HARPER, J.
The principal issue in this certified appeal is whether Connecticut's Dram Shop Act (act),
The jury reasonably could have found the following facts. On September 5, 2006, at approximately 7 p.m., Joel Pracher drove himself and the decedent to the Deja Vu Restaurant (bar) in Plainville. Pracher and the decedent participated in a billiards league, and their team competed at the bar every other Tuesday night. On this particular night, Pracher consumed at least fifteen alcoholic beverages, including beer, tequila and brandy.
At approximately 12:45 a.m., Pracher and the decedent left the bar together. Although Pracher was too drunk to remember most of what occurred thereafter, he did recall that he was drunk when he left the bar to drive the decedent home. Approximately two miles from the bar, while traveling in the westbound lane of West Main Street, Pracher drove his vehicle directly into the left backend of a box truck that was parked under a lit streetlight on the shoulder of the road, although there was room to safely navigate around the truck without entering the eastbound lane. The speed limit on West Main Street was thirty-five miles per hour; Pracher's vehicle was traveling approximately sixty miles per hour at the time of the collision. The passenger side door and roof of Pracher's vehicle were torn off upon impact, and the decedent sustained serious physical injuries as he was ejected from the vehicle into the eastbound lane of West Main Street. A tow truck traveling east on West Main Street drove by almost immediately after the collision, and although the operator of the truck took evasive action to attempt to avoid contact, the truck ran over the decedent. He died as a result of his injuries. A toxicology report revealed that Pracher had a blood alcohol content of 0.187 shortly after the accident. It is unlawful to operate a vehicle with a blood alcohol content of 0.08 or greater.
The record reveals the following additional facts and procedural history. The plaintiff commenced an action against the defendants alleging that they were liable for the decedent's death pursuant to the act. Prior to trial, the plaintiff filed a motion in limine seeking to exclude argument or evidence that visible signs of intoxication are required to prevail. The court thereafter instructed the defendants in accordance with the plaintiff's motion. At trial, the plaintiff proffered testimony from Pracher and one of his companions at the bar on the evening of the accident, as well as testimony from a police officer regarding the circumstances of the accident. The plaintiff also proffered expert testimony from a medical toxicologist, Charles McKay. See footnote 5 of this opinion. McKay opined on the number of drinks that Pracher would have had to consume to reach the 0.187 blood alcohol content and that Pracher's blood alcohol content would have been in a range in excess of twice the legal limit for driving at various points in time before he left the bar. McKay further testified that a person with a blood alcohol content level of more than 0.10 would have "an abnormal mental or physical condition," "an impairment of judgment" and "an impairment of physical functions and energies" due to intoxicating liquor. On cross-examination, McKay acknowledged that, although persons with such blood alcohol levels generally show visible signs of intoxication, persons with a history of alcohol abuse, like Pracher, can develop behaviors to mask their intoxication up to a certain point. After the plaintiff's case-in-chief, the defendants moved for a directed verdict, which the court denied. The defendants then proffered testimony from Kozee and bar employees who had worked on the evening of the accident regarding the training that bar employees received to detect intoxication, the bar policy not to serve patrons who manifest signs of intoxication, and the absence of signs that Pracher was intoxicated.
The defendants appealed from the trial court's judgment to the Appellate Court, claiming that they were entitled to a verdict in their favor because no evidence had been presented from which the jury reasonably could have concluded that Pracher was "intoxicated," pursuant to § 30-102 and this court's gloss of that term, at the time the bar sold him intoxicating liquor. O'Dell v. Kozee, supra, 128 Conn. App. at 799, 19 A.3d 672. The Appellate Court held that, under Supreme Court and Appellate Court case law, the plaintiff in an action brought pursuant to the act must "present evidence showing visible or perceivable intoxication." Id., at 802, 19 A.3d 672 citing Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 493 A.2d 184 (1985), and Hayes v. Caspers, Ltd., 90 Conn.App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). Rejecting the plaintiff's claim that such a requirement was inconsistent with Craig v. Driscoll, 262 Conn. 312, 327-28, 813 A.2d 1003 (2003), in which this court had characterized the act as strict liability, the Appellate Court reasoned that "an establishment would be strictly liable ... if it sold intoxicating liquor to a patron who exhibited perceivable signs of intoxication, even if the permittee or bartender completely was unaware of and had no reason to know of such behavior." O'Dell v. Kozee, supra, at 802, 19 A.3d 672. Because the Appellate Court's review of the record convinced it that the plaintiff had presented no evidence of visible or perceivable intoxication, it reversed the judgment and remanded the case to the trial court with direction to render judgment for the defendants. Id., at 805, 19 A.3d 672. The Appellate Court subsequently rejected the plaintiff's claim, raised in a motion for reconsideration, that his failure to present evidence of perceivable signs of intoxication was due to his reliance on the trial court's ruling on his motion in limine and, therefore, that he was entitled to a new trial at which he could present such evidence. Id., at 805 n. 12, 19 A.3d 672.
We thereafter granted the plaintiff's petition for certification to appeal to address the following questions: (1) "Did the Appellate Court properly determine that ... § 30-102 requires ... proof of [visible or otherwise perceivable] intoxication?"; and (2) "If the answer to question one is affirmative, did the Appellate Court properly determine that the case should be [reversed and remanded with direction to render judgment for the defendants] when the trial court has issued a ruling prior to trial that the plaintiff did not have to prove visible intoxication?" O'Dell v. Kozee, 302 Conn. 928, 28 A.3d 343 (2011). On the first question, we conclude that § 30-102 does require proof of visible or otherwise perceivable intoxication. On the second question, we conclude that the Appellate Court improperly determined that the plaintiff is not entitled to a new trial.
We first turn to the plaintiff's challenge to the Appellate Court's construction of § 30-102. The plaintiff contends that the
We conclude that, although the parties focus their arguments principally on the so-called plain meaning of "intoxicated" and two of this court's cases, Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 341, 493 A.2d 184, and Craig v. Driscoll, supra, 262 Conn. at 312, 813 A.2d 1003, this framework begins from an incorrect premise and ignores other considerations that bear on the question of whether § 30-102 requires proof of perceivable intoxication at the time of sale. In light of the totality of those considerations, we agree with the defendants.
The meaning of "intoxicated" under § 30-102 presents a question of statutory interpretation under which our review is plenary. See Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 404, 891 A.2d 959 (2006). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to determine [the] meaning [of the statute], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes." (Internal quotation marks omitted.) Esposito v. Simkins Industries, Inc., 286 Conn. 319, 327, 943 A.2d 456 (2008). If that endeavor provides no clear and unambiguous result, it is appropriate to look at extratextual sources. General Statutes § 1-2z; see also Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 372, 880 A.2d 138 (2005) ("our well established process of statutory interpretation [instructs us to look] ... to the legislative history and circumstances surrounding [the statute's] enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter" [internal quotation marks omitted]).
