Nelson v. Steffens

Decision Date16 March 1976
CourtConnecticut Supreme Court
PartiesWinifred NELSON, Administratrix (ESTATE of Dane CLARK), et al. v. Ernest S. STEFFENS.

William F. Gallagher, New Haven, for appellants (plaintiffs).

George E. Tillinghast, Jr., Hartford, with whom, on the brief, was Joseph G. Lynch, Hartford, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

The complaint in this action, in the fourth count, alleges a cause of action in common-law negligence. The facts alleged are that the plaintiff's decedent, Dane Clark, and her other son, plaintiff Timothy Clark, were passengers in a motor vehicle operated by Peter DeLise when the vehicle went out of control and struck two trees off route 145 in Westbrook. Dane and Timothy Clark suffered serious injuries from which Dane ultimately died and from which Timothy continues to suffer. A short time prior to the accident DeLise, a minor, was a patron in the defendant's establishment where DeLise was sold liquor while he was intoxicated. It is further alleged that the occurrence was due to the negligence of the defendant in that: he served intoxicating liquor to DeLise causing DeLise to become intoxicated, knowing that he was a minor and that he intended to drive from the defendant's establishment; he violated state laws in serving liquor to a minor, a consequence of which was intoxication; and he violated state laws in serving liquor to a minor after he had become intoxicated. The defendant demurred to this count because it stated a cause of action not recognized at common law. The court sustained the demurrer and the plaintiffs have appealed.

In Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383, this state followed the common-law rule regarding the issue of liability of a vendor of intoxicating liquors to one who has suffered injury or damage caused by the intoxication of the purchaser of the liquor. It was therein stated (p. 436, 226 A.2d at 386): 'At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it. (45 Am.Jur.2d, Intoxicating Liquors, §§ 553-555); 48 C.J.S. 716 Intoxicating Liquors § 430; see note, 54 A.L.R.2d 1152. Although this court has not had occasion directly to approve the common-law rule, it has given strong intimation of a recognition of the rule in Pierce v. Albanese, (144 Conn. 241) 249, 129 A.2d 606 (appeal dismissed 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21), and London & Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 59, 119 A.2d 325. And the Superior Court directly adopted the common-law rule in Noonan v. Galick, 19 Conn.Sup. 308, 310, 112 A.2d 892.' Adherence to the common-law rule was again expressed in Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510. See also 75 A.L.R.2d 833. The Nolan case traced the origin of General Statutes § 30-102, commonly called the dram shop act, to its origin in 1872 when it was first enacted to overcome to some extent the overly harsh common-law rule. 1 The statute did not abrogate any common-law remedy, which, under any circumstances, could otherwise exist against a seller, as such, of intoxicating liquor. Nolan v. Morelli, supra, 439 n.2, 441-44, 226 A.2d 383. Its purpose was to provide a cause of action to one injured by an intoxicated person against a vendor when it is shown 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. London & Lancashire Indemnity Co. v. Duryea, supra, 57, 119 A.2d 325. It, therefore, requires no causal relation between the sale and the injury. Pierce v. Albanese, supra, 246, 129 A.2d 606.

The plaintiffs recognize that the settled law in this state and in the majority of jurisdictions is the common-law rule. They claim, however, that the 'modern trend' is to impose liability on the seller. They reason that if a jury finds that an unlawful sale was negligent, then it could reasonably find that the seller's negligence was a substantial factor in the plaintiff's injury or damage. The cases of Nolan v. Morelli, supra, and Moore v. Bunk, supra, declare that, as a matter of law, the negligent act of a seller or donor of intoxicating beverages is not a substantial factor in the plaintiff's injury. It is noteworthy that most of the cases cited by the plaintiffs in support of their claims are from jurisdictions where there is no dram shop act or where such an act does not have extraterritorial effect.

