Noonan v. Galick

• Decision Date: 07 March 1955
• Docket Number: No. 101292,101292
• Citation: 19 Conn.Supp. 308,112 A.2d 892
• Court: Connecticut Superior Court
• Parties: Shirley NOONAN et al. v. Thomas GALICK et al.

Page 892

112 A.2d 892

19 Conn.Supp. 308

Shirley NOONAN et al. v. Thomas GALICK et al.

No. 101292.

Superior Court of Connecticut, Hartford County, at New Britain.

March 7, 1955.

Koskoff & McMahon, Plainville, for plaintiffs.

Snow Gene Munford and Schofield & Fay, Hartford, for defendants Thomas and Helen Galick.

J. Robert Lacey, Southington, for defendant Emanuel Maddalena.

PHILLIPS, Judge.

In this action an attempt is made to hold a permittee for the sale of liquor liable in common-law negligence for serving intoxicating liquors to the plaintiff in such quantities as to make her intoxicated and for serving them to her while intoxicated; and also in statutory negligence for serving her intoxicating liquors while intoxicated in violation of General Statutes, § 4239, and for serving such liquors to her after legal hours in violation of § 4296. It is alleged that in consequence of such negligence the plaintiff was subsequently run over while lying on the highway. Section 4307 of the General Statutes, which makes the seller of liquor to an intoxicated person liable to a person injured by the purchaser, is not directly involved in this case, as it is the intoxicated person herself who is here suing. The defendant has demurred to so much of the complaint as seeks to hold the permittee liable.

The plaintiff has cited no case at common law which renders the seller of intoxicating liquor liable under such circumstances. There is abundant authority for the proposition that no remedy exists against the dispenser of liquor for injuries and damage resulting from the acts of an intoxicated person except to the extent provided by statute. See 48 C.J.S., Intoxicating Liquors, § 430, p. 716, and cases cited. The rule in based on the theory that the proximate cause of the injury is the act of the purchaser in drinking the liquor and not the act of the vendor in selling it. Ibid. To provide a remedy in such cases, the so-called civil damage acts, or 'dram shop acts' have been passed in numerous states, including Connecticut. General Statutes, § 4307.

If there is no remedy at common law against the seller in favor of one injured by the purchaser of liquor, certainly there can be none in favor of the intoxicated person himself. In such a case, not only is the act of selling the liquor not the immediate cause of the injury, but if it were, the contributory negligence of the plaintiff himself would be a defense to the action as a matter of law. King v. Henkie, 80 Ala. 505.

Though there are few cases directly in point in the country, and none in Connecticut, the court has no hesitation in holding that in so far as the complaint endeavors to set up a common-law action of negligence against the defendant permittee, it is demurrable.

As to the allegations of statutory negligence by reason of the violation of § 4293 (selling liquor to an intoxicated person) and § 4296 (selling liquor after hours), a like conclusion is reached. While in general the violation of a statute is negligence per se, there are limitations to this rule. In order to base a recovery upon negligence in violation of a statute, it must appear that the injury suffered was of a nature which the statute was intended to guard against. Gonchar v. Kelson, 114 Conn. 262, 264, 158 A. 545....