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DOCKET NO. CV20-604441 8-S SUPERIOR COURT
CARLOS CASILLAS J.D. OF NEW LONDON
VS, AT NEW LONDON
STONEHOUSE, LLC, ET AL. JUNE I1,2O2O
MBMORANDUM OF LAW IN REPLY TO
DEF'ENDANTS ' OR.IECTION TO TO STRIKE
The plaintiff, Carlos Casillas, hereby submits this memorandum of law in reply to the
defendants' objection (Document Entry No. 135.00) to his motion to strike (Document Entry No'
126.00) each defendants'Fourth Special Defenses of their answers and special defenses dated
March 19,2020 (Document No. 107.00 - 109.00),' The defendants' opposition wrongly presumes
that the Fourth Special Defense can be interpreted as assumption of risk, misinterprets the purpose
of the Dram Shop Act, and fails to consider the basis of liability under General Statues $ 30-102.2
Resultantly" the motion to strike should be granted.
I
The plaintiffhas also moved to strike each defendant's to which the defendants have consented,
third special defense,
See Memorandum of Law in Support of Objection to Motion to Strike (Document Entry No' 136'00)'
2 General Statutes $ 30-102 states, in relevant parl, "lfany person, by such person or such person's agent, sells any
alcoholic liquor to an intoxicatedperson, and such purchaser, in consequence ofsuch intoxication,thereafter injures
such seller shall
the person . . , of another, pay justdamages to theperson injured,up to the amount of two hundred
in
tifty thousand dollars . , . to be recovered an actionunder thissection ,'. ,"
Sursunn, Sunprno, Wool, BnEruNRu,Gnay & CneeNeenc, PC. rHe couRrNEyBUrLDrNc, surrE 200, 2 uNroN pLAzA, posr oFFrcE Box t59l
NEW LONDON, CONNECTICUT06320 442-44t6
TEL-1860) IURIS NO. 621 l4
I Defendants W ronslv Presume the Fourth Snecial Defense Sounds in of
Risk.
'Ihe def'endants' opposition is based on the inaccurate premise that the Fourth Special
Defense sounds in assumption of risk rather than in contributory negligence.
Prior to the enactment of General Statutes g 52-572h,3 contributory negligence and
assumption of risk were two distinct doctrines. Contributory negligence is available as a defense
when the plaintitf s "negligence , . . materially and essentially as well as directly contributes to the
injury," Sric,kney v. Epstein,l00 Conn. 170, 175,123 A. I (1923). Conversely, assumption of
risk is "[a] def-ense that a plaintiff seeking recovery upon the ground of negligence assumed the
risk of the situation which brought about the injury is in the nature of a plea in confession and
avoidance; the defendant may admit his own negligence and the plaintiffs lack of contributory
negligence and still claim that he is not liable upon this ground." (Emphasis added.) Sanders v'
Oficers Club o.fConnecticut,lg6 Conn. 341,352,493 A.2d 184 (1985)'
3
General Statutes S 52-512h (b) states, "ln causes of action based on negligence, contributorynegligence shall not
to recover
bar recovery in an action by any person or the person's legal representative damages resulting fiom personal
injury, wrongful death or damage to properry if the negligence was not greater than the combined negligence of the
prrron o, prironr against whom recovery is sought including settled or released persons under subsection (n) ofthis
iection. The economic or noneconomic damages allowed shall be diminished inthe proporlion of the percentage of
negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f)of
this section."
2
Sutsman, SHnptno,Wool, BnrnNRn, Gnav & CREENBERc, P.C. rne couRrNEy pLAzA, posr oFFrcE Box r59r
BUrLDrNc, surrE 200,2 uNroN
06120 TEL.l860J 442'44t6 IURtS NO. 62t t4
NEW LONDON, CONNECTTCUT
Assumption of risk and contributory negligence are often conflated because the principles
underlying both now fall under the umbrella of General Statutes S 52-572h. However, when it is
argued that $ 52-572h is inapt, as it is here,4 and that one or more of these special defenses are
available, as the def.endants claim now, the previously existing definitions of these doctrines should
apply. This is particularly true in the context of $ 30-l02,to which contributory negligence clearly
does not apply. See Sanders v. (fficers Club ttf Connecticut, supra, 196 Conn' 352.
