DocketNumber： SC 16608
Citation Numbers： 262 Conn. 312
Judges： Katz, Sullivan, Zarella
Filed Date： 2/4/2003
Status： Precedential
Modified Date： 9/8/2022
Connecticut’s Dram Shop Act, General Statutes § 30-102 (act),
The plaintiffs’ amended complaint alleged the following relevant facts, as set forth in the Appellate Court opinion.
“At 12:10 a.m. on May 22, 1996, Sarah Craig was a pedestrian on the west shoulder of Route 272 near its intersection with Route 44 in Norfolk. At that time, Driscoll, who had left The Pub, was operating a motor vehicle south on Route 44 when he caused the vehicle to veer off the roadway and strike Craig. Very shortly thereafter, Valerie P. Craig, the mother of Sarah Craig, and Samuel Craig, the brother of Sarah Craig, arrived
On the basis of these alleged facts, the plaintiffs filed an amended sixteen count complaint. In counts three through six, the plaintiffs alleged that the defendants negligently and recklessly had inflicted emotional distress on them as bystanders. In counts seven through twelve, the plaintiffs alleged that the defendants negligently and recklessly had caused loss of consortium. Thereafter, the defendants filed a motion to strike counts three through twelve, which the trial court granted.
In the Appellate Court, the plaintiffs claimed that the trial court improperly had granted the defendants’ motion to strike, contending, among other things,
The Appellate Court concluded that the plaintiffs’ complaint stated a cause of action for both negligent and reckless infliction of bystander emotional distress. Id., 718, 722. With respect to the plaintiffs’ negligence counts, the Appellate Court first noted that the defendants had conceded that the facts alleged in the plaintiffs’ complaint satisfied the four part test for establishing negligent infliction of bystander emotional distress under Clohessy v. Bachelor, supra, 237 Conn. 52-54.
The Appellate Court next focused on the question of whether the furnishing of alcohol to an intoxicated
Finally, with respect to the plaintiffs’ counts alleging reckless infliction of bystander emotional distress, the Appellate Court rejected the defendants’ contention that these counts merely restated the plaintiffs’ negligence allegations. Id., 722. The court noted, inter alia, that, in the counts alleging recklessness, the plaintiffs had alleged that the defendants had instituted a policy to continue to serve intoxicated patrons generally, and Driscoll specifically. Id., 719-22. Accordingly, the Appellate Court reversed the trial court’s judgment in favor of the defendants. Id., 723. This certified appeal followed.
On appeal here, the defendants essentially renew the claims that they raised before the Appellate Court. First, they claim that the Appellate Court improperly determined that the plaintiffs’ complaint stated a cause of action for negligent infliction of emotional distress on a bystander. The defendants contend that the act and established common-law rules of causation preclude
“Before addressing the merits of the [defendants’] claim[s], we set forth the standard of review applicable to an appeal challenging the trial court’s granting of a motion to strike. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).” (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002).
I
The defendants contend that the act provides the exclusive remedy against a seller for negligently furnishing alcoholic liquor. The defendants further contend that Driscoll’s voluntary consumption of the alcoholic liquor, not the defendants’ furnishing of it to him, proximately caused Driscoll’s intoxication and the plaintiffs’
A
In order to determine whether the act provides the exclusive remedy for injuries arising as a result of a purveyor’s sale of alcoholic liquor to an intoxicated patron, we begin with an overview of the relevant legal landscape. “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.” Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967). Common-law tort claims against purveyors routinely failed, therefore, because the consumption of the liquor was viewed as an intervening act breaking the chain of causation between the purveyor and the ensuing injury caused by the intoxication. Bohan v. Last, supra, 236 Conn. 676; see Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Kowal v. Hofher, supra, 181 Conn. 357-58; Nelson v. Steffens, 170 Conn. 356, 358, 365 A.2d 1174 (1976), overruled on other grounds, Ely v. Murphy, supra, 207 Conn. 95; Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510 (1967), overruled on other grounds, Ely v. Murphy, supra, 95.
