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DOCKET NUMBER: UWY-CV-20-6055309-S : SUPERIOR COURT
THOMAS BULL : J. D. OF WATERBURY
V. : AT WATERBURY
SEASIDE WINE & LIQUOR, LLC, ET AL : APRIL 28, 2021
MEMORANDUM OF LAW IN SUPPORT OF ALLISON LODER’S MOTION FOR
SUMMARY JUDGMENT
The Defendant, Allison Loder, moves for summary judgment as to Counts 9 (negligence)
and 10 (recklessness) of the Plaintiff, Thomas Bull’s, Complaint dated May 1, 2020, on the
grounds that there is no evidentiary basis to establish the elements of breach of duty and
causation as it pertains to Allison Loder. Allison Loder respectfully submits that there is no real
issue to be tried, as there is no other conclusion that can be reached from the facts except that Ryan
Capozziello did not drink alcohol provided by Allison Loder. In other words, Allison Loder did not
do anything wrong, negligent, or reckless to cause the subject accident. Therefore, Allison Loder is
entitled to judgment as a matter of law.
Furthermore, summary judgment should also be granted as there is no genuine issue of
material fact that the plaintiff’s claims are barred by the applicable statute of limitations set forth
in Conn. Gen. Stat. § 52-584.
I. BACKGROUND
A. Allegations
The present action is one of a number of consolidated actions that stem from a motor
vehicle accident resulting in claimed injuries to all six of the vehicle’s occupants. 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 into a tree causing the
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aforementioned claimed injuries. 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 and minors at the time of the incident.
The plaintiff’s Complaint, dated May 1, 2020, alleges that on April 14, 2017, Defendant
Allison Loder served, purveyed, provided, supplied, furnished, dispensed, distributed, gave away
or otherwise made available alcoholic beverages to Ryan Capozziello. (See Plaintiff’s
Complaint; Paragraphs 13, Counts 9 and 10.) The Complaint further alleges that 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 described above. (See Plaintiff’s Complaint; Paragraphs 14,
Counts 9 and 10.) 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 into a tree that was off the side of the road. (See Plaintiff’s Complaint; Paragraphs 8 and
9, Counts 9 and 10.) Ryan Capozziello’s blood alcohol level was above the statutory legal limit
for persons under the age of 21 on said date. (See Plaintiff’s Complaint; Paragraphs 10, Counts 9
and 10.)
Mr. Bull claims that his 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 him by Allison Loder. (See Plaintiff’s Complaint; Paragraphs 14, Counts 9 and 10.)
Mr. Bull brings counts of negligence (Count 9) and recklessness (Count 10) against Allison
Loder. Specifically, Mr. Bull claims that his injuries and losses were caused by the negligence of
Allison Loder in one or more of the following ways:
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a. She served, purveyed, supplied, delivered, furnished, provided, dispensed,
distributed, gave away or otherwise made available alcoholic beverages to Ryan
Capozziello, when she knew or should have known that Ryan Capozziello was
under the age of 21 and therefore a minor as it relates to the consumption of
alcohol;
b. She failed to take adequate measures to prevent Ryan Capozziello from drinking
alcoholic beverages;
c. She failed to restrict the consumption of alcoholic beverage by Ryan Capozziello;
(See Plaintiff’s Complaint; Paragraph 15, Count 9.) Mr. Bull further claims that his injuries and
losses were caused by the recklessness of Allison Loder in one or more of the following ways:
a. She served, purveyed, supplied, delivered, furnished, provided, dispensed,
distributed, gave away or otherwise made available alcoholic beverages to Ryan
Capozziello, when she knew or should have known that Ryan Capozziello was
under the age of 21 and therefore a minor as it relates to the consumption of
alcohol;
b. She knowingly did not take adequate measures to prevent Ryan Capozziello from
drinking alcoholic beverages;
c. She knowingly failed to restrict the consumption of alcoholic beverage by Ryan
Capozziello;
(See Plaintiff’s Complaint; Paragraph 15, Count 10.) Allison Loder denies any and all allegations
of negligence and recklessness. (See Answer and Special Defenses, Entry No. 102.)
B. Events of April 14, 2017
As previously mentioned, on the day of the subject 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” 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
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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.)
One of the party 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.)
Later on in the day, on April 14, 2017, 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.) 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.) Not long thereafter, while Ryan Capozziello was driving, a car swerved
into his lane, causing him to swerve off the road and making the Bull vehicle go into a tree. (See
Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.p. 45-46, lines 23-7.) This
collision allegedly caused the injuries to the plaintiff. (See Plaintiff’s Amended Complaint;
Paragraphs 12, Counts 11 and 12; Entry No. 180.00.)
C. Allison Loder’s Testimony Regarding the Alcohol She Brought with Her
It is undisputed that Allison Loder brought a 1.75 liter 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 knows for a fact that 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 10-20.) In fact, Allison Loder’s bottle of vodka
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stayed in her bag throughout the entire gathering, whereby she would only take itout to drink
from it and then would place it back in her bag that she would carry around on her shoulder. (See
Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 2-8.) Allison would have the
bag on her at all times, and never take it off because she did not want other people drinking her
alcohol. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.p. 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. (Emphasis added.) (See Exhibit B, Deposition of Allison Loder, January 8, 2020,
p.73, lines 19-22.)
D. Ryan Capozziello’s Testimony Regarding What he Drank
Ryan Capozziello is adamant that he did not consume any vodka, let alone Allison
Loder’s vodka, on April 14, 2017. (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.) He further testified that Allison Loder
did not give him any alcohol on April 14, 2017, and that he never asked Allison Loder for
alcohol on such date. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p. 139,
lines 2-7.)