In the present case, The Fourth Special Defense expressly alleges negligence, rather than
assumption of risk. Specifically, the Fourth Special Defense states:
"The Plaintiff, Carlos Casillas interacted with and had conversation with
Michael LeBeau during the course of the evening of January 18 - 19,2019
and observed or otherwise became aware of Michael LeBeau's
consumption of alcohol, Any' damages and injuries sustained by the
Plaintiff Carlos Casillas were caused by Carlos Casillas' own 439!iru!
conduct because:
"(a) He knew or should have known of the dangers of Michael
LeBeau's alleged intoxication and yet voluntarily chose to engage
in a physical andlor verbal altercation with Michael LeBeau;
"(b) He failed to take adequate measures to safeguard himself
from any dangerous [sic] which may result from engaging in a
physical altercation andlor verbal altercation with Micahel LeBeau
when he knew or should have known that Michael LeBeau was in
4
Section 52-572h only applies to negligence actions. General Statutes 5 52-572h (b)("ln causes of action based on
negligence. , .," fEmphasis added.])
3
SutsuaN, Ssnprno, WooL, BRENNAn, Gnay & GnEeNeenc, P.C. rue couRrNEyBUrLDrNc, surrE 200, 2 UNIoN pLAzA, posr oFFtcE Box l59t
NEW LONDON, CONNECTTCUT 06320 TEL.1860) 442-4416
IURIS NO. 621 l4
an allegedly intoxicated state on January 18 - 19,2019." (Emphasis
added.)
Assumption of risk and contributory negligence in this context are distinct
doctrines, therefbre the Fourth Special Defense must allege one or the other' See Practice
Book g 10-51 .5 Given the specific allegations that the plaintiff was negligent and failed to
take adequate safeguards, this special defense can only be interpreted as sounding in
contributory negligence. Since it is well established that contributory negligence is not a
defense to a dram shop claim, the Fourth Special Defense must be stricken' See Sanders
v, (fficers Club of Connecticut, Inc,, supta, 196 Conn 352 see also Belanger v. Village
Pub I, Inc.,26 Conn. App,509, 512,603 A,2dll73 (1992)'
II. Assumptiop of Risk Does Not .Applv to Dram Shop Claims.
The Court need not reach the issue of whether assumption of risk is applicable to
Dram Shop Claims, as the Fourth Special Defense alleges an impermissible contributory
negligence defense rather than assumption of risk. However, should the Court find that the
Fourth Special Defense sounds in assumption of risk, it is nevertheless cannot apply to the
present dram shop claim.
5 practice Book $ l0-5 I states, in relevant part, "When several matters of defense are pleaded, each must, . ' be
separately stated and designated as a separatedefense , . , ."
4
SutstvtRrrr,Sunprno,WooL,BnErunan,Gney&GREENBERG,P.C. rsEcouRrNEyBUrLDrNc,surrE200,2uNroNpLAzA,posroFFIcEBoxtSgt
"lEL. 18601 442-4416 JURIS NO. 62 I I 4
NEW LONDON, CONNECTTCUT 06320
The Sunders Decision Did Not Suggest Assumption of Risk is a Viable
^. Defense Under S 30-102.
Contrary to what the defendants have argued, there is no suggestion in the Supreme
Court's decision in Sanders v. Officers Club of Connecticut, supra 196 Conn. 34l,thatthe
assumption of risk def'ense is available in Dram Shop Claims. The Court stated,
"Assuming, without deciding,that under some circumstances a plaintiff can be held to have
assumed a risk which has its basis in the violation of a statutory requirement enacted for
his protection . , . that issue is not presented in this case.o' (Citations omitted; emphasis
added.) Sanders v. Officers Club of'Connecticuf, supra, 196 Conn' 353' The Supreme
Court did not address whether assumption of risk applied to a dram claim because it did
not have to, Id. There was no evidence supporting the doctrine regardless of whether it
applied. Id, ("There is no evidence to indicate any awareness by the plaintiff of the
intoxicated condition of the driver of the car that struck him.").
b. The Purpose of the Dram Shop Act is to Protect the Public At Large.
