Paul Meade focuses his practice on Insurance-Related Litigation. Paul has tried over 30 cases to verdict in state and federal courts, has handled numerous arbitration hearings, and has participated in hundreds of mediation proceedings. While the principal focus of his practice has been the defense of automobile, commercial and residential premises, and construction-related personal injury, wrongful death and property loss claims, he has also handled numerous products liability actions, fraternity liability, civil rights, municipal liability, marine/boating, and environmental coverage claims. His appellate experience includes argument before the Connecticut Supreme Court in which he successfully defended a $3,000,000 damage claim against the Town of Clinton by a developer seeking to expand a waterfront marina.
Additionally, Paul has considerable experience defending claims related to liquor liability, dram shop and social host liability. He recently obtained summary judgment in favor of a national fraternity organization in a matter involving the death of an underage individual arising out of the alleged service of alcohol by fraternity members.
Paul's reported appellate decisions include O&G Industries, Inc. v. All-Phase Enterprises, Inc., 112 Conn. App. 511; Port Clinton Associates et al., v. Board of Selectman of the Town of Clinton, 217 Conn. 588, 587 A. 2d 126, cert. denied 112 S. Ct. 64 (1991), Cusano v. Burgundy Chevrolet, Inc. 55 Conn. App. 655 (1999) and Hodgate, Admr. v. Ferraro, et al., 123 Conn. App. 443 (2010).
Paul is a member of the Connecticut and Hartford County Bar Associations, and the Connecticut Defense Lawyers Association.
Client Alert: New Connecticut Supreme Court Decision Rejects Per Se Liability, Lowers and Clarifies Standard of Proof for Dram Shop Claims
By Paul Meade, 10/11/2012
In O'Dell Administrator v. Kozee, et al, 307 Conn. 107, released as a slip opinion, September 28, 2012, the Connecticut Supreme Court undertook an extensive analysis of the legislative and jurisprudential history of Connecticut's Dram Shop Act, C.G.S. 30-102, addressing the specific issue of whether Section 30-102 requires a plaintiff to prove that a patron was visibly or otherwise perceivably intoxicated when sold alcoholic liquor in order to prevail on a claim against the purveyor for injuries sustained as a result of the patron's intoxication. The Court concluded that the Dram Shop Act does require a plaintiff to meet the visible or otherwise perceivably intoxicated standard, rejecting the plaintiff's argument that the statute is intended to impose strict liability for service to an intoxicated person, without any requirement that such intoxication be visible to the seller. The court also clarified that although Connecticut requires visible, objective evidence of intoxication, that evidence need not be obvious.
While the Court's decision in O'Dell appears at first glance to be a victory for the defense bar and the hospitality industry, it should be noted that several aspects of the Court's decision may increase, rather than decrease, the exposure of purveyors of alcohol to liability.
The key aspects of the Supreme Court's decision may be generally summarized as follows:
1. Although the Dram Shop Act has often been referred to as a strict liability statute, the Act imposes strict liability only to the extent that it relieves a plaintiff from having to prove a direct causal connection between the specific sale and the subsequent injuries, not with respect to proof of intoxication at the time of the sale.
2. Although the statute specifically imposes liability upon the seller of alcoholic liquor to an intoxicated person, the statute does not define intoxicated. The term is subject to considerable interpretation and its meaning varies widely with regard to its legal interpretation, statutory references, and common understanding.
3. The Court distinguished between statutes using the phrase under the influence of alcohol (such as that which defines operation under the influence as operation with a blood alcohol level of .08 percent or higher, C.G.S. 14-222) and the Dram Shop Act statute's use of the phrase intoxicated person.
