LIQUOR;

You asked for a summary of the Connecticut Supreme Court’s ruling on the Dram Shop Act in Craig v. Driscoll (262 Conn. 312 (2003)).

SUMMARY

In Craig v. Driscoll, the plaintiffs (the victim’s mother and brother) alleged that a bar served alcohol to an intoxicated patron that the employees knew or should have known was an alcoholic who would use his car on leaving, and the patron did later drive his car and veer off the road killing the victim. The plaintiffs claimed that the bar owner and its president and liquor permittee negligently and recklessly caused them emotional distress and caused a loss of consortium.

Under the Dram Shop Act, Connecticut law authorizes a cause of action against someone who sells alcohol to an intoxicated person who causes injury to another person because of the intoxication. The act provides for limited damages (CGS § 30-102). Traditionally, the common law did not recognize a cause of action against a seller for negligence. The Connecticut Supreme Court considered whether, notwithstanding the Dram Shop Act, the common law recognizes a cause of action for negligent infliction of emotional distress on a bystander against a seller of alcohol for injuries caused by an intoxicated adult patron.

The majority (Justice Katz wrote the opinion, joined by Justices Borden and Palmer), considered the act’s history and two conflicting Supreme Court rulings on the preemption issue. They found that the Dram Shop Act does not occupy the field and recognizing a common law negligence action did not conflict with or thwart the act’s purposes. They found that the act provides recovery for plaintiffs whether or not they can prove causation subject to a damage limitation and the court could use its common law authority to increase recovery opportunities when the bar owner’s state of mind warrants it, and this would supplement the Dram Shop Act.

The majority stated that negligence claims against a seller of alcohol historically failed because the injury was proximately caused by the intervening act of the consumer whose voluntary and imprudent consumption of the beverage caused intoxication and then the injury. But the majority found this to be counter to the court’s proximate cause jurisprudence because an act by a third party is not considered an intervening force if the acts are within the scope of the risk created.

They concluded that a seller’s negligence could be the proximate cause and such a claim is not barred as a matter of law. In exercising the court’s common law authority, the majority stated that they must take into account policy considerations, such as the scope of the drunk driving problem. They stated that the common law adapts to changing times within the doctrine of stare decisis and sensible reform is appropriate in this area.

Because of the court’s fundamental principles of proximate cause jurisprudence and its cases on the substantial causal relationship between negligently serving alcohol and injuries, the majority rejected the claim that a purveyor who provides an intoxicated patron or a patron known to him to be an alcoholic could not as a matter of law be the proximate cause of subsequent injuries.

The majority also made a ruling on the sufficiency of the allegations in the complaint which we do not discuss.

In dissent, Chief Justice Sullivan (joined by Justice Zarella) argued that the majority overruled a case directly on point that properly concluded that the Dram Shop Act preempted the common law and overruled more than 100 years of common law precedent. He stated that the ruling eviscerates the legislature’s scheme of recovery that was crafted in reliance on common law precedents.

He argued that the legislative history shows that the legislature intended the Dram Shop Act to be an exclusive remedy, as the court correctly concluded in a case the majority overruled. He stated that the statute’s background and stare decisis counsel against the majority’s ruling even if the legislature did not preempt the court’s common law authority. He stated that the act is the legislature’s desired recovery scheme in the absence of a common law action and the majority upsets this scheme. He rejected various other arguments about the act’s history and concluded that the basis for the common law rule is still valid.

Chief Justice Sullivan found the majority’s opinion unclear as to the scope of the action they created. He stated that the majority formulates the claim broadly but also in several other ways in the opinion. He concluded that the majority makes a radical change that usurps the legislature’s function and it does so without creating precise elements for the new cause of action.

PLAINTIFF’S ALLEGATIONS

The plaintiffs alleged the following.

1. Between 8: 30 p. m. and midnight on May 21, 1996, Steven Driscoll was a patron at The Pub in Norfolk.

2. Driscoll was intoxicated when employees of The Pub sold him alcoholic beverages although they knew or should have known that he was an alcoholic who would operate a motor vehicle after leaving.

3. At 12: 10 a. m. , Driscoll’s vehicle veered off the road and hit Sarah Craig, a pedestrian at the side of the road. Shortly after, Craig’s mother and brother arrived at the scene and saw her before any substantial change in her condition or location. Sarah died on May 24 from her injuries.

The plaintiffs, Sarah Craig’s mother and brother, claimed severe emotional injuries from witnessing Sarah’s injuries. They claimed that the defendants, the company that owns The Pub and its president and liquor permittee, negligently and recklessly (1) inflicted emotional distress on them as bystanders and (2) caused loss of consortium.