The defendant's argument that the Dram Shop Act was intended to only protect
innocent third parties and not the public at large ignores the clear pu{pose of $ 30-102.
"The legislature, in enacting the Dram Shop Act, sought to hold a vendor of intoxicating
liquor strictly liable for the damages caused by an intoxicated person who had been sold
5
Sursunn, Sunptno, WooL, BnEnnan, GnRy & Gngrnaenc, BUrLDrNc, surrE 200,2 uNroN PLAZA, posroFFrcE Box l59t
P.C. rue couRTNEy
NEW LONDON, CONNECTTCUT06120 TEL.1860) 442-4416
IURIS NO. 621 l4
liquor. Sanders v. }fficers Club of Connecticut, Inc.,135 Conn' Supp. 93,397 A2d 122
(1978)]. The legislature also sought to aid in the enforcement of General Statutes $ 30-86,
which prohibits the sale of intoxicating liquor to intoxicated persons, by providing an
enforceable civil remedy against vendors of liquor. Cookinham v. Sullivan, [23 Conn.
Supp. 193, I 95-96, l7g A.zd S40 ( I 962)1. This reflects a strong public policy favoring the
imposition of liability upon vendors who sell goods possessing considerable risk to the
public at large regardless of reasonable care on behalf of the vendot, in this case the sale
of alcohol to an intoxicated person." Sanders v. Of/icers Club of Connecticut, Inc', supta,
35 Conn. Supp. 93." (Emphasis added; internal quotation marks omitted.) Passini v.
Decker,39 Conn. Supp. 20,24,467 A.2d 442 (19S3). It is well established that statutes,
designed to protect the public at large, such as the Dram Shop Act, are not subject to an
assumption of risk def'ense. See L'Heureux Y, Hurley, 117 Corur. 347 , 355-58, 168 A. 8
93 3).
The def'endants'reliance on Nolanv. Morelli,l54 Conn. 432,226 A.2d 383 (1967), for
the proposition that the Dram Shop Act is not designed to protect the public atlarge is misplaced.
In Nolan, the plaintiff was denied recovery under $ 30-102 because the decedent was the
intoxicated person himself. Id.,435-36. The issue was not whether assumption of risk applied, or
6
Sutsveu, Suaprno, WooL, Bneruunru, Gnny & GREENBERG, PC. rHe couRrNEy surrE
BUTLDTNG, posr oFFICE Box t59t
200, 2 uNroN PLAZA,
06320
NEW LONDON, CONNECTICUT TEL.8601442-4416 IURIS NO. 621 l4
whether the Dram Shop Act is a statute that protects the public atlarge, but whether the intoxicated
person himself can recover under $ 30-102. Specifically, the Court stated, "By its express terms,
the Act authorizes a recovery, where its conditions are fulfilled, by one injured in person or
property as a consequence of the intoxication of another person to whom intoxicating liquor has
been sold while he was intoxicated, but it clearly does not authorize recovery for injuries or
properly damage sustained by the intoxicated purchaser himself." Id'
c. The Plaintiff Could Not Have Assumed the Risk of the Act Giving Rise to
LiabilitY'
The purpose of $ 30-102 is not the only reason the assumption of risk doctrine is an
inappropriate defense to a Dram Shop Claim. "The doctrine of assumption of risk has fallen into
disf.avor. 4 F. Harper, F. James & O. Gray, Torts, (2d Ed,19S6) $ 21.8, pp. 259-60. It has been
aptly described as 'simply a confusing way of stating certain no-duty rules or (where there has
been a breach of duty toward the plaintiff) simply one kind of contributory or comparative
negligence.' Id., $ 2,10, at p. 190." Blondinv, Meshack, Superior Court, judicial district of New
Haven, Docket No. CV08-5018828-S (October 2, 2008, Lager, J.)(46 Conn. L. Rptt. 396).
