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DOCKET NUMBER: UWY-CV-19-6085010-S : SUPERIOR COURT
JANELLE POMPEA : J. D. OF WATERBURY
V. : AT WATERBURY
SEASIDE WINE & LIQUOR, LLC, ET AL : May 26, 2021
MEMORANDUM OF LAW IN SUPPORT OF LUKE CICCARELLO’S MOTION FOR
SUMMARY JUDGMENT WITH RESPECT TO THE APPORTIONMENT COMPLAINT OF
SEASIDE WINE & LIQUOR, LLC
The Apportionment Defendant, Luke Ciccarello, moves for summary judgment as to Count Six
(negligence) of the Apportionment Plaintiff, Seaside Wine & Liquor’s Apportionment Complaint dated
August 26, 2019 (Entry No. 120.00), on the grounds there is no evidentiary basis to establish the elements
of breach of duty and causation as it pertains to Luke Ciccarello. Although the crux of the Apportionment
Complaint is that Luke Ciccarello brought vodka to a party and in consequence of such, persons were
injured in a single car automobile accident wherein Ryan Capozziello was the driver, Luke Ciccarello
respectfully submits there is no real issue to be tried, as there is no other conclusion that can be reached
from the facts except Ryan Capozziello did not drink any alcohol allegedly provided by Luke Ciccarello.
In other words, Luke Ciccarello did not do anything wrong, negligent, or reckless to cause the motor vehicle
accident; Luke Ciccarello did not provide alcohol at the party, did not bring any alcohol with him to the
party, and was not in a position to control the party in any way. Luke Ciccarello’s position will be supported
by a host of evidence, as is outlined below. Therefore, Luke Ciccarello is entitled to judgment as a matter
of law with respect to the Apportionment Complaint.
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I. BACKGROUND
A. Allegations
The present action is one of a number of consolidated actions that arise from a motor vehicle
accident, which resulted in claimed injuries to all six of the vehicle’s occupants. More specifically, on April
14, 2017, Janelle Pompea, Allison Loder, Ryan Capozziello, Thomas Bull, Grant Ciccarello, and Ryan
Gombos were occupants of a 2004 Jeep Liberty (hereinafter the “Bull vehicle”), owned by Matthew Bull
and driven by Ryan Capozziello, which collided with a tree causing injuries to, among others, Thomas Bull.
Prior to the collision, the six vehicle occupants were minors attending a social gathering at plaintiff, Janelle
Pompea’s, household (32 Dayton Road, Redding, CT), where alcohol was allegedly present. (See Exhibit
B, Deposition of Allison Loder, January 8, 2020, p.41, lines 8-11; and p.76, lines 14-16.) All six of the
vehicle occupants were under the age of 21 at the time of the incident.
The Apportionment Complaint alleges that on April 14, 2017, defendant Luke Ciccarello purveyed,
provided, supplied, furnished, dispensed, distributed, gave away or otherwise made available alcohol to
Ryan Capozziello. (See Apportionment Complaint at Count Six, paragraph 16). The Apportionment
Complaint further alleges on April 14, 2017, Ryan Capozziello, who was under 21 years of age at the time,
became intoxicated as a result of the alcoholic beverages. (See Apportionment Complaint, Count One,
Paragraphs 1-17). At approximately 5:46 p.m., on April 14, 2017, Ryan Capozziello was operating the
above referenced vehicle and caused the vehicle to travel off the roadway and collide with a tree. (See
Apportionment Complaint, Count One, Paragraphs 1-17). Ryan Capozziello’s blood alcohol level was
above the statutory legal limit for persons under the age of 21 on said date. (See Apportionment Complaint
at Count One, Paragraphs 1-17).
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The primary plaintiff, Janelle Pompea, claims her injuries and losses were caused by, and in
consequence of, Ryan Capozziello’s intoxication resulting from the alcoholic beverages provided or
otherwise made available to Mr. Capozziello by Luke Ciccarello. (See Apportionment Complaint at Count
One at Paragraphs 1-17; Apportionment Complaint, Count Six, Paragraphs 16-17).
B. Events of April 14, 2017
As previously mentioned, on the day of the accident, the six vehicle occupants were attending a
social gathering at plaintiff, Janelle Pompea’s, household (32 Dayton Road, Redding, CT), where alcohol
was allegedly present. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.41, lines 8-11; and
p.76, lines 14-16). In her own words, Janelle Pompea was having a “darty,” or daytime party, at her house
on April 14, 2017. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.108, lines 6-13).
Present at the aforementioned social gathering were minor individuals, including, but not limited to: Janelle
Pompea, Tom Bull, Ryan Gombos, Ryan Capozziello, Grant Ciccarello, Luke Ciccarello, Allison Loder,
Liam Andrews, Katie Nolan, and Greg DeCarlo, among others. (See Exhibits A-J). Luke Ciccarello arrived
at the party at or about 12:30 pm. (See Exhibit G, Deposition of Luke Ciccarello, January 28, 2021, p. 20,
lines 19-23).
One of the attendees, Ryan Capozziello, was invited by Tom Bull to the “darty.” (See Exhibit A,
Deposition of Ryan Capozziello, January 3, 2020, p.116, lines 12-15.) According to Ryan Capozziello, he
consumed roughly four beers at the party on the day of the incident. (See Exhibit A, Deposition of Ryan
Capozziello, January 3, 2020, p.34, lines 2-7 (emphasis added)). Later on in the day, but after Luke
Ciccarello had left the party at or about 2:30pm, six of the individuals (Janelle Pompea, Tom Bull, Ryan
Gombos, Ryan Capozziello, Grant Ciccarello, and Allison Loder) decided to go to a nearby gas station in
the Bull vehicle. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p. 39, lines 7-16; Exhibit
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I, Deposition of Katie Nolan, March 25, 2021 at p.50). While at the gas station, a decision was made for
Ryan Capozziello, instead of Tom Bull, to drive the Bull vehicle. (See Exhibit A, Deposition of Ryan
Capozziello, January 3, 2020, p.44, lines 10-12). Shortly thereafter, while Ryan Capozziello was driving,
a car swerved into his lane, causing him to swerve off the road and collide with a tree. (See Exhibit A,
Deposition of Ryan Capozziello, January 3, 2020, pp.45-46, lines 23-7). This collision allegedly caused
injuries to the plaintiff. (See Plaintiff's Amended Complaint; Paragraph 13, Counts 13 and 14; Entry No.
126.00).
C. Luke Ciccarello’s Testimony About The Party
Luke Ciccarello did not see Ryan Capozziello drink anything during the time Luke was at the party,
let alone vodka. (See Exhibit G, Deposition of Luke Ciccarello, January 28, 2021, p.57, lines 4-9; p.94,
lines 16-18). Furthermore, and importantly, Luke Ciccarello denied bringing any vodka to the party (see
Deposition of Luke Ciccarello, January 28, 2021, p.42, lines 9-11; p.38, lines 6-18) but said he saw Tom
Bull and Ryan Capozziello bring beer to the party (see Deposition of Luke Ciccarello, January 28, 2021,
p.52, lines 1-17).