E. Others’ Testimony Regarding Ryan Capozziello Drinking Allison Loder’s
Vodka
To date, there have been 10 depositions taken, including those of Allison Loder and Ryan
Capozziello, of individuals who were present at the 32 Dayton Road, Redding, CT residence on
the day of the alleged incident. Coinciding with both the testimony of Allison Loder and Ryan
Capozziello, not one of the kids has testified that Ryan Capozziello drank vodka that day.
i. Janelle Pompea
Janelle Pompea testified on multiple occasions that she does not know what Ryan
Capozziello drank. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.118, lines
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18-21, p.245, lines 2-6.) Moreover, it would be fair to say that although Janelle knows that
Allison Loder brought vodka, she does not remember if she herself actually consumed Allison’s
vodka or if anyone else did. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021,
p.p.250-251, lines 23-3.)
ii. Tom Bull
Tom Bull testified that he saw Ryan Capozziello drinking a red can of Budweiser that
Tom had brought, 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 is 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 that 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.)
iii. Ryan Gombos
Ryan Gombos has no recollection of seeing Ryan Capozziello drink vodka. (See Exhibit
F, Deposition of Ryan Gombos, January 27, 2021, p.146, lines 20-22.)
iv. Grant Ciccarello
Grant Ciccarello has no recollection of whether or not Ryan Capozziello drank alcohol,
but specifically never saw Allison Loder provide any alcohol to other people, including Ryan
Capozziello. (See Exhibit C, Deposition of Grant Ciccarello, March 10, 2020, p.p.114-115, lines
24-3.)
v. Luke Ciccarello
Luke Ciccarello, another individual who was present at the 32 Dayton Road address on
the day of the incident, did not see Ryan Capozziello drink anything during the time that Luke
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was at the party, which would include anything that Allison Loder may have purchased. (See
Exhibit G, Deposition of Luke Ciccarello, January 28, 2021, p.57, lines 4-9.)
vi. Liam Andrews
Liam Andrews, a non-party witness to the consolidated matters, testified to only
specifically 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.)
vii. Katie Nolan
Katie Nolan, another 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.)
viii. Greg DeCarlo
Greg DeCarlo, another non-party witness to the consolidated matters, and fellow party
attendee, also testified to never seeing Ryan Capozziello drink anything. (See Exhibit J,
Deposition of Greg DeCarlo, March 26, 2021, p.37, lines 1-3.)
F. Service of Process
On May 1, 2020, counsel for plaintiff signed the summons to be served on the defendant.
On May 14, 2020, more than three years after the date of the accident, the plaintiff commenced
this action against Allison Loder by serving her with the writ, summons, complaint, and amount
in demand. (See Summons.) The return of service contains an endorsement of the state marshal
for May 6, 2020, the date upon which the process was delivered to him for service. (See Return
of Service.) The plaintiff alleges that through the deposition of some of the defendants and
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plaintiffs in this and related actions, he has discovered that Allison Loder, among others, was in
fact responsible for and/or contributed to his injuries, by acts of providing alcohol to minors.
(See Plaintiff’s Complaint; Paragraphs 3, Counts 9 and 10.) However, at the time of the serving
of the plaintiff’s complaint, only three depositions of plaintiffs or defendants, who were at the 32
Dayton Road Residence on April 14, 2017, were taken. (See Exhibits A, B, and C, depositions of
Ryan Capozziello, Allison Loder, and Grant Ciccarello.) Not one of those depositions contains
evidence that would place the plaintiff on notice of some form of actionable harm by Allison
Loder. Id.
II. ARGUMENT
A. Legal Standard
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.‘’ Connecticut Practice Book § 17-49.
”“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). However, “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
omitted). A court can address the merits of a declaratory judgment action for insurance coverage
through a motion for summary judgment. Community Action for Greater Middlesex County, Inc.
v. American Alliance Insurance Co., 254 Conn. 387, 397-98, 757 A.2d 1074 (2000).
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B. There is no genuine issue of material fact that Allison Loder did not cause the
plaintiff’s injuries, and therefore, summary judgment should be granted as
to the plaintiff’s negligence and recklessness allegations contained in Counts
9 and 10.
To prevail on a negligence [or recklessness] claim, a plaintiff must establish that the
defendant's conduct legally caused the injuries. Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d
364 (1987); Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); Winn v. Posades,
91 Conn. App. 610, 614 (2005); W. Prosser & W. Keeton, Torts (5th Ed.) § 41, p. 263. A
component of legal cause is proximate cause, which the Connecticut Supreme Court has defined
as [a]n actual cause that is a substantial factor in the resulting harm. Coburn v. Lenox Homes,
Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982); Boehm v. Kish, [supra, 201 Conn. at 391, 517
A.2d 624. “The proximate cause requirement tempers the expansive view of causation [in fact] ...
by the pragmatic ... shaping [of] rules which are feasible to administer, and yield a workable
degree of certainty.” Harper & James, Torts § 20.4, p. 1133. (Emphasis added.) Remote or
trivial [actual] causes are generally rejected because the determination of the responsibility for
another's injury is much too important to be distracted by explorations for obscure consequences
or inconsequential causes. Kowal v. Hofher, supra, [181 Conn. at 359–60, 436 A.2d 1]. In
determining proximate cause, the point beyond which the law declines to trace a series of events
that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense
of justice. See generally Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 354–56, 162 N.E.
99 (1928) (Andrews, J., dissenting). Boehm v. Kish, supra, [at] 391–92 [517 A.2d 624].”
(Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757–58, 563 A.2d 699
(1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn.
597, 608, 662 A.2d 753 (1995).
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The test of proximate cause is whether the defendant's conduct is a substantial factor in
bringing about the plaintiff's injuries. Nelson v. Steffens, 170 Conn. 356, 363, 365 A.2d 1174
(1976) (Bogdanski, J., dissenting); see also Hearl v. Waterbury YMCA, [supra, 187 Conn. at 4,
444 A.2d 211]. Further, it is the plaintiff who bears the burden to prove an unbroken sequence of
events that tied his injuries to the [defendants' conduct]. Boehm v. Kish, [supra, 201 Conn. at
392, 517 A.2d 624]; see also W. Prosser & W. Keeton, supra, p. 269. The existence of the
proximate cause of an injury is determined by looking from the injury to the negligent [and or
reckless] act complained of for the necessary causal connection. Peterson v. Oxford, 189 Conn.
740, 749, 459 A.2d 100 (1983). This causal connection must be based upon more than conjecture
and surmise. Vetre v. Keene, supra, [181 Conn. 136, 140–41, 434 A.2d 327 (1980); Wu v.
