Stafford v. Roadway ( 2014 )

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JOEL STAFFORD v. ALBERT ROADWAY ET AL.
(SC 19092)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 9—officially released June 17, 2014
Mary M. Puhlick, for the appellant (plaintiff).
Jennifer Antognini-O’Neill, for the appellee
(named defendant).
Wystan M. Ackerman filed a brief for the Property
Casualty Insurers Association of America as amicus
curiae.
Opinion
EVELEIGH, J. This appeal1 arises from a cause of
action for negligence and recklessness brought by the
plaintiff, Joel Stafford, against the named defendant,
Albert Roadway.2 On appeal, the plaintiff asserts that
the trial court improperly instructed the jury on contrib-
utory negligence because the doctrine is not an avail-
able defense to a claim involving service of alcohol to
minors.3 In response, the defendant asserts that the
trial court properly instructed the jury on contributory
negligence. We agree with the defendant and, accord-
ingly, affirm the judgment of the trial court.
The record reveals the following relevant facts, which
the jury reasonably could have found. In the afternoon
of August 25, 2007, the plaintiff, who was twenty years
old at the time, attended a barbecue with his friend,
Bora Kim. The plaintiff gave Kim money to purchase a
thirty pack of beer, five cans of which the plaintiff
consumed at the barbecue. While at the barbecue, the
plaintiff also smoked marijuana. The plaintiff and Kim
left the barbecue on foot, taking along a garbage bag
which contained their beer.
Within about fifteen minutes of leaving the barbecue
the plaintiff and Kim were picked up in an automobile
driven by Heidi Killiany. The defendant was in the vehi-
cle with Killiany. They drove to the defendant’s house
and planned to wait there until they heard about a
bonfire that was scheduled to take place that evening.
While at the defendant’s house, the plaintiff consumed
alcohol, including one or two of his own beers and a
beer provided by another guest. The defendant did not
provide any alcohol to the plaintiff.
After spending approximately one hour at the defen-
dant’s house, Killiany then drove the group, including
the plaintiff and the defendant, to the bonfire. When
the plaintiff arrived at the bonfire he was intoxicated.
At this point, there were only four or five beers left in
the aforementioned garbage bag.
While at the bonfire, the plaintiff did not interact
with the defendant. The plaintiff consumed additional
alcohol while at the bonfire, including some of his own
beer as well as some alcohol provided by others. The
plaintiff became very intoxicated, and other guests at
the bonfire placed him in a chair near the bonfire where
he fell asleep. After a period of time, the plaintiff woke
up and attempted to walk toward the woods to urinate.
Individuals in attendance at the party attempted to tell
the plaintiff to sit down, but he continued walking. As
the plaintiff was walking, he stumbled and fell into the
bonfire, which had an approximate four inch flame. The
plaintiff was then taken to the hospital, where his blood
alcohol content was found to be 0.202. The plaintiff
suffered serious burns to his hands, forearms and
buttocks.
In August, 2009, the plaintiff brought this action, alleg-
ing that the defendant, inter alia, was negligent and
reckless in allowing the plaintiff, an underage drinker,
to consume alcohol at the defendant’s home to the
point of intoxication, and to attend the bonfire in that
condition. The defendant filed an answer and affirma-
tively pleaded contributory negligence as a special
defense.
Prior to the trial, the plaintiff filed a motion in limine
seeking to preclude the defendant from offering any
evidence of the plaintiff’s prior history of drug and
alcohol abuse. The defendant objected. After hearing
oral argument on the motion, the trial court reserved
its ruling until trial. During the course of the trial, the
trial court allowed the defendant to introduce certain
evidence regarding the plaintiff’s history of drug and
alcohol abuse. The trial court then instructed the jury
on contributory negligence. The plaintiff objected to
the trial court’s instruction, claiming that it was not a
proper special defense.
Thereafter, the jury returned a verdict for the defen-
dant. In its interrogatories, the jury answered that the
defendant’s negligence was the proximate cause of the
plaintiff’s injuries, but found that the plaintiff himself
was more than 50 percent responsible. The jury also
found that the plaintiff had not met his burden of prov-
ing that the defendant recklessly caused the plain-
tiff’s injuries.4
Thereafter, the plaintiff moved to set aside the verdict
on the ground that the special defense of contributory
negligence was not a recognized special defense to a
claim involving service of alcohol to a minor. The trial
court denied the plaintiff’s motion and rendered judg-
ment in accordance with the verdict. This appeal
followed.