“In Connecticut, as far back as 1872, it came to be felt that the foregoing common-law rule was to some extent overly harsh and should be modified by statute. Such statutes, which were enacted in numerous other states, came to be known as civil damage or dram shop
The act, therefore, modified the common-law rule. A common-law rule, however, may be “subject to both legislative and judicial modification.” Ascuitto v. Farricielli, 244 Conn. 692, 698, 711 A.2d 708 (1998). Accordingly, the issue in this case is whether the legislature, by creating an affirmative remedy, has manifested an intention to occupy the field or whether a common-law remedy would conflict with or frustrate the purpose of the act, so as to stay our hand in recognizing an action
In Kowal v. Hofher, supra, 181 Conn. 355, this court was confronted with precisely the same preemption issue as in the present case. The plaintiffs complaint in Kowal had alleged that the defendants, a restaurant owner and his employees, “served alcoholic beverages
The court in Kowal explained: “There is no specific provision in this statute which bars a common-law action or otherwise preempts the field of liability of a seller of liquor. This statute, which requires no showing of a causal relation between the sale of intoxicating liquor and the subsequent injury, was enacted to fill the void created by the old rule’s disallowance of any action against the barkeeper grounded in negligence. The underlying premise of the [act] is that it is in the public interest to compensate citizens of this state for injuries received when a vendor sells alcohol to an intoxicated person who in turn brings about injuries as a result of such intoxication. There is absolutely no indication, however, that where causation is adequately traced back to the barkeeper who served an intoxicated person an alcoholic beverage the legislature, nevertheless, intended the [act] to be the injured plaintiff’s exclusive remedy. . . . If the plaintiff has no cause of action against the bartender for negligence, it is not the statute but rather the common law which denies the plaintiff a right of recovery.” (Citations omitted; emphasis added.) Id., 358-59. Nonetheless, this court applied the common-law rule to preclude the plaintiffs claim in negligence; id., 359; but determined that the plaintiffs claim based on reckless conduct
Ten years after the Kowal decision, in Quinnett v. Newman, supra, 213 Conn. 344, this court concluded that the act precludes a common-law negligence action against a purveyor for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another. Citing the numerous amendments over the long history of the act and concluding that this court must honor the legislature’s clear expression of public policy; id., 347-48; the majority of the court, with two justices dissenting, held that the legislature had “filled the field through the enactment of ... § 30-102.” Id., 344. That decision does not, however, distinguish or, indeed, even mention the court’s holding in Kowal.
Viewing the decisions together, and in the absence of any principled distinction in the context of the preemption issue, differentiating between tort actions against purveyors for negligently serving alcoholic liquor to intoxicated persons and actions alleging reckless service, it is apparent that Quinnett cannot be reconciled with this court’s holding in Kowal. As between the two decisions, we conclude that Kowal more properly reflects our preemption jurisprudence.
We first note that there is nothing in the act to suggest that the legislature intended to occupy the field, either in its language or its legislative history. See Manchester Sand & Gravel Co. v. South Windsor, supra, 203 Conn. 276. We next consider the intervening ten years between the decisions in Kowal in 1980 and Quinnett in 1990. Specifically, we note that, after the Kowal decision, the legislature did not amend the act to clarify its intention
We also note, however, the legislative silence, regarding § 31-102, in the twelve years following Quinnett, but draw no reliable inferences from the legislature’s failure to respond to our holding in that case. Because Quinnett neither overruled Kowal nor addressed its holding, and because, as we have noted, the decisions rationally cannot be reconciled on the question of legislative preemption, the legislative silence could just as reliably reflect an implied adoption of Kowal as of Quinnett. We, therefore, approach the question in this case unfettered by any notion that the legislature has indicated a policy preference in either direction.
Finally, we note that recognition of a common-law negligence action neither conflicts with the act nor thwarts its underlying purpose. Cf. Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 717-18 (limited exemption for small employers in comprehensive employment discrimination scheme preempts common-law discrimination remedy). The act provides a means of recovery for plaintiffs who are unable to prove causation and culpability, subject to a statutory limita
A tort action would provide an avenue to recover full compensation, but only upon establishing the requisite culpability and causation. In this manner, the tort action would supplement, rather than conflict with, the act. Cf. Skorpios Properties, Ltd. v. Waage, 172 Conn. 152, 156, 374 A.2d 165 (1976) (statute “provided a new, affirmative remedy, and contained no express or implied intention to abrogate or supersede the common-law remedy available to the plaintiff; it was an additional, but not an exclusive, remedy”). Moreover, the legislature enacted the act to alleviate the harsh effects of the common-law rule on innocent third parties. Nolan v. Morelli, supra, 154 Conn. 437. By recognizing a common-law negligence action for injuries caused by an intoxicated adult patron against purveyors of alcoholic
The soundness of Quinnett is therefore seriously undermined. Accordingly, we conclude that the holding of Quinnett v. Newman, supra, 213 Conn. 353, that the act precludes a common-law negligence action against a purveyor for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another, must be overruled.