To answer the question of whether § 30-102 requires a plaintiff to prove that the patron was visibly or otherwise perceivably intoxicated when he or she was sold alcoholic liquor, we turn first to the text of the statute. Section 30-102 provides in relevant part: "If any person, by such person or such person's agent, sells
A question remains, however, whether the term "intoxicated" itself could mean a visible or otherwise perceivable state of inebriation. As this court previously has noted, "intoxication [has been] defined in a number of ways in a number of contexts." Wentland v. American Equity Ins. Co., 267 Conn. 592, 610, 840 A.2d 1158 (2004). Although the legislature has defined "intoxicated person" and "intoxication" for purposes of our civil commitment scheme and our Penal Code respectively,
It has long been established that, when a term is undefined, we generally look to its "commonly approved usage...." General Statutes (1891 Rev.) § 1, currently codified as General Statutes § 1-1(a). At the time our act was enacted in its current form in 1933,
Given this ambiguity and range, courts often have determined that the meaning of intoxication must be determined in relation to the context in which the term is used. See Order of United Commercial Travelers v. Greer, supra, 43 F.2d at 502; State v. Graham, supra, 176 Minn. at 169, 222 N.W. 909; People v. Weaver, supra, 188 App.Div. at 400, 177 N.Y.S. 71. Thus, the term may have one meaning when the question is whether a witness' condition has rendered him or her incompetent to testify,
Looking to the particular context at issue in the present case — dram shop liability — we note that other jurisdictions expressly have indicated that: (1) the purchaser must be perceivably intoxicated (varyingly qualified by the terms "obviously," "clearly, "visibly," "noticeably," or "apparently"); or (2) the purveyor of alcoholic liquor must have had actual or constructive knowledge of the purchaser's intoxicated state; or (3) both.
Of course, it is our legislature's intention that is at issue in the present case, not that of other jurisdictions. In this regard, we must be mindful of the history underlying our own act to provide the proper context to resolve the question before us. Our first dram shop legislation was enacted in 1872, and then reenacted following Prohibition in its essential current form in 1933. See Nolan v. Morelli, 154 Conn. 432, 437-38, 445, 226 A.2d 383 (1967). The act displaced a common-law rule that no recovery could be had against a purveyor of intoxicating liquor for injuries arising from consumption of such liquor, a rule predicated on the theory that the purchaser's consumption, not the purveyor's furnishing of the liquor, was the proximate cause of the injury. Id., at 437, 226 A.2d 383. The 1933 version of the act relieved a plaintiff from having to prove a causal connection between the sale and the subsequent injuries, thereby "unmistakably manifested its intention to simplify, and in some respects to strengthen and enlarge, the statutory cause of action." Id., at 438, 226 A.2d 383. If we were to construe our act with no requirement of proving visible intoxication, however, we would have to conclude that the legislature intended to do much more than simply displace the common-law rule. We would have to conclude that the legislature intended a radical change to the law, imposing liability on a purveyor not only under circumstances tantamount to negligence but also under those tantamount to absolute liability. Moreover, because the statute for many years imposed no cap on damages; see Public Acts 1959, No. 631, § 1 (adding limit to "just damages"); under the plaintiff's broad construction, a purveyor would have been liable without regard to causation and culpability and without limits. In the absence of clear evidence that the legislature intended such an extreme departure from the common law, such a construction seems dubious at the very least.
A survey of our case law predating Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 341, 493 A.2d 184, on which the defendants rely, while not conclusive, indicates that this court had considered such questions and had construed intoxication, for purposes of the Liquor Control Act, as a perceivable state of inebriation. This court first interpreted the term "intoxicated person" as used in General Statutes § 30-86.
In State v. Katz, supra, 122 Conn. at 439, 189 A. 606, this court addressed various challenges to a conviction under § 30-86 on the basis of the sale of liquor to an intoxicated person. In rejecting a claim that it was "incumbent upon the [s]tate to prove knowledge on [the defendant's] part that [the purchaser] was intoxicated when he made the sale to him"; id., at 441, 189 A. 606; the court explained: "[K]nowledge is not an element of the offense as regards sales to intoxicated persons or minors.... The [l]egislature has seen fit to place the burden of determining whether or not the purchaser of liquor is intoxicated upon the seller and that it had the power to do."
Reasoning along similar lines in a case subsequently construing § 30-102, the United States Court of Appeals for the Second Circuit concluded: "[T]he defendant urges that the [act] is unconstitutionally vague because it does not establish standards for determining what constitutes `an intoxicated person' or the meaning of the phrase `in consequence of such intoxication.' As a purveyor of liquor, [the] defendant's claim that he cannot tell with
These cases suggest that intoxication, as used in §§ 30-86 and 30-102, requires some external manifestation of that condition that the purveyor could observe. In other words, by "plac[ing] the burden of determining whether or not the purchaser of liquor is intoxicated upon the seller"; State v. Katz, supra, 122 Conn. at 442, 189 A. 606; the legislature must have assumed that there would be an objective basis from which the seller could make such a determination through reasonable efforts. Such an interpretation makes eminent sense in light of the potential criminal consequences under § 30-86.
With that presumption in mind, we turn to Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 341, 493 A.2d 184. Sanders involved a challenge to a jury verdict in the plaintiff's favor on a § 30-102 claim. Id., at 343, 493 A.2d 184. The defendant claimed, inter alia, that the trial court improperly had charged the jury and improperly had denied its motion for a directed verdict because the plaintiff had failed to prove that the patron tortfeasor, Louis Doerschuck, was intoxicated at the time the sale of alcoholic liquor was made to him. Id., at 345, 351, 493 A.2d 184. Although this court's opinion did not specify the particular basis of the claim of instructional error, the briefs submitted to the court reflect that the defendant contended that the instruction had provided inadequate guidance on the meaning of intoxication because it had failed to make clear a distinction, not yet expressly recognized by the court, between being "under the influence" as used in § 14-227a and being "intoxicated" as used in § 30-102. Sanders v. Officers Club of Connecticut, Inc., Conn. Supreme Court Records & Briefs, January Term, 1985, Pt. 1, Defendant's Brief pp. 5-9. The defendant asserted that intoxication is a stronger term, such that there would be obvious manifestations of the condition. Id., at pp. 6-7. In support of this contention, the defendant pointed to, inter alia, this court's discussion of intoxication in State v. Katz, supra, 122 Conn. at 442, 189 A. 606, and the legislature's purposeful choice of distinct terms in the two statutes. In response, the plaintiff contended that the instruction was proper because it contained no express reference to being under the influence of alcohol and, in any event, language in Pierce v. Albanese, supra, 144 Conn. at 252, 129 A.2d 606, supported the view that an intoxicated person under the act is also one under the influence. Sanders v. Officers Club of Connecticut, Inc., Conn. Supreme Court Records & Briefs, supra, Plaintiff's Brief p. 4.
