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Carangelo v. FCT, LLC

Connecticut Superior Court Judicial District of Waterbury at Waterbury
May 22, 2006
2006 Ct. Sup. 9494 (Conn. Super. Ct. 2006)

Opinion

No. CV04-0183954S

May 22, 2006


MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT


This action arises from a motor vehicle accident in which the plaintiff, Vincent Carangelo, suffered injuries when the car he was driving crashed into a tree. The plaintiff brings this action against Sliders Sports Bar and Grill (hereinafter, "Sliders"), Frederick Marcantonio, the owner of Sliders, Christopher Tatro, the permittee of Sliders, Officer James Palaia, and the Town of Berlin.

The defendants Sliders, Marcantonio, and Tatro move for summary judgment on counts one and two of the amended complaint, claiming that the plaintiff cannot establish a prima facie case that said defendants sold alcohol in a reckless or negligent manner.

FACTS

In his complaint, the plaintiff alleges that on October 26, 2002 he was a minor and a business invitee of Sliders. The plaintiff alleges that Sliders served large quantities of alcohol to him despite his minor status. Just after 12 a.m., October 27th, the plaintiff left Sliders to drive to a friend's house. During the drive, the plaintiff was stopped by Officer Palaia. Although the plaintiff was obviously and visibly intoxicated and admitted to officer Palaia that he consumed alcohol earlier that night, officer Palaia issued the plaintiff a speeding ticket and released the plaintiff. At around. 1 a.m., the plaintiff lost control of his car and crashed.

The plaintiff alleges that his intoxicated state impaired his driving abilities and resulted in the accident. The plaintiff suffered various injuries from the accident and alleges that the negligence of Sliders, Marcantonio and Tatro were the direct and proximate causes of his injuries. The plaintiff further alleges that Sliders, Marcantonio and Tatro were reckless in that they continued to serve him alcohol while he was intoxicated. The plaintiff alleges that the recklessness of the defendants was a substantial factor in causing his accident.

The rest of the allegations in the complaint apply to counts three, four and five, which are not a part of the defendants' motion.

DISCUSSION I. DEFENDANTS'S FAILURE TO AUTHENTICATE SUPPORTING EVIDENCE

"[A] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). "Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) Id.

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005). "The courts hold the [summary judgment] movant to a strict standard . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).

In the present case, the defendants fail to meet the strict standard they are held to in moving for summary judgment. Their supporting evidence is what appears to be a transcript of the plaintiff's deposition testimony. They fail to include a cover page or a signature page and fail to have the transcript certified. They do not attach any affidavits. The defendants' only supporting evidence, therefore, is not authenticated. As a result, they do not fulfill their initial burden of showing that there is no genuine issue of material fact because the court cannot consider such evidence. The court will not consider entering judgment against the plaintiff based upon improperly presented evidence. See Torres v. State, Superior Court, judicial district of Hartford, Docket No. CV 02 0819015 (February 22, 2006, Freed, J.T.R.) ( 41 Conn. L. Rptr. 29) (Parties failed to meet burden of proof because motion for summary judgments were supported with unauthenticated evidence. "[D]ue to the lack of admissible evidence presented, it cannot be said as a matter of law that either party established that there are no genuine questions of material fact remaining and that they are entitled to judgment as a matter of law."); Chancellor's Learning System v. Deteau, Superior Court, judicial district of Windham at Putman, Docket No. CV 03 0070955 (October 11, 2005, Potter, J.) ("It is especially appropriate to hold [supporting documentation] submitted by a moving party to a stringent standard." Despite defendant's lack of objection and memorandum in opposition, plaintiff's motion for summary judgment denied as a matter of law because plaintiff attached an unauthenticated contract that would not be admissible at trial.)

The defendants attached as exhibit B and C printouts of General Statutes sections.

