By Peter A. Berdon, Esq.

Peter A. Berdon, Esq.

While Connecticut’s Dram Shop Act applies to “sellers” of alcoholic beverages, it does not apply to social situations. In Connecticut, the general common law is that there is no cause of action against one who furnished, whether by sale or gift, intoxicating liquor to a person who then voluntarily became intoxicated, and in consequence of his intoxication, injures another.

The rule, from the 1967 Connecticut Supreme Court case of Nolan v. Morelli, was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it, based on the idea that intoxication is the choice of the consumer, not the person furnishing the liquor. Based upon this reasoning, actions against the social host have been limited, but attitudes about responsibility are evolving.

Minors: An evolving standard

The law evolves to address modern problems. After Nolan, Connecticut Courts created the “minor” exception, which was intended to ensure that a social host or purveyor of alcohol remains liable for injuries to intoxicated minors or any innocent third parties they injure.

In a 1988 case captioned Ely v. Murphy, the Connecticut Supreme Court recognized that minors do not possess the best judgment in the context of the consumption of alcohol; so one who provides alcohol to a minor could be held responsible for any injuries the minor causes.

The Court remarked: “These and similar statutes [criminal statute concerning providing alcohol to minors] reflect a continuing and growing public awareness and concern that children, as a class, are simply incompetent by reason of their youth and inexperience, to deal responsibly with the effects of alcohol. This growing public awareness, as reflected by the legislature’s frequent, recent amendments to the applicable statutes, causes us to conclude that common law precepts in this area also warrant reexamination.”

The consumption habits of minors changed in response to higher drinking ages and stricter enforcement moving them from on-premises establishments to “house parties.” To combat this shift in consumption practices, in 2012, Connecticut Legislature enacted a revised and greatly enhanced social host law in Connecticut. The act was entitled:

“AN ACT PROHIBITING CERTAIN PERSONS FROM ALLOWING MINORS TO POSSESS ALCOHOLIC LIQUOR IN DWELLING UNITS AND ON PRIVATE PROPERTY.”

This act prohibits anyone who owns or controls private property, including a dwelling unit, from recklessly, or with criminal negligence, permitting anyone under age 21 to illegally possess alcohol in the unit or on the property. The act also requires any such person who knows that a minor possesses alcohol illegally to make reasonable efforts to stop it.

The act extends liability for failure to halt possession to a person who acts recklessly or with criminal negligence. The act increased the penalty for a violation to a Class A misdemeanor, punishable by a maximum one year imprisonment or up to a $2,000 fine.

Where do adults fit in?

In 2003, the Connecticut Supreme Court moved away from the underlying assumption that the consumption of alcohol by an adult is a truly voluntary act. In the case of Craig v. Driscoll, the Supreme Court held that a Seller of alcohol could be liable for injuries caused by its negligent service of alcohol. The Court reasoned that the Dram Shop Act was not the exclusive remedy for one who was injured by an intoxicated person.

This departure from the common law rule was short lived as the legislature moved quickly to amend the Dram Shop Act to prohibit negligence actions against sellers of alcohol. However, the amendment to the Dram Shop Act did not seek to prohibit causes of action asserting more culpable conduct such as reckless act or intentional acts, thus leaving open the possibility of these types of actions being brought against sellers of alcohol.

More significant though is the Court’s underlying reasoning it relied on in reaching its conclusions in the Craig case.  The Court acknowledged “the horrors that result from drinking and driving,” and “adaptability of the common law to the changing needs of passing time,” when it made the policy decision to hold sellers liable for their negligent sales to intoxicated persons.

The unanswered question is whether or not the Courts will move to hold a social host liable for damages caused by (or to) an intoxicated adult. Though there is no such case pending in Connecticut, the demonstrated willingness of our Courts to consider expanding liability for the negligent service of alcohol should alert permittees of all types to be mindful of this evolving issue.

The foregoing is intended as general information only and not as legal advice. Contact an attorney to get advice about your particular circumstances.

Peter A. Berdon: Attorney Berdon, a partner with Berdon, Young & Margolis, PC, has represented wholesalers, manufacturers, package stores, restaurants and bars before the State of Connecticut DCP and the Federal TTB as well as in litigation matters in court since being admitted to practice in 1991. He can be reached at peter.berdon@bymlaw.com or www.bymlaw.com