D. Ryan Capozziello's Testimony Regarding What He Drank on the Date of Incident
As mentioned above, it is plaintiff’s theory Luke Ciccarello provided vodka to the persons attending
the “darty,” including Ryan Capozziello, but Ryan Capozziello is adamant he did not consume any vodka
at the party, let alone any vodka supposedly provided by Luke Ciccarello. (See Exhibit A, Deposition of
Ryan Capozziello, January 3, 2020, p.91, lines 1-2; p.124, lines 2-6; p.139, lines 5-7). Indeed, Ryan
Capozziello testified Tom Bull invited him to the party (see Exhibit A, Deposition of Ryan Capozziello,
January 3, 2020, p.25, line 17 to p.26, line 3) and that he consumed roughly four beers at the party on the
day of the incident. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.34, lines 2-7; see
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also Exhibit “K”, Ryan Capozziello’s Supplemental Compliance to Plaintiff’s Interrogatories at p.6). When
asked whether he was offered any alcohol from Luke Ciccarello at the party, he said “I don’t remember”
(see Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.151, line 25 to p.152, line 2), but he
also said he remembered the party “crystal clear” including what he drank (Exhibit A, Deposition of Ryan
Capozziello, January 3, 2020, p.168, lines 10-18).
E. The Other Witnesses’ Testimony Regarding Ryan Capozziello’s Alcohol Consumption
To date, there have been over 10 depositions of persons, both parties and non-parties, about the
events in question. Importantly, none of the witnesses who were at the party have testified Ryan Capozziello
drank vodka that day.
i. Janelle Pompea
Janelle Pompea testified on multiple occasions she does not know what Ryan Capozziello drank.
(See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p. 118, lines 18-21, p. 245, lines 2-6).
ii. Tom Bull
Tom Bull testified he saw Ryan Capozziello drinking a red can of Budweiser, which Tom had
brought to the party, but did not see him drinking anything else. (See Exhibit E, Deposition of Tom Bull,
January 26, 2021, p.75, lines 2-11). As far as Tom was aware, Ryan Capozziello was just drinking beer.
(See Exhibit E, Deposition of Tom Bull, January 26, 2021, p.130, lines 20-22). Tom Bull also testified he
never saw Ryan Capozziello drink vodka, and only saw him drinking a can of Budweiser. (See Exhibit E,
Deposition of Tom Bull, January 26, 2021, p.131, lines 1-4). Moreover, Tom Bull unquestionably supplied
beer to the party (see Exhibit “L”, Thomas Bull’s Responses to Second Set of Interrogatories dated May
29, 2020).
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iii. Ryan Gombos
Ryan Gombos was not at the Pompea home when Luke Ciccarello arrived and, therefore, was in no
position to opine about whether or not Luke Ciccarello brought any alcohol to the party (see Exhibit F,
Deposition of Ryan Gombos, January 27, 2021, p.113, lines 8-19). In any event, he had no recollection of
seeing Ryan Capozziello drink vodka at the party on the date in question. (See Exhibit F, Deposition of
Ryan Gombos, January 27, 2021, p.121, lines 9-20; p.146, lines 20-22).
iv. Grant Ciccarello
Grant Ciccarello denied Luke Ciccarello supplied any alcohol for the party (see Exhibit C,
Deposition of Grant Ciccarello, March 10, 2020, p.65, lines 5-25; p.152, lines 21-24).
v. Katie Nolan
Katie Nolan, a non-party witness to the consolidated matters, and fellow party attendee, testified to
never seeing Ryan Capozziello drink anything. Specifically, she was asked if she ever saw Ryan
Capozziello drink or eat anything that day, to which she replied: "No. All I saw was the beer that him and
Tom Bull had walked in with." (See Exhibit I, Deposition of Katie Nolan, March 25, 2021, p.63, lines 1-
21). In addition, and significantly, she testified she went with Luke Ciccarello to the party and Luke did
not bring any alcohol to the party, including vodka (see Exhibit I, Deposition of Katie Nolan, March 25,
2021, p.35, lines 18-20; p.42, lines 4-12; p.79, lines 2-20).
vi. Allison Loder
It is undisputed Allison Loder brought a 1.75 liter bottle of peach flavored Exclusiv vodka to the
gathering at 32 Dayton Road. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p .42, lines 12-
16). However, she maintained she did not offer her bottle of vodka to Ryan Capozziello and would not have
done so. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.106, lines 3-9; p.155, lines 10-
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20). In fact, Allison Loder's bottle of vodka stayed in her bag throughout the entire gathering, whereby she
would only take it out to drink from it and then would place it back in the bag that she carried on her
shoulder. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 2-8). Allison had the
bag on her at all times, and never took it off because she did not want other people drinking her alcohol.
(See Exhibit B, Deposition of Allison Loder, January 8, 2020, pp.81-82, lines 23-4). When she took the
bottle out of her bag, it would be in her hand and she would not place it down on the table. (See Exhibit B,
Deposition of Allison Loder, January 8, 2020, p.73, lines 19-22).
vii. Liam Andrews
Liam Andrews, a non-party witness to the consolidated matters, testified to only seeing Ryan
Capozziello with one or two red cans of beer. (See Exhibit H, Deposition of Liam Andrews, March 23,
2021, p.46, lines 3-11).
viii. Greg DeCarlo
Greg DeCarlo, another non-party witness to the consolidated matters, and fellow party attendee,
testified to never seeing Ryan Capozziello drink anything. (See Exhibit J, Deposition of Greg DeCarlo,
March 26, 2021, p. 37, lines 1-3).
II. ARGUMENT
A. Legal Standard
“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". Pawlowski v. Delta Sigma, 52
Conn. Supp. 186, 35 A.3d 410, 413 (Sup. Ct. 2010) (internal quotations omitted, citation omitted), aff’d.,
132 Conn. App. 816, 35 A.3d 1081 (Conn. App., 2012). The party moving “for summary judgment has the
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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). “A material fact has been defined … as a fact which
will make a difference in the result of the case." (Internal quotation marks omitted). Buell Industries, Inc.
v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
“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.’” Pawlowski, supra, 35 A.3d at 413 quoting
Zielinski, supra 279 Conn. at 319. "In deciding a motion for summary judgment, the trial court must weigh
the evidence in the light most favorable to the non-moving party" (Appleton v. Board of Educ. of Town of
Stonington, 254 Conn. 205, 209 (2000) (citation omitted)), but "a party opposing [summary judgment] 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." Scheirer v. Frenish. Inc., 56 Conn. App. 228, 233
(1999), cert. denied, 252 Conn. 938 (2000) (citations and internal quotations omitted).