On appeal, the plaintiff asserts that the trial court
improperly instructed the jury on contributory negli-
gence because such a defense is not a legally recognized
defense for a claim involving negligent service of alco-
hol to a minor.5 Specifically, the plaintiff claims that in
creating the claim of negligent service of alcohol to a
minor, this court relied on the fact that ‘‘minors should
not be held to have assumed the same degree of respon-
sibility as we assign to adults.’’ Ely v. Murphy, 207
Conn. 88, 97, 540 A.2d 54 (1988). In response, the defen-
dant asserts that the trial court properly charged the
jury on contributory negligence. Specifically, the defen-
dant claims that the existence of the claim of negligent
service of alcohol to minors does not operate to wholly
exempt minors from the consequences of their actions
while intoxicated and that allowing the defense of con-
tributory negligence allows the jury properly to con-
sider the relative negligence of the minor depending on
his or her age and experience. We agree with the
defendant.
We begin with the applicable standard of review.
‘‘Our analysis begins with a well established standard
of review. When reviewing the challenged jury instruc-
tion . . . we must adhere to the well settled rule that
a charge to the jury is to be considered in its entirety,
read as a whole, and judged by its total effect rather
than by its individual component parts. . . . [T]he test
of a court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . State v.
Arroyo, 292 Conn. 558, 566, 973 A.2d 1254 (2009), cert.
denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086
(2010).’’ (Internal quotation marks omitted.) State v.
Petitpas, 299 Conn. 99, 104–105, 6 A.3d 1159 (2010).
In the present case, the plaintiff asserts that the trial
court should never have given the instruction on con-
tributory negligence because this court’s recognition of
a cause of action for negligent service of alcohol to
minors in Ely v. Murphy, supra, 207 Conn. 88, means
that a person under the age of twenty-one is incompe-
tent as a matter of law to be contributorily negligent.6
We disagree.
In Ely v. Murphy, supra, 207 Conn. 93–94, this court
examined whether the common law recognized a cause
of action for negligent service of alcohol to minors.
This court concluded that, ‘‘[w]ith respect to minors,
various legislative enactments have placed them at a
disability in the context of alcohol consumption. . . .
These [enactments] 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.’’ (Footnotes omitted.) Id. This court then rea-
soned further that ‘‘[i]n view of the legislative determi-
nation that minors are incompetent to assimilate
responsibly the effects of alcohol and lack the legal
capacity to do so, logic dictates that their consumption
of alcohol does not, as a matter of law, constitute
the intervening act necessary to break the chain of
proximate causation and does not, as a matter of law,
insulate one who provides alcohol to minors from liabil-
ity for ensuing injury.’’ (Emphasis added.) Id., 95.
A close examination of Ely demonstrates that this
court held that the consumption of alcohol by a minor
does not automatically bar a finding of proximate cause.
It did not, however, state that a minor’s actions could
not be taken into account in determining liability.
Indeed, the holding in Ely incorporated an understand-
ing that a minor’s incompetence to deal responsibly
with the effects of alcohol will vary depending on one’s
age and experience. See id., 94.
Allowing the jury to consider the special defense of
contributory negligence in a claim for negligent service
of alcohol to minors does not violate the rule announced
in Ely. Instead, it allows the jury to consider, under the
facts of a particular case, based on the minor’s age and
experience, the relative negligence of the parties. There
is no indication in Ely that we intended to adopt the
doctrine of strict liability in this type of situation. When
we have adopted this doctrine in the past we have done
so explicitly. See, e.g., Whitman Hotel Corp. v. Elliott &
Watrous Engineering Co., 137 Conn. 562, 565, 79 A.2d
591 (1955) (adopting strict liability for use of dynamite
stating, ‘‘[a] person who uses an intrinsically dangerous
means to accomplish a lawful end, in such a way as
will necessarily or obviously expose the person of
another to the danger of probable injury, is liable if
such injury results, even though he uses all proper care’’
[emphasis added]).