MAJORITY OPINION

Dram Shop Act Not The Exclusive Remedy

The defendants argued that the Dram Shop Act provided the exclusive remedy against a seller for negligently furnishing alcohol and that Driscoll’s voluntary consumption of alcohol was the proximate cause of Driscoll’s intoxication and the plaintiffs’ injuries, not the furnishing of the alcohol.

The majority stated that the general common law rule is that there is no tort action against someone who furnishes intoxicating liquor to a person who voluntarily becomes intoxicated and as a result injures the person of property of himself or another. They stated that the reason for this rule is that the proximate cause of the intoxication was the consumption of alcohol by the person and not the furnishing of it and consumption was an intervening act that broke the chain of causation between the seller and the injury.

The majority stated that Connecticut first adopted the Dram Shop Act to lessen the harsh affects of the common law rule in 1872 and the legislature expanded the statute over the years. They stated that the act displaced the common law in the circumstances where it applied and modified the common law rule.

The majority stated that a common law rule can be subject to both legislative and judicial modification and the issue in this case is whether the legislature showed an intention to occupy the field or whether a common law remedy would conflict with or frustrate the purpose of the act to prevent recognizing a common law action.

Two Earlier Conflicting Court Rulings. The majority discussed two of its earlier rulings on the Dram Shop Act and its relation to the common law.

They noted that the court in Kowal v. Hofher (181 Conn. 355 (1980)) found that:

1. there was no specific statutory provision barring a common law action or preempting the field of liability for a seller of liquor;

2.

the Dram Shop Act requires no causal relation between the sale of liquor and the subsequent injury and it was enacted to fill the void created by the absence of a negligence action against the barkeeper;

3. the act’s premise is that it is in the public interest to compensate citizens for injuries when a vendor sells alcohol to an intoxicated person who causes injuries because of his intoxication but there is no indication that that when causation is adequately traced to the barkeeper the legislature intended the act to be the exclusive remedy;

4. if there is no cause of action for negligence, it is not the statute but the common law that denies the right of recovery; and

5. the common law rule precludes a negligence claim but the court can allow a claim based on reckless conduct because, as matter of policy, a person must bear greater responsibility for consequences from reckless or wanton conduct than when merely negligent.

The majority also discussed Quinnett v. Newman (213 Conn. 343), a case decided in 1990, 10 years after Kowal. The majority noted that the court in this case found that (1) the Dram Shop Act precludes a common law negligence action against a seller for serving alcohol to an adult patron who, as a result of his intoxication, injures another and (2) the legislature filled the field by enacting the Dram Shop Act (citing the act’s history and concluding that the court must honor the legislature’s clear expression of public policy).

The majority stated that Quinnett did not distinguish or even mention Kowal and these two decisions cannot be reconciled. They concluded that Kowal more properly reflected the court’s preemption jurisprudence. They reasoned as follows.

1. Nothing in the act’s language or history suggests that the legislature intended to occupy the field.

2. In the 10 years after Kowal, the legislature did not amend the act to clarify its intention to make it the exclusive remedy despite the fact that it amended the act twice in this time.

3. Reliable inferences cannot be drawn from the legislature’s silence in the 12 years since Quinnett. Because Quinnett did not overrule Kowal or address its ruling, the legislative silence could just as reliably reflect an implied adoption of Kowal as Quinnett.

4. The legislature has not indicated a policy preference in either direction.

Conclusion. The majority ruled that the act does not occupy the field to preclude a common law negligence action against a purveyor of alcohol for serving an adult patron who, as a result of his intoxication, injures another. They reasoned as follows.

1. A common law negligence action does not conflict with the Dram Shop Act or thwart its underlying purpose. The act allows plaintiffs who cannot prove causation and culpability to recover, subject to a limit on damages. It is a strict liability claim because it covers any sale of alcohol to an intoxicated person regardless of the bar owner’s knowledge or state of mind, without any burden of proving the requirements of negligence, and without the benefit of broader recovery for such an action. The act is a minimum recovery opportunity, a floor, and the legislature did not also intend to set a ceiling.

2. The court can use its common law authority to increase the recovery opportunity in circumstances where the bar owner’s state of mind warrants it. This would supplement and not conflict with the act. The legislature enacted the Dram Shop Act to alleviate the harsh effects of the common law and recognizing a common law negligence action for injuries caused by an intoxicated adult patron would not frustrate the state’s objectives.

3. Quinnett’s soundness is seriously undermined and its holding that the Dram Shop Act precludes a common law negligence action for selling alcohol to an adult who causes injuries as a result of intoxication is overruled.

4. Under the doctrine of stare decisis, a court should not overrule earlier decisions unless it has the most cogent reasons and inescapable logic require it. Adhering to Kowal’s precedent and allowing an action for recklessness might serve the purposes of stare decisis but the court should not, on these grounds alone, refuse to recognize an incongruity in the case law. In addition, the grounds for adhering to precedent are least compelling when the rule involved may not be reasonably supposed to have determined the parties’ conduct.

