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D.N. KNL-CV-20-6044418-S SUPERIOR COURT
CARLOS CASILLAS J.D. OF NEW LONDON
v. AT NEW LONDON
STONEHOUSE, LLC, ET AL. JUNE 10, 2020
MEMORANDUM OF LAW IN SUPPORT OF
OBJECTION TO MOTION TO STRIKE
The Defendants, Stonehouse, LLC, James Gay and Carolyn Hart hereby submit this
memorandum of law in support of their Objection to the Plaintiff’s motion to strike their Fourth
Special Defense contained in their Answers (Pleading Nos. 107.00, 108.00 & 109.00) which assert
assumption of risk against the Plaintiff.
The Defendants consent to the striking of the Third Special Defense which assert
contributory negligence and will file an Amended Answer accordingly.
LEGAL STANDARD
“A motion to strike is the proper vehicle by which to contest the legal sufficiency of any
special defense contained in the answer to the complaint. . . In ruling on the motion to strike, the
trial court has an obligation to take the facts to be those alleged in the special defenses and to
construe the defenses in the manner most favorable to sustaining their legal sufficiency . . . The
purpose of a special defense is to plead facts that are consistent with the allegations of the
complaint but demonstrate nonetheless, that the plaintiff has no cause of action.” (Citations
omitted; internal quotation marks omitted.). Connecticut Commission on Culture Tourism v.
Norwalk Inn Conference Center, Inc., et al., 2009 Ct. Sup. 13814, *1 (Conn. Super. Ct. 2009,
Brassel-Massaro, J.).
1
Legal Argument
Defendants submit the cases holding that assumption of risk is a valid defense to the
Connecticut DRAM Shop Act are better reasoned. Thus, Defendants’ Fourth Special Defense is
legally sufficient and Plaintiff’s Motion to Strike should be denied.
There is a split of authority among the Superior Courts because “[t]he Appellate Courts
have not addressed the question of whether assumption of risk is a valid defense to a claim under
the Dram Shop Act ... The controversy [in Superior Court decisions] centers on whether the Dram
Shop Act was intended to protect the ‘public at large’ or just ‘innocent third parties.’” Sego v.
Debco, Inc., 12 Conn. L. Rptr. 415 (September 8, 1994)(Skolnick, J).
Our Connecticut Supreme Court in Sanders v. Officers Club of Connecticut, Inc., has stated
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.” Sanders
v. Officers Club of Connecticut, Inc., 196 Conn. 341, 353 (1985). Sanders is a DRAM Shop action
involving an injured motorist.
Further, The court in Sanders v. Officers Club of Connecticut, Inc., 35 Conn.Supp. 93, 95
(Super Ct 1978), aff'd. 196 Conn. 341 (1985), stated: “It appears that such a defense is proper
within the boundaries of voluntarily and willingly assuming the risk of another's intoxication, for
example by accepting a ride from one known by the plaintiff to be drunk.”
Our Connecticut Supreme Court in Nolan v. Morelli, 154 Conn. 432 (1967) stated, in dicta,
that it believes the Connecticut DRAM Shop Act to be limited to innocent third party victims of
an intoxicated person's misconduct. In Nolan, our Connecticut Supreme Court held that the
2
DRAM Shop Act does not authorize recovery against the seller of intoxicating liquor for injuries
or property damage sustained by the intoxicated purchaser himself. In reaching its decision, the
Connecticut Supreme Court held that “[t]o recompense in damages an injury to an intoxicated
person or his property resulting from his own overindulgence in intoxicating liquor might, quite
properly, be felt by the General Assembly to encourage, rather than to discourage, such
overindulgence.” Id., 440.
Defendants Stonehouse, LLC, James Gay & Carolyn Hart submit that Nolan is a case that
illustrates the DRAM Shop Act is intended to protect innocent third party victims. Thus,
Defendants submit that it would be appropriate to assert an assumption of risk defense in a DRAM
Shop action as the Plaintiff Carlos Casillas would not be an innocent third party, but instead,
complicit.