B
Having concluded that the act does not occupy the field, thus reaffirming the holding of Kowal, we next determine whether we should, as a matter of our common-law authority, recognize an action against a purveyor who negligently serves alcoholic liquor to an adult patron who, as a result of his intoxication, injures another. We begin by setting forth the well established rules of our negligence jurisprudence. In order to prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct “legally caused” the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury. Paige v. St.
“The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct.” Kowal v. Hofher, supra, 181 Conn. 359. The test of proximate cause is whether the defendant’s conduct is a “substantial factor” in producing the plaintiffs injury. The substantial factor test asks, “whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973). This requirement “tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. ... In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. . . .
“The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. ... In applying this test, we look from the injury to the negligent act complained of for the necessary causal connection. . . .
“The scope of the risk analysis of proximate cause similarly applies where . . . the risk of harm created by the defendant’s negligence allegedly extends to an
The defendants argue that negligently providing alcoholic beverages to an already intoxicated patron or a patron known to them to be an alcoholic cannot be the proximate cause of subsequent injuries caused by the intoxicated person. Indeed, historically, a claim in negligence against the purveyor has failed on the theory that the injury was “proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage [brought] about intoxication and the subsequent injury.” (Internal quotation marks omitted.) Bohan v. Last, supra, 236 Conn. 676. In other words, we effectively presumed, by ruling as a matter of law, that the ingestion of alcohol by the patron acted as an intervening force sufficient to shift the entire causation element to some entity or entities other than the purveyor. That presumption, however, runs counter to our proximate cause jurisprudence generally, in which a tortious act by a third party does not act as an intervening force if such acts are within the scope of the risk created.
Indeed, in recognition of these fundamental principles of our proximate cause jurisprudence, we have made significant inroads in this specific area. See id., 681; Ely v. Murphy, supra, 207 Conn. 97; Kowal v.
1
We turn, therefore, to our proximate cause jurisprudence. In Kowal v. Hohfer, supra, 181 Conn. 360-61, this court held that the plaintiff properly could bring a cause of action against a restaurant owner and permit-tee, his agents and employees, for recklessly serving alcoholic beverages to a patron who was already intoxicated and who, thereafter, operated his vehicle in a negligent manner causing the resulting injuries to the plaintiffs decedent. That holding was premised on the court’s conclusion that the policy considerations that justify protecting a vendor or social host from common-law liability for the injurious consequences of negligent conduct in the sale or serving of alcoholic beverages did not apply with respect to wanton and reckless misconduct. Id. The proximate cause test established by this court, however, is not predicated on the theory upon which an injured party endeavors to impose tort liability.
As we have stated in other contexts: “The circumstances under which this [causation shift] may take place have been well-defined in our case law. Even if a plaintiffs injuries are in fact caused by a defendant’s negligence, a superseding cause may break that causal connection if it so entirely supersedes the operation of
“It is clear that the furnishing of an alcoholic beverage to an intoxicated person may be the proximate cause of injuries inflicted by that individual upon a third person. If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and injury-producing conduct are foreseeable intervening causes, or at least the injury-producing conduct is one of the hazards which make such furnishing negligent.” Slicer v. Quigley, 180 Conn. 252, 267, 429 A.2d 855 (1980) (Bogdanski, J., dissenting), overruled on other grounds, Ely v. Murphy, supra, 207 Conn. 95. This is true irrespective of whether the degree of care by the purveyor was negligent or reckless. That is to say, the issue of whether intoxication by the person to whom the alcohol has been furnished acts as a superseding cause does not depend upon the state of mind of the person supplying the alcohol. In deciding this issue, therefore, we discern no principled distinction between the purveyor who acts negligently and the one who acts recklessly when furnishing liquor in relation to whether its consumption by a negligent driver is an intervening act breaking the chain of causation.
