Hughes v. Bemer

Dannehy, J.

This action was filed on behalf of Gregory Hughes, a minor, against John S. Bemer and Nancy L. Bemer, the owner and permittee, respectively, of a liquor store. The complaint alleged in separate counts the illegal sale of liquor to a minor in violation of General Statutes § 30-86,1 and reckless and wanton misconduct in the sale of liquor to a minor. Michael A. Hughes, the father of the named plaintiff, joined in the suit claiming damages caused by his obligation to pay medical and hospital bills for his son. The defendants moved to strike the complaint for failure to state a cause of action. The motion was granted by the trial court, Higgins, J., and judgment was rendered in favor of the defendants. The plaintiffs appealed. We find no error.

On November 12, 1982, the defendants sold a case of beer to Michael Calabrese, a minor. Calabrese, along with Andrew Titterton and Michael Belanger, also minors, consumed all or part of the beer. Thereafter, Titterton, while under the influence of the beer he had consumed, drove an automobile in which the plaintiff Gregory Hughes was a passenger. The automobile was involved in a one-car accident as a result of Titterton’s *402 impaired ability to operate the vehicle. Hughes suffered injuries which have rendered him a permanent quadriplegic.

The trial court struck the complaint in its entirety because it found no proximate cause between the sale of the beer and Hughes’ injuries; Slicer v. Quigley, 180 Conn. 252, 429 A.2d 855 (1980); and because it found the complaint failed to state a cause of action for wanton and reckless misconduct in furnishing alcoholic beverages to a minor. See Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). On appeal the plaintiffs claim that: (1) Slicer v. Quigley, supra, should be overruled; and (2) the trial court erred in dismissing the counts of the complaint alleging wanton and reckless misconduct in light of our decision in Kowal v. Hofher, supra.

The defendants claim that, irrespective of the merits, the judgment of the trial court must be upheld under Practice Book § 155. We agree. That section provides in relevant part: “If an adverse party objects to [a motion to strike] he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” The plaintiffs in this case filed no memorandum of law in opposition to the motion to strike.

The principal function of Practice Book § 155 is to enable movement beyond the allegations in the pleadings, and to assist the court in its analysis of the evidence so as to ascertain whether an actual need for trial exists. The filing of a memorandum of law setting forth the relevant arguments is mandatory under Practice Book § 155. Cf. Darling v. Waterford, 7 Conn. App. 485, 508 A.2d 839 (1986). The memorandum m/ust be *403 filed, or the motion to strike shall be granted. The trial court did not err in granting the defendants’ motion to strike the complaint.

There is no error.

In this opinion Peters, C. J., Healey and Santaniello, Js., concurred.

“[General Statutes (Rev. to 1981)] Sec. 30-86. sales to minors, intoxicated PERSONS AND DRUNKARDS. Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 30-113.”

“[General Statutes (Rev. to 1981)] Sec. 30-113. PENALTIES. Any person convicted of a violation of any provision of this chapter, for which a specified penalty is not imposed, shall, for each offense, be fined not more than one thousand dollars or imprisoned not more than one year or both.”