the defendants were liable pursuant to the Dram Shop Act, General Statutes § 30–102.⁶ The trial commenced on October 28, 2009. On November 6, 2009, the jury returned a verdict in favor of the plaintiff and awarded him $4 million in damages. The defendants filed a motion to reduce the jury verdict to $250,000 pursuant to § 30–102, which the court granted. The defendants also filed a motion to set aside the verdict and for a directed verdict on November 16, 2009, alleging that “[t]here was no evidence produced during the trial to support the verdict as it was rendered by the jury.” The court denied the motion, and this appeal followed.

On appeal, the defendants claim that the court abused its discretion by denying their motion to set aside the verdict and for a directed verdict. Specifically, they argue that no evidence was presented from which the jury reasonably could have concluded that Pracher was “intoxicated,” pursuant to § 30–102 and our Supreme Court's gloss of the term, at the time the restaurant sold him intoxicating liquor. We agree.

To prevail in an action brought pursuant to § 30–102, a plaintiff must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” (Internal quotation marks omitted; emphasis in original.) Coble v. Maloney, 34 Conn.App. 655, 662, 643 A.2d 277 (1994). The dispositive question on appeal is whether a plaintiff is required to prove “visible intoxication” ⁷ in order to satisfy the second element of a cause of action pursuant to § 30–102. The plaintiff argues that he is not required to prove “visible intoxication” because the statute merely requires sale of intoxicating liquor to an “intoxicated” person, not a “visibly intoxicated” person. The plaintiff further argues that our Supreme Court never used the term “visible intoxication” when discussing the elements of a cause of action pursuant to § 30–102. The defendants argue, however, that case law has established that a cause of action brought pursuant to § 30–102 requires some evidence of “visible intoxication.” We agree with the defendants.

The plaintiff is correct in his assertion that § 30–102 does not contain the phrase “visible intoxication.” Our Supreme Court, however, has provided the following definition of “intoxication” as that term is used in § 30–102: “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his acts or con duct that the public or parties coming in contact with him can readily see and know this is so.” (Emphasis added.) Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349–50, 493 A.2d 184 (1985). Although the Court in Sanders did not use the exact term “visible intoxication,” its definition clearly establishes that in order to qualify as intoxicated pursuant to § 30–102, an individual must exhibit some type of physical symptomology in such a way that an observer reasonably could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.

Our Supreme Court subsequently revisited the Sanders definition of intoxication in Wentland v. American Equity Ins. Co., 267 Conn. 592, 840 A.2d 1158 (2004). In Wentland, the Court noted that “the word ‘intoxication’ has various meanings in our law, depending on the context in which it is used.” Id., at 603, 840 A.2d 1158. The court reiterated the Sanders definition of intoxication and stated that the definition “is a plain indication that there may be levels of inebriation that are less severe than intoxication. Indeed, common sense dictates that one's behavior will be influenced to differing degrees depending on what, and how much, alcoholic liquor one had consumed. Similarly, alcoholic liquor may tend to affect some persons differently than it does others, depending on a number of factors, for instance, a person's body weight, a person's tolerance to alcohol, and what other food or beverages, if any, a person has consumed within the same time frame. Thus, under our definition in Sanders, it is possible to be ‘affected to some extent by’ alcoholic liquor, without being ‘intoxicated.’ ” Id., at 604–05, 840 A.2d 1158.

Additionally, this court addressed the issue of intoxication pursuant to § 30–102 in Hayes v. Caspers, Ltd., 90 Conn.App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). In Hayes, “[t]he [trial] court directed a verdict on the plaintiff's dram shop claim because it found that, although [the driver] himself testified that he had been intoxicated on the night in question, the plaintiff presented no evidence that [the driver] was visibly intoxicated.” (Emphasis in original.) Id., at 802, 881 A.2d 428. We held that, in light of Sanders, the plaintiff's failure to provide any evidence of visible intoxication was “fatal to the plaintiff's claim.” ⁸ Id. Therefore, on the basis of the case law previously discussed, we conclude that to prove intoxication pursuant to § 30–102, a plaintiff must present evidence showing visible or perceivable intoxication.

The plaintiff maintains, however, that requiring proof of visible or perceivable intoxication to sustain a cause of action under § 30–102 is inconsistent and irreconcilable with Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). In Craig, our Supreme Court stated that § 30–102 “covers all sales of liquor that...