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As a direct and swift response to Craig, the Legislature repealed and re-enacted the Dram Shop Act effective June 3, 2003,7 instituting two significant changes.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.

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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).