Our prior cases also have recognized the substantial causal relationship between the negligent service of alcoholic beverages and the injuries that occur as the result of drunkenness. In Ely v. Murphy, supra, 207 Conn. 88, in the context of the liability of social hosts who allegedly had provided alcohol to underage guests at a graduation party, this court reexamined the logic of its previous decisions rejecting a common-law action in negligence, and concluded that the hosts could be liable for injuries caused by one of the minor guests, who, after leaving the party, operated an automobile while intoxicated and killed another guest. The court expressed doubt about the logic, when applied to a minor, of the common-law presumption that intoxication results from the voluntary conduct of a person who has exercised a knowing and intelligent choice to consume intoxicating liquor. Id., 93-94. Further, the court found it persuasive that our state’s public policy, as manifested in numerous relevant civil and criminal statutes, “reflect[s] a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.” Id., 94.
Thereafter, in Bohan v. Last, supra, 236 Conn. 671, we concluded that purveyors of alcohol to minors at a bar likewise may be hable in negligence to such minors, or to innocent third parties. “Wherever minors become intoxicated, whether in a bar or in a private residence, they are unlikely to appreciate fully the consequences of their intoxication. Wherever minors become intoxicated, their subsequent intoxicated misconduct creates a risk of personal injury and death not only to themselves, but also ... to innocent third parties.” Id., 678. These cases, therefore, recognize that the chain of causation between the negligent provision
3
Finally, because this is an issue of our common-law jurisprudence, we examine the issue taking into account the relevant policy considerations. Specifically, we are mindful of the horrors that result from drinking and driving, horrors to which we unfortunately have grown more accustomed.
“The time has arrived when this court should again exercise its inherent power as the guardian of the common law and hold upon general principles of common-law negligence a person, who, when he knows or should have known a person is intoxicated, sells or gives intoxicating liquor to such a person, is guilty of a negligent act; and if such negligence is a substantial factor in causing harm to a third person, he should be hable with the drunken person under our comparative-negligence doctrine. Conceded, the common law in this state for over one hundred years has been to the contrary . . . but the basis upon which these cases were decided is sadly eroded by the shift from commingling alcohol and horses to commingling alcohol and horsepower. [Garcia v. Hargrove, 46 Wis. 2d 724, 737, 176 N.W.2d 566 (1970) (Hallows, C. J., dissenting).]” (Citations omitted; internal quotation marks omitted.)
“The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics.” (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996); accord State v. Troupe, 237 Conn. 284, 303-304, 677 A.2d 917 (1996). Accordingly, “[i]nherent in the common law is a dynamic prin
We conclude that sensible reform is appropriate in this area. The issue of whether to recognize a common-law cause of action in negligence is a matter of policy for the court to determine based on the changing attitudes and needs of society. In making such a determination, we are mindful that the law of torts involves the allocation of losses arising out of human conduct, and its purpose is to adjust these losses by affording compensation for injuries sustained by one person as a result of the conduct of another. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 1, p. 6. It seems self-evident that the serving of alcoholic beverages to an obviously intoxicated person by one who knows or reasonably should know that such intoxicated person intends to operate a motor vehicle creates a reasonably foreseeable risk of injury to those on the roadways.
Therefore, in conclusion, in recognition of fundamental principles of our proximate cause jurisprudence, and our case law epitomizing the judicial recognition of the substantial causal relationship between the negligent service of alcoholic beverages and the injuries that occur as the result of drunkenness, we expressly reject the claim that a purveyor who provides alcoholic beverages to an already intoxicated patron or a patron known to him to be an alcoholic cannot, as a matter of law, be the proximate cause of subsequent injuries caused by the intoxicated person. As recognized in both dissents in Quinnett, it is now time to discontinue the “fiction that the behavior of anyone who is under the influence of alcohol is automatically, as a matter of law, an intentional intervening act that reheves the liability of a vendor of alcohol even though the vendor’s negligence is otherwise established.”