4. The Court analyzed the history of the Dram Shop Act and related criminal statutes, including C.G.S. 30-86, penalizing the sale of alcohol to intoxicated persons, and case law which clearly places the burden of determining whether a person is intoxicated prior to selling or purveying alcohol upon the seller. In conducting that analysis, the Court concluded that . . . [by] placing the burden of determining whether or not the purchaser of liquor is intoxicated upon the seller . . . the State must have assumed that there would be an objective basis from which the seller could make such a determination through reasonable efforts. (Slip. Opinion, 212 WL 4478434, at *8.) The Court further noted that unlike C.G.S. 14-222, the Dram Shop Act does not designate a specific blood alcohol content as proof of a violation, which inexorably leads to two conclusions: first, there is no standard of intoxication per se under Section 30-102; and second, the absence of such a standard is wholly consistent with a construction of Section 30-102 that requires proof of perceivable intoxication. (Id. at *11).
5. The Court also made clear that a plaintiff need not establish that the purveyor of alcohol had actual knowledge of the visibly or perceivably intoxicated state of the allegedly intoxicated person. It is also self-evident that the statute contains no element of proof of the purveyor's knowledge or state of mind . . . undoubtedly, when there are perceivable signs of intoxication, in many but not all cases a plaintiff likely would be able to establish that the purveyor at the very least should have known of the patron's condition. This result does not alter the fact that a plaintiff has no obligation to make such a showing under the Act. (Id. at *12).
6. The Court further made clear that Connecticut law does not require a plaintiff to establish obvious intoxication; rather, the plaintiff need only establish that the AIP's level of intoxication at the time of service be visible or otherwise perceivable.
7. While noting that [T]here is good cause to question the fairness and incremental gains to public safety of a construction under which a purveyor will be liable for injuries caused by an intoxicated patron even if it has taken every reasonable precaution to avoid selling alcohol to patrons who appear to have reached the point of intoxication, (*13), the Court also made clear that the burden of proof articulated [by the courts] is not onerous. As we explain further in Part 2 of this opinion, any perceptible indicator of intoxication at the time of service, including excessive alcohol consumption itself can be sufficient to deem the purveyor on notice of its potential exposure to liability under the Act and thus permit recovery. (*13, emphasis added) The Court went on to note that in the O'Dell case below, while there had been no testimony from anyone who observed the AIP visibly and obviously intoxicated, the AIP himself and one of his companions had testified to the consumption of more than 10 drinks, and the plaintiff's toxicology expert had testified that the AIP would have had to consume a minimum of 15 drinks and as many as 20 during the course of the evening in order to reach the blood alcohol content which he was found to have at the time of the subject accident. The Court stated that in the absence of evidence that [the AIP's] plan at the outset of the evening was to drink to the point of intoxication, a jury reasonably could find that imbibing to such excess is a visible sign of impaired judgment due to alcohol consumption, one example of competent evidence of intoxication . . . . The O'Dell court quoted with approval from a decision of the Minnesota Supreme Court, MJOS v. Howard Lake, 287 Min. 427, at 432-35 (1970):
Although a person is not 'obviously intoxicated,' the fact that he is 'intoxicated' would be discoverable by reasonably active observation of his appearance, breath, speech, and actions . . . . This may require the supplier of liquor to engage the prospective purchaser in conversation, to note specifically the details of the purchaser's physical appearance, to observe the purchaser's conduct during the course of his drinking at the supplier's establishment, or to scrutinize the actions of the prospective customer in other ways by which the supplier may detect intoxication which is observable even though not obvious.
The Connecticut Supreme Court noted that this description of intoxication is consistent with the view expressed by this Court in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341 at 349-50. (Sanders, a 1985 decision, has long been regarded as the leading Connecticut decision addressing the application of the Dram Shop Act.)