The court in Sanders rejected the defendant's claims. In responding to the challenge to the jury charge, the court set forth the elements of a § 30-102 claim, one of which required the plaintiff to prove that Doerschuck was intoxicated. Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 349, 493 A.2d 184. The court then explained: "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
The court's description of the meaning of intoxication is replete with references to perceivable signs of that condition, whether "visible," "apparent," "manifest" or "readily see[n]...." Id., at 349-50, 493 A.2d 184. Nonetheless, it must be conceded that this passage is susceptible to different interpretations on the question of whether such signs must be demonstrated in order to prevail under the act. In particular, it is not entirely clear what effect should be given the following sentence, which contains the only descriptive terms that do not expressly refer to perceivable signs: "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." Id., at 349, 493 A.2d 184. If this sentence is not modified, qualified or explained by the sentences that follow that expressly describe intoxication as a perceivable condition, then, conceivably, Sanders recognizes that recovery could be had under the act without proof of such signs. A closer examination and a contextual reading of the entire passage persuades us, however, that this passage should be read as a whole, under which it articulates various types of proof sharing a common element, under which intoxication is a state of being, induced by the consumption of alcoholic liquor, that can be observed by the layperson through various indicators. In other words, intoxication under § 30-102 requires both an internal effect and an external manifestation.
We first note that perceivable indicators may be implicit in the only two descriptions of intoxication that do not expressly refer to such signs — "an abnormal mental or physical condition" and "a derangement or impairment of physical functions and energies." Id. In particular, physical conditions or effects of intoxication would seem likely to be perceivable. We also note that the court then went on to specify
Although this court has not expressly addressed whether the statutorily prescribed blood alcohol content that per se establishes being under the influence also could establish intoxication for purposes of § 30-102, we implicitly have rejected that possibility by concluding that being "intoxicated" is a greater state of inebriation than being "under the influence." See Wentland v. American Equity Ins. Co., supra, 267 Conn. at 604-605, 840 A.2d 1158; State v. Lonergan, 213 Conn. 74, 92 n. 11, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990), overruled in part on other grounds by State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001); Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 349, 493 A.2d 184. It is self-evident that the same blood alcohol content cannot establish different degrees of inebriation. More significantly for our purposes in the present case, the legislature's failure to designate a specific blood alcohol content as proof of a violation of § 30-102 inexorably leads to two conclusions: first, there is no standard of intoxication per se under § 30-102; and second, the absence of such a standard is wholly consistent with a construction of § 30-102 that requires proof of perceivable intoxication. In sum, there is considerable evidence in support of a conclusion that one cannot prevail on a claim under § 30-102 without proof that the patron was perceivably intoxicated as described in Sanders. This conclusion renders the meaning of §§ 30-86 and 30-102 consistent and rational.
Contrary to the plaintiff's view, Craig v. Driscoll, supra, 262 Conn. 312, 813 A.2d 1003, does not compel a contrary result. In Craig, we considered whether § 30-102 manifested a legislative intent to occupy the field so as to preclude this court from recognizing a common-law negligence action against purveyors of alcohol. Id., at 323-24, 813 A.2d 1003. In answering that question in the negative, we explained why a common-law negligence action would neither conflict with the act nor thwart its underlying purpose, concluding in relevant part: "The act provides a means of recovery for plaintiffs who are unable to prove causation and culpability, subject to a statutory limitation on damages.... To prevail, a plaintiff simply must prove: (1) the sale of the alcoholic liquor; (2) that the sale was to an intoxicated person; and (3) that the intoxicated person caused injury to another's person or property as a result of his or her intoxication.... Accordingly, the act 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." (Citations omitted.) Id., at 327-28, 813 A.2d 1003.
In considering the meaning of Craig as it bears on the issue in the present case, it is important to point out that Craig never addressed the meaning of intoxication under §§ 30-86 and 30-102 as articulated in this court's previous case law. It also is important to recognize that our construction of § 30-102 in Craig neither broke any new ground nor set forth any principles
It also is self-evident that the statute contains no element of proof of the purveyor's knowledge or state of mind. Cf. State v. Katz, supra, 122 Conn. at 441-42, 189 A. 606 (no knowledge of intoxicated condition required under § 30-86). Undoubtedly, when there are perceivable signs of intoxication, in many but not all cases a plaintiff likely would be able to establish that the purveyor at the very least should have known of the patron's condition. This result does not alter the fact that a plaintiff has no obligation to make such a showing under the act. As this court has recognized with respect to strict liability criminal statutes: "[S]trict liability offenses dispense with the mens rea of a crime, meaning that the possession of a guilty mind is not essential before a conviction can take hold.... In strict liability statutes, it is not required that the defendant know the facts that make his conduct fit the definition of the offense.... [Nonetheless, the defendant]... if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. T.R.D., 286 Conn. 191, 219-20, 942 A.2d 1000 (2008).
Finally, we must acknowledge that, shortly after our decision in Craig, the legislature effectively overruled our holding in that case by expressly abrogating the common-law negligence action that this court had recognized. See Public Acts 2003, No. 03-91. Thus, to the extent that there arguably is any tension between Craig and Sanders or its predecessors, any such inconsistency would have to be resolved in favor of Sanders. Accordingly, the plaintiff's reliance on Craig as sub
In reaching this conclusion, we are not unsympathetic to the concerns raised by the plaintiff, for which the amicus curiae Connecticut chapter of Mothers Against Drunk Driving offers some authority, that visible intoxication may be an unsafe standard because even persons trained to detect intoxication often fail to detect the point at which a person's blood alcohol content reaches a level well above that permitted to drive legally. See J. Brick & C. Erickson, "Intoxication Is Not Always Visible: An Unrecognized Prevention Challenge," 33 Alcoholism: Clinical and Experimental Research (September 2009) 1498, 1505. That concern, however, is a matter of policy on which the legislature is free to weigh the competing concerns identified by the defendant. The fact that every jurisdiction that permits civil recovery for injuries arising from the sale of alcohol to an intoxicated person imposes a standard requiring some manifestation of intoxication and/or the purveyor's actual or
We are mindful that it has been the legislature's goal to place the burden of preventing harm to the public that results from the sale of alcoholic liquor on those that profit from its sale. See Pierce v. Albanese, supra, 144 Conn. at 249-50, 129 A.2d 606 (citing protection of public as one purpose of act); see also All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 198, 567 A.2d 1156 (1989) ("[w]e have recognized the pervasiveness of the state's control over the liquor business... [b]ecause of the danger to the public health and welfare inherent in ... liquor traffic" [internal quotation marks omitted]). Nonetheless, there is good cause to question the fairness and incremental gains to public safety of a construction under which a purveyor will be liable for injuries caused by an intoxicated patron even if it has taken every reasonable precaution to avoid selling alcohol to patrons who appear to have reached a point of intoxication.