Consistent with this trend, many of our courts have found assumption of risk inapt in the context
of a Dram Shop Claim because a plaintiff cannot assume the risk of the illegal behavior at issue,
because a dram shop plaintiff cannot participate in the illegal act.
7
Sulsmnn, SHAptRo,Wool, Bnnruuu, Gnnv & GneetteEnc, PC. rgecouRTNEy BUrLDrNc, surrE 200, 2 uNroN pLAzA, posr oFFrcE Box ttgl
NEW LONDON, CONNECTTCUT06320 442-4416
TEL. 18601 IURIS NO. 62t r4
Only third parties to a dram transaction can recover under $ 30-102. Nolan v. Morelli,
supra, 154 Conn. 435-36 ("By its express terms, the Act authorizes a recovery . . . by one injured
in person or property as a consequence of the intoxication of anothel person . , . ." [Emphasis
added.l). The act giving rise to liability is not that of the intoxicated person, but of the purveyor
of alcohol serving such an intoxicated person. See Cote v. Gay, supra, Superior Court, Docket No.
CVl3-601 5822-3 ("[A Dram Shop Claim] is an action based on a statute which makes puveyors
of alcohol strictly liable fbr service to intoxicated persons.").
While a plaintitf may be alleged to have assumed the risk an intoxicated person will act
violently, such a plaintiff cannot be said to have assumed the risk that a seller of alcoholic
beverages continued to serve such beverages to a person known to be intoxicated. Blondin v.
Meshack, Superior Court, judicial district of New Haven, Docket No. CVO8-5018828-S (October
2,2008, Lager, J,) (46 Conn. L. Rptr. 396x"While a plaintiff may properly be alleged to have
assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should
have known was intoxicated . , . he cannot be held to have "assumed the risk" that a seller of
alcoholic beverages continued to serve such beverages to a person known to be intoxicated.").
Since the plaintiff could not have assumed the risk of a transaction he did not participate in, the
defendants cannot avail themselves of an assumption of risk defense.
8
pLAZA, posroFFrcE Box r59l
Sursunn, Sueprno, WooL, BRENNAU, Gnnv & GneeNennc, P.C. rne couRrNEy BUrLDrNc, surrE 200,2 uNroN
NEW LONDON, CONNECTICUT 06320 TEL.1860) 442-44t6 IURIS NO. 62il4
III. Conclusion.
WHEREFORE, in light of the foregoing, and for the reasons stated in the plaintiff s
memorandum of law in support of his motion to strike, dated April29,2020 (Document Entry
127.00),it is respectfully submitted that the present motion to strike (Document Entry No' 126'00),
should be granted.
THE PLAINTIFF,
CARLOS CASILLAS
By lsl4 941
Kyle J,Zrenda, of
Suisman, Shapiro, Wool Brennan,
Gray, & Greenberg, P.C.