Fairfield, supra, 204 Conn. at 438–39, 528 A.2d 364; the establishment of proximate cause is an
essential element of a negligence [or recklessness] claim and the parties recognize that if
proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town of Fairfield, 204 Conn. 435,
439, 528 A.2d 364 (1987). Thus, plaintiff must submit some evidence at this stage sufficient to
“establish a sequence of events causally flowing from the defendants' negligence [or
recklessness] to his [injuries].” Theodore v. Lifeline Sys. Co., 173 Conn. App. 291, 318 (2017).
The issue of causation is normally a question reserved for the trier of fact. See Abrahams
v. Young & Rubicam, Inc., 240 Conn. 300, 307 (1997). “The issue becomes one of law when the
mind of a fair and reasonable person could reach only one conclusion, and summary judgment
may be granted based on a failure to establish causation.” Id. “[N]o matter how negligent a party
may be, if his act bears no causal relation to the injury, it is not actionable.” Esposito v. Schiff, 38
Conn. App. 726, 730 (1995). The plaintiff specifically alleges that his injuries and losses “were
caused by, and in consequence of Ryan Capozziello’s intoxication resulting from the alcoholic
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beverages provided or otherwise made available to him by Allison Loder.” (See Plaintiff’s
Complaint; Paragraphs 14, Counts 9 and 10.) Here, the only conclusion that can be drawn from
the evidence presented is that Ryan Capozziello did not drink alcohol provided by Allison
Loder, and therefore, could not have become intoxicated from alcohol provided or otherwise
made available to him by Allison Loder. (Emphasis added.) As there is no genuine issue of
material fact as to this conclusion, the plaintiff’s “[c]ausation” burden cannot be met as to any
claimed service of alcohol by Allison Loder to Ryan Capozziello.
As mentioned above, Allison Loder only brought a bottle of Exclusiv vodka to the
Pompea household on the day of the incident. (See Exhibit B, Deposition of Allison Loder,
January 8, 2020, p.42, lines 12-16.) There have been 10 depositions of individuals who were at
the Pompea household (32 Dayton Road, Redding, CT) on April 14, 2017, and not a single one
of the 10 has testified to witnessing or seeing Ryan Capozziello consume vodka. (Emphasis
added.) (See Exhibits A-J.) Not only that, but one of those 10 individuals, the driver himself,
Ryan Capozziello, is adamant that he did not consume any vodka, let alone Allison Loder’s
vodka, as to place any form of liability on her. (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.) If Allison only brought
vodka to the party, and not a single person has testified to seeing Ryan Capozziello drink vodka,
it is impossible for the plaintiff to meet his causation burden in this case.
Even if the plaintiff can show that Ryan Capozziello drank vodka, which he cannot, there
is no genuine issue of material fact that Ryan Cappozziello did not drink alcohol provided by
Allison Loder. Allison knows for a fact that 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 10-20.) In fact, Allison Loder’s bottle of vodka stayed in
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her bag throughout the entire gathering, whereby she would only take it out to drink from it and
then would place it back in her bag that she would carry around on her shoulder. (See Exhibit B,
Deposition of Allison Loder, January 8, 2020, p.73, lines 2-8.) Allison would have the bag on her
at all times, and never take it off because she did not want other people drinking her alcohol.
(See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.p. 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.)
Moreover, Ryan Capozziello testified specifically that Allison Loder did not give him any
alcohol on April 14, 2017, and that he never asked Allison Loder for alcohol on such date. (See
Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p. 139, lines 2-7.)
Therefore, the plaintiff cannot establish, as a matter of law, that the defendant, Allison
Loder, was negligent, reckless, or otherwise responsible for the subject incident. The undisputed
evidence shows that Ryan Capozziello did not consume any alcohol provided by Ms. Loder.
Simply stated, the trier of fact could not reasonably reach any other conclusion: Allison Loder
did not do anything wrong, negligent, or reckless that would cause or contribute to the plaintiff’s
injuries. Consequently, Allison Loder is entitled to summary judgment as a matter of law.
C. Allison Loder could not have breached any duty owed to the Plaintiff
because she was not in control, nor had any obligation to be in control, of
Ryan Capozziello’s conduct.
It is axiomatic that no actionable claim of negligence [or recklessness] exists absent a
recognized duty of care that was breached. “The essential elements of a cause of action in
negligence are well established: duty; breach of that duty; causation; and actual injury.” Lepage
v. Home, 262 Conn. 116, 123 (2002) (Internal quotation marks omitted.) “Duty is a legal
conclusion about relationships between individuals, made after the fact, and is imperative to a
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negligence [or recklessness] cause of action.” Laflamme v. Dallessio, 261 Conn. 247, 251 (2002)
(Internal quotation marks omitted.). Thus, “there can be no actionable negligence ... unless there
exists a cognizable duty of care.” Waters v. Autuori, 236 Conn. 820, 826 (1996). Connecticut
courts have held that although summary judgment is ill-adapted to negligence cases, Maffuci v.
Royal Park Ltd. Partnership, 42 Conn.App 563, 568, 680 A.2d 333 (1996), “[t]he issue of
whether a defendant owes a duty of care is an appropriate matter for summary judgment because
the question is one of law.” Pion v. Southern New England Telephone Co., 44 Conn.App. 657,
660, 691 A.2d 1107 (1997). Even if the plaintiff had properly pled the existence of a duty in both
Counts 9 and 10, the material facts clearly establish that no such duty existed.
“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... [A]bsent a special relationship of custody or
control, there is no duty to protect a third person from the conduct of another.” Fraser v. United
States, 236 Conn. 625, 632, 674 A.2d 811 (1996).