Recognizing a Common Law Negligence Action

The majority next considered whether it should recognize a common law negligence claim. It first looked at the case law on negligence.

1. In a negligence case, the plaintiff must show that the defendant’s conduct both caused the plaintiff’s injury in fact and proximately caused it.

2. For cause in fact, the question is whether the injury would have occurred were it not for the actor’s conduct.

3. For proximate cause, the question is whether the conduct is a substantial factor in producing the injury.

4. The substantial factor test is whether the harm was of the same general nature as the foreseeable risk created by the defendant’s negligence.

5. A negligent defendant whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing the harm is not relieved from liability because of a third person’s intervention except when the harm is intentionally caused by the third person and the harm is not within the scope of the risk created by the defendant’s conduct. An intervening cause is conduct that entirely breaks the causal connection between the defendant’s conduct and the plaintiff’s injuries so as to be the sole proximate cause of those injuries.

Proximate Cause. The majority rejected the claim that a purveyor who provides alcohol to an already intoxicated patron or a patron known to be an alcoholic could not be, as a matter of law, the proximate cause of subsequent injuries. They reasoned as follows.

1. Historically, negligence claims against a seller of alcohol failed because the injury was proximately caused by the intervening act of the consumer whose voluntary and imprudent consumption of the beverage caused intoxication and then the injury. Consuming the alcohol was an intervening force that shifted the entire causation to somebody other than the purveyor. But this is counter to the court’s proximate cause jurisprudence because an act by a third party is not considered an intervening force if the acts are within the scope of the risk created.

2. The court in Kowal (a) allowed a claim for recklessly serving alcohol to a patron who was already intoxicated when the patron negligently operated his vehicle and caused injuries and (b) concluded that the policy considerations that justify protecting a vendor or social host from liability for negligence did not apply to wanton and reckless misconduct.

3. A defendant’s negligence that was a substantial factor in producing a plaintiff’s injuries is not relieved of liability even though another force concurred to produce them. This ordinarily is a question of fact.

4. Furnishing alcohol can be the proximate cause of injuries, because the consumption, intoxication, and injury-producing conduct are foreseeable intervening causes, at least the conduct is one of the hazards that make the furnishing negligent. This is true whether the purveyor is negligent or reckless. Whether intoxication is a superseding cause does not depend on the server’s state of mind. There is no principled distinction between acting negligently and recklessly for determining whether the intervening act breaks the chain of causation.

5. Prior cases on social hosts and sellers serving to minor guests recognize a substantial causal relationship between negligently serving alcohol and injuries that result from drunkenness. These cases recognize a chain of causation that is not broken by the actions of a third party who cannot fully appreciate the risks of his actions.

Common Law Authority. The majority then considered the court’s authority and stated that because this is a common law issue, the court must take into account the relevant policy considerations. The majority mentioned “the horrors that result from drinking and driving” and “staggering statistics concerning alcohol-related fatalities. ”

The majority quoted from a dissent by Justice Bogdanski in an earlier case (Slicer v. Quigley, 180 Conn. 252 (1980)). Justice Bogdanski argued that (1) the common law rule may have been satisfactory when the customary mode of travel was walking or using horses and carriages, (2) the situation is very different now with machines that require quick responses of mind and muscle and that can produce death and destruction and (3) the court should use its inherent power over the common law to change this rule because the basis for it has eroded.

The majority stated that the adaptability of the common law to the changing needs of time is one of its most beneficial characteristics. They stated that the common law alters to meet changing needs within the doctrine of stare decisis, which does not forever prevent courts from reversing themselves or applying common law principles to new situations as the need arises.

The majority stated that this is a “matter of policy for the court to determine based on the changing attitudes and needs of society” and they concluded that “sensible reform is appropriate in this area. ” They stated that it seems self-evident that serving alcohol to an obviously intoxicated person by someone who knows or reasonably should know that he intends to operate a motor vehicle creates a reasonably foreseeable risk to those on the road. They stated that someone in these circumstances fails to exercise reasonable care and can be liable in negligence.

Because of the court’s fundamental principles of proximate cause jurisprudence and its cases on the substantial causal relationship between negligently serving alcohol and injuries, the majority rejected the claim that a purveyor who provides an intoxicated patron or a patron known to him to be an alcoholic could not as a matter of law be the proximate cause of subsequent injuries.

DISSENT

Chief Justice Sullivan wrote a dissenting opinion joined by Justice Zarella. Chief Justice Sullivan stated that the majority overrules a case directly on point that properly concluded that the Dram Shop Act preempts the common law and overrules more than 100 years of common law precedent. He stated that this ruling eviscerates the scheme of recovery crafted by the legislature in reliance on the long-standing common law precedents and the proper remedy if the act’s damage limit is inadequate is legislative action rather than overturning judicial principles and precedents. He reasoned as follows.