We next consider the plaintiff's claim that the Appellate Court improperly reversed the judgment and remanded the case with direction to render judgment for the defendants rather than remanding it for a new trial. The plaintiff contends that the Appellate Court improperly construed the trial court's ruling in his favor on his motion in limine, which sought to preclude argument or evidence that visible signs of intoxication are required, "narrowly [as] limited to the permissible scope of the parties' opening statement[s]." O'Dell v. Kozee, supra, 128 Conn.App. at 805 n. 12, 19 A.3d 672. The plaintiff claims that he was entitled to rely on the trial court's ruling and that he should be afforded an opportunity to produce evidence of visible intoxication if we conclude that this ruling was improper. The defendants respond that the trial court's ruling did not preclude the plaintiff from presenting such evidence, that no such evidence was presented and that the plaintiff's expert testified to the contrary. Thus, the defendants contend that a new trial would be pointless. We conclude that the plaintiff is entitled to a new trial.
We first note that our review of the record convinces us that, contrary to the Appellate Court's conclusion, the trial court did not limit its ruling on the plaintiff's motion in limine to opening arguments to the jury. Rather, the court made clear throughout the proceedings that visible signs of intoxication are not required under the act and that the defendants
Moreover, we disagree with the defendants that the plaintiff presented no evidence from which a jury reasonably could conclude that Pracher was intoxicated at the time of the sale of liquor and that a new trial would be pointless because no such evidence would be available. First, the plaintiff's expert, McKay, conceded on cross-examination that, without additional facts, he could not offer an opinion as to whether Pracher would have exhibited signs of intoxication during specific times at which he was served alcohol after reaching a highly elevated blood alcohol content. On remand, the plaintiff may be able to establish such facts. Second, McKay opined that Pracher would have had to consume a minimum of fifteen alcoholic beverages, and more likely in excess of twenty, to have reached a blood alcohol content of 0.187 at the time his blood was drawn.
Finally, although Sanders requires perceivable intoxication, we ascribe some significance to the fact that our legislature did not require "obvious" intoxication, or like term, as have other jurisdictions. See footnote 12 of this opinion. Indeed, to require that the intoxication be patently obvious would render the standard under § 30-102 essentially the same as that required to prevail in a common-law action for wilful, wanton and reckless service of alcohol that this court previously recognized and that still remains viable. See Kowal v. Hofher, 181 Conn. 355, 359-62, 436 A.2d 1 (1980); see, e.g., Futterleib v. Mr. Happy's, Inc., 16 Conn.App. 497, 510, 548 A.2d 728 (1988) (reckless and wanton sale of alcohol to intoxicated person when intoxication was obvious at time of service). In this regard, we find instructive another court's discussion of the difference between being "intoxicated" and being "obviously intoxicated" under different versions of that state's dram shop act. See Mjos v. Howard Lake, supra, 287 Minn. at 427, 178 N.W.2d 862. That court explained: "The statutory prohibition upon sales of intoxicating liquor to persons already intoxicated ... applies only if the intoxication is observable in the appearance or behavior of the person to whom the intoxicating liquor is furnished.... [F]or a person to be intoxicated `there must be such outward manifestation of intoxication that a person using his reasonable powers of observation can see or should see that such person has become intoxicated.' ... [W]hen intoxicating liquor has affected the user's reason or his faculties, or has rendered him incoherent of speech or has caused him to lose control of his actions or the motions of his body, he is intoxicated. These manifestations would be observable....
"[T]here may be a broad spectrum of behavior ranging from a minimal loss of control of mental or bodily function which would be observable to the reasonably prudent man making an affirmative effort of observation, to a state of intoxication so obvious as to be inescapably evident to anyone with functioning senses. We recognize that the various stages of intoxication cannot be defined precisely because individuals react differently to the influence of liquor depending upon the circumstances of consumption, among other things. However, the words `obviously intoxicated' evoke a concept substantially different from that elicited by the simple word `intoxicated.' While both states of intoxication must be manifest in the subject's behavior, the state of `obvious' intoxication would be readily and plainly evident without affirmative effort to perceive it and so clear that the observer would be bound to notice. Although a person is not `obviously intoxicated,' the fact that he is `intoxicated' would be discoverable by reasonably active observation of his appearance, breath, speech, and actions.... This may require the supplier of liquor to engage the prospective purchaser in conversation, to note specifically the details of the purchaser's physical appearance, to observe the purchaser's conduct during the course of his drinking at the supplier's
The judgment of the Appellate Court is affirmed in part and reversed in part, and the case is remanded to that court with direction to remand the case to the trial court for a new trial.
In this opinion NORCOTT, PALMER, ZARELLA and McLACHLAN, Js., concurred.
EVELEIGH, J., with whom ROGERS, C.J., joins, dissenting.
I respectfully dissent. I disagree with the majority's conclusion that "the Appellate Court properly determined that the plaintiff [John A. O'Dell, administrator of the estate of the decedent, Patrick C. O'Dell] was not entitled to judgment in his favor without proving that the patron [Joel Pracher] was visibly or otherwise perceivably intoxicated at the time he was sold liquor."
I agree with the facts and procedural history set forth in the majority opinion. I also agree with the majority that "[t]he meaning of intoxicated under § 30-102 presents a question of statutory interpretation under which our review is plenary. See Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 404, 891 A.2d 959 (2006). When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to determine [the] meaning [of the statute], General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.... Esposito v. Simkins Industries, Inc., 286 Conn. 319, 327, 943 A.2d 456 (2008). If that endeavor provides no clear and unambiguous result, it is appropriate to look at extratextual sources. General Statutes § 1-2z; see also Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 372, 880 A.2d 138 (2005) ([o]ur well established process of statutory interpretation [instructs us to look] ... to the legislative history and circumstances surrounding [the statute's] enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter)." (Internal quotation marks omitted.)