8. The Court remanded the case for a new trial, holding that because the trial court had instructed the parties and the jury that visible signs of intoxication were not required and that the defendant was not permitted to argue or introduce testimony to the contrary, the plaintiff was entitled to rely on the trial court's ruling, and the Appellate court erred in remanding the case with direction to render judgment for the defendants rather than remanding it for a new trial, which would permit the plaintiff to introduce evidence to support visible or perceivable intoxication on the part of the AIP. The Connecticut Supreme Court explicitly held that [O]n remand, the plaintiff need prove only that signs of [the AIP's] intoxication could have been observed, not that it would have been obvious to anyone coming into contact with him. (Emphasis added) The Court further noted that among the types of evidence which could be presented to the jury to support the plaintiff's claims of visible or perceivable intoxication would be charge card receipts from the bar on the evening of the accident, and the AIP's deposition testimony regarding additional cash he spent on drinks, the cost of drinks, and drinks others bought for him. (*14, Note 27).
In summary, while the O'Dell court has made clear that there is no per se standard or BAC level at which a purveyor may be held strictly liable, and that the plaintiff must present evidence from which a jury could determine that the AIP showed visible or perceivable signs of intoxication at the time of service, the plaintiff need not prove that such visible or perceivable signs were actually observed by the purveyor, and the evidence which the plaintiff may introduce to prove that such a visible or perceivable state of intoxication existed is quite broad. Indeed, while otherwise dissenting from the majority and arguing that a strict or per se liability interpretation based upon blood alcohol content is warranted, Justice Eveleigh, joined by Chief Justice Rogers, notably commented:
Although I agree with the majority that evidence of imbibing to such excess is sufficient evidence to establish a prima facie case and get to the jury, if mere excess drinking at the purveyor's establishment is sufficient under the majority's reading of Section 30-102, it seems that the majority is not requiring visible signs of intoxication.
From the defense perspective, the lowered but still somewhat amorphous standard announced by the majority does leave room for defense counsel to argue with regard to what constitutes visible or perceivable signs of intoxication versus being merely under the influence of alcohol, and provides room for counsel to appeal to the common sense of lay jurors as to what is reasonable under the circumstances. It appears likely that, going forward, the battle will be fought in the context of what jury instructions will be presented to jurors and what arguments will be permitted under the O'Dell standard.Court Permits Impleader of Insurance Agent Into Declaratory Judgment Action to Determine Coverage
Occam's Razor Insurance Law Update, 01/13/2009
In a recent Connecticut Superior Court decision, Cambridge Mut. Fire Ins. Co. v. Michaud, 2008 Conn. Super. LEXIS 2004 (August 9, 2008), the court permitted a homeowner sued by his putative insurer to implead his insurance agent under Connecticut General Statutes Section 52-102a for failing to name him on the homeowners policy. The case involved an unmarried man and woman, who lived together as partners and were in the process of building a personal residence on jointly owned property. The homeowner/defendant is a home contractor by trade and owns his own business, specializing in bathroom renovations. A sub-contractor at the worksite fell through a hole in the floor of the couple's new personal residence during construction.
The estate of the decedent subcontractor sued Mr. Michaud and Michaud Enterprises LLC, alleging that Mr. Michaud and/or Michaud Enterprises LLC were acting as general contractor for the construction of the couple's personal residence at the time of the accident. Mr. Michaud made a claim for coverage under the Cambridge Mutual Fire Insurance Company's homeowners policy, which had been issued in the name of his partner only, although both Michaud and his partner were joint tenant owners of the insured property.
Cambridge Mutual Fire Insurance Company denied coverage but agreed to defend Mr. Michaud under a reservation of rights. Cambridge Mutual then initiated a declaratory judgment action against Mr. Michaud seeking a declaration of no coverage for Mr. Michaud's claim because he was not a named insured under the policy. Mr. Michaud then moved to implead his insurance agents, Deming and Whitaker, in the declaratory judgment action. Mr. Michaud and his partner claimed that they expressly requested Deming and Whitaker to add Mr. Michaud to the homeowners policy prior to the date of the accident, and that Mr. Michaud should have been added as a named insured in any event as a co-owner of the insured premises and client of Deming.
