Pawlowski v. Delta Sigma PHI Fraternity, Inc.

• Decision Date: 27 October 2010
• Docket Number: No. CV–03–0484661–S.,CV–03–0484661–S.
• Citation: 52 Conn.Supp. 186,35 A.3d 410
• Court: Connecticut Superior Court
• Parties: Robert PAWLOWSKI, Administrator (Estate of Steven Pawlowski), et al. v. DELTA SIGMA PHI FRATERNITY, INC., et al.*

35 A.3d 410
52 Conn.Supp. 186

Robert PAWLOWSKI, Administrator (Estate of Steven Pawlowski), et al.
v.
DELTA SIGMA PHI FRATERNITY, INC., et al.*

No. CV–03–0484661–S.

Superior Court of Connecticut,Judicial District of New Haven.

Oct. 27, 2010.

[35 A.3d 412]

Richard L. Newman, for the plaintiffs.

Lawrence H. Adler, East Hartford, for the defendant Conor Melville.

B. FISCHER, J.

[52 Conn.Supp. 187] The plaintiffs, Robert Pawlowski and Joan Pawlowski, are the administrators of the estate of their son, Steven Pawlowski. In that capacity, the plaintiffs initiated this wrongful death action, which stems from Pawlowski's death on November 10, 2001. Pawlowski was struck and killed by a car after he attended a party organized by members of the Delta Sigma Phi fraternity (fraternity) at 3327 Whitney Avenue, a private residence. The plaintiffs allege that Pawlowski, who was eighteen at the time of his death, was served alcohol that was purchased and served by members of the fraternity and became intoxicated.

The present action is defendant Conor Melville's motion for summary judgment on counts nine and ten of the plaintiffs' second amended complaint, dated May 3, 2006. The plaintiffs allege the following against Melville. At the time of Pawlowski's death, Melville was a Quinnipiac University student, a member of the fraternity and a resident of 3327 Whitney Avenue. Melville and/or other members of the fraternity advertised a party to be held at 3327 Whitney Avenue on November 9, 2001 (party). As a member of the fraternity, Melville [52 Conn.Supp. 188] hosted the party and served alcoholic beverages to Pawlowski. The death of Pawlowski was caused by the negligence and recklessness of Melville in that he: provided alcoholic beverages to Pawlowski; failed to follow and/or enforce the procedures of the fraternity; failed to

[35 A.3d 413]

take adequate measures to prevent underage guests, including Pawlowski, from drinking alcoholic beverages; failed to supervise guests to prevent consumption of alcoholic beverages by underage guests; failed to provide an adequate system or any system to ascertain the age of guests; failed to supervise the guests knowing that alcoholic beverages were being provided and/or consumed; failed to provide safe transportation for intoxicated guests; and provided alcohol to Pawlowski when he knew or should have known that Pawlowski was a minor.

Melville filed his motion for summary judgment on December 17, 2009. That was accompanied by a memorandum of law. The plaintiffs filed an objection to Melville's motion for summary judgment on July 14, 2010. The defendant filed a reply brief on September 7, 2010.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99–100 n. 7, 931 A.2d 859 (2007). “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) [52 Conn.Supp. 189] Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). “[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). Once the movant has met his burden, the burden shifts to the opposing party to “present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” Id., at 319, 901 A.2d 1207. “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.” (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

Melville makes two arguments in support of his motion for summary judgment. First, he contends that he is entitled to summary judgment on the plaintiffs' negligence claim because he did not owe a duty to Pawlowski. With regard to the plaintiffs' recklessness claim, he argues that there is no evidence that he knowingly and recklessly enabled Pawlowski to consume alcohol. In support of his motion, Melville submits his affidavit and a copy of his deposition testimony. The plaintiffs contend that there is circumstantial evidence sufficient for a jury to infer that Pawlowski's death was the result of Melville's negligence and recklessness. The plaintiffs have presented the following evidence in support of their arguments: a copy of the alleged “ticket” to the party; an excerpt of the deposition testimony of Conor Melville; an excerpt of the deposition testimony [52 Conn.Supp. 190] of Daniel McCabe; and an excerpt

[35 A.3d 414]

of the deposition testimony of Christopher Thoman. ¹

I

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury.” LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty.... The existence of a duty is a question of law.... Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand.” (Internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).

Under Connecticut case law, in order to hold a defendant liable as a social host for negligently providing alcohol to a minor, the defendant must have either purveyed or supplied such alcohol. See Rangel v. Parkhurst, 64 Conn.App. 372, 380–81, 779 A.2d 1277 (2001) (affirming trial court decision granting summary judgment to defendants who may have known their minor son was storing...