At the outset, I set forth the history of the act. In Craig v. Driscoll, supra, 262 Conn. at 322-23, 813 A.2d 1003, this court explained as follows: "At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.... Common-law tort claims against purveyors routinely failed, therefore, because the consumption of the liquor was viewed as an intervening act breaking the chain of causation between the purveyor and the ensuing injury caused by the intoxication....
"In Connecticut, as far back as 1872, it came to be felt that the foregoing common-law rule was to some extent overly harsh and should be modified by statute. Such
Like the majority, "[t]o answer the question of whether § 30-102 requires a plaintiff to prove that the patron was visibly or otherwise perceivably intoxicated, [I] turn first to the text of the statute." Section 30-102 provides in relevant part: "If any person, by such 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...." (Emphasis added.) On its face, § 30-102 creates liability upon the sale of alcoholic liquor to an intoxicated person, not to a visibly or otherwise perceivably intoxicated person. The plain language of the statute supports my conclusion that § 30-102 does not require proof of visible or otherwise perceivable intoxication. Indeed, adding an additional requirement to the plain language of § 30-102, as the majority does, is not in accord with the principles of § 1-2z, which requires us to look at the plain language of the act. Accordingly, I respectfully disagree with the majority's interpretation of § 30-102.
Indeed, it is important to note that the legislature has required visible intoxication in other statutes. Cf. General Statutes § 17a-683 (a) ("[a]ny police officer finding a person who appears to be intoxicated in a public place and in need of help may, with such person's consent, assist such person to his home, a treatment facility, or a hospital or other facility able to accept such person"). Moreover, there is no other language in the statute that might imply that the purchaser need be visibly or otherwise perceivably intoxicated for the purveyor's liability to arise. Cf. General Statutes § 17a-690 (a) ("[n]o town, city or borough or other political subdivision may adopt or enforce a local ordinance that includes drinking intoxicating liquor, being a common drunkard or being found in an intoxicated condition as one of the elements of an offense giving rise to a criminal or civil penalty or sanction" [emphasis added]). The legislature also has not set forth or limited the type of proof necessary to prevail in a dram shop claim. Cf. General Statutes § 30-86(b)(1) (providing that "[a]ny permittee ... who sells or delivers alcoholic liquor to any minor or any intoxicated person, or to any habitual drunkard, knowing the person to be such a habitual drunkard, shall be subject to the penalties of section 30-113" [emphasis added]); General Statutes § 14-227a ("[a]
As the majority suggests, a question remains, however, whether the term "intoxication" itself could mean a visible or otherwise perceivable state of inebriation. As this court previously has noted, "intoxication [has been] defined ... in a number of ways in a number of contexts." Wentland v. American Equity Ins. Co., 267 Conn. 592,
As I have previously explained herein, it is also appropriate to look to other statutes in construing § 30-102, and I therefore look to other statutes for the meaning of the term intoxication. See General Statutes § 1-2z. Indeed, "[i]t is settled that statutes must be construed consistently with other relevant statutes because the legislature is presumed to have created a coherent body of law.... In construing a statute, the court may look to other statutes relating to the same subject matter for guidance." Petco Insulation Co. v. Crystal, 231 Conn. 315, 324, 649 A.2d 790 (1994). A review of other statutes reveals that the legislature has specifically defined what constitutes intoxication in other sections of the General Statutes, for the purposes of that section. See General Statutes § 17a-680 (defining "[i]ntoxicated person" for purposes of certain civil commitment statutes as "a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol or drugs"); General Statutes § 53a-7 (defining "intoxication" for purposes of affirmative defense to crime as "a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body"). The definition of intoxication adopted by the legislature in §§ 17a-680 and 53a-7 supports my conclusion
Moreover, in ascertaining the nature of proof required for dram shop liability, I am not writing on a blank slate. Accordingly, I look to this court's previous interpretations of the statute to discover the contours and shadowing that those decisions cast upon my present construction. I begin with Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 341, 493 A.2d 184, the case relied upon by both the defendant and the Appellate Court. In Sanders, the court did not consider the certified question presently before us. Rather, the issue before the court was whether the plaintiff in a claim under the act had presented sufficient evidence to support the jury's finding that the patron was intoxicated at the time of sale. Id., at 347-48, 493 A.2d 184. In that case, the evidence consisted entirely of lay testimony, that is, from the purchaser himself and persons who had observed him before and after he rear-ended another vehicle. Id., at 343, 493 A.2d 184. No blood alcohol content evidence or expert testimony had been offered,
In order to determine whether the evidence was sufficient in Sanders, this court first articulated a definitional and descriptive yardstick of intoxication against which the evidence could be measured. The emerging standard describes intoxication as a state of being, induced by the consumption of alcoholic liquor, which can be observed by the layperson through certain indicators.
Following its definition and description of intoxication, this court turned to the evidence proffered at trial: "[The purchaser] was drinking at noontime. He resumed his drinking immediately after work. His conduct [of speaking loudly] was such that the patrons coming in contact with him complained to management. He was warned, not once, but twice, concerning his boisterous behavior. He left for home, but took a roundabout route. He drove, almost an hour after sunset, without lights. He was unable to recall many of the events of the evening and testified guardedly. He never saw the vehicles with which he collided on the side of the highway. On all of the evidence, we conclude that the jury reasonably could have found facts to prove that a state of intoxication [existed] in [the purchaser] at the time of a sale of alcoholic liquor to him by the defendant...." Id., at 351, 493 A.2d 184. Thus, measuring the proffered evidence against the standard of intoxication, this court ruled that the evidence was sufficient to withstand the appeal.
Recognizing that the court in Sanders made several references to "visible" or "apparent" signs of intoxication, I nonetheless believe it is overreaching to read the case as having interpreted § 30-102 to require evidence of visible or otherwise
Indeed, to interpret Sanders contrariwise would require ignoring pertinent language expressing a more expansive view of intoxication. In its descriptive standard of intoxication, the court included "an abnormal
Indeed, in Sanders, the court took note of many facts in its conclusion that the jury reasonably could have found sufficient facts to prove that the purchaser was intoxicated at the time of the sale of alcoholic liquor by the defendant, which clearly do not relate to visible intoxication at the time of sale. The court in Sanders noted the following: "[the purchaser] left for home, but took a roundabout route. He drove, almost an hour after sunset, without lights. He was unable to recall many of the events of the evening and testified guardedly. He never saw the vehicles with which he collided on the side of the highway." Id., at 351, 493 A.2d 184. In fact, most of the facts cited by the court in Sanders occurred after the sale of the alcohol to the purchaser and away from the bar. Therefore, I do not share the majority's position that Sanders controls our decision in this case. In my view, Sanders supports my conclusion that there are several indicia of proof, both visible and imperceptible, which would qualify as sufficient proof to justify a verdict in favor of the plaintiff pursuant to § 30-102.