B. There are No Grounds for Apportionment Due to Lack of Proximate Cause and the
Absence of Duty
As mentioned above, the Apportionment Complaint, at Count Six, claims negligence against Luke
Ciccarello. More specifically, it is alleged at Count Six, paragraph 16, inter alia, Luke Ciccarello
purveyed, provided, supplied, delivered, furnished, dispensed, distributed, gave away or otherwise made
available alcohol to Ryan Capozziello.
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In addition, at Count Six, paragraphs 16-17, it is alleged the “Defendants deny that they were
negligent, but if the allegations against Luke Ciccarello are accurate, then the Plaintiff's injuries and
damages were caused in whole or in part by the negligence, carelessness, and/or recklessness of Luke
Ciccarello. As a result, Luke Ciccarello is or may be liable for a proportionate share of the damages alleged
by the Plaintiff pursuant to Connecticut General Statutes § 52-572h.”
Connecticut General Statute §52-102b(a) provides in relevant part: a “defendant in any civil action
to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to
the action who is or may be liable ... for a proportionate share of the plaintiff’s damages in which case the
demand for relief shall seek an apportionment of liability ...The person upon whom the apportionment
complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes,
including all purposes under section 52-572h.”
Furthermore, Connecticut General Statute §52-572h(c) states in relevant part: “[i]n a negligence
action to recover damages resulting from personal injury ... if the damages are determined to be proximately
caused by the negligence of more than one party, each party against whom recovery is allowed shall be
liable to the claimant only for such party’s proportionate share of the ... damages ....”
“The statute does not require that the apportionment defendant owe a duty (of care) to the
apportionment plaintiff, but merely that the apportionment defendant is partially liable for the plaintiff’s
damages, or rather had a duty to the plaintiff.” (Internal quotation marks omitted.) Billings v. Cretella
Builders, Ltd. Liability Co., Superior Court, judicial district of New Haven, Docket No. CV 07 5012830
(July 30, 2009, Holden, J.) (emphasis added). In the present case, Luke Ciccarello neither had a duty of
care to the plaintiff nor engaged in any acts or omissions that would establish proximate cause. Thus,
summary judgment is proper with respect to the Apportionment Complaint, Count Six.
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i. Lack of Proximate Cause
It is axiomatic the elements of a cause of action for negligence are duty, breach, causation, and
damages. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989). In the instant case, Luke Ciccarello
is entitled to summary judgment with respect to Seaside Wine & Liquor’s apportionment complaint due to
the absence of proximate cause. As outlined above, the gist of the apportionment complaint is that Luke
Ciccarello supplied vodka to the driver of the vehicle, and, therefore, people were injured, but the driver of
the vehicle has steadfastly maintained he did not consume any vodka on the date in question. (See supra).
Indeed, it is noteworthy the driver, Mr. Capozziello, has not brought suit against Luke Ciccarello for
allegedly supplying him with intoxicating liquors, to wit, vodka on the date of incident, and Mr.
Cappozziello would have every reason to do so if in fact it occurred as he suffered serious injuries in the
accident. Ryan Capozziello is a defendant in some of the consolidated actions. Similarly, the participants
to the party have, in essence, refuted any allegation Ryan Capozziello consumed vodka as evidenced by
their deposition testimony outlined above.
To those points, in the action sub judice, the plaintiff, Ms. Janelle Pompea, has alleged her injuries
and losses were caused by, and in consequence of, Ryan Capozziello's intoxication due to the alcoholic
beverages provided or otherwise made available to him by Luke Ciccarello or others (see, e.g., Plaintiff’s
Complaint at First Count Paragraphs 1-19). However, the only conclusion that can be drawn from the
evidence presented is that Ryan Capozziello did not drink any alcohol allegedly provided by Luke
Ciccarello and, therefore, he could not have become intoxicated from alcohol provided or otherwise made
available to him by Luke Ciccarello. (Emphasis added). Since there is no genuine issue of material fact as
to this conclusion, the "[c]ausation" element cannot be met as to any claimed service of alcohol by Luke
Ciccarello to Ryan Capozziello and summary judgment is proper with respect to the Apportionment
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Complaint. Luke Ciccarello also maintains he did not supply any alcohol to anyone at the party on the date
in question, let alone vodka.
As mentioned above, Luke Ciccarello did not bring a bottle of vodka to the Pompea household on
the day of the incident. There have been over ten depositions of individuals who were at the Pompea
household (32 Dayton Road, Redding, CT) on April 14, 2017, and not one of the 10 persons deposed has
testified to witnessing Ryan Capozziello consume vodka. (Emphasis added.) (See Exhibits A-J.) Not only
that, but the driver himself, Ryan Capozziello, is adamant he did not consume any vodka, let alone any
vodka that Luke Ciccarello allegedly brought to the party, so as to impose any form of liability on Luke
Ciccarello. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.91, lines 1-2; p.124, lines
2-3; p.139, lines 5-7).
The movant submits that if Luke Ciccarello only brought vodka to the party, and not a single person
has testified to seeing Ryan Capozziello drink vodka, it is impossible for any party to meet his/her causation
burden in this case.
Therefore, neither the plaintiff nor the Apportionment Plaintiff can establish as a matter of law the
defendant, Luke Ciccarello, was negligent or otherwise responsible for the accident. The undisputed
evidence shows Ryan Capozziello did not consume any alcohol provided by Luke Ciccarello. Simply
stated, the trier of fact could not reasonably reach any other conclusion other than Luke Ciccarello did not
do anything wrong, negligent, or reckless that would cause or contribute to the plaintiff's injuries.
Consequently, Luke Ciccarello is entitled to summary judgment as a matter of law.
Indeed, in the absence of proximate cause, which is a necessary element of a negligence claim (see
supra), the apportionment cause of action against Luke Ciccarello must fail as a matter of law. (See Coste
v. Riverside Motors, Inc., 24 Conn. App. 109 (1991); Weaver v. Apuzzo, No. 3:02CV1328 (AHN), 2005
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WL 752212, at *5-6 (D. Conn. Mar. 30, 2005) (granting summary judgment because plaintiff failed to
disclose expert to establish essential elements of legal malpractice claim); Lyons v. Fairfax Props., Inc.,
No. 3:01CV01355 (JBA), 2004 WL 717107, at *4 (D. Conn. Mar. 31, 2004) (granting summary judgment
because plaintiff did not disclose expert necessary to establish financial damages)).
ii. Lack of Duty
As often stated, the “essential elements of a cause of action in negligence are well established: duty;
breach of that duty; causation; and actual injury .... First, it is necessary to determine the existence of a duty
....Because duty is an essential element in a negligence action, the plaintiff cannot have an action in
negligence unless (she) shows that the defendant owed a duty to the plaintiff.” (Internal citations omitted;
internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn. App. 450, 453, 587 A.2d
439 (2004). “Negligence cannot be predicated upon the failure to perform an act which the actor was under
no duty or obligation to perform.” Sheiman v. Lafayette Bank & Trust, 4 Conn. App. 39, 45, 492 A.2d 219
(1985); Martinez v. McDuffie, Superior Court, judicial district of New Haven, Docket No. CV 08 5016936
(April 17, 2009, Corradino, J.).