Moreover, Connecticut law has long recognized that
minors can be contributorily or comparatively negligent
for causing their own injuries. More than ninety years
ago, this court considered this issue in the case of Rut-
kowski v. Connecticut Light & Power Co., 100 Conn.
49, 123 A. 25 (1923). In Rutkowski, a five year old girl
was injured when she touched an electrical wire in
front of her house. This court concluded that it was
proper for the trial court to have instructed the jury
to consider whether the five year old child’s conduct
constituted contributory negligence. Id., 53. In Rutkow-
ski, the trial court instructed the jury that ‘‘[t]he law,
however, has regard for the immaturity of childhood,
and does not require the same [degree] of care of a
child as it does of an adult. Ordinary and reasonable
care applied to the conduct of a child of tender years
means such care as may reasonably be expected of
children of similar age, judgment and experience, under
similar circumstances.’’ (Internal quotation marks omit-
ted.) Id. This court concluded that ‘‘it remained for the
jury to determine whether the negligence of the plaintiff
child materially contributed to cause her injuries. This
was a matter for them exclusively to decide by applying
their judgment and experience to the facts which they
should find to have been disclosed by the evidence.’’
Id., 52.
The appellate courts of this state have continuously
approved of applying the defense of contributory negli-
gence to claims involving minors. For instance, in 1935,
this court explained as follows: ‘‘Although the standard
which the rule makes applicable in testing the conduct
of an adult cannot be employed in disregard of the
actor’s immaturity, a standard taking into account his
age, mental development and experience, as disclosed
by the evidence, is set up and applied. While the crite-
rion of the care required of a child may be stated broadly
to be that which an ordinarily prudent child of the same
capacity to appreciate and avoid danger of injury would
use under similar circumstances, it has been phrased,
by the courts of the several states, in many different,
although, in essence, similar ways. . . . Our own con-
ception of the rule has been definitely established, by
frequent repetition of statement and long-continued
adherence, in substance, in charges approved on
appeal, as ‘such care as may reasonably be expected
of children of similar age, judgment and experience.’ ’’
(Citation omitted.) Marfyak v. New England Transpor-
tation Co., 120 Conn. 46, 49–50, 179 A. 9 (1935).
In 1961, this court again held that the defense of
contributory negligence was a question of fact in a claim
of negligence, involving the death of a nine year old
boy who died after walking across a plank in a construc-
tion site. Greene v. DiFazio, 148 Conn. 419, 424–25, 171
A.2d 411 (1961). This court held that ‘‘[t]he conduct
of [the boy] has to be measured by that which may
reasonably be expected of children of similar age, judg-
ment and experience.’’ Id., 424; see also Clennon v.
Hometown Buffet, Inc., 84 Conn. App. 182, 189, 852 A.2d
836 (2004) (‘‘[w]hen the actor is a child, the conduct
of that child is ‘to be measured by that which may
reasonably be expected of children of similar age, judg-
ment and experience’ ’’).7
It is also important to note that many of our sister
jurisdictions that have considered the precise issue in
the present case have concluded that the defense of
contributory negligence applies to claims of negligence
where a minor plaintiff’s injuries were caused by his
or her consumption of alcohol. See Sowinski v. Walker,
198 P.3d 1134, 1155 n.103 (Alaska 2008) (compiling list
of states that allow defense of contributory negligence
in claims involving negligent service of alcohol to
minors). In deciding to allow the defense of contribu-
tory negligence in claims involving the negligent service
of alcohol to minors, many of the courts have relied
on the rationale that a minor who purchases, possesses,
or consumes alcohol is in violation of the criminal laws
of the state and that these criminal statutes indicate that
the legislature intended to place some responsibility on
the underage drinker. See, e.g., Schooley v. Pinch’s Deli
Market, Inc., 134 Wash. 2d 468, 481, 951 P.2d 749 (1998)
(‘‘[A] minor who purchases, possesses, or consumes
alcohol is also in violation of the law and may be found
to be contributorily negligent. . . . Moreover, if the
minor’s intoxication results in that person being more
than 50 percent at fault for his or her own injuries then
no recovery is allowed.’’ [Citations omitted.]). The same
rationale applies here in Connecticut. For instance, in
the present case, the plaintiff’s conduct in participating
in the purchase, possession and consumption of alcohol
on the night in which he was injured constituted a
violation of our statutes. As the courts of other jurisdic-
tions have recognized, the legislature’s decision to make
minors criminally liable for the purchase, possession
and consumption of alcohol indicates its intent to hold
them responsible for their behavior as it relates to alco-
hol. The position advocated by the plaintiff in the pre-
sent case would vitiate that purpose and, in fact, could
appear to condone minors purchasing, possessing and
consuming alcohol in contradiction to our criminal
statutes.