Two Union Plaza, Suite 200
P.O. Box 1591
New London, Connecticut 06320
Phone: (860) 442-4416
Email: KZrenda wbs{.r.c0m
His Attorneys
9
SutsmRtt,SHnprno,Wool,Bnerunnn,GnRv&GneeNtegnc,P.C. rHecouRrNEyBUrLDrNc,surrE200,2uNIoNPLAZA,PosroFFlcEBoxl59l
NEW LONDON, CONNECTICUT 06320 TEL. 18601 442'44t6 JURIS NO. 62 I I 4
CEBTIFICATION
I hereby certify that a copy of the above was mailed, or delivered electronically where
electronic delivery has been consented to, on June 1 1,2020, to all counsel and self-represented
parties of record, as follows:
Janice D, Lai, Esq,
Ryan Ryan Deluca, [,LP
City Place II
185 Asylum Street, 6th Floor
Hartfbrd, Connecticut 06 I 03
J Di-aiirr)rr"and eluccilaw'.crlnr
btn594L
Kyle J, Zrenda
Commissioner of the Superior Court
l0
pLAzA, posr oFFtcE Box l59l
Sursunn, Suaptno, WooL, BRENNAti, Gnnv & GngeNaenc, PC. rse couRTNEy BUrLDrNc, surrE 200, 2 uNroN
NEW LONDON, CONNECTICUT 06320 TEL.1860) 442-4416
IURIS NO. 621 l4
Preview
DOCKET NO. CV20-604441 8-S SUPERIOR COURT CARLOS CASILLAS J.D. OF NEW LONDON VS, AT NEW LONDON STONEHOUSE, LLC, ET AL. JUNE I1,2O2O MBMORANDUM OF LAW IN REPLY TO DEF'ENDANTS ' OR.IECTION TO TO STRIKE The plaintiff, Carlos Casillas, hereby submits this memorandum of law in reply to the defendants' objection (Document Entry No. 135.00) to his motion to strike (Document Entry No' 126.00) each defendants'Fourth Special Defenses of their answers and special defenses dated March 19,2020 (Document No. 107.00 - 109.00),' The defendants' opposition wrongly presumes that the Fourth Special Defense can be interpreted as assumption of risk, misinterprets the purpose of the Dram Shop Act, and fails to consider the basis of liability under General Statues $ 30-102.2 Resultantly" the motion to strike should be granted. I The plaintiffhas also moved to strike each defendant's to which the defendants have consented, third special defense, See Memorandum of Law in Support of Objection to Motion to Strike (Document Entry No' 136'00)' 2 General Statutes $ 30-102 states, in relevant parl, "lfany person, by such person or such person's agent, sells any alcoholic liquor to an intoxicatedperson, and such purchaser, in consequence ofsuch intoxication,thereafter injures such seller shall the person . . , of another, pay justdamages to theperson injured,up to the amount of two hundred in tifty thousand dollars . , . to be recovered an actionunder thissection ,'. ," Sursunn, Sunprno, Wool, BnEruNRu,Gnay & CneeNeenc, PC. rHe couRrNEyBUrLDrNc, surrE 200, 2 uNroN pLAzA, posr oFFrcE Box t59l NEW LONDON, CONNECTICUT06320 442-44t6 TEL-1860) IURIS NO. 621 l4 I Defendants W ronslv Presume the Fourth Snecial Defense Sounds in of Risk. 'Ihe def'endants' opposition is based on the inaccurate premise that the Fourth Special Defense sounds in assumption of risk rather than in contributory negligence. Prior to the enactment of General Statutes g 52-572h,3 contributory negligence and assumption of risk were two distinct doctrines. Contributory negligence is available as a defense when the plaintitf s "negligence , . . materially and essentially as well as directly contributes to the injury," Sric,kney v. Epstein,l00 Conn. 170, 175,123 A. I (1923). Conversely, assumption of risk is "[a] def-ense that a plaintiff seeking recovery upon the ground of negligence assumed the risk of the situation which brought about the injury is in the nature of a plea in confession and avoidance; the defendant may admit his own negligence and the plaintiffs lack of contributory negligence and still claim that he is not liable upon this ground." (Emphasis added.) Sanders v' Oficers Club o.fConnecticut,lg6 Conn. 341,352,493 A.2d 184 (1985)' 3 General Statutes S 52-512h (b) states, "ln causes of action based on negligence, contributorynegligence shall not to recover bar recovery in an action by any person or the person's legal representative damages resulting fiom personal injury, wrongful death or damage to properry if the negligence was not greater than the combined negligence of the prrron o, prironr against whom recovery is sought including settled or released persons under subsection (n) ofthis iection. The economic or noneconomic damages allowed shall be diminished inthe proporlion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f)of this section." 