1. The legislature enacted the Dram Shop Act to alleviate the common law’s harsh effects. Its history and relationship to the common law show that the legislature intended the act to be the exclusive remedy for those it enables to recover.

2.

The act allows recovery by those who could not prove negligence as well as for those who could have recovered in negligence if there was a claim at common law. Until 1959, the act allowed for “just damages,” meaning it provided full recovery against a negligent seller.

3. The legislature created a right of recovery when there was none at common law and later limited that right. A 1959 amendment limited damages under the act. The legislature could have provided that the limitation only applied to sellers who were not negligent but it did not. In 1961, the legislature further lowered the ceiling. In more than 40 years since, the legislature could have provided the unlimited damages that the majority supplies but it did not.

4. Based on the circumstances of enactment and amendment, as the court concluded in Quinnett, the legislature preempted judicial lawmaking.

5. The act’s relationship to other legislation in this area also suggests that the legislature did not intend to leave the question for the courts. The liquor industry is heavily regulated and the state’s power and authority over it is broad and pervasive. The pervasiveness of legislation in this area suggests that the legislature, in enacting standards for liability of sellers, did not intend to leave for the courts the question of whether and under what circumstances liability beyond the statutory limits can be imposed.

Stare Decisis

Chief Justice Sullivan stated that the statute’s background and the doctrine of stare decisis strongly counsel against recognizing a new common law negligence action even if the legislature did not preempt the court’s common law authority. He reasoned as follows.

1. Under stare decisis, the court should not overrule an earlier decision unless the most cogent reasons and inescapable logic require it. Stare decisis allows predictability in ordering conduct, promotes the perception that the law is relatively unchanging, saves resources, and promotes judicial efficiency.

2.

A recent federal 2^nd Circuit Court of Appeals case stated that when a common law principle is well established, courts may take it as given that the legislature acted with the expectation that the principle will apply unless a statutory purpose to the contrary is evident.

3. Stare decisis has particular force in this case because of the long-standing nature of the common law rule and the legislature’s reliance on it in crafting remedies.

4. The legislature was no doubt aware that for more than 130 years there was no common law negligence claim, as this court said in cases that the majority overrules.

5. The Dram Shop Act is the legislature’s desired recovery scheme in the absence of recovery at common law and the majority’s radical change in the common law upsets the legislature’s scheme.

Majority’s Other Arguments

Chief Justice Sullivan found several of the majority’s arguments unpersuasive. He stated that it would be surprising if the legislature had included an exclusivity provision in the Dram Shop Act because there was no common law cause of action when it was first enacted and there has not been one in the 130 years since. He also stated that the majority cannot rely on legislative silence as affirming Kowal because the legislature did not express disagreement after Quinnett, and if legislative silence since Quinnett has any significance it can only mean that the legislature acquiesced to Quinnett. He stated that the statute adopted by the legislature responded to the common law to provide limited recovery and providing a further remedy with unlimited liability for negligence that the legislature did not chose is inconsistent with the damage limitation the legislature did adopt.

He stated that the common law rule is based on a common sense observation that is still valid (that the proximate cause of intoxication is not furnishing liquor but the consumption of it) and an individual’s responsibility for injuries should not be reduced because another person provided the alcohol. He stated that the majority’s decision will allow juries to apportion liability between them and will reduce the drunken driver’s liability for the consequences of his actions.

Scope of Majority’s Ruling

Chief Justice Sullivan stated that the ruling will have considerable impact on business and social relationships but the scope and nature of the impact is unclear. He stated that the legislature is better suited than the court to determine costs and benefits because the legislature can invite public participation in analyzing policy considerations and can provide clear prospective rules to implement them. He stated that the majority disregards the fundamental principle that the legislature has primary responsibility for formulating public policy and the responsibility for determining, within constitutional limits, the methods to achieve it.

He stated that the majority’s opinion is unclear about what a plaintiff must show because the opinion includes a broad statement, recognizing an action for negligently serving an adult who as a result of his intoxication injures another, but it also formulates the claim in several other ways. He stated that he assumes a plaintiff must show that the negligent service of alcohol, as opposed to the patron’s intoxication, is causally related to the injuries. He stated that the majority appears to clarify that it is not enough just to serve an intoxicated person, but the server must know or should have known that the person was intoxicated. He stated that the majority is also unclear as to the need to show that the defendant knew or should have known that the patron was an alcoholic and that he intended to drive after being served.

He concluded that the majority makes a radical change that usurps the legislature’s function and it did so without creating precise elements for the new cause of action.

CR: ro