text:
    VALERIE P. CRAIG ET AL. v. STEVEN DRISCOLL ET AL.
    (AC 19299)
    Landau, Pellegrino and Dupont, Js.

      Argued November 1, 2000 —
    officially released August 7, 2001

      Christopher G. Wall, for the appellants (named plaintiff et al.).

      Patrick J. Walsh, with whom, on the brief, was Richard P. Hastings, for the appellees (defendant David L. Davis et al.).
   Opinion

LANDAU, J.

The plaintiffs, Valerie P. Craig and Samuel Craig, appeal from the judgment of the trial court rendered subsequent to its granting of the motion to strike filed by the defendants David L. Davis and Hawk’s Nest, Inc., pursuant to Practice Book § 10-44. On appeal, the plaintiffs claim that the court improperly granted the defendants’ motion to strike by concluding that the allegations of the plaintiffs’ amended complaint failed to state a cause of action for bystander emotional distress against the defendant purveyors of alcohol for (1) negligent infliction of emotional distress and (2) reckless infliction of emotional distress. We reverse the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the plaintiffs’ appeal. Because the issues concern the granting of a motion to strike, we are limited to and must accept as true the facts alleged in the plaintiffs’ amended complaint dated May 28, 1998. See Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). Those facts are that between 8:30 p.m. and midnight on May 21, 1996, the defendant Steven Driscoll was a patron of The Pub and Restaurant (The Pub), a business located in Norfolk, which is owned by the defendant Hawk’s Nest, Inc. The defendant David L. Davis was the president of Hawk’s Nest, Inc., and the permittee of The Pub. The defendants, through their agents, servants and employees, invited the public to enter The Pub and sold alcoholic beverages to its patrons. At the time in question, Driscoll was intoxicated when the defendants sold him alcoholic beverages, although they knew, or should have known, that Driscoll was an alcoholic who would operate a motor vehicle after leaving The Pub.

At 12:10 a.m. on May 22, 1996, Sarah Craig was a pedestrian on the west shoulder of Route 272 near its intersection with Route 44 in Norfolk. At that time, Driscoll, who had left The Pub, was operating a motor vehicle south on Route 44 when he caused the vehicle to veer off the roadway and strike Craig. Very shortly thereafter, Valerie P. Craig, the mother of Sarah Craig, and Samuel Craig, the brother of Sarah Craig, arrived at the scene of the accident and viewed Sarah Craig before a substantial change in her condition or location had taken place. Sarah Craig died on May 24, 1996, of the injuries she sustained in the accident. As a result of having witnessed Sarah Craig’s severe and substantial injuries, the plaintiffs sustained severe emotional injuries.

The amended complaint was alleged in sixteen counts. We are concerned only with counts three through six, which contain allegations against the defendants who are involved in this appeal. The court originally granted the defendants’ motion to strike counts three through twelve. The plaintiffs thereafter filed a motion to reargue the motion to strike. The court denied the motion. The plaintiffs then moved for judgment on counts three through twelve for the purpose of appealing the propriety of the court’s having stricken those counts. The court rendered judgment in accordance with the motion. The plaintiffs subsequently appealed from the judgment only with respect to counts three through six.

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” Practice Book § 10-39 (a).

Our standard of review for granting a motion to strike is well settled. “In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988).” Waters v. Autuori, supra, 236 Conn. 822. A motion to strike admits all facts well pleaded. See Practice Book § 10-39. “The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a . . . cause of action, the motion to strike must fail. Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). What is necessarily implied need not be expressly alleged.” (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996). “A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).” Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). With that standard in mind, we turn to the plaintiffs’ claims.

I

The plaintiffs’ first claim is that the court improperly granted the defendants’ motion to strike by concluding that the allegations of counts three and five failed to state causes of action, specifically, negligent infliction of bystander emotional distress as enunciated in Clohessy v. Bachelor, supra, 237 Conn. 31. We agree with the plaintiffs.

The allegations in question are those contained in paragraph twelve of counts three and five in which Valerie P. Craig and Samuel Craig, respectively, pleaded: “The collision, the injuries to Sarah Craig, and the severe emotional injury sustained by [the plaintiffs], were caused by the carelessness and negligence of [the defendants] ... in one or more of the following ways: (a) in that they served numerous drinks to Steven Driscoll, which caused his intoxication, when the Defendants knew, or should have known, that Steven Driscoll would operate a motor vehicle upon leaving the [defendants’] premises, when in the exercise of due care they should not have done so . . . (b) in that they maintained an alcohol service policy within the bar in which intoxicated patrons would not be refused service, when in the exercise of due care they should not have done so . . . (c) in that they maintained an alcohol service policy with regard to Steven Driscoll in particular in which Steven Driscoll would not be refused service of alcohol even when intoxicated, when in the exercise of due care they should not have done so . . . (d) in that they failed to supervise and monitor the distribution of alcohol within the pub, when in the exercise of due care they should have done so . . . (e) in that they failed to warn patrons of the dangers of drinking and driving, when in the exercise of due care they should have done so ... (f) in that they allowed Steven Driscoll to operate a motor vehicle upon leaving the pub when [they] knew or should have known that Steven Driscoll was in an intoxicated state, when in the exercise of due care they should not have done so . . . (g) in that they failed to implement a designated driver or other similar program for patrons of the pub, when in the exercise of due care they should have done so . . . (h) in that they failed to have a Breathalyzer or intoxication measuring device within the pub, when in the exercise of due care they should have done so . . . (i) in that they negligently supplied alcohol to Steven Driscoll when [they] knew or should have known that Steven Driscoll was an alcoholic and/or tended to drink alcohol excessively, when in the exercise of due care they should not have done so [and] (j) in that they negligently supplied alcohol to Steven Driscoll when [they] knew or should have known that Steven Driscoll lacked the capacity to fully understand the risks associated with intoxication due to his alcoholism and/or his propensity to drink alcohol excessively, when in the exercise of due care they should not have done so.”