Whitaker and Deming moved to strike Mr. Michaud's motion to implead. In their motion to strike, Whitaker and Deming argued that they could not in any way be deemed liable to Cambridge Mutual for Cambridge Mutual's claim against Michaud since what Cambridge Mutual was seeking was a mere declaration of no coverage under the policy, and did not seek to impose liability. Whitaker and Deming further argued that Michaud's negligence claim against them was precluded because there was no negligence claim contained in Cambridge Mutual's declaratory judgment action against Michaud.
The trial court denied the Whitaker and Deming's motion to strike Michaud's third-party complaint, noting that Conn. Gen. Stat. 52-102a, when read in light of Fed. R. Civ. P. 14(a), allowed Michaud to assert a negligence claim in a third party complaint, as it furthered the statute's purpose to obviate the multiplicity of actions. . . . [and] to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense of many suits and many trials. The trial court also noted the court's longstanding tradition to avoid the multiplicity of actions and promote the interest of judicial economy, and stated that the third-party complaint entails similar and related issues and involves interests that may be affected by the outcome of the declaratory judgment action.Social Host Liability After Craig v. Driscoll
Liquor Liability Update, 07/05/2005
In the past two years, the law of liquor liability has undergone some rather dramatic transformations within the State of Connecticut. This article aims to briefly track those changes, to shed some light on the current state of the law in this area and to educate the reader relative to some important practical considerations brought about by these changes.
In February of 2003, the Connecticut Supreme Court decided Craig v. Driscoll, et al.,1 which significantly altered liquor liability law by recognizing a common law cause of action by an injured third party based upon allegations of negligent service of alcohol to an adult.2 Until 1988, a century of jurisprudence had dictated that there was no common law cause of action for the negligent service of alcohol. In keeping with that philosophy, the Court had also consistently held that a statutory cause of action under the Dram Shop Act3 was the exclusive remedy for negligent service actions. Quinnett v. Newman, 213 Conn. 343, 568 A.2d 786 (1990). In 1988, the Connecticut Supreme Court decided Ely v. Murphy,4 which held that an injured third party could maintain a common law negligence action against a social host who negligently served alcohol to a minor.
In 1996 the Court decided Bohan v. Last,5 which expanded Ely by holding that it applied equally to social hosts and other purveyors of alcohol, to include those serving alcohol in a bar setting.
In deciding Craig in 2003, the Court took Bohan even further when it expressly overturned Quinnett, holding that the Dram Shop Act, does not occupy the field so as to preclude a common law action in negligence against a purveyor of alcoholic beverages for service of alcoholic liquor to an adult patron who, as a result of his intoxication, injures another. Craig, supra, at 330. Craig thus opened the door for negligent service claims, regardless of the age of the person served. The potential ramifications were and remain enormous. The Court found that the $20,000/$50,000 cap on damages that was then part of the Dram Shop Act was intended by the legislature to be a floor rather than a ceiling and that the tort action [for negligence] would supplement, rather than conflict with, the Act. Id. at 328.6
As a direct and swift response to Craig, the Legislature repealed and re-enacted the Dram Shop Act effective June 3, 2003,7 instituting two significant changes. First, the Legislature added the sentence, [s]uch injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older. This language made it clear that there would be no common law negligent service of alcohol claims against sellers whose purchasers were 21 years of age or older. This abrogated Craig for claims where an adult purchaser and a seller of alcohol were concerned. Second, the existing limits of liability of $20,000 per person and $50,000 aggregate were raised to a flat, across-the-board limit of $250,000 for all Dram Shop Actions.
What the changes to the Dram Shop Act did not do is arguably more important than what they did do. First, the Legislature did nothing to change the law as it had developed regarding minors. By only prohibiting common-law negligent service of alcohol claims against sellers whose purchasers were 21 years of age or older, the legislature left untouched the doctrine created by the Ely/Bohan line of cases, allowing claims against both social hosts and liquor establishments when a minor is negligently served. Thus common law negligence claims can still be brought against anyone negligently serving a minor, whether the person serving the alcohol is a seller or a social host.
