v. KENNETH KOZEE et al., SC 18851

Judicial District of New Britain


     Liquor; Wrongful Death; Whether, to Prevail Under the Dram Shop Act, a Plaintiff Must Prove that the Defendant Sold Liquor to a Visibly or Perceivably Intoxicated Person.  Patrick O'Dell and Joel Pracher went to the defendants' restaurant together.  While there, Pracher consumed several alcoholic beverages.  At the end of the evening, Pracher was driving O'Dell home when his vehicle collided with a parked truck.  O'Dell died as a result of the injuries he sustained in the accident.  Subsequently, the plaintiff, the administrator of O'Dell's estate, brought this wrongful death action against the defendants, alleging that they were liable under the Dram Shop Act, General Statutes § 30-102, which provides that "[i]f any person . . . or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured . . . ."  At trial, Pracher admitted that he was drunk at the time of the accident.  The jury returned a verdict in favor of the plaintiff.  On appeal, the defendants claimed that the trial court should have directed a verdict in their favor because there was no evidence that Pracher was "intoxicated" within the meaning of § 30-102 at the time the restaurant sold him liquor.  In Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341 (1985), the Supreme Court defined § 30-102 "intoxication" as a "visible excitation of the passions and impairment of the judgment" or a "derangement or impairment of physical functions and energies" making it apparent that the person is under the influence of liquor.  Relying on Sanders, the Appellate Court (128 Conn. App. 794) held that, in order to prove intoxication under § 30-102, a plaintiff must present evidence showing visible or perceivable intoxication and concluded that here there was no evidence tending to show that Pracher was visibly intoxicated at the time the restaurant sold him liquor.  In support of its decision, the court cited Pracher's testimony that his speech and walking ability were not impaired and that he did not engage in any noticeably loud or boisterous behavior.  Accordingly, the court reversed the judgment and remanded the case to the trial court with direction to render judgment for the defendants.  In this appeal, the Supreme Court will determine whether the Appellate Court properly determined that § 30-102 requires proof of visible intoxication.  If the answer to that question is yes, the court will then determine whether the Appellate Court improperly remanded the case with direction to render judgment for the defendants when the trial court, prior to trial, issued a ruling that the plaintiff did not have to prove visible intoxication.