2 Sutsman, SHnptno,Wool, BnrnNRn, Gnav & CREENBERc, P.C. rne couRrNEy pLAzA, posr oFFrcE Box r59r BUrLDrNc, surrE 200,2 uNroN 06120 TEL.l860J 442'44t6 IURtS NO. 62t t4 NEW LONDON, CONNECTTCUT Assumption of risk and contributory negligence are often conflated because the principles underlying both now fall under the umbrella of General Statutes S 52-572h. However, when it is argued that $ 52-572h is inapt, as it is here,4 and that one or more of these special defenses are available, as the def.endants claim now, the previously existing definitions of these doctrines should apply. This is particularly true in the context of $ 30-l02,to which contributory negligence clearly does not apply. See Sanders v. (fficers Club ttf Connecticut, supra, 196 Conn' 352. In the present case, The Fourth Special Defense expressly alleges negligence, rather than assumption of risk. Specifically, the Fourth Special Defense states: "The Plaintiff, Carlos Casillas interacted with and had conversation with Michael LeBeau during the course of the evening of January 18 - 19,2019 and observed or otherwise became aware of Michael LeBeau's consumption of alcohol, Any' damages and injuries sustained by the Plaintiff Carlos Casillas were caused by Carlos Casillas' own 439!iru! conduct because: "(a) He knew or should have known of the dangers of Michael LeBeau's alleged intoxication and yet voluntarily chose to engage in a physical andlor verbal altercation with Michael LeBeau; "(b) He failed to take adequate measures to safeguard himself from any dangerous [sic] which may result from engaging in a physical altercation andlor verbal altercation with Micahel LeBeau when he knew or should have known that Michael LeBeau was in 4 Section 52-572h only applies to negligence actions. General Statutes 5 52-572h (b)("ln causes of action based on negligence. , .," fEmphasis added.]) 3 SutsuaN, Ssnprno, WooL, BRENNAn, Gnay & GnEeNeenc, P.C. rue couRrNEyBUrLDrNc, surrE 200, 2 UNIoN pLAzA, posr oFFtcE Box l59t NEW LONDON, CONNECTTCUT 06320 TEL.1860) 442-4416 IURIS NO. 621 l4 an allegedly intoxicated state on January 18 - 19,2019." (Emphasis added.) Assumption of risk and contributory negligence in this context are distinct doctrines, therefbre the Fourth Special Defense must allege one or the other' See Practice Book g 10-51 .5 Given the specific allegations that the plaintiff was negligent and failed to take adequate safeguards, this special defense can only be interpreted as sounding in contributory negligence. Since it is well established that contributory negligence is not a defense to a dram shop claim, the Fourth Special Defense must be stricken' See Sanders v, (fficers Club of Connecticut, Inc,, supta, 196 Conn 352 see also Belanger v. Village Pub I, Inc.,26 Conn. App,509, 512,603 A,2dll73 (1992)' II. Assumptiop of Risk Does Not .Applv to Dram Shop Claims. The Court need not reach the issue of whether assumption of risk is applicable to Dram Shop Claims, as the Fourth Special Defense alleges an impermissible contributory negligence defense rather than assumption of risk. However, should the Court find that the Fourth Special Defense sounds in assumption of risk, it is nevertheless cannot apply to the present dram shop claim. 5 practice Book $ l0-5 I states, in relevant part, "When several matters of defense are pleaded, each must, . ' be separately stated and designated as a separatedefense , . , ." 