In the instant case, the plaintiff claims that Allison Loder was negligent in that (i) she
failed to take adequate measures to prevent Ryan Capozziello from drinking alcoholic beverages;
and (ii) she failed to restrict the consumption of alcoholic beverages by Ryan Capozziello (see
Plaintiff’s Complaint; Count 9, Paragraphs 15(b) and 15(c)) and reckless in that (i) she
knowingly did not take adequate measures to prevent Ryan Capozziello from drinking alcoholic
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beverages; and (ii) she knowingly failed to restrict the consumption of alcoholic beverages by
Ryan Capozziello (see Plaintiff’s Complaint; Count 10, Paragraphs 15(b) and 15(c)). No special
relationship exists here that would dispose a duty upon Allison Loder to control the conduct of
Ryan Capozziello. It is impossible for any reasonable person to believe that Allison Loder would
have any obligation to control what Ryan Capozziello did or did not do. This was not Allison
Loder’s party (see Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.108, lines 6-
13); Allison Loder 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 provided by Allison Loder (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. 139, lines 2-7.). Wherefore, there is
no genuine issue of material fact that Allison Loder lacked the duty to control the actions of
Ryan Capozziello, and Allison Loder should therefore be entitled to judgment as a matter of law
as to Counts 9 and 10.
D. Summary judgment should be granted as the plaintiff’s claims in Counts 9
and 10 are barred by the applicable statute of limitations set forth in Conn.
Gen. Stat. § 52-584.
Counts 9 and 10 of the plaintiff’s complaint are barred by the statute of limitations
provided by Conn. Gen. Stat. § 52-584, and therefore, the court should grant Allison Loder’s
motion for summary judgment. Specifically, § 52-584 provides in relevant part, “No action to
recover damages for injury to the person . . . caused by negligence, or by reckless or wanton
misconduct . . . shall be brought but within two years from the date when the injury is first
sustained or discovered or in the exercise of reasonable care should have been discovered, and
except that no such action may be brought more than three years from the date of the act or
omission complained of . . . .” (emphasis added.) “[T]his statute imposes two specific time
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requirements on plaintiffs. The first requirement, referred to as the discovery portion . . .
requires a plaintiff to bring an action within two years from the date when the injury is first
sustained or discovered or in the exercise of reasonable care should have been discovered. .. .
The second provides that in no event shall a plaintiff bring an action more than three years from
the date of the act or omission complained of . . . . The three year period specifies the time
beyond which an action under § 52–584 is absolutely barred, and the three year period is,
therefore, a statute of repose.” (Internal quotation marks omitted.) Mollica v. Toohey, 134
Conn. App. 607, 612, 39 A.3d 1202 (2012).
In the context of applying § 52-584 to decide whether a particular action was commenced
in a timely fashion, courts have stated that an injury occurs when a party suffers some form of
actionable harm. Lindsay v. Pierre, 90 Conn. App. 696, 700, 879 A.2d 482 (2005). “Actionable
harm occurs when the plaintiff discovers, or in the exercise of reasonable care should have
discovered, the essential elements of a cause of action. . . . [General Statutes § 52-584] begins to
run when the plaintiff discovers some form of actionable harm, not the fullest manifestation
thereof.” (Citation omitted; internal quotation marks omitted.) Merly v. State, 211 Conn. 199,
206, 558 A.2d 977 (1989). In Lindsay, the Appellate Court found that the date of a motor vehicle
accident was the relevant time that began the time period for bringing a claim. Id. at 700-01. See
also Folson v. Pulley, Superior Court, judicial district of New Haven, Docket No. CV-11-
6021350 (November 22, 2011, Wilson, J.) (finding that the statute of limitations expired two
years after the date of the motor vehicle accident).
In counts nine and ten, the plaintiff seeks to recover damages for alleged injuries
resulting from a motor vehicle accident on April 14, 2017. Therefore, the plaintiff had until April
14, 2019 to commence an action for injuries allegedly sustained as a result of this accident.
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However, the summons was not signed by plaintiff’s counsel until May 1, 2020. (See Summons).
Allison Loder was not served with process until May 14, 2020. (See Return of Service).
Therefore, there is no genuine issue of material fact that the plaintiff suffered their alleged
injuries more than two years prior to the commencement of the present action on May 14, 2020
and that the plaintiff’s action was filed after the applicable statute of limitations had run.
Furthermore, the plaintiff cannot point to any form of actionable harm, aside from the
date of the subject incident that would restart the accrual of the statute of limitations period. The
plaintiff alleges that through the deposition of some of the defendants and plaintiffs in this and
related actions, he has discovered that Allison Loder, among others, was in fact responsible for
and/or contributed to his injuries, by acts of providing alcohol to minors. (See Plaintiff’s
Complaint; Paragraphs 3, Counts 9 and 10.) However, at the time of the serving of the plaintiff’s
complaint, only three depositions of plaintiffs or defendants, who were at the 32 Dayton Road
Residence on April 14, 2017, were taken. (See Exhibits A, B, and C depositions of Ryan
Capozziello, Allison Loder, and Grant Ciccarello.) Not one of those depositions contains
evidence that would place the plaintiff on notice of some form of actionable harm by Allison
Loder. Id. Additionally, the plaintiff, on January 26, 2021, testified to not ever witnessing Ryan
Capozziello drink vodka, let alone vodka possessed by Allison Loder, as to begin a new accrual
date. (See Exhibit E, Deposition of Tom Bull, January 26, 2021, p.131, lines 1-4.) Therefore,
there is still no genuine issue of material fact as to whether the plaintiff failed to file his claim
against Allison Loder within two years from when incident occurred.
In anticipation of the plaintiff’s argument that the three year statute of repose should
apply in tolling the statute of limitations, which it should not, the plaintiff’s action against
Allison Loder in Counts Nine and Ten should still be barred as the Allison Loder was not even
16
served within three years to the date when the subject accident occurred. (See Summons and
Return of Service.) Therefore, there is still no genuine issue of material fact as to whether the
plaintiffs’ claims in Counts 9 and 10 are barred pursuant to § 52-584, which states that no action
to recover damages for injury to the person caused by negligence, or by reckless or wanton
misconduct shall be brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discovered.
III. CONCLUSION
For the foregoing reasons, the Defendant, Allison Loder, respectfully requests that this
Court grant her Motion for Summary Judgment as to the plaintiff, Thomas Bull’s claims in
Counts 9 and 10 of his Complaint, and rule that the Defendant is entitled to judgment as a matter
of law.
THE DEFENDANT,
ALLISON LODER
BY MILANO & WANAT LLC
By: /s/ 437395
Adam J. Tusia, Esq.