The second thing that the changes did not address is much more disconcerting for homeowners, employers and other social hosts, and their insurers. Recall that Craig recognized the existence of a common law cause of action for the negligent service of alcohol to an intoxicated adult. Now recall that the Dram Shop Act was then amended to prohibit such claims; however, the prohibition applies only to claims against sellers of alcohol. Thus the 2003 changes to the Dram Shop Act do not preclude a common law negligence cause of action against a social host for the negligent service of alcohol to an intoxicated adult. Indeed, although not binding law, at least one Superior Court judge has agreed that such a claim remains viable under this line of reasoning. Raymond v. Duffy, 2005 WL 407655, docket no. X04-CV-030102444-S, at *4 (Conn. Super., Jud. Dist of Middlesex)(Quinn, J., Jan. 13, 2005).
In light of these developments, there are several important practical considerations to keep in mind when adjusting, planning for, insuring and defending such claims. First, there are significant unresolved issues with respect to whether Craig or the re-enacted Dram Shop Act should be given retroactive or prospective effect. Under certain circumstances, a new law can be given retroactive effect, 8 and the Appellate Courts of Connecticut have yet to decide the matter relative to Craig or the re-enacted Dram Shop. At the Superior Court level, the courts are split. Several Superior Court judges have held that Craig should be given retroactive effect,9 holding that a common law claim for negligent service can exist even for claims accruing prior to February 4, 2003, when the Craig decision was released. On the other hand, several other Superior Court judges have held that Craig should not be given retroactive effect, since it created a new cause of action and would prejudice those relying on the law as it existed at the time the service of alcohol was made.10
Similarly, several Superior Court judges have held that the protections afforded to sellers of alcohol in the re-enacted Dram Shop Act should not be applied retroactively, holding that common law negligence claims involving service to an adult by a seller may be brought for service or sales occurring prior to the re-enactment of the Dram Shop Act on June 3, 2003 (at least as far back as Craig, and arguably further if Craig is given retroactive effect). 11 Again, other Superior Court judges have disagreed, holding that the changes to the Dram Shop Act were meant to clarify the law in response to the Craig decision, and thus should be applied retroactively to protect sellers of alcohol.12
With the overlapping effects of the changes brought by Craig and the revisions to the Dram Shop Act, the possible outcomes in any given situation are many, and an inventory of those possible outcomes is outside the scope of this brief circular. It is clear, however that the date of loss does not automatically provide answers to questions regarding liability, exposure or susceptibility to claims in this area.
Other important practical considerations apply to claims involving customers or guests of any age. It is very important to be mindful of the differences between a common law negligence claim and a statutory claim under the Dram Shop Act.
An action under the Dram Shop Act only requires proof that a person was 1) sold alcohol; 2) while intoxicated; and 3) as a consequence of the person's intoxication the plaintiff was injured. No causal relationship between the alleged service and the injury needs to be proven. Indeed no proof of consumption is required, as the sale to an intoxicated person is enough, if that intoxication played a role in causing the victim's injury. The trade-off for this relaxed burden of proof is limited liability.
On the other hand, a count based in common law negligence puts a greater burden on a plaintiff, requiring that the claimant prove the traditional elements of a negligence claim, namely duty, breach, actual/legal causation and damages. More specifically, this arguably requires a claimant to prove, among other things, that the service and consumption of alcohol was a proximate cause of the claimant's injuries; that the person serving the alcohol knew or should have known that the person being served was intoxicated; and that the service or consumption constituted a foreseeable risk to persons like the claimant. Moreover, comparative negligence of the claimant can serve to mitigate or bar recovery as with any common law negligence claim. Additionally, there is by definition a substantial tortfeasor, i.e., the intoxicated party, whose negligence may be apportioned to reduce liability in such cases. In contrast, contributory negligence is not a defense to a Dram Shop claim.