Other states’ Supreme Courts who have considered the issue have recognized assumption
of risk as a valid special defense to their DRAM Shop actions. See, Berge v. Harris, 170 N.W.2d
621 (Iowa)(1969)(Court recognized as valid special defenses assumption of risk and participation
in a DRAM Shop case where plaintiff allegedly knew the driver was intoxicated and voluntarily
rode in his vehicle which subsequently crashed.); McIssac v. Monte Carlo Club, Inc., 587 So.2d
320 (Alabama)(1991) (Defendant in Dram Shop Act suit may raise as defense that injured party
assumed risk of injury where injured party knew that risk was present and understood its nature
because it goes towards the injured party’s state of mind; assumption of risk is based on concept
that plaintiff “knowingly assented” to risk); D.E.Webb Corporation v. Superior Court of Arizona
Maricopa County, et al., 151 Ariz. 164 (1986)(Supreme Court recognizing assumption of risk as
valid special defense on grounds that DRAM Shop statute does not remove from injured party all
3
civil responsibility for their own conduct); Peter Lee v. Kiku Restaurant, et al, 127 N.J. 170
(1992)(Recognizing assumption of risk as valid defense to DRAM Shop action.);
In our present case, Defendants Stonehouse, LLC, James Gay & Carolyn Hart have plead
as their Fourth Special Defense the Plaintiff’s assumption of risk because he knew or should have
known about Michael LeBeau’s alleged intoxication and yet voluntarily chose to engage in a
physical and/or verbal altercation with Michael LeBeau. Specifically, Defendants’ Fourth Special
Defense alleges as follows:
The Plaintiff, Carlos Casillas interacted with and had conversations 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 negligent 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
and/or verbal altercation with Michael LeBeau;
(b) He failed to take adequate measures to safeguard himself from any
dangerous which may result from engaging in a physical altercation and/or verbal
altercation with Michael LeBeau when he knew or should have known that
Michael LeBeau was in an allegedly intoxicated state on January 18 – 19, 2019.
Plaintiff, Carlos Casillas’ voluntary choice to engage in physical and/or verbal altercation
with Michael LeBeau despite knowing that LeBeau was allegedly intoxicated is similar to the
situation involving those plaintiffs who voluntarily get into vehicles driven by an intoxicated
drivers despite knowing the drivers were intoxicated. In our present case, it can be said that
Plaintiff Carlos Casillas assumed the risk of his voluntary choice/action.
In recognizing that assumption of risk is a valid special defense in a DRAM Shop action
and denying plaintiff’s motion to strike, Judge Skolnick cited to Sanders v. Officers Club, supra
4
and reasoned that “Since the statute is primarily remedial in nature, and apparently intended to
limit recovery to innocent third party victims, the defense [of assumption of the risk] bars recovery
in a Dram Shop action where the plaintiff comprehended the risk of harm and voluntarily subjected
[him]self to it.” Sego v. Debco, Inc., 12 Conn. L. Rptr. 415 (September 8, 1994)(Skolnick, J.)
quoting Gelosa v. Sagan, 1 Conn.L.Rptr. 141, 143 (January 3, 1990, Mulcahy, J.); See also,
Tarver v. DeVito, 7 CSCR 843 (June 25, 1992).
In Bagley v. Hazadvilla¸ Judge Gaffney aptly stated:
This court does not believe that the injured plaintiff should be excused from all
responsibility for his own safety. If there was, or under the circumstances should
have been, a conscious awareness of the intoxicated condition of his driver, then
the plaintiff-passenger was little more than a gambler who chose to take a chance.
The defendants, who played no part in making the latter decision, which decision
may have occurred at a point removed in time and events from the dram shop sale,
should not be precluded from questioning the propriety of the decision in defense
of an action by the decision-maker.
Bagley v. Hazardvilla Restaurant, et al., 4 Conn. L. Rptr. 101 (Gaffney)(1983).