Furthermore, if the legislature had intended for con-
tributory negligence not to be a defense to claims involv-
ing negligent service of alcohol to minors, it could have
expressly said so. ‘‘[I]t is a well settled principle of
statutory construction that the legislature knows how to
convey its intent expressly; e.g., Dept. of Public Safety v.
Freedom of Information Commission, 298 Conn. 703,
729, 6 A.3d 763 (2010); or to use broader or limiting
terms when it chooses to do so. See, e.g., Stitzer v.
Rinaldi’s Restaurant, 211 Conn. 116, 119, 557 A.2d 1256
(1989).’’ Scholastic Book Clubs, Inc. v. Commissioner
of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183,
cert. denied, U.S. , 133 S. Ct. 425, 184 L. Ed. 2d
255 (2012). A review of similar statutes reveals that
when the legislature intends to limit the use of the
defense of contributory negligence as it relates to some
plaintiffs, it knows how to do so. Specifically, General
Statutes § 22-357, the statute providing for a cause of
action related to damage to person or property by dogs,
the legislature explicitly included language limiting the
defense of contributory negligence in actions involving
injury or damage to children under the age of seven.8
Further, when the legislature wishes to alter common-
law doctrines it has previously explicitly done so. See
General Statutes § 52-572h (b) (abolishing common-law
doctrine of contributory negligence and establishing
doctrine of comparative negligence). The legislature
has not so limited the recognized common-law claim
of negligent service of alcohol to minors. It is axiomatic
that ‘‘a radical departure from an established policy
cannot be implied. It must be expressed in unequivocal
language.’’ Jennings v. Connecticut Light & Power Co.,
140 Conn. 650, 667, 103 A.2d 535 (1954). Therefore, we
conclude that if the legislature had intended for the
defense of contributory negligence not to apply to
claims for negligent service of alcohol to minors, it
would have expressly said so.
In the present case, the trial court properly instructed
the jury to consider whether, based on the facts of the
present case, the negligence of the twenty year old
plaintiff materially contributed to cause his injuries. We
determine that, as this court did more than ninety years
ago, ‘‘[t]his was a matter for them exclusively to decide
by applying their judgment and experience to the facts
which they should find to have been disclosed by the
evidence.’’ Rutkowski v. Connecticut Light & Power
Co., supra, 100 Conn. 52. It was entirely proper for them
to engage in such an analysis.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The plaintiff, Joel Stafford, appealed from the judgment of the trial court
to the Appellate Court and we transferred the appeal to this court pursuant
to General Statutes § 51-199 (c) and Practice Book § 65-1.
2
The original complaint also named Janet Gardner, Tony Gardner, Scott
Zieber, Rick Zieber, Nancy Zieber, Shirley Dubicki, April Gregory, Heidi
Killiany, Mayleen Soto, Monica Marocchini, Boar Kim, Jason Dodson and
Brandon Glidden as defendants. Thereafter, the estate of Shirley Dubicki was
substituted for Shirley Dubicki. The complaints against Dodson, Marocchini,
Soto, Killiany and Kim were later withdrawn. The plaintiff never effectuated
service on Glidden. On appeal, the plaintiff only challenges the judgment
of the trial court as it relates to Albert Roadway and the other defendants
are not a party to this appeal. Accordingly, we refer in this opinion to
Roadway as the defendant.
