Quinnett v. Newman

Covello, J.

The plaintiff, Phillip E. Quinnett, as administrator of the estate of his five year old son, Benjamin L. Quinnett, brought this action seeking damages for the wrongful death of his son. The dispositive issue is whether a common law cause of action in negligence or public nuisance exists against a commercial vendor who sells intoxicating liquor to an adult who thereafter, by reason of his intoxication, injures another. We conclude that neither a common law negligence action nor a public nuisance action against the vendor exists under such circumstances, the legislature having filled this field through the enactment of General Statutes § 30-102. Therefore, we find no error.

The jury might reasonably have found that on December 1, 1983, at approximately 5:15 p.m., Gary Mas-trobattisto stopped at Gindee’s bar in New Haven, an establishment operated by the defendants Virginia Newman and Gindee’s Corporation, where he remained for two to three hours. During that time, Mastrobat-tisto consumed three shots of tequila and six twelve ounce bottles of beer. He thereafter drove to Pickles bar in Branford, an establishment operated by the defendants Brett Kerr and Pacarrie, Inc. (defendants), where he remained for an additional two to three hours. While there, Mastrobattisto drank three more shots of tequila and six more twelve ounce bottles of beer. Shortly after leaving Pickles bar, Mastrobattisto drove his vehicle across the highway into the lane for oncoming traffic and struck the car carrying the plaintiffs decedent, causing the injuries that thereafter led to his death.

The suit involving Gindee’s bar was resolved by stipulated judgment. The case involving Pickles bar was thereafter submitted to the jury solely on the issues of wanton and reckless misconduct. See Kowal v. Hofner, 181 Conn. 355, 359-62, 436 A.2d 1 (1980). The trial court, J. Flanagan, J., directed the jury to render a verdict for the defendants on the remaining counts of the complaint, concluding that, as a matter of law, there is no cause of action based upon negligence or public nuisance in selling alcohol to an adult who thereafter injures another by reason of his intoxication. The jury returned a verdict in favor of the defendants on the recklessness count and as directed by the court on the remaining counts. The trial court denied the plaintiffs motion to set aside the verdicts on counts one, two, three and four and thereafter rendered judgment for the defendants. The plaintiff appealed to the Appellate Court. We then transferred the appeal to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff claims that the trial court erred: (1) in failing to charge the jury as requested on the issues of negligence and public nuisance; (2) in directing a verdict in favor of the defendants on those counts that alleged negligence and a public nuisance; and (3) in denying his motion to set aside the verdicts. We find no error.

At common law there is no cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated. “While such acts may constitute the breach of a duty owed to others, the cause of action in a variety of factual settings has uniformly failed for the reason that the subsequent injury has been held to have been proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about intoxication and the subsequent injury. Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Kowal v. Hofner, [supra, 357-58]; Slicer v. Quigley, 180 Conn. 252, 255-56, 429 A.2d 855 (1980); Nelson v. Steffens, 170 Conn. 356, 358-59, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383 (1967).” Ely v. Murphy, 207 Conn. 88, 92-93, 540 A.2d 54 (1988).

In Ely v. Murphy, supra, we recognized a limited exception to this long-standing proposition and held that the consumption of alcohol by a minor did not “constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.” Id., 95. The basis of this holding lay in the fact that minors, by reason of their youth, lacked the legal capacity “voluntarily” to consume alcohol and, therefore, the fact that they did so, did not, as a matter of law, break any chain of proximate causation that might otherwise exist. Id.

The plaintiff argues, however, that so long as the defendant sellers’ conduct was a substantial factor in producing the plaintiff’s injury, it becomes a question of fact in all events as to whether the subsequent consumption of alcohol breaks the chain of proximate causation. See, e.g., Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 29-30, 266 A.2d 370 (1969). “However, proximate causation is [also] a matter of public policy and therefore subject to the changing attitudes and needs of society. [W. Prosser, Torts (4th Ed. 1971), pp. 206, 244-45.]” Vance v. United States, 355 F. Sup. 756, 761 (D. Alaska 1973). Despite the assertions made by the minority in their dissenting opinions, the issue is not whether one disapproves of irresponsible drinking and its too often tragic results on the highways and roadways of our state, but rather, whether this court can intrude where the legislature has so clearly chosen to act. To the extent that the General Assembly sees fit to articulate public policy through specific legislation, we are bound to honor the means by which it addresses the policy issue in question.

“In Connecticut, as far back as 1872, it came to be felt that the . . . common-law rule [limiting the liability of purveyors of alcohol] was to some extent overly harsh and should be modified by statute. . . . The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for ‘any damage or injury to any other person, or to the property of another’ done by the intoxicated person ‘in consequence’ of his intoxication. Thus, this act, in situations where it was applicable, displaced the common-law rale that the proximate cause of intoxication was not the furnishing of the liquor but its consumption.” Nolan v. Morelli, supra, 437. The modern version of this so-called civil damage or dram shop act is General Statutes § 30-102.¹ Despite numerous amendments throughout its one hundred twenty-nine year history, the act’s applicability remains essentially unchanged.

Unlike the social host-minor guest situation found in Ely v. Murphy, supra, which is not addressed in § 30-102, we are here confronted with a tavern seller-adult patron situation, the precise factual circumstance contemplated by § 30-102. This being the case, we defer to the legislative policy as it is articulated by § 30-102 and leave the plaintiff to the remedy set forth therein.

It appears that an important reason for the plaintiff to seek to abrogate the common law rule is to avoid the financial limitations imposed by § 30-102.² “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.” Nelson v. Steffens, 170 Conn. 356, 361, 365 A.2d 1174 (1976), overruled on other grounds, 207 Conn. 88, 95, 540 A.2d 54 (1988).

The plaintiff further claims that the trial court erred in refusing to charge the jury as requested on public nuisance and in directing a verdict in favor of the defendants on those counts of the complaint that alleged the defendants’ creation of a public nuisance. He argues that the sale of substantial amounts of alcohol to one who thereafter operates a motor vehicle upon a public highway is analogous to the types of acts that have been held to be public nuisances.

A nuisance, whether public or private, describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). The term nuisance refers to the condition that exists and not to the act or failure to act that creates it. If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable. DeLahunta v. Waterbury, 134 Conn. 630, 633-34, 59 A.2d 800 (1948). If the condition claimed to be a nuisance arises out of the creator’s unintentional but negligent act, i.e., a failure to exercise due care, the resulting condition is characterized as a negligent nuisance. Kostyal v. Cass, 163 Conn. 92, 98-99, 302 A.2d 121 (1972). “[T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter.” Id., 99.

In order to establish a cause of action in nuisance, the plaintiff must prove that the inherently dangerous condition is a continuing one and was the proximate cause of the plaintiffs injuries and damages. State v. Tippetts-Abbett-McCarthy-Stratton, supra.

In the present context, the inherently dangerous condition claimed to constitute a nuisance is the intoxicated adult operator of the motor vehicle. The proximate cause of the adult motorist’s intoxicated condition, however, lies in his own immoderate use of the alcohol and not in its service to him by the defendant sellers. Ely v. Murphy, supra, 95. Since the alleged act of the purveyors’ cannot be the proximate cause of the injuries and damages that thereafter followed, the nuisance claim is fatally flawed and the trial court correctly struck this count from the amended complaint and properly withdrew it from the jury’s consideration.

There is no error.

In this opinion Shea and Callahan, Js., concurred.

1 General Statutes § 30-102 provides in relevant part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section.”

2 General Statutes § 30-102 limits damages to $20,000 per injured person up to an aggregate amount of $50,000. See footnote 1, supra.