In his Motion to Strike, Plaintiff, Carlos Casillas quoted from the trial court’s decision in
Cote v. Gay, and stated that “Assumption of risk . . . is not applicable to a statutory violation when
the statute was enacted to create an obligation to the public at large. L’Heureux v. Hurley, 117
Conn. 347, 355-58 (1993).” Cote v. Gay, 58 Conn.L. Rptr. 453 (June 26, 1994)(Devine, J.) quoting
L’Heureaux v. Hurley, 117 Conn. 347, 355-58 (1933). L’Heureux is a premises liability action
where plaintiff was injured at the defendant’s tenement housing and defendant’s assumption of
risk defense related to certain tenement statutes which the Court found to be a public obligation
which could not be waived by plaintiff. There were no facts in L’Heureux pertaining to the DRAM
Shop Act.
5
Defendants Stonehouse, LLC, James Gay & Carolyn Hart point out that our Connecticut
Supreme Court in Sanders v. Officers Club, supra, was aware of its holding in L’Heureux v.
Hurley, and referenced the case by name, when it went on to state, 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.” Sanders v. Officers Club of
Connecticut, Inc., 196 Conn. 341, 353 (1985). Sanders is a DRAM Shop action involving an
injured motorist.
Defendants Stonehouse, LLC, James Gay & Carolyn Hart submit that they have plead a
legally sufficient defense of assumption of risk.
WHEREFORE, based upon the foregoing reasons, Defendants Stonehouse, LLC, James
Gay & Carolyn Hart respectfully request that this Court deny Plaintiff, Carlos Casillas’ Motion to
Strike their Fourth Special Defense.
DEFENDANTS,
STONEHOUSE, LLC, JAMES GAY &
CAROLYN HART
By: /s/ Janice D. Lai, Esq.
Janice D. Lai, Esq.
Ryan Ryan Deluca LLP
185 Asylum Street, 6th Floor
Hartford, CT 06103
Phone: 860-785-5150
Document2
830.053
6
CERTIFICATE OF SERVICE
I hereby certify that on June 10, 2020, a copy of the above was mailed and/or e-mailed to
the following counsel and pro se parties of record:
Kyle J. Zrenda Esq.
Susiman, Shapiro, Wool, Brennan, Gray & Greenberg PC
Two Union Plaza, Suite 200
P.O. Box 1591
New London, CT 06320
KZrenda@sswbgg.com
/s/ Janice D. Lai, Esq.
Janice D. Lai, Esq.
S:\RyanSTI0408\LIT\DOCS\path.rtf
780.019
7
Preview
D.N. KNL-CV-20-6044418-S SUPERIOR COURT CARLOS CASILLAS J.D. OF NEW LONDON v. AT NEW LONDON STONEHOUSE, LLC, ET AL. JUNE 10, 2020 MEMORANDUM OF LAW IN SUPPORT OF OBJECTION TO MOTION TO STRIKE The Defendants, Stonehouse, LLC, James Gay and Carolyn Hart hereby submit this memorandum of law in support of their Objection to the Plaintiff’s motion to strike their Fourth Special Defense contained in their Answers (Pleading Nos. 107.00, 108.00 & 109.00) which assert assumption of risk against the Plaintiff. The Defendants consent to the striking of the Third Special Defense which assert contributory negligence and will file an Amended Answer accordingly. LEGAL STANDARD “A motion to strike is the proper vehicle by which to contest the legal sufficiency of any special defense contained in the answer to the complaint. . . In ruling on the motion to strike, the trial court has an obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate nonetheless, that the plaintiff has no cause of action.” (Citations omitted; internal quotation marks omitted.). Connecticut Commission on Culture Tourism v. Norwalk Inn Conference Center, Inc., et al., 2009 Ct. Sup. 13814, *1 (Conn. Super. Ct. 2009, Brassel-Massaro, J.). 1 Legal Argument Defendants submit the cases holding that assumption of risk is a valid defense to the Connecticut DRAM Shop Act are better reasoned. Thus, Defendants’ Fourth Special Defense is legally sufficient and Plaintiff’s Motion to Strike should be denied. There is a split of authority among the Superior Courts because “[t]he Appellate Courts have not addressed the question of whether assumption of risk is a valid defense to a claim under the Dram Shop Act ... The controversy [in Superior Court decisions] centers on whether the Dram Shop Act was intended to protect the ‘public at large’ or just ‘innocent third parties.’” Sego v. Debco, Inc., 12 Conn. L. Rptr. 415 (September 8, 1994)(Skolnick, J). Our Connecticut Supreme Court in Sanders v. Officers Club of Connecticut, Inc., has stated 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.