BEACH, J.
The defendants, Kenneth Kozee, Lori Bard and L.C.B. Entities, LLC,
The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendants' appeal. On September 5, 2006, at approximately 7 p.m., Joel Pracher drove himself and Patrick O'Dell to the Deja Vu Restaurant in Plainville. Pracher and Patrick O'Dell participated in a billiards league, and their team competed at the restaurant every other Tuesday night.
At approximately 12:45 a.m., Pracher and Patrick O'Dell left the restaurant. Although Pracher was too intoxicated to remember most of what occurred, he did recall that he was drunk when he left the bar, and he also remembered getting in his vehicle with Patrick O'Dell so he could give him a ride home. Pracher drove in the westbound lane on West Main Street. Approximately two miles from the restaurant, at the intersection of West Main Street and Strong Court, Pracher's vehicle collided with the left end of a box truck that was parked legally on the north shoulder of the westbound lane on West Main Street.
On June 4, 2007, the plaintiff filed a one count wrongful death claim alleging, inter alia, that the defendants were liable pursuant to the Dram Shop Act, General Statutes § 30-102.
On appeal, the defendants claim that the court abused its discretion by denying their motion to set aside the verdict and for a directed verdict. Specifically, they argue that no evidence was presented from which the jury reasonably could have concluded that Pracher was "intoxicated," pursuant to § 30-102 and our Supreme Court's gloss of the term, at the time the restaurant sold him intoxicating liquor. We agree.
To prevail in an action brought pursuant to § 30-102, a plaintiff must prove that "there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another." (Internal quotation marks omitted; emphasis in original.) Coble v. Maloney, 34 Conn.App. 655, 662, 643 A.2d 277 (1994). The dispositive question on appeal is whether a plaintiff is required to prove "visible intoxication"
The plaintiff is correct in his assertion that § 30-102 does not contain the phrase "visible intoxication." Our Supreme Court, however, has provided the following definition of "intoxication" as that term is used in § 30-102: "To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be `dead-drunk.' It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so." (Emphasis added.) Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985), Although the Court in Sanders did not use the exact term "visible intoxication," its definition clearly establishes that in order to qualify as intoxicated pursuant to § 30-102, an individual must exhibit some type of physical symptomology in such a way that an observer
Our Supreme Court subsequently revisited the Sanders definition of intoxication in Wentland v. American Equity Ins. Co., 267 Conn. 592, 840 A.2d 1158 (2004). In Wentland, the Court noted that "the word `intoxication' has various meanings in our law, depending on the context in which it is used." Id., at 603, 840 A.2d 1158. The court reiterated the Sanders definition of intoxication and stated that the definition "is a plain indication that there may be levels of inebriation that are less severe than intoxication. Indeed, common sense dictates that one's behavior will be influenced to differing degrees depending on what, and how much, alcoholic liquor one had consumed. Similarly, alcoholic liquor may tend to affect some persons differently than it does others, depending on a number of factors, for instance, a person's body weight, a person's tolerance to alcohol, and what other food or beverages, if any, a person has consumed within the same time frame. Thus, under our definition in Sanders, it is possible to be `affected to some extent by' alcoholic liquor, without being `intoxicated.'" Id., at 604-05, 840 A.2d 1158.
Additionally, this court addressed the issue of intoxication pursuant to § 30-102 in Hayes v. Caspers, Ltd., 90 Conn.App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). In Hayes, "[t]he [trial] court directed a verdict on the plaintiff's dram shop claim because it found that, although [the driver] himself testified that he had been intoxicated on the night in question, the plaintiff presented no evidence that [the driver] was visibly intoxicated." (Emphasis in original.) Id., at 802, 881 A.2d 428. We held that, in light of Sanders, the plaintiff's failure to provide any evidence of visible intoxication was "fatal to the plaintiff's claim."
The plaintiff maintains, however, that requiring proof of visible or perceivable intoxication to sustain a cause of action under § 30-102 is inconsistent and irreconcilable with Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). In Craig, our Supreme Court stated that § 30-102 "covers all sales of liquor that result in an intoxicated person causing injury, irrespective of the bar owner's knowledge or state of mind. The act thereby provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action and without the benefit of the broader scope of recovery permitted under such an action." Id., at 328, 813 A.2d 1003. The plaintiff argues that requiring proof of visible or perceivable intoxication contradicts Craig because the court in that case expressly stated that a plaintiff has no burden to prove that a permittee or bartender knew that the patron was intoxicated. Id. There is no contradiction. In Sanders, the court simply stated that the element of intoxication in § 30-102 requires the exhibition of visible or perceivable symptoms from which an observer could discern that the individual was under the influence of alcohol. Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 349-50, 493 A.2d 184. The court did not hold that a
Having concluded that proving intoxication pursuant to § 30-102 requires a plaintiff to offer evidence that tends to establish visible or perceivable intoxication, we now turn to the defendants' claim that the court abused its discretion by denying their motion to set aside the verdict and for a directed verdict.
"A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach. . . . [Put differently], [i]f the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict. . . . Thus, the role of the trial court on a motion to set aside the jury's verdict is not to sit as [an added] juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. . . . As a corollary, it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Marciano v. Kraner, 126 Conn.App. 171, 177, 10 A.3d 572, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).
The plaintiff argues that the court did not abuse its discretion in denying the motion to set aside the verdict and for a directed verdict because sufficient evidence was presented at trial from which the jury reasonably could have concluded that the restaurant sold Pracher intoxicating liquor while he was intoxicated. We conclude that the court abused its discretion in denying the defendants' motion.
The plaintiff contends that the following evidence was sufficient for the jury to conclude that Pracher was intoxicated: (1) The toxicology report stating that Pracher's blood alcohol content was 0.187 shortly after the accident had occurred, (2) the testimony of Detective Charles Smedick that the scene of the accident suggested that Pracher's consumption of alcohol was likely to have been a significant factor causing the collision, (3) Pracher's own admission that he was intoxicated and (4) the testimony of Scott Stevenson, an acquaintance who was at the restaurant on the night in question, that Pracher must have been intoxicated based on the amount of alcohol he saw Pracher consume. Although this evidence may have tended to prove that Pracher was intoxicated in the colloquial sense of the term, or for the purposes of General Statutes § 14-227a,
A thorough review of the trial transcripts and the evidence submitted convinces us that no evidence was presented that tended to show that Pracher was exhibiting any visible or perceivable indications that he was intoxicated. Pracher testified that his speech and walking ability were not impaired. He further testified that he did not engage in any noticeably loud or boisterous behavior. The plaintiff did not present any evidence to the contrary. Accordingly, the failure to present evidence that Pracher was visibly or perceivably intoxicated was fatal to the plaintiff's claim.
The judgment is reversed and the case is remanded with direction to render judgment for the defendants.
In this opinion the other judges concurred.