A subsequent decision by this court, Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), confirms both my reading of Sanders and an interpretation of § 30-102 not requiring visible or perceivable intoxication. In Craig, this court considered whether § 30-102 manifested a legislative intent to occupy the field so as to preclude this court from recognizing a common-law negligence action against purveyors of alcohol. Id., at 323-24, 813 A.2d 1003. It was essential, therefore, to delineate the scope of the act so that we might determine whether the statutory action was akin to, or in effect, a negligence action. Id., at 326-27, 813 A.2d 1003. In reaching the conclusion that the act operated in strict liability, we explained: "The act provides a means of recovery for plaintiffs who are unable to prove causation and culpability, subject to a statutory limitation on damages.... To prevail, a plaintiff simply must prove: (1) the sale of the alcoholic liquor; (2) that the sale was to an intoxicated person; and (3) that the intoxicated person caused injury to another's person or property as a result of his or her intoxication.... Accordingly, the act 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."
Before turning to the significance of this analysis in the present case, I must acknowledge that the holding in Craig was legislatively overruled. In No. 03-91 of the 2003 Public Acts (P.A. 03-91), the legislature added the following language to § 30-102: "Such 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 amendment made clear that the legislature intended to occupy the field and, in so doing, eliminate the common-law negligence action that Craig had recognized. The legislature made no change, however, to the existing statutory language that Craig had interpreted,
An interpretation of § 30-102 that requires the plaintiff to prove visible or otherwise perceivable intoxication would be inconsistent with our prior construction of the act to the effect that the act does not require a showing of negligence. Under a rubric where a plaintiff is required to
I am not persuaded by the Appellate Court's effort to reconcile its holding that the act requires visible or otherwise perceivable signs of intoxication with this court's view of the act as providing an action in strict liability. The Appellate Court reasoned that "an establishment would be strictly liable ... if it sold intoxicating liquor to a patron who exhibited perceivable signs of intoxication, even if the permittee or bartender completely was unaware of and had no reason to know of such behavior." O'Dell v. Kozee, supra, 128 Conn.App. at 802, 19 A.3d 672. The majority also appears to adopt this view. In my view, there are such limited circumstances in which a purchaser could exhibit visible or otherwise perceivable signs of intoxication at the time of sale, while at the same time the purveyor would have no reason to know of that condition, that it seems exceedingly unlikely that the legislature would have crafted the statute with such an intention in mind.
It is also important to note, as the majority acknowledged, that this court has repeatedly "recognized the pervasiveness of the state's control over the liquor business. Because of the danger to the public health and welfare inherent
Moreover, respectfully, I find the majority's reliance on State v. Katz, supra, 122 Conn. at 439, 189 A. 606, misplaced. As the majority explains, Katz is a 1937 case in which this court interpreted the term "intoxicated person" for purposes of the criminal counterpart to § 30-102, § 30-86.
In Katz, this court affirmed the defendant's conviction under § 30-86 based only on evidence from a police officer that saw the purchaser stumbling before and after he entered the store. Commenting on the evidence produced to demonstrate that the defendant was intoxicated — as opposed to evidence that the purveyor had knowledge of his intoxication — this court stated: "The vital issue is whether the evidence supports the trial court's conclusion that [the purchaser] was intoxicated when the liquor was sold to him. A police officer who saw him before and after he was in the store definitely testified that he was and as evidencing that fact stated that he staggered and, when he attempted to run, could not
The majority asserts that "[t]hese cases suggest that intoxication, as used in §§ 30-86 and 30-102, requires some external manifestation of that condition that the purveyor could observe. In other words, by `plac[ing] the burden of determining whether or not the purchaser of liquor is intoxicated upon the seller'; State v. Katz, supra, 122 Conn. at 442, 189 A. 606; the legislature must have assumed that there would be an objective basis from which the seller could make such a determination through reasonable efforts." I disagree. There is no requirement in the statutory language of § 30-102, or in the cases interpreting it, of a visible or otherwise perceivable manifestation of intoxication. To the contrary, I would conclude that examining the language of § 30-102 in light of its purpose to "[provide] 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"; Craig v. Driscoll, supra, 262 Conn. at 338, 813 A.2d 1003; requires the conclusion that intoxication does not require a visible or otherwise perceivable manifestation.
The plaintiff has also urged us to rule that a blood alcohol content of 0.08 at the time of sale shall be per se evidence of intoxication for the purposes of the act. I would conclude that a blood alcohol content of 0.08 at the time of sale, coupled with an expert's testimony that the consumption of the alcohol or drug caused a significant mental or physical impairment, would constitute a prima facie case sufficient to have the case submitted to the jury. The legislature has expressly identified that a blood alcohol content level of 0.08 is per se evidence of the offense of operating a motor vehicle while under the influence of intoxicating liquor. General Statutes § 14-227a. I agree with the plaintiff to the extent that it is difficult to rationalize why the legislature would consider blood alcohol content to be competent evidence in one context and not the other when the act aims to deter the same injurious conduct — drunk driving — and to compensate victims harmed by such conduct. In Coble v. Maloney, 34 Conn.App. 655, 643 A.2d 277 (1994), the Appellate Court determined that the results of blood alcohol tests are relevant to the determination of whether an individual is intoxicated pursuant to § 30-102, but that "[§] 30-102 is not a per se offense that can be proven merely by establishing a blood alcohol level of 0.10 percent or greater at the time the elements of the offense occurred, the results of the blood alcohol tests nonetheless may indicate that a person had imbibed intoxicating liquors, which is a key factor in determining whether an individual is intoxicated." Nonetheless, I would conclude that blood alcohol content evidence can establish liability if it is supported by expert testimony that also establishes the definition of intoxication
Indeed, I would conclude that the definition of intoxication set forth in Sanders, which is adopted by the majority, is so broad and unwieldy so as to be unhelpful in pursuing and defending against claims under § 30-102. Specifically, the majority relies on the following language from Sanders: "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." Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 349-50, 493 A.2d 184. Indeed, the definition that I propose herein — intoxication is the state in which, as a result of the consumption of alcohol or other drugs, a person's mental or physical functioning is substantially impaired — is in accord with the statutory usage of intoxication, and is very close to one of the definitions contained in Sanders v. Officers Club of Connecticut, Inc. See id. ("intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors"). It also comports with the dictionary definition, which is a state in which one is affected "by a drug (as in alcohol or cocaine), especially to the point of physical or mental impairment." See Merriam-Webster's Collegiate Dictionary (11th Ed. 2005).