The defendants and the plaintiff both appear to have submitted uncertified transcripts of the plaintiff's deposition testimony in support and in opposition to this motion. In Ennis v. Dixon, Superior Court, judicial district of Hartford, Docket No. CV 04 4001042 (January 20, 2006, Miller, J.), the court noted two other Superior Court decisions where uncertified deposition transcripts were considered because both parties submitted the transcripts. These two cases, White v. Chadwick Stone, LLP, Superior Court, judicial district of New Britain, Docket No. CV 04 0526585 (April 22, 2005, Burke, J.) ( 39 Conn. L. Rptr. 189, 191 n. 2), and Jackson v. Poland, Superior Court, judicial district of New Haven at Meriden, Docket No. 03 0472786 (February 4, 2004, Tanzer, J.), were decided before New Haven v. Pantani was officially released (June 21, 2005). The court, therefore, does not find these cases persuasive.

II THE MERITS Count One in Negligence

The court finds that even if the parties submitted authenticated evidence, the defendants' motion would be denied. The defendants state that it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor. They argue that the plaintiff's own deposition testimony indicates that there were no significant differences between the picture on the driver's license and the plaintiff's physical characteristics and, therefore, they had no basis to suspect that the plaintiff was not the person depicted on the driver's license. The plaintiff submits portions of the transcript of his deposition testimony which he claims creates a genuine issue of material fact as to the extent his height and eye color differ from those of the person in the driver's license.

In Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996) the Supreme Court held that, "under some circumstances, purveyors of alcohol to minors at a bar may be liable to such minors . . . Wherever minors become intoxicated, their subsequent intoxicated misconduct creates a risk of personal injury and death not only to themselves, but also . . . to innocent third parties." Id., 678. The Bohan court continued: "We . . . hold that it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor." Id., 680.

There is a genuine issue of material fact as to whether the defendants knew or had reason to know that the plaintiff was a minor. The plaintiff's deposition transcript presents questions as to the extent the plaintiff's eye color and height differ from that of the person's depicted in the driver's license. The defendants' motion for summary judgment is denied as to count one.

The defendants argue that the plaintiff improperly relies on General Statutes § 30-86 in count one to assert a cause of action because this section does not create civil liability. The holding in Bohan v. Last, establishes that § 30-86 does not preclude, plaintiffs from bringing claims in common-law negligence. Bohan v. Last, supra, 236 Conn. 680. In the present case, the plaintiff cites § 30-86 in count one as just one of the ways in which the defendants acted negligently, but does not appear to rely on § 30-86 to assert a cause of action. The defendants' argument, therefore, is rejected.

Count Two in Recklessness

The defendants argue that the plaintiff's deposition testimony establishes that he was not visibly intoxicated; rather, it shows that the plaintiff kept his composure pretty well, thought he was okay at the time, spoke without slurring, kept to his friends at the bar, was not running around and was not throwing chairs. The plaintiff counters that, in his deposition, he testified that he consumed ten or more beers, but that he was probably intoxicated after six or seven drinks, and that he did not recall whether he was staggering or weaving as he exited Sliders. Further, the plaintiff argues that he testified that he did not recall all of the details of that night because of the drinking and the trauma from the accident.

In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the Supreme Court defined reckless behavior: "[Recklessness] is more than negligence [and] more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . [W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Id., 342-43.

There is a question of fact in this case as to whether the defendants' conduct in serving the plaintiff, alcohol was reckless. On the one hand, the plaintiff testified that after the first round, the bartender voluntarily came and tried to sell more pitchers and that he was intoxicated at the sixth or seventh drink but that he drank ten or more beers. On the other hand, the plaintiff testified that he was keeping his composure, not slurring his words and not otherwise visibly intoxicated. The plaintiff also testified that he could not remember whether he was exhibiting signs of intoxication when he came out of Sliders.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is denied.


Summaries of

Carangelo v. FCT, LLC

Connecticut Superior Court Judicial District of Waterbury at Waterbury
May 22, 2006
2006 Ct. Sup. 9494 (Conn. Super. Ct. 2006)
Case details for

Carangelo v. FCT, LLC

Case Details

Full title:VINCENT CARANGELO v. FCT, LLC, SLIDERS SPORTS BAR AND GRILL ET AL

Court:Connecticut Superior Court Judicial District of Waterbury at Waterbury

Date published: May 22, 2006

Citations

2006 Ct. Sup. 9494 (Conn. Super. Ct. 2006)