SMALLEY v. ZACH, No. CV 06 5000597 (Apr. 1, 2008)

2008 Ct. Sup. 5391
No. CV 06 5000597Connecticut Superior Court Judicial District of Litchfield at Litchfield
April 1, 2008

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #118
RICHARD M. MARANO, Judge.

The issue presented by this motion is whether the court should grant the defendants’ motion for summary judgment as to the first count of the plaintiff’s complaint on the ground that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law. For the reasons below, the court denies the defendants’ motion for summary judgment, as a genuine issue of material fact is in dispute.

FACTS
On May 9, 2006, the plaintiff, Karen Smalley, filed a four-count complaint against Gregory Zack, Domenica Leto, Rosalia Des Biens, Il Colosseo, Inc. (hereinafter Il Colosseo), Jayshree v. Contractor and Winepro, LLC, d.b.a. Northville Liquors. In count one of the complaint, the plaintiff alleged that Il Colossec, Leto and Des Biens (collectively referred to as the defendants) are liable for her injuries under the Dram Shop Act.[1] The plaintiff asserted the following facts in support of her claim.

On April 25, 2005, at approximately 7:30 p.m., Zack arrived at Il Colosseo, a business establishment located at 38 Park Lane, New Milford, Connecticut. At that time, Des Biens was the owner, president and director of Il Colosseo, and Leto was the permittee and/or owner of Il Colosseo. Between approximately 7:30 p.m. and 10:30 p.m., Zack, who was visibly intoxicated, was served alcoholic liquor by: (1) Il Colosseo and/or its agents, servants and employees; (2) Leto, and/or her agents, servants and employees; and (3) Des Biens and/or her agents, servants and employees. Later that night, at approximately 11:32 p.m., Zack was operating his motor vehicle in the eastbound lane of Route 4 in Cornwall, Connecticut when he swerved his vehicle across the center line and collided head-on with the plaintiff’s vehicle in the westbound lane of Route 4.[2]

CT Page 5392 On January 15, 2008, the defendants moved for summary judgment on the first count of the plaintiff’s complaint. The defendants claim that no genuine issue of material fact exists and they are entitled to judgment as a matter of law. Their motion for summary judgment is accompanied by a memorandum in support and the following: (1) a portion of the transcript from the plaintiff’s deposition;[3] (2) a portion of the transcript from Zack’s deposition;[4] (3) an affidavit from Zack; and (4) an affidavit from Joseph Schiel. On January 31, 2008, the plaintiff filed a memorandum in opposition to the defendants’ motion for summary judgment. The plaintiff attached Schiel’s affidavit and a portion of the transcript from Zack’s deposition.[5] The court heard argument on the matter on February 4, 2008.

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.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). “In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). ?`Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). “[T]he court, however, may consider not only the facts presented by the parties’ affidavits and exhibits, but also the inferences which could be reasonably and logically drawn from them . . .” Id., 381. Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752
(2003).

“The courts hold the movant to a strict standard. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of CT Page 5393 material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). “[T]he party opposing the motion must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The mere presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party’s] affidavits and documents . . .” (Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn.App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).

The Dram Shop Act, codified as General Statutes § 30-102, provides in relevant part: “If any person, by such person or such person’s 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 . . .” “To recover under the [Dram Shop Act], a plaintiff must bring himself squarely within its provisions . . . In each case, therefore, the trier must decide as a question of fact: whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property or another.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 492 A.2d 184 (1985).

The defendants move for summary judgment on the ground that there exists no genuine issue of material fact and they are entitled to judgment as a matter of law because the plaintiff cannot prove the first element of the Dram Shop Act, i.e., that the defendants served intoxicating liquors to Zack. The defendants aver that taken together, the portion of the transcript from the plaintiff’s deposition, the portion of the transcript from Zack’s deposition, Zack’s affidavit and Schiel’s affidavit, demonstrate that there is no witness to testify that Zack was served alcohol while he was at Il Colosseo.

In her memorandum in opposition, the plaintiff counters that the documents submitted by the defendants do not, in fact, establish that there is no witness to testify that Zack was served alcohol by the defendants. The plaintiff argues that to the contrary, the affidavit of Schiel and the deposition testimony of Zack establish that on April 25, 2005, Zack, while visibly intoxicated, had something to drink at Il CT Page 5394 Colosseo, an establishment that serves alcoholic beverages and that his driving became more erratic after leaving Il Colosseo. The plaintiff, therefore, concludes that a genuine issue of fact does exist.

A review of the documents submitted by the parties in support of their respective positions leads the court to conclude that there is a genuine issue of material fact as to whether Zack was served alcohol by the defendants. Although Schiel, in his affidavit, testified that he “does not recall what Greg Zack had to drink” at Il Colosseo, this is not the equivalent of his explicitly stating that Zack had nothing to drink at Il Colosseo. Moreover, Schiel did assert that Zack’s driving was even more erratic after they left Il Colosseo, which at least implies that Zack may have been served alcoholic beverages there. These ambiguous statements by Schiel would not lead a reasonable person to believe that Zack was, without a doubt, not served alcohol by the defendants.

Thus, the defendants have not met their burden of showing that there is no genuine issue of material in fact in dispute. Accordingly, the court denies their motion for summary judgment.

So Ordered.

CT Page 5396