Milano & Wanat LLC
471 East Main Street
Branford, Connecticut 06405
(203) 315-7000
atusia@mwllc.us
By: /s/ 302114
Maureen E. Burns, Esq.
Mulvey, Oliver Gould & Crotta
2911 Dixwell Avenue, 4th Floor
Hamden, CT 06518
burns@moglaw.com
17
CERTIFICATE OF SERVICE
I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on this 28th day of April, 2021, to all counsel and self-
represented parties of record and that written consent for electronic delivery was received from
all counsel and self-represented parties of record who were or will immediately be electronically
served as follows:
Etan Hirsch, Esq. Richard A. Roberts, Esq.
Adelman, Hirsch & Connors, LLP 1000 Nuzzo & Roberts, LLC
Lafayette Boulevard One Town Center, P.O. Box 747
Bridgeport, CT 06604 Cheshire, CT 06410
Ehirsch@ahctriallaw.com recep@nuzzo-roberts.com
Attorney for Janelle Pompea Attorney for Seaside Wine & Liquor LLC,
Victor Saverino, Yesika Saverino
Michael O. Connelly, Esq.
Murphy Karpie Connelly & Sickinger LLC 350 William Bloss, Esq.
Fairfield Ave, Ste. 408 Koskoff, Koskoff & Bieder
Bridgeport, CT 06604 350 Fairfield Avenue
Connelly@murphykarpie.com Bridgeport, CT 06604
Attorney for ShirleyAnn Pompea, Janelle bbloss@koskoff.com
Pompea Attorney for Allison Loder
Preview
DOCKET NUMBER: UWY-CV-20-6055309-S : SUPERIOR COURT THOMAS BULL : J. D. OF WATERBURY V. : AT WATERBURY SEASIDE WINE & LIQUOR, LLC, ET AL : APRIL 28, 2021 MEMORANDUM OF LAW IN SUPPORT OF ALLISON LODER’S MOTION FOR SUMMARY JUDGMENT The Defendant, Allison Loder, moves for summary judgment as to Counts 9 (negligence) and 10 (recklessness) of the Plaintiff, Thomas Bull’s, Complaint dated May 1, 2020, on the grounds that there is no evidentiary basis to establish the elements of breach of duty and causation as it pertains to Allison Loder. Allison Loder respectfully submits that there is no real issue to be tried, as there is no other conclusion that can be reached from the facts except that Ryan Capozziello did not drink alcohol provided by Allison Loder. In other words, Allison Loder did not do anything wrong, negligent, or reckless to cause the subject accident. Therefore, Allison Loder is entitled to judgment as a matter of law. Furthermore, summary judgment should also be granted as there is no genuine issue of material fact that the plaintiff’s claims are barred by the applicable statute of limitations set forth in Conn. Gen. Stat. § 52-584. I. BACKGROUND A. Allegations The present action is one of a number of consolidated actions that stem from a motor vehicle accident resulting in claimed injuries to all six of the vehicle’s occupants. 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 into a tree causing the 1 aforementioned claimed injuries. 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 and minors at the time of the incident. The plaintiff’s Complaint, dated May 1, 2020, alleges that on April 14, 2017, Defendant Allison Loder served, purveyed, provided, supplied, furnished, dispensed, distributed, gave away or otherwise made available alcoholic beverages to Ryan Capozziello. (See Plaintiff’s Complaint; Paragraphs 13, Counts 9 and 10.) The Complaint further alleges that 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 described above. (See Plaintiff’s Complaint; Paragraphs 14, Counts 9 and 10.) 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 into a tree that was off the side of the road. (See Plaintiff’s Complaint; Paragraphs 8 and 9, Counts 9 and 10.) Ryan Capozziello’s blood alcohol level was above the statutory legal limit for persons under the age of 21 on said date. (See Plaintiff’s Complaint; Paragraphs 10, Counts 9 and 10.) Mr. Bull claims that his 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 him by Allison Loder. (See Plaintiff’s Complaint; Paragraphs 14, Counts 9 and 10.) Mr. Bull brings counts of negligence (Count 9) and recklessness (Count 10) against Allison Loder. Specifically, Mr. Bull claims that his injuries and losses were caused by the negligence of Allison Loder in one or more of the following ways: 2 a. She served, purveyed, supplied, delivered, furnished, provided, dispensed, distributed, gave away or otherwise made available alcoholic beverages to Ryan Capozziello, when she knew or should have known that Ryan Capozziello was under the age of 21 and therefore a minor as it relates to the consumption of alcohol; b. She failed to take adequate measures to prevent Ryan Capozziello from drinking alcoholic beverages; c. She failed to restrict the consumption of alcoholic beverage by Ryan Capozziello; (See Plaintiff’s Complaint; Paragraph 15, Count 9.) Mr. Bull further claims that his injuries and losses were caused by the recklessness of Allison Loder in one or more of the following ways: a. She served, purveyed, supplied, delivered, furnished, provided, dispensed, distributed, gave away or otherwise made available alcoholic beverages to Ryan Capozziello, when she knew or should have known that Ryan Capozziello was under the age of 21 and therefore a minor as it relates to the consumption of alcohol; b. She knowingly did not take adequate measures to prevent Ryan Capozziello from drinking alcoholic beverages; c. She knowingly failed to restrict the consumption of alcoholic beverage by Ryan Capozziello; (See Plaintiff’s Complaint; Paragraph 15, Count 10.) Allison Loder denies any and all allegations of negligence and recklessness. (See Answer and Special Defenses, Entry No. 102.) B. Events of April 14, 2017 As previously mentioned, on the day of the subject 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” 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 3 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.) One of the party 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.) Later on in the day, on April 14, 2017, 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.) 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.) Not long thereafter, while Ryan Capozziello was driving, a car swerved into his lane, causing him to swerve off the road and making the Bull vehicle go into a tree. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p.p. 45-46, lines 23-7.) This collision allegedly caused the injuries to the plaintiff. (See Plaintiff’s Amended Complaint; Paragraphs 12, Counts 11 and 12; Entry No. 180.00.) C. Allison Loder’s Testimony Regarding the Alcohol She Brought with Her It is undisputed that Allison Loder brought a 1.75 liter 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 knows for a fact that 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 10-20.) In fact, Allison Loder’s bottle of vodka 4 stayed in her bag throughout the entire gathering, whereby she would only take itout to drink from it and then would place it back in her bag that she would carry around on her shoulder. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 2-8.) Allison would have the bag on her at all times, and never take it off because she did not want other people drinking her alcohol. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.p. 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. (Emphasis added.) (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 19-22.) D. Ryan Capozziello’s Testimony Regarding What he Drank Ryan Capozziello is adamant that he did not consume any vodka, let alone Allison Loder’s vodka, on April 14, 2017. (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.) He further testified that Allison Loder did not give him any alcohol on April 14, 2017, and that he never asked Allison Loder for alcohol on such date. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p. 139, lines 2-7.) E. Others’ Testimony Regarding Ryan Capozziello Drinking Allison Loder’s Vodka To date, there have been 10 depositions taken, including those of Allison Loder and Ryan Capozziello, of individuals who were present at the 32 Dayton Road, Redding, CT residence on the day of the alleged incident. Coinciding with both the testimony of Allison Loder and Ryan Capozziello, not one of the kids has testified that Ryan Capozziello drank vodka that day. i. Janelle Pompea Janelle Pompea testified on multiple occasions that she does not know what Ryan Capozziello drank. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.118, lines 5 18-21, p.245, lines 2-6.) Moreover, it would be fair to say that although Janelle knows that Allison Loder brought vodka, she does not remember if she herself actually consumed Allison’s vodka or if anyone else did. (See Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.p.250-251, lines 23-3.) ii. Tom Bull Tom Bull testified that he saw Ryan Capozziello drinking a red can of Budweiser that Tom had brought, 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 is 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 that 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.) iii. Ryan Gombos Ryan Gombos has no recollection of seeing Ryan Capozziello drink vodka. (See Exhibit F, Deposition of Ryan Gombos, January 27, 2021, p.146, lines 20-22.) iv. Grant Ciccarello Grant Ciccarello has no recollection of whether or not Ryan Capozziello drank alcohol, but specifically never saw Allison Loder provide any alcohol to other people, including Ryan Capozziello. (See Exhibit C, Deposition of Grant Ciccarello, March 10, 2020, p.p.114-115, lines 24-3.) v. Luke Ciccarello Luke Ciccarello, another individual who was present at the 32 Dayton Road address on the day of the incident, did not see Ryan Capozziello drink anything during the time that Luke 6 was at the party, which would include anything that Allison Loder may have purchased. (See Exhibit G, Deposition of Luke Ciccarello, January 28, 2021, p.57, lines 4-9.) vi. Liam Andrews Liam Andrews, a non-party witness to the consolidated matters, testified to only specifically 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.) vii. Katie Nolan Katie Nolan, another 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.) viii. Greg DeCarlo Greg DeCarlo, another non-party witness to the consolidated matters, and fellow party attendee, also testified to never seeing Ryan Capozziello drink anything. (See Exhibit J, Deposition of Greg DeCarlo, March 26, 2021, p.37, lines 1-3.) F. Service of Process On May 1, 2020, counsel for plaintiff signed the summons to be served on the defendant. On May 14, 2020, more than three years after the date of the accident, the plaintiff commenced this action against Allison Loder by serving her with the writ, summons, complaint, and amount in demand. (See Summons.) The return of service contains an endorsement of the state marshal for May 6, 2020, the date upon which the process was delivered to him for service. (See Return of Service.) The plaintiff alleges that through the deposition of some of the defendants and 7 plaintiffs in this and related actions, he has discovered that Allison Loder, among others, was in fact responsible for and/or contributed to his injuries, by acts of providing alcohol to minors. (See Plaintiff’s Complaint; Paragraphs 3, Counts 9 and 10.) However, at the time of the serving of the plaintiff’s complaint, only three depositions of plaintiffs or defendants, who were at the 32 Dayton Road Residence on April 14, 2017, were taken. (See Exhibits A, B, and C, depositions of Ryan Capozziello, Allison Loder, and Grant Ciccarello.) Not one of those depositions contains evidence that would place the plaintiff on notice of some form of actionable harm by Allison Loder. Id. II. ARGUMENT A. Legal Standard 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.‘’ Connecticut Practice Book § 17-49. ”“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). However, “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 omitted). A court can address the merits of a declaratory judgment action for insurance coverage through a motion for summary judgment. Community Action for Greater Middlesex County, Inc. v. American Alliance Insurance Co., 254 Conn. 387, 397-98, 757 A.2d 1074 (2000). 8 B. There is no genuine issue of material fact that Allison Loder did not cause the plaintiff’s injuries, and therefore, summary judgment should be granted as to the plaintiff’s negligence and recklessness allegations contained in Counts 9 and 10. To prevail on a negligence [or recklessness] claim, a plaintiff must establish that the defendant's conduct legally caused the injuries. Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); Winn v. Posades, 91 Conn. App. 610, 614 (2005); W. Prosser & W. Keeton, Torts (5th Ed.) § 41, p. 263. A component of legal cause is proximate cause, which the Connecticut Supreme Court has defined as [a]n actual cause that is a substantial factor in the resulting harm. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982); Boehm v. Kish, [supra, 201 Conn. at 391, 517 A.2d 624. “The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic ... shaping [of] rules which are feasible to administer, and yield a workable degree of certainty.” Harper & James, Torts § 20.4, p. 1133. (Emphasis added.) Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. Kowal v. Hofher, supra, [181 Conn. at 359–60, 436 A.2d 1]. In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. See generally Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 354–56, 162 N.E. 99 (1928) (Andrews, J., dissenting). Boehm v. Kish, supra, [at] 391–92 [517 A.2d 624].” (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757–58, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). 9 The test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. Nelson v. Steffens, 170 Conn. 356, 363, 365 A.2d 1174 (1976) (Bogdanski, J., dissenting); see also Hearl v. Waterbury YMCA, [supra, 187 Conn. at 4, 444 A.2d 211]. Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct]. Boehm v. Kish, [supra, 201 Conn. at 392, 517 A.2d 624]; see also W. Prosser & W. Keeton, supra, p. 269. The existence of the proximate cause of an injury is determined by looking from the injury to the negligent [and or reckless] act complained of for the necessary causal connection. Peterson v. Oxford, 189 Conn. 740, 749, 459 A.2d 100 (1983). This causal connection must be based upon more than conjecture and surmise. Vetre v. Keene, supra, [181 Conn. 136, 140–41, 434 A.2d 327 (1980); Wu v. Fairfield, supra, 204 Conn. at 438–39, 528 A.2d 364; the establishment of proximate cause is an essential element of a negligence [or recklessness] claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town of Fairfield, 204 Conn. 435, 439, 528 A.2d 364 (1987). Thus, plaintiff must submit some evidence at this stage sufficient to “establish a sequence of events causally flowing from the defendants' negligence [or recklessness] to his [injuries].” Theodore v. Lifeline Sys. Co., 173 Conn. App. 291, 318 (2017). The issue of causation is normally a question reserved for the trier of fact. See Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307 (1997). “The issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation.” Id. “[N]o matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable.” Esposito v. Schiff, 38 Conn. App. 726, 730 (1995). The plaintiff specifically alleges that his injuries and losses “were caused by, and in consequence of Ryan Capozziello’s intoxication resulting from the alcoholic 10 beverages provided or otherwise made available to him by Allison Loder.” (See Plaintiff’s Complaint; Paragraphs 14, Counts 9 and 10.) Here, the only conclusion that can be drawn from the evidence presented is that Ryan Capozziello did not drink alcohol provided by Allison Loder, and therefore, could not have become intoxicated from alcohol provided or otherwise made available to him by Allison Loder. (Emphasis added.) As there is no genuine issue of material fact as to this conclusion, the plaintiff’s “[c]ausation” burden cannot be met as to any claimed service of alcohol by Allison Loder to Ryan Capozziello. As mentioned above, Allison Loder only brought a bottle of Exclusiv vodka to the Pompea household on the day of the incident. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.42, lines 12-16.) There have been 10 depositions of individuals who were at the Pompea household (32 Dayton Road, Redding, CT) on April 14, 2017, and not a single one of the 10 has testified to witnessing or seeing Ryan Capozziello consume vodka. (Emphasis added.) (See Exhibits A-J.) Not only that, but one of those 10 individuals, the driver himself, Ryan Capozziello, is adamant that he did not consume any vodka, let alone Allison Loder’s vodka, as to place any form of liability on her. (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.) If Allison only brought vodka to the party, and not a single person has testified to seeing Ryan Capozziello drink vodka, it is impossible for the plaintiff to meet his causation burden in this case. Even if the plaintiff can show that Ryan Capozziello drank vodka, which he cannot, there is no genuine issue of material fact that Ryan Cappozziello did not drink alcohol provided by Allison Loder. Allison knows for a fact that 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 10-20.) In fact, Allison Loder’s bottle of vodka stayed in 11 her bag throughout the entire gathering, whereby she would only take it out to drink from it and then would place it back in her bag that she would carry around on her shoulder. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.73, lines 2-8.) Allison would have the bag on her at all times, and never take it off because she did not want other people drinking her alcohol. (See Exhibit B, Deposition of Allison Loder, January 8, 2020, p.p. 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.) Moreover, Ryan Capozziello testified specifically that Allison Loder did not give him any alcohol on April 14, 2017, and that he never asked Allison Loder for alcohol on such date. (See Exhibit A, Deposition of Ryan Capozziello, January 3, 2020, p. 139, lines 2-7.) Therefore, the plaintiff cannot establish, as a matter of law, that the defendant, Allison Loder, was negligent, reckless, or otherwise responsible for the subject incident. The undisputed evidence shows that Ryan Capozziello did not consume any alcohol provided by Ms. Loder. Simply stated, the trier of fact could not reasonably reach any other conclusion: Allison Loder did not do anything wrong, negligent, or reckless that would cause or contribute to the plaintiff’s injuries. Consequently, Allison Loder is entitled to summary judgment as a matter of law. C. Allison Loder could not have breached any duty owed to the Plaintiff because she was not in control, nor had any obligation to be in control, of Ryan Capozziello’s conduct. It is axiomatic that no actionable claim of negligence [or recklessness] exists absent a recognized duty of care that was breached. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” Lepage v. Home, 262 Conn. 116, 123 (2002) (Internal quotation marks omitted.) “Duty is a legal conclusion about relationships between individuals, made after the fact, and is imperative to a 12 negligence [or recklessness] cause of action.” Laflamme v. Dallessio, 261 Conn. 247, 251 (2002) (Internal quotation marks omitted.). Thus, “there can be no actionable negligence ... unless there exists a cognizable duty of care.” Waters v. Autuori, 236 Conn. 820, 826 (1996). Connecticut courts have held that although summary judgment is ill-adapted to negligence cases, Maffuci v. Royal Park Ltd. Partnership, 42 Conn.App 563, 568, 680 A.2d 333 (1996), “[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.” Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997). Even if the plaintiff had properly pled the existence of a duty in both Counts 9 and 10, the material facts clearly establish that no such duty existed. “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... [A]bsent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.” Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996). In the instant case, the plaintiff claims that Allison Loder was negligent in that (i) she failed to take adequate measures to prevent Ryan Capozziello from drinking alcoholic beverages; and (ii) she failed to restrict the consumption of alcoholic beverages by Ryan Capozziello (see Plaintiff’s Complaint; Count 9, Paragraphs 15(b) and 15(c)) and reckless in that (i) she knowingly did not take adequate measures to prevent Ryan Capozziello from drinking alcoholic 13 beverages; and (ii) she knowingly failed to restrict the consumption of alcoholic beverages by Ryan Capozziello (see Plaintiff’s Complaint; Count 10, Paragraphs 15(b) and 15(c)). No special relationship exists here that would dispose a duty upon Allison Loder to control the conduct of Ryan Capozziello. It is impossible for any reasonable person to believe that Allison Loder would have any obligation to control what Ryan Capozziello did or did not do. This was not Allison Loder’s party (see Exhibit D, Deposition of Janelle Pompea, January 25, 2021, p.108, lines 6- 13); Allison Loder 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 provided by Allison Loder (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. 