II
The defendants also contend that the Appellate Court improperly determined that the allegations in the plaintiffs’ complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander.
The plaintiffs’ complaint, in the counts for reckless infliction of bystander emotional distress, alleged the following facts: “The collision, the injuries to Sarah Craig, and the severe emotional injury sustained by [the plaintiffs], were caused by the willful, wanton and/or reckless actions of the [defendants] in one or more of the following ways: (a) in that [Davis] instituted a policy in which he required one or more of his employees or the employees of The Pub or [Hawk’s Nest] to continue to serve alcohol to patrons who were intoxicated and instructed them not to refuse service to such patrons, said policy resulting in the service of alcohol to [Driscoll] on May 21, 1996, while he was in an intoxicated state . . . (b) in that [Davis] instituted a policy with regard to [Driscoll] in particular in which he required one or more of his employees, or the employees of The Pub or [Hawk’s Nest] to continue to serve alcohol to
We are guided by the Appellate Court’s thoughtful statement of our relevant case law in deciding this issue. “To determine whether the plaintiffs’ amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one’s acts. ... It is more than negligence, more than gross negligence. . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . Wanton misconduct is reckless misconduct. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . .
“While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or
The defendants are mired in the fact that, aside from the addition of the words “willful, wanton and/or reckless actions,” the plaintiffs’ allegations in their reckless counts mirror their assertions in the counts charging the defendants with negligence. Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted. See Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940). As set forth previously, the plaintiffs’ complaint alleges conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger.
In this opinion BORDEN and PALMER, Js., concurred.
General Statutes § 30-102 provides: “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, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of his estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.”
The plaintiffs commenced this action against Steven Driscoll, Davis, Hawk’s Nest and Allstate Insurance Company. Because this appeal pertains only to the counts alleging bystander emotional distress against Davis and Hawk’s Nest, we hereafter refer to Davis and Hawk’s Nest as the defendants.
The original plaintiffs were Valerie P. Craig, John S. Craig and Samuel Craig, respectively, the mother, father and brother of the decedent, Sarah
“Because the issues concern the granting of a motion to strike, we are limited to and must accept as true the facts alleged in the plaintiffs’ amended complaint dated May 28, 1998. See Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996).” Craig v. Driscoll, supra, 64 Conn. App. 702.
The trial court also granted the defendant Allstate Insurance Company’s motion to strike count sixteen. That count, which subsequently was withdrawn, had been brought by John S. Craig to recover under the underinsured motorist provision of his insurance policy and had alleged loss of consortium. That determination by the trial court is not before us in this appeal.
The remaining counts of the plaintiffs’ complaint stated causes of action against Driscoll, the driver of the automobile. The Appellate Court noted that, because the trial court’s judgment with respect to counts three through twelve disposed of all counts against Davis and Hawk’s Nest, it constituted
Specifically, the plaintiffs raised the following claims in their brief to the Appellate Court: (1) the facts alleged in their complaint supported a claim for bystander emotional distress against the defendant purveyors of alcohol under the doctrine of Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996); (2) their common-law claim was not precluded by the act because Quinnett v. Newman, supra, 213 Conn. 343, was wrongly decided; (3) the trial court improperly applied a narrow view of proximate cause under the common law, which has been abandoned by more recent case law; (4) the facts alleged in their complaint beyond negligent service of alcoholic liquor support a common-law negligence action; (5) the court should recognize an exception to the common-law rule for negligent service to a known alcoholic as an extension of the doctrines of Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), and Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996); and (6) their allegations beyond negligence supported a common-law cause of action for recklessly furnishing alcoholic liquor.
In Clohessy v. Bachelor, supra, 237 Conn. 52-54, we recognized an action at common law for negligent infliction of emotional distress on a bystander, subject to satisfying the following factors: (1) “the bystander must be ‘closely related to the injury victim’ id., 52; (2) “the bystander’s emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury”; id.; (3) “the injury to the victim must be substantial, resulting either in death or serious physical injury”; id., 53; and (4) the “bystander must have sustained a serious emotional injury . . . .” Id., 54.