These additional burdens of proof for common law claims must be accounted for when evaluating and adjusting claims with both Dram Shop and common law allegations. When the damages are severe, and a sale of alcohol is involved, it may not be appropriate to assume liability above $250,000 simply because the person served is under 21. On the other hand, where the insured is not a seller of alcohol, it is not appropriate to assume there is no liability because the intoxicated party is an adult.
The Craig decision leaves unresolved many other significant issues, creating considerable confusion as to what a plaintiff must prove to sustain such a claim. Unresolved questions include whether a plaintiff must establish that the defendant served alcohol to the allegedly intoxicated person, as opposed to facilitating consumption by guests or failing to supervise employees or guests; whether a plaintiff must prove that the adult in question was obviously intoxicated at the time of service; what constitutes obvious intoxication; and whether the plaintiff must prove that the defendant knew or should have known that the intoxicated person intended to operate a motor vehicle. Does a social host have a duty to take car keys from guests? Does a social host assume a duty by doing so? Does a host of a BYOB affair owe a duty under Craig?
We cannot predict whether or how the higher courts will resolve the many thorny issues raised by the Craig decision and the subsequent changes to the Dram Shop Act. It is clear, however that there remains the potential for liability far above and beyond the limits of the Dram Shop Act. If you have any questions or concerns as to the current state of liquor liability in Connecticut, or if we can be of any assistance to you regarding liquor liability, please contact us as listed above.
This Update is provided for informational and educational purposes only and is not intended as legal advice. This publication may be considered advertising under applicable state laws.
1 262 Conn. 312, 813 A.2d 1003.
2 For our purposes adult means a person 21 years old or older, and minor means a person younger than 21.
3 Conn. Gen. Stat. 30-102.
4 207 Conn. 88, 540 A.2d 54 (1988).
5 236 Conn. 670, 674 A.2d 839 (1996).
6 See, Gorman v. Szewczak, 2004 WL 2379983, docket no. CV-01-0166633-S , at *2 (Conn. Super., Dist. of Waterbury)(Alvord, J., Jan. 23, 2004).
7 2003 Conn. Acts 03-91, 1 (Reg. Sess.).
8 The three factors considered when deciding if a law has retroactive effect are whether: (1) it establishes a new principle of law by overruling past precedent on which litigants have relied; (2) given the law's prior history, purpose and effect, retrospective application of the rule would retard its operation; and (3) retroactive application would produce substantial inequitable results, injustice or hardship. Ostrowski v. Avery, 243 Conn. 355, 377-78 n. 18, 703 A.2d 117 (1997).
9 Raposa v. Lynam, 2003 WL 22962859, docket no. CV-01-0182731-S (Conn. Super., Dist of Stamford-Norwalk)(D'Andrea, J.T.R., Dec. 3, 2003); Nelson v. Sales, docket no. CV-02-025739 (Conn. Super., Dist. of Ansonia-Milford at Milford)(Holden, J., Sept. 8, 2003)(applying Craig retroactively without comment). For an excellent inventory of cases on both sides of the split, see, Stavola v. Costa, 2005 WL 408010, 38 Conn. L. Rptr. 530, docket no. CV-03-0350462-S, at *2, n. 4 (Conn. Super., Dist. of Danbury)(Morahgan, J.T.R., Jan. 18, 2005).
10 See, e.g., Guillemette v. Elk's Lodge No. 1359, 2005 WL 375312, 38 Conn. L. Rptr. 513, docket no. CV-02-0079803-S at *4 (Conn. Super., Dist. of Tolland)(Scholl, J., Jan 11, 2005), and the cases cited at *2 therein.
11 See, Guillemette v. Elk's Lodge No. 1359, supra n. 10, at *2, and the cases cited at *1 therein.
12 See, e.g., Walters v. Y-Knot, Inc., 2005 WL 704297, 38 Conn. L. Rptr. 698, docket no. CV-04-0569269-S at *2 (Conn. Super., Dist. of New London)(Jones, J., Feb 4, 2005).