In the instant action, Luke Ciccarello did not owe a duty of care to Seaside Wine & Liquors or
Janelle Pompea or anyone else because he did not host the party or supply alcohol to the party or the driver.
Hence, the Luke Ciccarello is entitled to summary judgment with respect to Count Six of the Apportionment
Complaint based on lack of duty. (See Sobieski v. Extreme Maint. Ltd., Liability Co., 2010 WL 1375408;
Superior Court, judicial district of New Haven, Docket No. CV 09 6003762S (March 5, 2010, Wilson, J.)
(holding that apportionment defendant Deko Lawn Service was entitled to summary judgment in a slip and
fall on ice action since it owed no duty of care to the plaintiff since Deko had no contract for snow or ice
removal nor any course of conduct at the subject location)).
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Indeed, the Apportionment Defendant submits that even if Seaside Wine & Liquors had properly
pled the existence of a duty in Count Six, the material facts clearly establish no such duty existed, which
warrants summary judgment in Luke Ciccarello’s favor. The movant submits the case of Vitale v. Kowal,
101 Conn. App. 691, 923 A.2d 778, 780, 784 (2007) is on point and should be followed. There, the plaintiff
brought suit based on negligence and recklessness in an action where the plaintiff claimed damages were
incurred as a result of Trevor Vitale's losing control of and crashing his automobile, resulting in his death,
after allegedly consuming alcohol with defendant Kevin Gonzalez and defendant Steven Kowal. Prior to
the accident, Mr. Vitale, Mr. Kowal, and Mr. Gonzalez were drinking beer in dormitory room at a
University, which was shared by Mr. Gonzalez and Mr. Kowal, and the beer had been supplied by Mr.
Kowal. On appeal, the Appellate Court held that the lower court properly awarded summary judgment to
the defendant, Mr. Gonzalez, because “the evidence offered in support of the defendant's motion for
summary judgment tended to prove that the defendant did not owe a duty (of care) to Trevor Vitale because
the defendant had not invited Trevor Vitale to his dormitory room that evening, he did not know that Trevor
Vitale had been invited to the dormitory room, he did not bring alcohol to the dormitory room that evening,
he did not retrieve alcohol from the refrigerator for Trevor Vitale and he did not provide or serve alcohol
to Trevor Vitale that evening”. Vitale, supra, 923 A.2d 778, 780, 784; accord, Pawlowski, supra.
According to precedent, there "is no duty so to control the conduct of a third person to prevent him
from causing physical harm to another unless: (a) a special relation exists between the actor and third person
which imposes a duty upon the actor to control the third person's conduct; or (b) a special relation exists
between the actor and other which gives the other a right to protection." Restatement 2d Torts, § 315.
Control is a determining factor in the inquiry into whether an individual has a duty to a third person.
"Connecticut precedents impose only a limited duty to take action to prevent injury to a third person”
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(Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996)) and absent “a special relationship of
custody or control, there is no duty to protect a third person from the conduct of another" (Kaminski v.
Fairfield, 216 Conn. 29, 33-34 (1990)).
In the instant case, the Apportionment Plaintiff claims Luke Ciccarello was negligent in supplying
alcohol to Ryan Capozziello (see Apportionment Complaint at Count Six, Paragraph 16). However, no
special relationship exists that would impose a duty upon Luke Ciccarello to control the conduct of Ryan
Capozziello. It is impossible for any reasonable person to believe Luke Ciccarello would have any
obligation to control what Ryan Capozziello did or did not do. This was not Luke Ciccarello's party (see
Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.108, lines 6-13), he did not invite Ryan
Capozziello to the party (see Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.116, lines 12-
15), and Ryan Capozziello did not drink any alcohol allegedly supplied by Luke Ciccarello (see Exhibit A,
Deposition of Ryan Capozziello, January 3, 2020, p.91, lines 1-2; p.124, lines 2-3; p.139, lines 5-7; p. 39,
lines 2-7). Accordingly, there is no genuine issue of material fact Luke Ciccarello lacked the duty to control
the actions of Ryan Capozziello, and Luke Ciccarello should, therefore, be entitled to judgment as a matter
of law as to Count Six of the Apportionment Complaint.
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
287 Bowman Ave Suite 404
Purchase, New York 10577
Phone:(914) 977-7300
Fax: (914) 977-7301
14
LEGAL/138489225.v1
III. CONCLUSION
For the foregoing reasons, the Apportionment Defendant, Luke Ciccarello, respectfully requests that
this Court grant his Motion for Summary Judgment as to Count Six of the Apportionment Complaint and
rule that the Apportionment Defendant is entitled to judgment as a matter of law.
THE APPORTIONMENT DEFENDANT,
LUKE CICCARELLO
By: /s/ 413237 Charles T. Gura
Charles T. Gura, Esq.
Marshall Dennehey Warner Coleman & Goggin
287 Bowman Avenue, Suite 404
Purchase, New York 10577
Phone: (914) 977-7312
Fax: (914) 977-7301
Email: ctgura@mdwcg.com
Our File No. 19210.03930
Juris No. 413237
By: _/s/ 414444 James J. Noonan___
James J. Noonan, Esq.
Jenna T. Cutler, Esq.
Ryan Ryan Deluca, LLP
1000 Lafayette Blvd., Suite 800
Bridgeport, Connecticut 06604
Tel.: (203) 549-6655
Email: jjnoonan@ryandelucalaw.com
Email: jtcutler@ryandelucalaw.com
Juris No.: 414444
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
287 Bowman Ave Suite 404
Purchase, New York 10577
Phone:(914) 977-7300
Fax: (914) 977-7301
15
LEGAL/138489225.v1
f
f
\
i
JANELLE POMPEA January 25, 2021
JANELLE POMPEA VS RYAN CAPOZZIELLO 108
1 the six of us being at my house without
2 anybody else at the party.
3 BY MR. ROBERTS:
4 Q. All right. We will get to what you
5 do remember.
6 So was everyone at the party
7 invited by you?
8 A. No.
9 Q- Who was not?
10 A. Well, it was more word of mouth
11 that the party -- that's people showed up.
12 I didn't message anybody directly and tell
13 them that I was having a darty.
14 Q. But you expected those who came
15 were not they weren't -- you were not
16 surprised to see the people arrived.
17 Fair statement?
18 A. Yes.
19 Q. Okay. And did you know everybody
20 other than Ryan who was at your house?
21 A. Yes.
22 Q. And had they all been to your house
23 in the 2015 party events?