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 353 (1985). Sanders is a DRAM Shop action involving an injured motorist. Further, The court in Sanders v. Officers Club of Connecticut, Inc., 35 Conn.Supp. 93, 95 (Super Ct 1978), aff'd. 196 Conn. 341 (1985), stated: “It appears that such a defense is proper within the boundaries of voluntarily and willingly assuming the risk of another's intoxication, for example by accepting a ride from one known by the plaintiff to be drunk.” Our Connecticut Supreme Court in Nolan v. Morelli, 154 Conn. 432 (1967) stated, in dicta, that it believes the Connecticut DRAM Shop Act to be limited to innocent third party victims of an intoxicated person's misconduct. In Nolan, our Connecticut Supreme Court held that the 2 DRAM Shop Act does not authorize recovery against the seller of intoxicating liquor for injuries or property damage sustained by the intoxicated purchaser himself. In reaching its decision, the Connecticut Supreme Court held that “[t]o recompense in damages an injury to an intoxicated person or his property resulting from his own overindulgence in intoxicating liquor might, quite properly, be felt by the General Assembly to encourage, rather than to discourage, such overindulgence.” Id., 440. Defendants Stonehouse, LLC, James Gay & Carolyn Hart submit that Nolan is a case that illustrates the DRAM Shop Act is intended to protect innocent third party victims. Thus, Defendants submit that it would be appropriate to assert an assumption of risk defense in a DRAM Shop action as the Plaintiff Carlos Casillas would not be an innocent third party, but instead, complicit. Other states’ Supreme Courts who have considered the issue have recognized assumption of risk as a valid special defense to their DRAM Shop actions. See, Berge v. Harris, 170 N.W.2d 621 (Iowa)(1969)(Court recognized as valid special defenses assumption of risk and participation in a DRAM Shop case where plaintiff allegedly knew the driver was intoxicated and voluntarily rode in his vehicle which subsequently crashed.); McIssac v. Monte Carlo Club, Inc., 587 So.2d 320 (Alabama)(1991) (Defendant in Dram Shop Act suit may raise as defense that injured party assumed risk of injury where injured party knew that risk was present and understood its nature because it goes towards the injured party’s state of mind; assumption of risk is based on concept that plaintiff “knowingly assented” to risk); D.E.Webb Corporation v. Superior Court of Arizona Maricopa County, et al., 151 Ariz. 164 (1986)(Supreme Court recognizing assumption of risk as valid special defense on grounds that DRAM Shop statute does not remove from injured party all 3 civil responsibility for their own conduct); Peter Lee v. Kiku Restaurant, et al, 127 N.J. 170 (1992)(Recognizing assumption of risk as valid defense to DRAM Shop action.); In our present case, Defendants Stonehouse, LLC, James Gay & Carolyn Hart have plead as their Fourth Special Defense the Plaintiff’s assumption of risk because he knew or should have known about Michael LeBeau’s alleged intoxication and yet voluntarily chose to engage in a physical and/or verbal altercation with Michael LeBeau. Specifically, Defendants’ Fourth Special Defense alleges as follows: The Plaintiff, Carlos Casillas interacted with and had conversations 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 negligent 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 and/or verbal altercation with Michael LeBeau; (b) He failed to take adequate measures to safeguard himself from any dangerous which may result from engaging in a physical altercation and/or verbal altercation with Michael LeBeau when he knew or should have known that Michael LeBeau was in an allegedly intoxicated state on January 18 – 19, 2019. Plaintiff, Carlos Casillas’ voluntary