This court granted the defendants’ petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the plaintiffs’ complaint stated a cause of action for (1) negligent infliction of emotional distress on a bystander and (2) reckless infliction of emotional distress on a bystander?” Craig v. Driscoll, 258 Conn. 931, 785 A.2d 228 (2001). Thereafter, the defendants filed a motion for this court to take judicial notice of an action pending in the Superior Court between the same parties to this appeal, in which action the plaintiffs alleged a violation of the act. We granted the motion to take judicial notice of the existence of the action, but denied the motion without prejudice with respect to taking judicial notice of the contents of the file in that action. We also granted an application by the Connecticut Trial Lawyers Association, Mothers Against Drunk Driving Connecticut State Organization and the Brain Injury Association of Connecticut to appear as amici curiae and to file ajoint brief, pursuant to Practice Book § 67-7.
The Public Acts of 1882, c. 107, pt. VI, § 12, restricted liability to sales of liquor “to be drunk on the premises . . . . ” That restriction, however, was eliminated when the act in its present form was adopted in the post-Prohibition period. Nolan v. Morelli, supra, 154 Conn. 438.
Although typically the issue presented is whether a statute has abrogated a recognized common-law action or theory; see, e.g., Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 693-94, 802 A.2d 731 (2002); Daily v. New Britain Machine Co., 200 Conn. 562, 571-72, 512 A.2d 893 (1986); Dzenutis v. Dzenutis, 200 Conn. 290, 300-301, 512 A.2d 130 (1986); State v. Nugent, 199 Conn. 537, 547, 508 A.2d 728 (1986); the principles applied in those instances equally apply to cases, such as the present one, in which the issue is whether the legislature’s action preempts this court’s common-law authority to recognize a cause of action not in existence at the time of the statute’s enactment.
The 1986 and 1987 amendments, respectively, added and deleted a subsection establishing a rebuttable presumption that the last seller of liquor was solely liable.
Moreover, as former Chief Justice Peters noted in her dissent in Quinnett v. Newman, supra, 213 Conn. 353, the majority’s holding in that case gives rise to an anomalous distinction between providers of alcohol who are merchants and other providers such as the social host—the former being shielded by the act from liability above the statutory limitation on recovery; the latter being unprotected and subject to limitless liability under the common law. See, e.g., Ely v. Murphy, supra, 207 Conn. 88.
We recognize that there is language in Nolan v. Morelli, supra, 154 Conn. 439-40, that suggests that preemption may have been a basis for rejecting the plaintiffs negligence claim in that case. The facts in that case are readily distinguishable, however, from those presented in either Kowal or Quinnett. See Quinnett v. Newman, supra, 213 Conn. 351 (Peters, C. J., dissenting) (noting importance of distinction between circumstances in each case). In Nolan, the plaintiff had sought to recover on behalf of the intoxicated person himself. Nolan v. Morelli, supra, 434. Although we do not address directly in this case the question of whether to recognize an action at common law on behalf of an intoxicated person against a seller of alcoholic liquor, our resolution of the preemption issue does not turn on that distinction.
We appreciate the concern that this court should defer to the legislature because of the importance of this issue as a matter of public policy. Relinquishing the field to the legislature in an area in which this court has common-law authority, however, creates a result no different in effect than if we were to have determined that the act preempts our authority.
“The terms intervening cause and superseding cause have been used interchangeably. See, e.g., Corey v. Phillips, 126 Conn. 246, 253-56, 10 A.2d 370 (1939). The Restatement of Torts makes clear that the doctrine is properly referred to as superseding cause, and that it embodies within it the concept of an intervening force. 2 Restatement (Second), Torts §§ 440 through 453 [1965].
“The function of the doctrine of superseding cause is not to serve as an independent basis of liability, regardless of the conduct of a third party whose negligent conduct may have contributed to the plaintiffs loss. The function of the doctrine is to define the circumstances under which responsibility may be shifted entirely from the shoulders of one person, who is determined to be negligent, to the shoulders of another person, who may also be determined to be negligent, or to some other force. A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. Id., § 440.
“If the third person’s negligence is determined to be a superseding cause of the plaintiffs injury, that negligence, rather than the negligence of the party attempting to invoke the doctrine of superseding cause, is said to be the sole proximate cause of the injury. . .. The doctrine serves as a dividing line between two closely related factual situations: where two forces combine to cause the plaintiffs injuries; and where one force intervenes in such a way as to relieve a negligent defendant from liability. See generally [id.] §§ 440 through 453. Thus, the doctrine of superseding cause serves as a device by which one admittedly negligent party can, by identifying another’s superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere.” (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 178-79, 700 A.2d 38 (1997).