In the present case, the evidence established that, shortly after the accident, Pracher's blood alcohol content was 0.187. The plaintiff's expert extrapolated back to various periods of time preceding the accident and opined that Pracher's blood alcohol content would have been between above 0.10 at 10 p.m., between 0.19 and 0.23 at all times between 11 p.m. and 12 a.m., and between 0.18 and 0.20 at 12:45 a.m. The expert further testified that, with a blood alcohol content of 0.10 or higher: (1) a person's mental or physical condition would be considered abnormal; and (2) his or her physical functions and energies would "most likely" be impaired. Notably, this testimony squarely comports with two of Sanders' descriptive standards of intoxication. See Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. at 349, 493 A.2d 184 ("[i]ntoxication 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"). Moreover, evidence of the circumstances of the accident in the present case — driving at an excessive speed directly into a large, legally parked vehicle in a lighted area with ample room for safe passage — is similar to the evidence cited in Sanders and provides additional support for the expert's conclusion as applied to Pracher. Indeed, the facts of the present case persuasively demonstrate why the legislature would have intended to afford relief under § 30-102 even in the absence of proof of visible or otherwise perceivable signs of intoxication. In addition, I would conclude that Pracher's own testimony in the present case that he was "drunk" when
Although I agree with the majority that expert testimony should be allowed, I can foresee situations in which a person may not show any visible or otherwise perceivable signs of intoxication, but may have a blood alcohol content at a level of 0.08 or higher, and his or her mental or physical functioning would be substantially impaired. In such a situation, it may be difficult for an expert to testify that the person would have exhibited visible signs of intoxication. Indeed, other individuals accompanying that person may honestly testify that there were no outward signs, yet that person will have diminished capacity to drive and present a danger to others. I would conclude that the language of the act demonstrates that the legislature intended there to be liability on the purveyor when such a situation occurs. Accordingly, I would conclude that when an expert can testify that a person had a blood alcohol content of 0.08 at the time the purveyor served them alcohol, and that the person's mental or physical functioning is substantially impaired as a result of the use of alcohol or drugs, the plaintiff has established a prima facie case to go to the jury. If the legislature had intended the term "intoxication" to mean "visible intoxication," it certainly could have inserted the word "visible" into the language of § 30-102. As the majority correctly points out, many of our sister states that have Dram Shop Acts have already required "visible intoxication." The fact that the legislature of this state did not include such language in the act, coupled with the fact that it has not used the term "visible" when defining "intoxicated person" and "intoxication" in other statutes, is further support for my conclusion that the legislature did not intend the act to require visible or otherwise perceivable signs of intoxication.
As I have indicated previously, if I were to agree with the majority's conclusion in part I of its opinion that the plaintiff was not entitled to judgment in his favor, I would agree with part II of the majority opinion. I point out the following inconsistency — after interpreting § 30-102 to require visible or otherwise perceivable signs of intoxication, the majority states the following: "In the absence of evidence that Pracher's plan at the outset of the evening was to drink to the point of intoxication, a jury reasonably could find that imbibing to such excess is a visible sign of impaired judgment due to alcohol consumption, one example of competent evidence of intoxication identified in Sanders." Although I agree that evidence of imbibing to such excess is sufficient evidence to establish a prima facie case and get to the jury, if mere excess drinking at the purveyor's establishment is sufficient under the majority's reading of § 30-102, it seems that the majority is not requiring visible signs of intoxication.
For the foregoing reasons, I respectfully dissent. I would reverse the judgment of the Appellate Court and remand the case to enter judgment in favor of the plaintiff in the statutory amount of $250,000.
"(3) The provisions of this subsection shall not apply ... (B) to a sale, shipment or delivery made in good faith to a minor who practices any deceit in the procurement of an identity card issued in accordance with the provisions of section 1-1h, who uses or exhibits any such identity card belonging to any other person or who uses or exhibits any such identity card that has been altered or tampered with in any way...."
"The defendant has advanced no compelling reason why the construction which we have already given the language of the statute should be changed and the statute construed so as to require proof of a causal relation between the sale of intoxicating liquor and the intoxication which caused injury." Pierce v. Albanese, supra, 144 Conn. at 246-47, 129 A.2d 606. "The constitutional validity of [the act] depends upon whether it is a proper legislative exercise of the police power of the state.... Since the liquor business is one which can be dangerous to the public health, safety and morals, the range of legislative power to deal with it necessarily is a very wide one.... The multitude of automobiles on the public highways enhance the danger." (Citations omitted.) Id., at 247-48, 129 A.2d 606. "The court's function in examining the constitutional aspect of police legislation is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional requirements of due process and equal protection of the laws." Id., at 249, 129 A.2d 606.
Having employed our tools of construction, we note that there is evidence that, although the legislature may have viewed the terms "intoxicated" and "under the influence of intoxicating liquor" as synonymous at one time, it later drew a distinction between the terms. Public acts relating to early predecessors to § 14-227a used both terms. See, e.g., Public Acts 1921, c. 400, § 30 (entitling act enacting predecessor to § 14-227a as "Operation while intoxicated" while referring to operating "under the influence of intoxicating liquor" in text); Public Acts 1963, No. 616 (entitled "An Act Concerning Implied Consent to Tests for Intoxication" while referring to operating "under the influence of intoxicating liquor" in text). When the legislature lowered the standard for prima facie evidence of operating a motor vehicle while under the influence from a blood alcohol content of 0.15 to 0.10, however, it referred only to "being under the influence." See Public Acts 1971, No. 318 ("An Act Concerning Evidence of Ten-Hundredths of One Per Cent or More of Alcohol by Weight as Prima Facie Evidence of Operating Under the Influence of Intoxicating Liquor"); see also Public Acts 1985, No. 85-596 ("An Act Establishing a `Per Se' Standard for Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor"). In 1985, the legislature substituted the term "under the influence of intoxicating liquor" for the terms "intoxicated" and "intoxication" in two criminal statutes relating to drunk driving while indicating that this change would lower the proof necessary for conviction. See Public Acts 1985, No. 85-147, §§ 1 and 2 (amending General Statutes [Rev. to 1985] §§ 53a-56b and § 53a-60d, manslaughter in second degree with motor vehicle and assault in second degree with motor vehicle, respectively). The legislative history relating to these amendments suggest that the legislature ultimately acquiesced to the courts' practice of treating the two terms differently. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1985 Sess., p. 332, remarks of Representative Edith G. Prague; 28 H.R. Proc., Pt. 9, 1985 Sess., pp. 3129-30, remarks of Representative Robert F. Frankel.