24 A. No.
25 Q. Had any of them?
ES 800.211.DEPO (3376)
EsquireSolutions.com
JANELLE POMPEA January 25, 2021
JANELLE POMPEA VS RYAN CAPOZZIELLO 118
1 A. Correct.
2 Q. But you don't remember seeing
3 anybody else drink from that bottle other
4 than you?
5 A. Correct.
6 Q. Okay. And did you see Alli drink
7 from that bottle?
8 A. Yes.
9 Q. Okay. I mean, she was your friend,
10 so you probably drank together a little bit,
11 right?
12 A. Correct.
13 Q. Okay. And do you remember did
14 you play beer pong?
15 A. I don't remember.
1.6 Q. Do you know who played beer pong?
17 A. No.
18 0. Okay. I think you have answered
19 this in your interrogatories, but you don't
20 know what alcoh
Preview
DOCKET NUMBER: UWY-CV-19-6085010-S : SUPERIOR COURT JANELLE POMPEA : J. D. OF WATERBURY V. : AT WATERBURY SEASIDE WINE & LIQUOR, LLC, ET AL : May 26, 2021 MEMORANDUM OF LAW IN SUPPORT OF LUKE CICCARELLO’S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO THE APPORTIONMENT COMPLAINT OF SEASIDE WINE & LIQUOR, LLC The Apportionment Defendant, Luke Ciccarello, moves for summary judgment as to Count Six (negligence) of the Apportionment Plaintiff, Seaside Wine & Liquor’s Apportionment Complaint dated August 26, 2019 (Entry No. 120.00), on the grounds there is no evidentiary basis to establish the elements of breach of duty and causation as it pertains to Luke Ciccarello. Although the crux of the Apportionment Complaint is that Luke Ciccarello brought vodka to a party and in consequence of such, persons were injured in a single car automobile accident wherein Ryan Capozziello was the driver, Luke Ciccarello respectfully submits there is no real issue to be tried, as there is no other conclusion that can be reached from the facts except Ryan Capozziello did not drink any alcohol allegedly provided by Luke Ciccarello. In other words, Luke Ciccarello did not do anything wrong, negligent, or reckless to cause the motor vehicle accident; Luke Ciccarello did not provide alcohol at the party, did not bring any alcohol with him to the party, and was not in a position to control the party in any way. Luke Ciccarello’s position will be supported by a host of evidence, as is outlined below. Therefore, Luke Ciccarello is entitled to judgment as a matter of law with respect to the Apportionment Complaint. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 LEGAL/138489225.v1 I. BACKGROUND A. Allegations The present action is one of a number of consolidated actions that arise from a motor vehicle accident, which resulted in claimed injuries to all six of the vehicle’s occupants. More specifically, on April 14, 2017, Janelle Pompea, Allison Loder, Ryan Capozziello, Thomas Bull, Grant Ciccarello, and Ryan Gombos were occupants of a 2004 Jeep Liberty (hereinafter the “Bull vehicle”), owned by Matthew Bull and driven by Ryan Capozziello, which collided with a tree causing injuries to, among others, Thomas Bull. Prior to the collision, the six vehicle occupants were minors attending a social gathering at plaintiff, Janelle Pompea’s, household (32 Dayton Road, Redding, CT), where alcohol was allegedly present. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.41, lines 8-11; and p.76, lines 14-16.) All six of the vehicle occupants were under the age of 21 at the time of the incident. The Apportionment Complaint alleges that on April 14, 2017, defendant Luke Ciccarello purveyed, provided, supplied, furnished, dispensed, distributed, gave away or otherwise made available alcohol to Ryan Capozziello. (See Apportionment Complaint at Count Six, paragraph 16). The Apportionment Complaint further alleges on April 14, 2017, Ryan Capozziello, who was under 21 years of age at the time, became intoxicated as a result of the alcoholic beverages. (See Apportionment Complaint, Count One, Paragraphs 1-17). At approximately 5:46 p.m., on April 14, 2017, Ryan Capozziello was operating the above referenced vehicle and caused the vehicle to travel off the roadway and collide with a tree. (See Apportionment Complaint, Count One, Paragraphs 1-17). Ryan Capozziello’s blood alcohol level was above the statutory legal limit for persons under the age of 21 on said date. (See Apportionment Complaint at Count One, Paragraphs 1-17). MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 2 LEGAL/138489225.v1 The primary plaintiff, Janelle Pompea, claims her injuries and losses were caused by, and in consequence of, Ryan Capozziello’s intoxication resulting from the alcoholic beverages provided or otherwise made available to Mr. Capozziello by Luke Ciccarello. (See Apportionment Complaint at Count One at Paragraphs 1-17; Apportionment Complaint, Count Six, Paragraphs 16-17). B. Events of April 14, 2017 As previously mentioned, on the day of the accident, the six vehicle occupants were attending a social gathering at plaintiff, Janelle Pompea’s, household (32 Dayton Road, Redding, CT), where alcohol was allegedly present. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.41, lines 8-11; and p.76, lines 14-16). In her own words, Janelle Pompea was having a “darty,” or daytime party, at her house on April 14, 2017. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.108, lines 6-13). Present at the aforementioned social gathering were minor individuals, including, but not limited to: Janelle Pompea, Tom Bull, Ryan Gombos, Ryan Capozziello, Grant Ciccarello, Luke Ciccarello, Allison Loder, Liam Andrews, Katie Nolan, and Greg DeCarlo, among others. (See Exhibits A-J). Luke Ciccarello arrived at the party at or about 12:30 pm. (See Exhibit G, Deposition of Luke Ciccarello, January 28, 2021, p. 20, lines 19-23). One of the attendees, Ryan Capozziello, was invited by Tom Bull to the “darty.” (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.116, lines 12-15.) According to Ryan Capozziello, he consumed roughly four beers at the party on the day of the incident. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.34, lines 2-7 (emphasis added)). Later on in the day, but after Luke Ciccarello had left the party at or about 2:30pm, six of the individuals (Janelle Pompea, Tom Bull, Ryan Gombos, Ryan Capozziello, Grant Ciccarello, and Allison Loder) decided to go to a nearby gas station in the Bull vehicle. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p. 39, lines 7-16; Exhibit MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 3 LEGAL/138489225.v1 I, Deposition of Katie Nolan, March 25, 2021 at p.50). While at the gas station, a decision was made for Ryan Capozziello, instead of Tom Bull, to drive the Bull vehicle. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.44, lines 10-12). Shortly thereafter, while Ryan Capozziello was driving, a car swerved into his lane, causing him to swerve off the road and collide with a tree. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, pp.45-46, lines 23-7). This collision allegedly caused injuries to the plaintiff. (See Plaintiff's Amended Complaint; Paragraph 13, Counts 13 and 14; Entry No. 126.00). C. Luke Ciccarello’s Testimony About The Party Luke Ciccarello did not see Ryan Capozziello drink anything during the time Luke was at the party, let alone vodka. (See Exhibit G, Deposition of Luke Ciccarello, January 28, 2021, p.57, lines 4-9; p.94, lines 16-18). Furthermore, and importantly, Luke Ciccarello denied bringing any vodka to the party (see Deposition of Luke Ciccarello, January 28, 2021, p.42, lines 9-11; p.38, lines 6-18) but said he saw Tom Bull and Ryan Capozziello bring beer to the party (see Deposition of Luke Ciccarello, January 28, 2021, p.52, lines 1-17). D. Ryan Capozziello's Testimony Regarding What He Drank on the Date of Incident As mentioned above, it is plaintiff’s theory Luke Ciccarello provided vodka to the persons attending the “darty,” including Ryan Capozziello, but Ryan Capozziello is adamant he did not consume any vodka at the party, let alone any vodka supposedly provided by Luke Ciccarello. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.91, lines 1-2; p.124, lines 2-6; p.139, lines 5-7). Indeed, Ryan Capozziello testified Tom Bull invited him to the party (see Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.25, line 17 to p.26, line 3) and that he consumed roughly four beers at the party on the day of the incident. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.34, lines 2-7; see MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 4 LEGAL/138489225.v1 also Exhibit “K”, Ryan Capozziello’s Supplemental Compliance to Plaintiff’s Interrogatories at p.6). When asked whether he was offered any alcohol from Luke Ciccarello at the party, he said “I don’t remember” (see Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.151, line 25 to p.152, line 2), but he also said he remembered the party “crystal clear” including what he drank (Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.168, lines 10-18). E. The Other Witnesses’ Testimony Regarding Ryan Capozziello’s Alcohol Consumption To date, there have been over 10 depositions of persons, both parties and non-parties, about the events in question. Importantly, none of the witnesses who were at the party have testified Ryan Capozziello drank vodka that day. i. Janelle Pompea Janelle Pompea testified on multiple occasions she does not know what Ryan Capozziello drank. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p. 118, lines 18-21, p. 245, lines 2-6). ii. Tom Bull Tom Bull testified he saw Ryan Capozziello drinking a red can of Budweiser, which Tom had brought to the party, but did not see him drinking anything else. (See Exhibit E, Deposition of Tom Bull, January 26, 2021, p.75, lines 2-11). As far as Tom was aware, Ryan Capozziello was just drinking beer. (See Exhibit E, Deposition of Tom Bull, January 26, 2021, p.130, lines 20-22). Tom Bull also testified he never saw Ryan Capozziello drink vodka, and only saw him drinking a can of Budweiser. (See Exhibit E, Deposition of Tom Bull, January 26, 2021, p.131, lines 1-4). Moreover, Tom Bull unquestionably supplied beer to the party (see Exhibit “L”, Thomas Bull’s Responses to Second Set of Interrogatories dated May 29, 2020). MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 5 LEGAL/138489225.v1 iii. Ryan Gombos Ryan Gombos was not at the Pompea home when Luke Ciccarello arrived and, therefore, was in no position to opine about whether or not Luke Ciccarello brought any alcohol to the party (see Exhibit F, Deposition of Ryan Gombos, January 27, 2021, p.113, lines 8-19). In any event, he had no recollection of seeing Ryan Capozziello drink vodka at the party on the date in question. (See Exhibit F, Deposition of Ryan Gombos, January 27, 2021, p.121, lines 9-20; p.146, lines 20-22). iv. Grant Ciccarello Grant Ciccarello denied Luke Ciccarello supplied any alcohol for the party (see Exhibit C, Deposition of Grant Ciccarello, March 10, 2020, p.65, lines 5-25; p.152, lines 21-24). v. Katie Nolan Katie Nolan, a non-party witness to the consolidated matters, and fellow party attendee, testified to never seeing Ryan Capozziello drink anything. Specifically, she was asked if she ever saw Ryan Capozziello drink or eat anything that day, to which she replied: "No. All I saw was the beer that him and Tom Bull had walked in with." (See Exhibit I, Deposition of Katie Nolan, March 25, 2021, p.63, lines 1- 21). In addition, and significantly, she testified she went with Luke Ciccarello to the party and Luke did not bring any alcohol to the party, including vodka (see Exhibit I, Deposition of Katie Nolan, March 25, 2021, p.35, lines 18-20; p.42, lines 4-12; p.79, lines 2-20). vi. Allison Loder It is undisputed Allison Loder brought a 1.75 liter bottle of peach flavored Exclusiv vodka to the gathering at 32 Dayton Road. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p .42, lines 12- 16). However, she maintained she did not offer her bottle of vodka to Ryan Capozziello and would not have done so. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.106, lines 3-9; p.155, lines 10- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 6 LEGAL/138489225.v1 20). In fact, Allison Loder's bottle of vodka stayed in her bag throughout the entire gathering, whereby she would only take it out to drink from it and then would place it back in the bag that she carried on her shoulder. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 2-8). Allison had the bag on her at all times, and never took it off because she did not want other people drinking her alcohol. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, pp.81-82, lines 23-4). When she took the bottle out of her bag, it would be in her hand and she would not place it down on the table. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 19-22). vii. Liam Andrews Liam Andrews, a non-party witness to the consolidated matters, testified to only seeing Ryan Capozziello with one or two red cans of beer. (See Exhibit H, Deposition of Liam Andrews, March 23, 2021, p.46, lines 3-11). viii. Greg DeCarlo Greg DeCarlo, another non-party witness to the consolidated matters, and fellow party attendee, testified to never seeing Ryan Capozziello drink anything. (See Exhibit J, Deposition of Greg DeCarlo, March 26, 2021, p. 37, lines 1-3). II. ARGUMENT A. Legal Standard “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". Pawlowski v. Delta Sigma, 52 Conn. Supp. 186, 35 A.3d 410, 413 (Sup. Ct. 2010) (internal quotations omitted, citation omitted), aff’d., 132 Conn. App. 816, 35 A.3d 1081 (Conn. App., 2012). The party moving “for summary judgment has the MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 7 LEGAL/138489225.v1 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). “A material fact has been defined … as a fact which will make a difference in the result of the case." (Internal quotation marks omitted). Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). “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.’” Pawlowski, supra, 35 A.3d at 413 quoting Zielinski, supra 279 Conn. at 319. "In deciding a motion for summary judgment, the trial court must weigh the evidence in the light most favorable to the non-moving party" (Appleton v. Board of Educ. of Town of Stonington, 254 Conn. 205, 209 (2000) (citation omitted)), but "a party opposing [summary judgment] 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." Scheirer v. Frenish. Inc., 56 Conn. App. 228, 233 (1999), cert. denied, 252 Conn. 938 (2000) (citations and internal quotations omitted). B. There are No Grounds for Apportionment Due to Lack of Proximate Cause and the Absence of Duty As mentioned above, the Apportionment Complaint, at Count Six, claims negligence against Luke Ciccarello. More specifically, it is alleged at Count Six, paragraph 16, inter alia, Luke Ciccarello purveyed, provided, supplied, delivered, furnished, dispensed, distributed, gave away or otherwise made available alcohol to Ryan Capozziello. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 8 LEGAL/138489225.v1 In addition, at Count Six, paragraphs 16-17, it is alleged the “Defendants deny that they were negligent, but if the allegations against Luke Ciccarello are accurate, then the Plaintiff's injuries and damages were caused in whole or in part by the negligence, carelessness, and/or recklessness of Luke Ciccarello. As a result, Luke Ciccarello is or may be liable for a proportionate share of the damages alleged by the Plaintiff pursuant to Connecticut General Statutes § 52-572h.” Connecticut General Statute §52-102b(a) provides in relevant part: a “defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable ... for a proportionate share of the plaintiff’s damages in which case the demand for relief shall seek an apportionment of liability ...The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.” Furthermore, Connecticut General Statute §52-572h(c) states in relevant part: “[i]n a negligence action to recover damages resulting from personal injury ... if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the ... damages ....” “The statute does not require that the apportionment defendant owe a duty (of care) to the apportionment plaintiff, but merely that the apportionment defendant is partially liable for the plaintiff’s damages, or rather had a duty to the plaintiff.” (Internal quotation marks omitted.) Billings v. Cretella Builders, Ltd. Liability Co., Superior Court, judicial district of New Haven, Docket No. CV 07 5012830 (July 30, 2009, Holden, J.) (emphasis added). In the present case, Luke Ciccarello neither had a duty of care to the plaintiff nor engaged in any acts or omissions that would establish proximate cause. Thus, summary judgment is proper with respect to the Apportionment Complaint, Count Six. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 9 LEGAL/138489225.v1 i. Lack of Proximate Cause It is axiomatic the elements of a cause of action for negligence are duty, breach, causation, and damages. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989). In the instant case, Luke Ciccarello is entitled to summary judgment with respect to Seaside Wine & Liquor’s apportionment complaint due to the absence of proximate cause. As outlined above, the gist of the apportionment complaint is that Luke Ciccarello supplied vodka to the driver of the vehicle, and, therefore, people were injured, but the driver of the vehicle has steadfastly maintained he did not consume any vodka on the date in question. (See supra). Indeed, it is noteworthy the driver, Mr. Capozziello, has not brought suit against Luke Ciccarello for allegedly supplying him with intoxicating liquors, to wit, vodka on the date of incident, and Mr. Cappozziello would have every reason to do so if in fact it occurred as he suffered serious injuries in the accident. Ryan Capozziello is a defendant in some of the consolidated actions. Similarly, the participants to the party have, in essence, refuted any allegation Ryan Capozziello consumed vodka as evidenced by their deposition testimony outlined above. To those points, in the action sub judice, the plaintiff, Ms. Janelle Pompea, has alleged her injuries and losses were caused by, and in consequence of, Ryan Capozziello's intoxication due to the alcoholic beverages provided or otherwise made available to him by Luke Ciccarello or others (see, e.g., Plaintiff’s Complaint at First Count Paragraphs 1-19). However, the only conclusion that can be drawn from the evidence presented is that Ryan Capozziello did not drink any alcohol allegedly provided by Luke Ciccarello and, therefore, he could not have become intoxicated from alcohol provided or otherwise made available to him by Luke Ciccarello. (Emphasis added). Since there is no genuine issue of material fact as to this conclusion, the "[c]ausation" element cannot be met as to any claimed service of alcohol by Luke Ciccarello to Ryan Capozziello and summary judgment is proper with respect to the Apportionment MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 10 LEGAL/138489225.v1 Complaint. Luke Ciccarello also maintains he did not supply any alcohol to anyone at the party on the date in question, let alone vodka. As mentioned above, Luke Ciccarello did not bring a bottle of vodka to the Pompea household on the day of the incident. There have been over ten depositions of individuals who were at the Pompea household (32 Dayton Road, Redding, CT) on April 14, 2017, and not one of the 10 persons deposed has testified to witnessing Ryan Capozziello consume vodka. (Emphasis added.) (See Exhibits A-J.) Not only that, but the driver himself, Ryan Capozziello, is adamant he did not consume any vodka, let alone any vodka that Luke Ciccarello allegedly brought to the party, so as to impose any form of liability on Luke Ciccarello. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.91, lines 1-2; p.124, lines 2-3; p.139, lines 5-7). The movant submits that if Luke Ciccarello only brought vodka to the party, and not a single person has testified to seeing Ryan Capozziello drink vodka, it is impossible for any party to meet his/her causation burden in this case. Therefore, neither the plaintiff nor the Apportionment Plaintiff can establish as a matter of law the defendant, Luke Ciccarello, was negligent or otherwise responsible for the accident. The undisputed evidence shows Ryan Capozziello did not consume any alcohol provided by Luke Ciccarello. Simply stated, the trier of fact could not reasonably reach any other conclusion other than Luke Ciccarello did not do anything wrong, negligent, or reckless that would cause or contribute to the plaintiff's injuries. Consequently, Luke Ciccarello is entitled to summary judgment as a matter of law. Indeed, in the absence of proximate cause, which is a necessary element of a negligence claim (see supra), the apportionment cause of action against Luke Ciccarello must fail as a matter of law. (See Coste v. Riverside Motors, Inc., 24 Conn. App. 109 (1991); Weaver v. Apuzzo, No. 3:02CV1328 (AHN), 2005 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 11 LEGAL/138489225.v1 WL 752212, at *5-6 (D. Conn. Mar. 30, 2005) (granting summary judgment because plaintiff failed to disclose expert to establish essential elements of legal malpractice claim); Lyons v. Fairfax Props., Inc., No. 3:01CV01355 (JBA), 2004 WL 717107, at *4 (D. Conn. Mar. 31, 2004) (granting summary judgment because plaintiff did not disclose expert necessary to establish financial damages)). ii. Lack of Duty As often stated, the “essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury .... First, it is necessary to determine the existence of a duty ....Because duty is an essential element in a negligence action, the plaintiff cannot have an action in negligence unless (she) shows that the defendant owed a duty to the plaintiff.” (Internal citations omitted; internal quotation marks omitted.) Silano v. Cumberland Farms, Inc., 85 Conn. App. 450, 453, 587 A.2d 439 (2004). “Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform.” Sheiman v. Lafayette Bank & Trust, 4 Conn. App. 