Kelehear v. Larcon, Inc., 8512

• Decision Date: 17 July 1990
• Docket Number: No. 8512,8512
• Citation: 577 A.2d 746,22 Conn.App. 384
• Court: Connecticut Court of Appeals
• Parties: Marlyn H.V. KELEHEAR, Administratrix (ESTATE of Daniel F. VARGAS) v. LARCON, INC., et al.

Page 746

577 A.2d 746

22 Conn.App. 384

Marlyn H.V. KELEHEAR, Administratrix (ESTATE of Daniel F. VARGAS) v. LARCON, INC., et al.

No. 8512.

Appellate Court of Connecticut.

Argued April 3, 1990.

Decided July 17, 1990.

Daniel K. Lamont, Willimantic, for appellant (plaintiff).

M. John Strafaci, New London, for appellee (named defendant).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

NORCOTT, Judge.

The plaintiff administratrix of the estate of Daniel Vargas brought this dram shop action against the named defendant, the corporate owner of the Bach Dor Tavern in Chaplin, and the defendant C. Lawrence Constantine, sole shareholder of the corporation, alleging that, on February 5, 1987, Daniel Vargas and Mark Marden attended the "happy hour" at the tavern and became noticeably intoxicated. The plaintiff claimed that Vargas subsequently died in a motor vehicle accident while a passenger in Marden's pickup truck as a result of the sale to Marden of intoxicating beverages in violation of General Statutes § 30-102. ¹

At the close of the plaintiff's case, the named defendant ² moved for a directed verdict, which the trial court granted. The trial court also denied the plaintiff's motion to open the judgment in order to produce further evidence. The court rendered judgment on the verdict, and this appeal ensued.

On appeal, the plaintiff claims that the trial court should not have (1) granted the defendant's motion for a directed verdict at the close of the plaintiff's case, concluding that the plaintiff failed to present sufficient evidence to establish the defendant's sale of an alcoholic beverage to an intoxicated person under the Dram Shop Act, and (2) denied the plaintiff's motion to open. We reverse the judgment of the trial court.

With respect to the plaintiff's first claim, the standards for review of a trial court's directed verdict are clear. "A verdict may be directed only where the jury could not reasonably reach any other conclusion ... or where the decisive question is one of law." (Citations omitted.) Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn.App. 253, 256, 566 A.2d 431 (1989). Generally, directed verdicts are disfavored; see Boehm v. Kish, 201 Conn. 385, 394, 517 A.2d 624 (1986); and are justified only "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, 200 Conn. 243, 244, 510 A.2d 1337 (1986) ]; 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." Id., 201 Conn. at 389, 517 A.2d 624. Finally, when reviewing the decision of the trial court to direct a verdict, we consider the evidence presented in the light most favorable to the plaintiff. Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., supra, 20 Conn.App. at 259, 566 A.2d 431.

The plaintiff contends that, against these standards, the trial court should not have directed a verdict because the jury could reasonably have concluded from the evidence presented that the plaintiff had proven the essential elements of an action brought under the Dram Shop Act. We agree.

The elements of a cause of action based on the Dram Shop Act are (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. See Nelson v. Steffens, 170 Conn. 356, 360, 365 A.2d 1174 (1976). Considering the evidence in the light most favorable to the plaintiff, we find the evidence to be undisputed that Vargas and Marden attended "happy hour" at the Bach Dor tavern on the evening of February 5, 1987, and, at some point during that evening, both were noticeably intoxicated. The key witness in this trial, bartender Joseph Fournier, testified that around 11 p.m. that evening, Marden was "real sloppy, hanging all over the bar, being quite obnoxious and real loud."

Our Supreme Court has defined intoxication in pertinent part as meaning "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." Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). The defendant in this case does not question the matter of Marden's intoxication at the tavern, nor does it argue that Marden's intoxicated condition at the time of the motor vehicle accident was the proximate cause of the death of his friend, Vargas. Rather, the defendant argued in support of its motion for a directed verdict, and the trial court found, that the plaintiff had failed to present evidence that the defendant sold intoxicating liquor to Marden when he was intoxicated.

The essence of the trial court's ruling was that the plaintiff failed to prove the "element of sale to an intoxicated person" either before or after Marden was identified by Fournier to be intoxicated. The court reached this conclusion notwithstanding the fact that, according to Fournier's own testimony, Marden was "shut off," that is, served no more liquor.

We agree with the defendant that the evidence of a sale to Marden after the crucial point in time so described by Fournier was an insufficient basis from which the jury could reasonably conclude that the defendant's bartenders served Marden anything. After he was shut off by the bartenders, Fournier observed Marden with a beer bottle in his hands. This was the sole evidence regarding Marden and his condition after he was shut off. Fournier testified that neither he nor any other bartender sold Marden anything else after shutting him off. There was no evidence as to where or when Marden got the bottle or what the bottle contained. The court was correct in concluding that the jury could only speculate as to a sale to Marden after he was shut off.

We cannot agree, however, that the jury could not reasonably have found, from the evidence presented, that Marden had not been served intoxicating beverages while he was in an intoxicated state.

Fournier testified as follows:

"Q. And, did there come a time when Mark Marden was cut off that night?

"A: Yes, there was.

"Q: And, what time was that?

"A: It was shortly thereafter--maybe fifteen, twenty minutes difference.

"Q: Towards eleven?

"A: Yes.

"Q: And, what was the reason that Mark Marden was cut off from drinking?

"A: Well, Mark Marden came to me--at the bar at the end of the bar and he was real sloppy, hanging all over the bar, being quite obnoxious, and real loud. So I figured that he had enough and I wasn't going to serve him any more....

"Q: Do you recall whether Mark Marden had anything to drink that night at the bar after he was shut off?

"A: I didn't sell him any more liquor after that point, after I shut him off.

"Q: All right. And, to your knowledge, did he have anything to drink at the bar after he was shut off?

"A: After he was shut off? We didn't sell him any more liquor after he was shut off."

From this testimony and Fournier's testimony describing Marden's inebriated condition, we find that the jury could reasonably have concluded that Marden was sold and served intoxicating beverages, that is, beer, leading up to and while he was in an intoxicated condition.

"Although a jury cannot base its conclusion upon 'mere guess or speculation,' it is entitled to draw reasonable inferences from the evidence before it. Lemmon v. Patterson Construction Co., 137 Conn. 158, 163, 75 A.2d 385 (1950)." Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., supra. We cannot, nor should the trial court, rule out the possible inference to be drawn from this evidence that the last drink served to Marden before he was shut off was served to him while he was intoxicated. The ultimate question of whether a driver's intoxication resulted from his activities at the defendant's bar and whether the bar violated the Dram Shop Act by continuing to serve an already intoxicated driver is for the jury. See Sanders v. Officers Club of Connecticut, Inc., supra; see also Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 548 A.2d 728 (1988). Here, the trial court took this function away from the jury by granting the defendant's motion for a directed verdict.

Finally, in support of its argument that the trial court properly granted the directed verdict, the defendant points to the fact that the fatal accident occurred approximately two hours after the defendant's bartender refused to serve Marden any more beverages. Given the posture of this case, this claim can only be interpreted as a challenge to the plaintiff's proof on the element of causation. Any claim that it applies to the other elements of the Dram Shop Act would be without merit.

Before addressing the merits of this claim, we must first determine...