For over one hundred years, except for those years when the eighteenth amendment to the federal constitution was in effect, this state has determined by its adherence to the common-law rule, as modified by the dram shop act, that the reasoning by both the courts and the legislature was best suited and was in the best interests of the citizens of this state. There is no compelling reason advanced by these plaintiffs as to why the common-law rule should be abrogated. It appears that an important purpose of their request is that they not be limited in their recovery by the ceiling in the dram shop act. 2 Changing the limitation is a matter for the legislature. If the damage limitation is inadequate, then the proper remedy is to increase the statutory limitation by legislative enactment rather than by overturning established judicial principles and precedents. The court was not in error in sustaining the demurrer to the fourth count of the complaint.

There is no error.

In this opinion HOUSE, C.J., and LONGO and BARBER, JJ., concurred.

BOGDANSKI, Associate Justice (dissenting).

In my judgment the demurrer should have been overruled. The plaintiffs' complaint alleged facts which, if found to be true, would constitute negligent conduct. '(N)egligence is the failure to conform one's conduct to a standard of duty proscribed by legislative authority or to conform it to the common-law requirement to exercise reasonable care under the circumstances.' Guglielmo v. Klausner Supply Co., 158 Conn. 308, 318, 259 A.2d 608, 613. Certainly, a jury would not be remiss in determining that a tavern owner had breached his common-law duty of ordinary care in serving alcoholic beverages to an intoxicated person or a minor. Moreover, General Statutes § 30-86, which prohibits sales of alcoholic liquor to minors or intoxicated persons, was not enacted solely to protect those groups, but also to protect the public from the consequences of the excessive use of alcoholic liquor. Cf. Bania v. New Hartford, 138 Conn. 172, 177, 83 A.2d 165. The defendant's alleged conduct in making a sale in violation of the statute, therefore, would constitute negligence per se. Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246; Buravski v. DiMeola, 141 Conn. 726, 109 A.2d 867.

The old rule precluded recovery from a vendor of liquor for mischief done by an intoxicated person to whom he had negligently sold liquor. That rule was based upon the premise that, as a matter of law, it was not the sale of liquor by the vendor, but its consumption by the vendee, which was the proximate cause of resulting injuries. Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383. That premise is now regarded as antiquated and illogical, and that old view has been discarded or qualified in numerous jurisdictions. See, e.g., Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir.); Vance v. United States, 355 F.Supp. 756 (D. Alaska); Deeds v. United States, 306 F.Supp. 348 (D.Mont.); Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 46 P.2d 151; Pike v. George, 434 S.W.2d 626 (Ky.App.); Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292; Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18; Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618; Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1; Berkeley v. Park, 47 Misc.2d 381, 262 N.Y.S.2d 290; Mason v. Roberts, 35 Ohio App.2d 29, 300 N.E.2d 211, aff'd, 33 Ohio St.2d 29, 294 N.E.2d 884; Wiener v. Gamma Phi, 258 Or. 632, 485 P.2d 18; Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550. See also Davis v. Shiappacossee, 155 So.2d 365 (Fla.); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900; Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755; note, 'Liquor Vendor's Liability for Patron's Injuries to Third Persons,' 48 B.U.L.Rev. 502; note, 'Dram Shop Liability-A Judicial Response,' 57 Cal.L.Rev. 995, 1005; comment, 'Common Law Liability of Tavern Owners,' 1971 Wash.U.L.Q. 645; King, 'Common Law Liability of the Liquor Vendor,' 18 Western Res.L.Rev. 251.

'It is elementary that, in a negligence case, a causal relation between a defendant's breach of duty and a plaintiff's injury must be established in order for the plaintiff to recover. . . . Whether a defendant's conduct was in fact a cause of a plaintiff's injuries is peculiarly a question of fact for the jury. McDowell v. Federal Tea Co., 128 Conn. 437, 440, 23 A.2d 512; Mahoney v. Beatman, 110 Conn. 184, 195-97, 147 A. 762; Prosser, (Law of Torts (4th Ed.)) § 41, p. 237.' Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270, 273. Litigants have a constitutional right to have genuine issues of fact determined by the jury, not by the court. Conn.Const., art. I, § 19, amend. IV; Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 319 A.2d 403; Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352. A court is justified in concluding that a particular event is...

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