39, 45, 492 A.2d 219 (1985); Martinez v. McDuffie, Superior Court, judicial district of New Haven, Docket No. CV 08 5016936 (April 17, 2009, Corradino, J.). In the instant action, Luke Ciccarello did not owe a duty of care to Seaside Wine & Liquors or Janelle Pompea or anyone else because he did not host the party or supply alcohol to the party or the driver. Hence, the Luke Ciccarello is entitled to summary judgment with respect to Count Six of the Apportionment Complaint based on lack of duty. (See Sobieski v. Extreme Maint. Ltd., Liability Co., 2010 WL 1375408; Superior Court, judicial district of New Haven, Docket No. CV 09 6003762S (March 5, 2010, Wilson, J.) (holding that apportionment defendant Deko Lawn Service was entitled to summary judgment in a slip and fall on ice action since it owed no duty of care to the plaintiff since Deko had no contract for snow or ice removal nor any course of conduct at the subject location)). MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 12 LEGAL/138489225.v1 Indeed, the Apportionment Defendant submits that even if Seaside Wine & Liquors had properly pled the existence of a duty in Count Six, the material facts clearly establish no such duty existed, which warrants summary judgment in Luke Ciccarello’s favor. The movant submits the case of Vitale v. Kowal, 101 Conn. App. 691, 923 A.2d 778, 780, 784 (2007) is on point and should be followed. There, the plaintiff brought suit based on negligence and recklessness in an action where the plaintiff claimed damages were incurred as a result of Trevor Vitale's losing control of and crashing his automobile, resulting in his death, after allegedly consuming alcohol with defendant Kevin Gonzalez and defendant Steven Kowal. Prior to the accident, Mr. Vitale, Mr. Kowal, and Mr. Gonzalez were drinking beer in dormitory room at a University, which was shared by Mr. Gonzalez and Mr. Kowal, and the beer had been supplied by Mr. Kowal. On appeal, the Appellate Court held that the lower court properly awarded summary judgment to the defendant, Mr. Gonzalez, because “the evidence offered in support of the defendant's motion for summary judgment tended to prove that the defendant did not owe a duty (of care) to Trevor Vitale because the defendant had not invited Trevor Vitale to his dormitory room that evening, he did not know that Trevor Vitale had been invited to the dormitory room, he did not bring alcohol to the dormitory room that evening, he did not retrieve alcohol from the refrigerator for Trevor Vitale and he did not provide or serve alcohol to Trevor Vitale that evening”. Vitale, supra, 923 A.2d 778, 780, 784; accord, Pawlowski, supra. According to precedent, there "is no duty so to control the conduct of a third person to prevent him from causing physical harm to another unless: (a) a special relation exists between the actor and third person which imposes a duty upon the actor to control the third person's conduct; or (b) a special relation exists between the actor and other which gives the other a right to protection." Restatement 2d Torts, § 315. Control is a determining factor in the inquiry into whether an individual has a duty to a third person. "Connecticut precedents impose only a limited duty to take action to prevent injury to a third person” MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 13 LEGAL/138489225.v1 (Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996)) and absent “a special relationship of custody or control, there is no duty to protect a third person from the conduct of another" (Kaminski v. Fairfield, 216 Conn. 29, 33-34 (1990)). In the instant case, the Apportionment Plaintiff claims Luke Ciccarello was negligent in supplying alcohol to Ryan Capozziello (see Apportionment Complaint at Count Six, Paragraph 16). However, no special relationship exists that would impose a duty upon Luke Ciccarello to control the conduct of Ryan Capozziello. It is impossible for any reasonable person to believe Luke Ciccarello would have any obligation to control what Ryan Capozziello did or did not do. This was not Luke Ciccarello's party (see Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.108, lines 6-13), he did not invite Ryan Capozziello to the party (see Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.116, lines 12- 15), and Ryan Capozziello did not drink any alcohol allegedly supplied by Luke Ciccarello (see Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.91, lines 1-2; p.124, lines 2-3; p.139, lines 5-7; p. 39, lines 2-7). Accordingly, there is no genuine issue of material fact Luke Ciccarello lacked the duty to control the actions of Ryan Capozziello, and Luke Ciccarello should, therefore, be entitled to judgment as a matter of law as to Count Six of the Apportionment Complaint. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 14 LEGAL/138489225.v1 III. CONCLUSION For the foregoing reasons, the Apportionment Defendant, Luke Ciccarello, respectfully requests that this Court grant his Motion for Summary Judgment as to Count Six of the Apportionment Complaint and rule that the Apportionment Defendant is entitled to judgment as a matter of law. THE APPORTIONMENT DEFENDANT, LUKE CICCARELLO By: /s/ 413237 Charles T. Gura Charles T. Gura, Esq. Marshall Dennehey Warner Coleman & Goggin 287 Bowman Avenue, Suite 404 Purchase, New York 10577 Phone: (914) 977-7312 Fax: (914) 977-7301 Email: ctgura@mdwcg.com Our File No. 19210.03930 Juris No. 413237 By: _/s/ 414444 James J. Noonan___ James J. Noonan, Esq. Jenna T. Cutler, Esq. Ryan Ryan Deluca, LLP 1000 Lafayette Blvd., Suite 800 Bridgeport, Connecticut 06604 Tel.: (203) 549-6655 Email: jjnoonan@ryandelucalaw.com Email: jtcutler@ryandelucalaw.com Juris No.: 414444 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 287 Bowman Ave Suite 404 Purchase, New York 10577 Phone:(914) 977-7300 Fax: (914) 977-7301 15 LEGAL/138489225.v1 f f \ i JANELLE POMPEA January 25, 2021 JANELLE POMPEA VS RYAN CAPOZZIELLO 108 1 the six of us being at my house without 2 anybody else at the party. 3 BY MR. ROBERTS: 4 Q. All right. We will get to what you 5 do remember. 6 So was everyone at the party 7 invited by you? 8 A. No. 9 Q- Who was not? 10 A. Well, it was more word of mouth 11 that the party -- that's people showed up. 12 I didn't message anybody directly and tell 13 them that I was having a darty. 14 Q. But you expected those who came 15 were not they weren't -- you were not 16 surprised to see the people arrived. 17 Fair statement? 18 A. Yes. 19 Q. Okay. And did you know everybody 20 other than Ryan who was at your house? 21 A. Yes. 22 Q. And had they all been to your house 23 in the 2015 party events? 24 A. No. 25 Q. Had any of them? ES 800.211.DEPO (3376) EsquireSolutions.com JANELLE POMPEA January 25, 2021 JANELLE POMPEA VS RYAN CAPOZZIELLO 118 1 A. Correct. 2 Q. But you don't remember seeing 3 anybody else drink from that bottle other 4 than you? 5 A. Correct. 6 Q. Okay. And did you see Alli drink 7 from that bottle? 8 A. Yes. 9 Q. Okay. I mean, she was your friend, 10 so you probably drank together a little bit, 11 right? 12 A. Correct. 13 Q. Okay. And do you remember did 14 you play beer pong? 15 A. I don't remember. 1.6 Q. Do you know who played beer pong? 17 A. No. 18 0. Okay. I think you have answered 19 this in your interrogatories, but you don't 20 know what alcoh