"Although the definition of intoxication set forth in Sanders goes on to provide examples that would be sufficient to support a finding of intoxication, for instance, a derangement or impairment of physical functions and energies... these differing examples cannot ... not relieve the defendant of its duty to defend. First, keeping in mind the context in which this court decided Sanders, these examples do not inform what constitutes intoxication as a matter of law; rather, they merely provide illustrations of what will be sufficient to support the factual finding that a purchaser of alcohol was intoxicated for purposes of the [act]. In that regard, merely because a trier of fact ultimately may conclude that the plaintiffs' injuries in the present case were the result of [the driver's] intoxication, it does not follow that the allegations in the complaint, for instance, that [the driver's] consumption of alcohol at [the bar] caused her to be unable to control her vehicle, compel the conclusion that [the driver] must have been intoxicated as a matter of law. Because an insurer's duty to defend is triggered without regard to the likelihood that it ultimately may be required to indemnify the insured, the examples in Sanders, setting forth what may be sufficient to establish intoxication at trial, cannot relieve the defendant of its duty to defend." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 608-609, 840 A.2d 1158.
We do not disagree with the court's description of Sanders in Wentland as articulating different ways that intoxication can be established. The court in Wentland did not consider, however, whether a common element to each is a perceivable condition. The court's discussion of Sanders in Wentland simply was intended to make the point that, although intoxication for purposes of the act can be established through various forms of proof, the plaintiff's allegations could not establish intoxication as a matter of law such that it would dictate the meaning of intoxication under the insurance policy. See also id., at 609 n. 12, 840 A.2d 1158 (making similar point when rejecting defendant's reliance on State v. Katz, supra, 122 Conn. at 442, 189 A. 606, which had relied on condition of intoxication as matter of common knowledge, as establishing what constitutes intoxication as matter of law).
The question as to the meaning and effect of Craig may explain why bills were proposed in 2007 to amend § 30-102 to, inter alia, add the term "visibly" before "intoxicated person." See Substitute House Bill No. 7053, January, 2007 Sess.; Raised Bill No. 7185, January, 2007 Sess.; see also Uncalled Amendment to Substitute Senate Bill No. 1026, January, 2009 Sess. In committee hearings on the 2007 bills, a representative of the Connecticut Restaurant Association commented that the addition of this term would not change the law, but, rather, would codify the majority position. See Conn. Joint Standing Committee Hearings, Insurance and Real Estate, Pt. 9, 2007 Sess., pp. 2954-55, 2961, 2963. Conversely, a representative of the Connecticut Trial Lawyers Association characterized the amendment as a significant change to the law. See id., at pp. 2887-88. No legislator expressed a view as to whether either position was correct, or whether visible intoxication embodied a standard consistent with, or more stringent than, the standard in Sanders. The 2007 bills received favorable votes in committee but no further action was taken on them. We note that, in 2008, the passage from Sanders in its entirety was adopted as a model jury instruction for claims under the act. See http://www.jud.ct.gov/ji/civil/part3/3.17-1.htm (last visited September 28, 2012).
"Ordinarily, we are reluctant to draw inferences regarding legislative intent from the failure of a legislative committee to report a bill to the floor, because in most cases the reasons for that lack of action remain unexpressed and thus obscured in the [midst] of committee inactivity." (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 706, 724 A.2d 1093 (1999); see also Bob Jones University v. United States, 461 U.S. 574, 600, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) ("unsuccessful attempts at legislation are not the best of guides to legislative intent" [internal quotation marks omitted]). This reluctance seems particularly apt in the present case given the lack of clarity as to the intended effect of the amendment.
Under the principle of statutory construction that the use of such qualifying terms add something to the meaning of the statute; see American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008) ("[i]nterpreting a statute to render some of its language superfluous violates cardinal principles of statutory interpretation"); these statutes lend support to the proposition that our legislature's failure to specify "visible" or "perceivable" intoxication reflects a deliberate decision not to so limit the proof required under our act. Indeed, there is some evidence that our legislature was aware that our dram shop imposed a standard more favorable to plaintiffs than other states.
In the present case, the trial court provided the following instruction to the jury, which modified and expanded upon the model jury instruction to indicate that evidence of visible or perceivable intoxication was relevant, but not required: "The plaintiff has the burden of proving by a preponderance of the evidence that [Pracher] was intoxicated. To be intoxicated... means more than merely being under the influence of or affected to some extent by liquor. On the other hand, a person need not be dead drunk. Intoxication means an abnormal mental or physical condition due to intoxicating liquors, an impairment of judgment, a derangement or impairment of physical functions and energies. A person may be found to be intoxicated if he exhibits a visible excitation of the passions or unusual or abnormal manner, reflected in walk or conversation.... Thus, it is enough that the use of liquor has so affected him in acts or conduct that a person coming in contact with him can readily see and know that he is intoxicated. A person may also be found to be intoxicated upon evidence of impaired judgment, upon evidence of deranged or impaired physical functions and energies, or upon evidence of that his ordinary judgment or common sense are disturbed or his usual will power is temporarily suspended. The evidence may or may not show [Pracher's] behavior or manner indicating intoxication while being served, but other facts might show that he was indeed intoxicated at the time. Examples of evidence which you may consider in determining whether [Pracher] was intoxicated when the defendant sold liquor to him include the type and amount of alcohol; the time period over which he drank the alcohol; the atmosphere of the location where the alcohol was sold and drunk; observations made by others of his conduct and demeanor; his body, his body weight, tolerance to alcohol, whether he consumed food or non-alcoholic beverages during the relevant time period; testimony of third persons about whether he was intoxicated; his own assessment and statements about whether he was intoxicated; the level of his blood alcohol content; expert witness testimony regarding the meaning of his blood alcohol content and its effect; the chronology of events and time [lapse] between the sale and the accident; the nature, manner and circumstances of the accident and expert witness testimony concerning the accident and cause. Those are only examples of some of the factors you may consider and you may find others. Of course, it is up to you as finders of fact to determine what the evidence is and what weight to give it. It is for you as finders of fact to consider the totality of the evidence — both direct and circumstantial — when deciding whether [Pracher] was intoxicated when served alcohol by the defendant."