choice to engage in physical and/or verbal altercation with Michael LeBeau despite knowing that LeBeau was allegedly intoxicated is similar to the situation involving those plaintiffs who voluntarily get into vehicles driven by an intoxicated drivers despite knowing the drivers were intoxicated. In our present case, it can be said that Plaintiff Carlos Casillas assumed the risk of his voluntary choice/action. In recognizing that assumption of risk is a valid special defense in a DRAM Shop action and denying plaintiff’s motion to strike, Judge Skolnick cited to Sanders v. Officers Club, supra 4 and reasoned that “Since the statute is primarily remedial in nature, and apparently intended to limit recovery to innocent third party victims, the defense [of assumption of the risk] bars recovery in a Dram Shop action where the plaintiff comprehended the risk of harm and voluntarily subjected [him]self to it.” Sego v. Debco, Inc., 12 Conn. L. Rptr. 415 (September 8, 1994)(Skolnick, J.) quoting Gelosa v. Sagan, 1 Conn.L.Rptr. 141, 143 (January 3, 1990, Mulcahy, J.); See also, Tarver v. DeVito, 7 CSCR 843 (June 25, 1992). In Bagley v. Hazadvilla¸ Judge Gaffney aptly stated: This court does not believe that the injured plaintiff should be excused from all responsibility for his own safety. If there was, or under the circumstances should have been, a conscious awareness of the intoxicated condition of his driver, then the plaintiff-passenger was little more than a gambler who chose to take a chance. The defendants, who played no part in making the latter decision, which decision may have occurred at a point removed in time and events from the dram shop sale, should not be precluded from questioning the propriety of the decision in defense of an action by the decision-maker. Bagley v. Hazardvilla Restaurant, et al., 4 Conn. L. Rptr. 101 (Gaffney)(1983). In his Motion to Strike, Plaintiff, Carlos Casillas quoted from the trial court’s decision in Cote v. Gay, and stated that “Assumption of risk . . . is not applicable to a statutory violation when the statute was enacted to create an obligation to the public at large. L’Heureux v. Hurley, 117 Conn. 347, 355-58 (1993).” Cote v. Gay, 58 Conn.L. Rptr. 453 (June 26, 1994)(Devine, J.) quoting L’Heureaux v. Hurley, 117 Conn. 347, 355-58 (1933). L’Heureux is a premises liability action where plaintiff was injured at the defendant’s tenement housing and defendant’s assumption of risk defense related to certain tenement statutes which the Court found to be a public obligation which could not be waived by plaintiff. There were no facts in L’Heureux pertaining to the DRAM Shop Act. 5 Defendants Stonehouse, LLC, James Gay & Carolyn Hart point out that our Connecticut Supreme Court in Sanders v. Officers Club, supra, was aware of its holding in L’Heureux v. Hurley, and referenced the case by name, when it went on to state, 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.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 353 (1985). Sanders is a DRAM Shop action involving an injured motorist. Defendants Stonehouse, LLC, James Gay & Carolyn Hart submit that they have plead a legally sufficient defense of assumption of risk. WHEREFORE, based upon the foregoing reasons, Defendants Stonehouse, LLC, James Gay & Carolyn Hart respectfully request that this Court deny Plaintiff, Carlos Casillas’ Motion to Strike their Fourth Special Defense. DEFENDANTS, STONEHOUSE, LLC, JAMES GAY & CAROLYN HART By: /s/ Janice D. Lai, Esq. Janice D. Lai, Esq. Ryan Ryan Deluca LLP 185 Asylum Street, 6th Floor Hartford, CT 06103 Phone: 860-785-5150 Document2 830.053 6 CERTIFICATE OF SERVICE I hereby certify that on June 10, 2020, a copy of the above was mailed and/or e-mailed to the following counsel and pro se parties of record: Kyle J. Zrenda Esq. Susiman, Shapiro, Wool, Brennan, Gray & Greenberg PC Two Union Plaza, Suite 200 P.O. Box 1591 New London, CT 06320 KZrenda@sswbgg.com /s/ Janice D. Lai, Esq. Janice D. Lai, Esq. S:\RyanSTI0408\LIT\DOCS\path.rtf 780.019 7