139, lines 2-7.). Wherefore, there is no genuine issue of material fact that Allison Loder lacked the duty to control the actions of Ryan Capozziello, and Allison Loder should therefore be entitled to judgment as a matter of law as to Counts 9 and 10. D. Summary judgment should be granted as the plaintiff’s claims in Counts 9 and 10 are barred by the applicable statute of limitations set forth in Conn. Gen. Stat. § 52-584. Counts 9 and 10 of the plaintiff’s complaint are barred by the statute of limitations provided by Conn. Gen. Stat. § 52-584, and therefore, the court should grant Allison Loder’s motion for summary judgment. Specifically, § 52-584 provides in relevant part, “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” (emphasis added.) “[T]his statute imposes two specific time 14 requirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered. .. . The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of . . . . The three year period specifies the time beyond which an action under § 52–584 is absolutely barred, and the three year period is, therefore, a statute of repose.” (Internal quotation marks omitted.) Mollica v. Toohey, 134 Conn. App. 607, 612, 39 A.3d 1202 (2012). In the context of applying § 52-584 to decide whether a particular action was commenced in a timely fashion, courts have stated that an injury occurs when a party suffers some form of actionable harm. Lindsay v. Pierre, 90 Conn. App. 696, 700, 879 A.2d 482 (2005). “Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action. . . . [General Statutes § 52-584] begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof.” (Citation omitted; internal quotation marks omitted.) Merly v. State, 211 Conn. 199, 206, 558 A.2d 977 (1989). In Lindsay, the Appellate Court found that the date of a motor vehicle accident was the relevant time that began the time period for bringing a claim. Id. at 700-01. See also Folson v. Pulley, Superior Court, judicial district of New Haven, Docket No. CV-11- 6021350 (November 22, 2011, Wilson, J.) (finding that the statute of limitations expired two years after the date of the motor vehicle accident). In counts nine and ten, the plaintiff seeks to recover damages for alleged injuries resulting from a motor vehicle accident on April 14, 2017. Therefore, the plaintiff had until April 14, 2019 to commence an action for injuries allegedly sustained as a result of this accident. 15 However, the summons was not signed by plaintiff’s counsel until May 1, 2020. (See Summons). Allison Loder was not served with process until May 14, 2020. (See Return of Service). Therefore, there is no genuine issue of material fact that the plaintiff suffered their alleged injuries more than two years prior to the commencement of the present action on May 14, 2020 and that the plaintiff’s action was filed after the applicable statute of limitations had run. Furthermore, the plaintiff cannot point to any form of actionable harm, aside from the date of the subject incident that would restart the accrual of the statute of limitations period. The plaintiff alleges that through the deposition of some of the defendants and plaintiffs in this and related actions, he has discovered that Allison Loder, among others, was in fact responsible for and/or contributed to his injuries, by acts of providing alcohol to minors. (See Plaintiff’s Complaint; Paragraphs 3, Counts 9 and 10.) However, at the time of the serving of the plaintiff’s complaint, only three depositions of plaintiffs or defendants, who were at the 32 Dayton Road Residence on April 14, 2017, were taken. (See Exhibits A, B, and C depositions of Ryan Capozziello, Allison Loder, and Grant Ciccarello.) Not one of those depositions contains evidence that would place the plaintiff on notice of some form of actionable harm by Allison Loder. Id. Additionally, the plaintiff, on January 26, 2021, testified to not ever witnessing Ryan Capozziello drink vodka, let alone vodka possessed by Allison Loder, as to begin a new accrual date. (See Exhibit E, Deposition of Tom Bull, January 26, 2021, p.131, lines 1-4.) Therefore, there is still no genuine issue of material fact as to whether the plaintiff failed to file his claim against Allison Loder within two years from when incident occurred. In anticipation of the plaintiff’s argument that the three year statute of repose should apply in tolling the statute of limitations, which it should not, the plaintiff’s action against Allison Loder in Counts Nine and Ten should still be barred as the Allison Loder was not even 16 served within three years to the date when the subject accident occurred. (See Summons and Return of Service.) Therefore, there is still no genuine issue of material fact as to whether the plaintiffs’ claims in Counts 9 and 10 are barred pursuant to § 52-584, which states that no action to recover damages for injury to the person caused by negligence, or by reckless or wanton misconduct shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered. III. CONCLUSION For the foregoing reasons, the Defendant, Allison Loder, respectfully requests that this Court grant her Motion for Summary Judgment as to the plaintiff, Thomas Bull’s claims in Counts 9 and 10 of his Complaint, and rule that the Defendant is entitled to judgment as a matter of law. THE DEFENDANT, ALLISON LODER BY MILANO & WANAT LLC By: /s/ 437395 Adam J. Tusia, Esq. Milano & Wanat LLC 471 East Main Street Branford, Connecticut 06405 (203) 315-7000 atusia@mwllc.us By: /s/ 302114 Maureen E. Burns, Esq. Mulvey, Oliver Gould & Crotta 2911 Dixwell Avenue, 4th Floor Hamden, CT 06518 burns@moglaw.com 17 CERTIFICATE OF SERVICE I certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on this 28th day of April, 2021, to all counsel and self- represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served as follows: Etan Hirsch, Esq. Richard A. Roberts, Esq. Adelman, Hirsch & Connors, LLP 1000 Nuzzo & Roberts, LLC Lafayette Boulevard One Town Center, P.O. Box 747 Bridgeport, CT 06604 Cheshire, CT 06410 Ehirsch@ahctriallaw.com recep@nuzzo-roberts.com Attorney for Janelle Pompea Attorney for Seaside Wine & Liquor LLC, Victor Saverino, Yesika Saverino Michael O. Connelly, Esq. Murphy Karpie Connelly & Sickinger LLC 350 William Bloss, Esq. Fairfield Ave, Ste. 408 Koskoff, Koskoff & Bieder Bridgeport, CT 06604 350 Fairfield Avenue Connelly@murphykarpie.com Bridgeport, CT 06604 Attorney for ShirleyAnn Pompea, Janelle bbloss@koskoff.com Pompea Attorney for Allison Loder