The National Highway Traffic Safety Administration cites the following statistics for the nation and Connecticut:
In 2000,16,653 people died in alcohol-related motor vehicle accidents on our nation’s highways, an average of one alcohol-related death every thirty-two minutes. Thirty-one percent of these accidents involved intoxicated persons with blood alcohol concentration of 0.10 or greater; in those accidents, almost one third of the fatalities were passengers, nonintoxicated drivers or nonoccupants.
In 2000, approximately 310,000 people were injured in alcohol-related motor vehicle accidents, an average of one person injured every two minutes.
In 2000, it was estimated that about three in every ten Americans will be involved in an alcohol-related crash at some time in their lives.
In 2000, 158 people died in Connecticut in alcohol-related motor vehicle accidents, constituting 46 percent of all traffic fatalities. Connecticut had one of the highest alcohol-related traffic fatality rates in the nation, with only nine states having higher rates. National Highway Traffic Safety Administration, Traffic Safety Facts 2000, at www.nhtsa.dot.gov/people/ii\jury/alcohol/facts.htm.
The National Highway Traffic Safety Administration also cited these additional statistics:
In 1998, alcohol-related traffic accidents cost Connecticut more than $900 million, including more than $300 million in monetary costs and more than $600 million in quality of life costs.
In 1998, the average cost to Connecticut per alcohol-related fatality was $4.2 million. The estimated cost per injured survivor was on average $105,000. National Highway Traffic Safety Administration, Impaired Driving in Connecticut, at www.nhtsa.dot.gov/people/injury/alcohol/CT.htm/ facts.htm.
Indeed, the legislature has recognized the severity of the risks associated with the service of alcoholic liquor to persons not able to exercise reasonable judgment. See General Statutes § 30-86, which provides in relevant part: “Any permittee or any servant or agent of a permittee who sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113. ...”
The dissent suggests that, in some instances, permitting common-law recovery may lead to an “injustice” when the purveyor is unable to pay its apportionment of the damages assigned, thus shifting liability from the intoxicated driver, but leaving the victim with less than full recovery. See footnote 7 of the dissenting opinion. Although such a situation is in the realm of possibilities, we note that it is as likely, if not more so, that the intoxicated driver will be unable to pay the full proportion of damages assigned to him due to insufficient insurance coverage. See General Statutes § 38a-336 (uninsured and underinsured motorist coverage).
Whether the defendants actually knew or should have known that Driscoll was intoxicated, that he was an alcoholic, and that he would operate a motor vehicle after leaving The Pub, as the plaintiffs have alleged as their basis for recovering in negligence, are questions of fact. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). The dissent suggests that we clarify the precise standard of proof required for a plaintiff to prevail under the common law. We note first that the elements of proof required in this context are no different than under our well established common-law jurisprudence. Indeed, one of the effects of this decision is that it reconciles our approach in this context with any other negligence action. We further note that, in our view, it would be ill-advised to detail here what proof is required, because the facts under each case will dictate what establishes negligence.
The defendants also claim that the Appellate Court improperly expanded the doctrine of bystander emotional distress under Clohessy v. Bachelor, supra, 237 Conn. 52-54. Specifically, they contend that, in light of our prior case law precluding a cause of action predicated upon the negligent service of alcohol, the plaintiffs cannot recover for the negligent infliction of emotional distress on a bystander. Because this claim is resolved by our decision to recognize a common-law negligence action against a purveyor of alcoholic liquor, we do not address it separately.
We recognize that the allegations in the counts alleging the negligent and reckless infliction of bystander emotional distress essentially mirror one another. Rather than adopting the defendants’ conclusion that the allegations are not sufficient to state a cause of action for recklessness, however, we suggest that the plaintiffs’ allegations of negligence were overinclusive.
The defendants also challenge the allegations regarding recklessness on the basis that the plaintiffs failed to allege any predicate for their allegations—for example, precisely how the defendants would have known that