4 SutstvtRrrr,Sunprno,WooL,BnErunan,Gney&GREENBERG,P.C. rsEcouRrNEyBUrLDrNc,surrE200,2uNroNpLAzA,posroFFIcEBoxtSgt "lEL. 18601 442-4416 JURIS NO. 62 I I 4 NEW LONDON, CONNECTTCUT 06320 The Sunders Decision Did Not Suggest Assumption of Risk is a Viable ^. Defense Under S 30-102. Contrary to what the defendants have argued, there is no suggestion in the Supreme Court's decision in Sanders v. Officers Club of Connecticut, supra 196 Conn. 34l,thatthe assumption of risk def'ense is available in Dram Shop Claims. The Court stated, "Assuming, without deciding,that under some circumstances a plaintiff can be held to have assumed a risk which has its basis in the violation of a statutory requirement enacted for his protection . , . that issue is not presented in this case.o' (Citations omitted; emphasis added.) Sanders v. Officers Club of'Connecticuf, supra, 196 Conn' 353' The Supreme Court did not address whether assumption of risk applied to a dram claim because it did not have to, Id. There was no evidence supporting the doctrine regardless of whether it applied. Id, ("There is no evidence to indicate any awareness by the plaintiff of the intoxicated condition of the driver of the car that struck him."). b. The Purpose of the Dram Shop Act is to Protect the Public At Large. The defendant's argument that the Dram Shop Act was intended to only protect innocent third parties and not the public at large ignores the clear pu{pose of $ 30-102. "The legislature, in enacting the Dram Shop Act, sought to hold a vendor of intoxicating liquor strictly liable for the damages caused by an intoxicated person who had been sold 5 Sursunn, Sunptno, WooL, BnEnnan, GnRy & Gngrnaenc, BUrLDrNc, surrE 200,2 uNroN PLAZA, posroFFrcE Box l59t P.C. rue couRTNEy NEW LONDON, CONNECTTCUT06120 TEL.1860) 442-4416 IURIS NO. 621 l4 liquor. Sanders v. }fficers Club of Connecticut, Inc.,135 Conn' Supp. 93,397 A2d 122 (1978)]. The legislature also sought to aid in the enforcement of General Statutes $ 30-86, which prohibits the sale of intoxicating liquor to intoxicated persons, by providing an enforceable civil remedy against vendors of liquor. Cookinham v. Sullivan, [23 Conn. Supp. 193, I 95-96, l7g A.zd S40 ( I 962)1. This reflects a strong public policy favoring the imposition of liability upon vendors who sell goods possessing considerable risk to the public at large regardless of reasonable care on behalf of the vendot, in this case the sale of alcohol to an intoxicated person." Sanders v. Of/icers Club of Connecticut, Inc', supta, 35 Conn. Supp. 93." (Emphasis added; internal quotation marks omitted.) Passini v. Decker,39 Conn. Supp. 20,24,467 A.2d 442 (19S3). It is well established that statutes, designed to protect the public at large, such as the Dram Shop Act, are not subject to an assumption of risk def'ense. See L'Heureux Y, Hurley, 117 Corur. 347 , 355-58, 168 A. 8 93 3). The def'endants'reliance on Nolanv. Morelli,l54 Conn. 432,226 A.2d 383 (1967), for the proposition that the Dram Shop Act is not designed to protect the public atlarge is misplaced. In Nolan, the plaintiff was denied recovery under $ 30-102 because the decedent was the intoxicated person himself. Id.,435-36. The issue was not whether assumption of risk applied, or 6 Sutsveu, Suaprno, WooL, Bneruunru, Gnny & GREENBERG, PC. rHe couRrNEy surrE BUTLDTNG, posr oFFICE Box t59t 200, 2 uNroN PLAZA, 06320 NEW LONDON, CONNECTICUT TEL.8601442-4416 IURIS NO. 621 l4 whether the Dram Shop Act is a statute that protects the public atlarge, but whether the intoxicated person himself can recover under $ 30-102. Specifically, the Court stated, "By its express terms, the Act authorizes a recovery, where its conditions are fulfilled, by one injured in person or property as a consequence of the intoxication of another person to whom intoxicating liquor has been sold while he was intoxicated, but it clearly does not authorize recovery for injuries or properly damage sustained by the intoxicated purchaser himself." Id' c. The Plaintiff Could Not Have Assumed the Risk of the Act Giving Rise to LiabilitY' The purpose of $ 30-102 is not the only reason the assumption of risk doctrine is an inappropriate defense to a Dram Shop Claim. "The doctrine of assumption of risk has fallen into disf.avor. 4 F. Harper, F. James & O. Gray, Torts, (2d Ed,19S6) $ 21.8, pp. 259-60. It has been aptly described as 'simply a confusing way of stating certain no-duty rules or (where there has been a breach of duty toward the plaintiff) simply one kind of contributory or comparative negligence.' Id., $ 2,10, at p. 190." Blondinv, Meshack, Superior Court, judicial district of New Haven, Docket No. CV08-5018828-S (October 2, 2008, Lager, J.)