3
We recently reiterated that, ‘‘[a]lthough Connecticut has adopted the
doctrine of comparative negligence; see General Statutes § 52-572h (b); our
statutes retain the term contributory negligence. See, e.g., General Statutes
§§ 52-114 and 52-572h (b). . . . Juchniewicz v. Bridgeport Hospital, 281
Conn. 29, 32 n.4, 914 A.2d 511 (2007).’’ (Internal quotation marks omitted.)
Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 325 n.19,
87 A.3d 546 (2014). Therefore, we use the term contributory negligence
throughout this opinion.
4
The plaintiff also claims that the trial court improperly instructed the
jury on the claim of intentional recklessness but does not address or analyze
that claim separately in his brief. Because the jury did not reach the issue
of the plaintiff’s contributory recklessness, and because we consider that
issue to be inadequately briefed, we do not reach the issue of whether
contributory recklessness is a legally recognized defense. ‘‘[W]e generally
decline to consider issues that are inadequately briefed . . . .’’ (Internal
quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371,
378 n.6, 3 A.3d 892 (2010), citing Connecticut Coalition Against Millstone
v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) (‘‘We
are not obligated to consider issues that are not adequately briefed. . . .
Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion
of the claim, it is deemed to have been waived. . . . In addition, mere
conclusory assertions regarding a claim, with no mention of relevant author-
ity and minimal or no citations from the record, will not suffice.’’ [Citations
omitted; internal quotation marks omitted.]).
5
The plaintiff also claims that the trial court improperly denied the plain-
tiff’s motion in limine seeking to preclude evidence regarding his history of
drug and alcohol abuse. At oral argument before this court, the plaintiff
conceded that, if we concluded that the trial court properly instructed the
jury on contributory negligence, we need not reach the second claim regard-
ing the admissibility of the plaintiff’s history of drug and alcohol abuse.
Because we conclude that the trial court properly instructed the jury on
the special defense of contributory negligence, we do not reach the plaintiff’s
second claim regarding evidence of his drug and alcohol abuse.
6
In the rebuttal at oral argument, the plaintiff’s counsel for the first
time seemed to challenge the language contained in the instruction on
contributory negligence and assert that even if it was properly given, it was
improperly worded. When asked if this was a distinct claim from her claim
that the instruction should not have been given in any form, the plaintiff’s
attorney responded that it was not, but merely a response to the defendant’s
oral argument. The plaintiff did not make this claim in the trial court or in
his brief to this court. Therefore, the plaintiff has in effect raised this claim
for the first time on appeal, which ‘‘denied the trial court the opportunity
to act and correct any potential errors with respect to this issue.’’ (Internal
quotation marks omitted.) Alexandre v. Commissioner of Revenue Services,
300 Conn. 566, 585, 22 A.3d 518 (2011). Accordingly, we decline to consider
this claim on appeal. See id., 586; Practice Book § 60-5 (‘‘[t]he court shall
not be bound to consider a claim unless it was distinctly raised at the trial
or arose subsequent to the trial’’).
7
Although neither this court nor the Appellate Court has ever addressed
specifically whether contributory negligence is available to a claim involving
consumption of alcohol by a minor, the Appellate Court has addressed
whether contributory negligence is an available defense to other claims
involving minors engaged in activities that are legally reserved for adults,
such as driving. See, e.g., Fazio v. Brown, 14 Conn. App. 289, 290–91, 540
A.2d 1065 (fourteen year old driving motorcycle was found to be 30 percent
contributory negligent), rev’d on other grounds, 209 Conn. 450, 551 A.2d
1227 (1988).
8
General Statutes § 22-357 provides: ‘‘If any dog does any damage to either
the body or property of any person, the owner or keeper, or, if the owner
or keeper is a minor, the parent or guardian of such minor, shall be liable
for such damage, except when such damage has been occasioned to the
body or property of a person who, at the time such damage was sustained,
was committing a trespass or other tort, or was teasing, tormenting or
abusing such dog. If a minor, on whose behalf an action under this section
is brought, was under seven years of age at the time the damage was done,
it shall be presumed that such minor was not committing a trespass or other
tort, or teasing, tormenting or abusing such dog, and the burden of proof
thereof shall be upon the defendant in such action.’’