(46 Conn. L. Rptt. 396). Consistent with this trend, many of our courts have found assumption of risk inapt in the context of a Dram Shop Claim because a plaintiff cannot assume the risk of the illegal behavior at issue, because a dram shop plaintiff cannot participate in the illegal act. 7 Sulsmnn, SHAptRo,Wool, Bnnruuu, Gnnv & GneetteEnc, PC. rgecouRTNEy BUrLDrNc, surrE 200, 2 uNroN pLAzA, posr oFFrcE Box ttgl NEW LONDON, CONNECTTCUT06320 442-4416 TEL. 18601 IURIS NO. 62t r4 Only third parties to a dram transaction can recover under $ 30-102. Nolan v. Morelli, supra, 154 Conn. 435-36 ("By its express terms, the Act authorizes a recovery . . . by one injured in person or property as a consequence of the intoxication of anothel person . , . ." [Emphasis added.l). The act giving rise to liability is not that of the intoxicated person, but of the purveyor of alcohol serving such an intoxicated person. See Cote v. Gay, supra, Superior Court, Docket No. CVl3-601 5822-3 ("[A Dram Shop Claim] is an action based on a statute which makes puveyors of alcohol strictly liable fbr service to intoxicated persons."). While a plaintitf may be alleged to have assumed the risk an intoxicated person will act violently, such a plaintiff cannot be said to have assumed the risk that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated. Blondin v. Meshack, Superior Court, judicial district of New Haven, Docket No. CVO8-5018828-S (October 2,2008, Lager, J,) (46 Conn. L. Rptr. 396x"While a plaintiff may properly be alleged to have assumed the risk of the reckless or wanton operation of a vehicle by a driver that he knew or should have known was intoxicated . , . he cannot be held to have "assumed the risk" that a seller of alcoholic beverages continued to serve such beverages to a person known to be intoxicated."). Since the plaintiff could not have assumed the risk of a transaction he did not participate in, the defendants cannot avail themselves of an assumption of risk defense. 8 pLAZA, posroFFrcE Box r59l Sursunn, Sueprno, WooL, BRENNAU, Gnnv & GneeNennc, P.C. rne couRrNEy BUrLDrNc, surrE 200,2 uNroN NEW LONDON, CONNECTICUT 06320 TEL.1860) 442-44t6 IURIS NO. 62il4 III. Conclusion. WHEREFORE, in light of the foregoing, and for the reasons stated in the plaintiff s memorandum of law in support of his motion to strike, dated April29,2020 (Document Entry 127.00),it is respectfully submitted that the present motion to strike (Document Entry No' 126'00), should be granted. THE PLAINTIFF, CARLOS CASILLAS By lsl4 941 Kyle J,Zrenda, of Suisman, Shapiro, Wool Brennan, Gray, & Greenberg, P.C. Two Union Plaza, Suite 200 P.O. Box 1591 New London, Connecticut 06320 Phone: (860) 442-4416 Email: KZrenda wbs{.r.c0m His Attorneys 9 SutsmRtt,SHnprno,Wool,Bnerunnn,GnRv&GneeNtegnc,P.C. rHecouRrNEyBUrLDrNc,surrE200,2uNIoNPLAZA,PosroFFlcEBoxl59l NEW LONDON, CONNECTICUT 06320 TEL. 18601 442'44t6 JURIS NO. 62 I I 4 CEBTIFICATION I hereby certify that a copy of the above was mailed, or delivered electronically where electronic delivery has been consented to, on June 1 1,2020, to all counsel and self-represented parties of record, as follows: Janice D, Lai, Esq, Ryan Ryan Deluca, [,LP City Place II 185 Asylum Street, 6th Floor Hartfbrd, Connecticut 06 I 03 J Di-aiirr)rr"and eluccilaw'.crlnr btn594L Kyle J, Zrenda Commissioner of the Superior Court l0 pLAzA, posr oFFtcE Box l59l Sursunn, Suaptno, WooL, BRENNAti, Gnnv & GngeNaenc, PC. rse couRTNEy BUrLDrNc, surrE 200, 2 uNroN NEW LONDON, CONNECTICUT 06320 TEL.1860) 442-4416 IURIS NO. 621 l4