In Clohessy, our Supreme Court concluded that when certain conditions are satisfied, “both the parent and the sibling of the tort victim may recover damages for the negligent infliction of emotional distress.” Id., 32. The tort is sometimes referred to as bystander emotional distress. In Clohessy, the plaintiffs, the mother and brother of a seven year old boy, witnessed the boy’s death as the family crossed a street in a marked crosswalk on Hillhouse Avenue at its intersection with Trumbull Street in New Haven. The defendant had operated his motor vehicle at an excessive speed on Trumbull Street and caused the exterior side view mirror to strike the boy and throw him to the ground. The mother and brother suffered serious emotional injuries as a result of witnessing the boy’s fatal head wounds. Id., 33-34.

In recognizing a claim for bystander emotional distress, the Clohessy court reexamined the history of the cause of action in this jurisdiction and the legal theories under which other jurisdictions have adopted it. Our Supreme Court rejected the zone of danger limitation on bystander emotional distress in favor of the reasonable foreseeability theory because bystander emotional distress is reasonably foreseeable. Id., 46-49. The court identified four criteria that must be alleged to state a claim for bystander emotional distress: The bystander must be closely related to the injured victim; id., 52; the bystander’s emotional injury must be caused by a contemporaneous sensory perception of the event or the conduct that causes the injury, or by witnessing the victim immediately after the injury to the victim if no material change has occurred with respect to the victim’s location and condition; id.; the injury to the victim must be substantial, resulting in either death or serious physical injury; id., 53; and the bystander must sustain a serious emotional injury, which is a reaction beyond that to be anticipated in a disinterested witness and which is not an abnormal response to the injury producing event. Id., 54.

Here, the defendants concede that the allegations of the plaintiffs’ amended complaint meet the four Clohessy criteria, and we agree. The defendants argue, however, that they owed no duty to the plaintiffs because their injuries were not reasonably foreseeable. We disagree with the defendants’ position because, as alleged, the plaintiffs’ injuries were reasonably foreseeable.

A

Our first inquiry is whether the defendants owed a duty to the plaintiffs. “Since the chief element in determining whether [a] defendant owes a duty or an obligation to [a] plaintiff is foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.” Id., 35-36, citing Dillon v. Legg, 68 Cal. 2d 728, 740, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). Clohessy articulated the concept of duty that applies to our analysis. “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised .... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant’s position that harm of the type alleged would result from the defendant’s actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally ‘foreseeable,’ yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 45-46.

In her dissent in Quinnett v. Newman, 213 Conn. 343, 349-54, 568 A.2d 786 (1990) (Peters, C. J., dissenting), then Chief Justice Ellen Peters eloquently expressed the policy concerns that warrant the creation of a cause of action against the purveyors of alcoholic beverages who negligently contribute to the horrors of drinking and operating a motor vehicle: “I believe that the time has come for this court to recognize a common law cause of action, sounding in negligence, for the sale of intoxicating beverages to someone who, because of his intoxication, thereafter injures an innocent bystander on our public highways. Studies too numerous to replicate have demonstrated, time and time again, the strong connection between excessive consumption of alcohol and violent traffic accidents. See, e.g., Shore v. Stonington, 187 Conn. 147, 162, 444 A.2d 1379 (1982) [Peters, J., dissenting]; Slicer v. Quigley, 180 Conn. 252, 264-67, 429 A.2d 855 (1980) (Bogdanski, J., dissenting). The hapless victim in this case was simply another statistic in a long line of similar victims, killed by a driver who, after the consumption of a great deal of liquor at a bar, crossed the median line on the highway and drove his car into oncoming traffic. Enough is enough. This court should no longer be the roadblock that prevents a jury from considering whether, as a matter of fact, a commercial vendor of alcohol has taken suitable precautions, has observed reasonable care, to avoid injury to those who are foreseeably at risk and whose injuries are in fact proximately caused by the sale of alcohol.” Quinnett v. Newman, supra, 350 (Peters, C. J., dissenting).

The late Justice T. Clark Hull concurred with then Chief Justice Peters and wrote separately, adding that “[¡Judges, like it or not, are part of society. As such, we cannot be blind to changing social mores. A rational wave of revulsion has arisen against the frightful tragedies caused by drunken drivers. I take judicial notice of the efforts of MADD, SADD and RID, as well as certain determined Connecticut legislators, to curb such atrocities.” Id., 354. (Hull, J., dissenting).

With respect to alcohol related tragedies that occurred in the final decade of the twentieth century, we cannot accept the defendants’ contention that a reasonable person could not foresee the tragic consequences of serving liquor to an intoxicated person who thereafter will operate a motor vehicle on the roadways of this state. We think that it is foreseeable to a purveyor of alcoholic beverages who serves liquor to an intoxicated person who will operate a motor vehicle that the victim’s relatives will witness an accident or its immediate aftermath. We therefore recognize, on the facts alleged in this case, that purveyors of alcoholic beverages owe a duty to bystanders who suffer emotional distress on the basis of the foreseeability of the risk. Whether that duty extends to those victims when the harm is caused by adults who were served alcohol rather than by minors is the next question we must address.

B

In objecting to the plaintiffs’ complaint, the defendants have asserted a timeworn argument that the common law does not recognize a cause of action for the negligent sale of intoxicating beverages to an adult. The defendants argue that the sale of liquor was not the proximate cause of the plaintiffs’ injuries because Driscoll voluntarily consumed the alcohol, and his operation of a motor vehicle was an intervening event that broke the chain of causation. We disagree.

“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. ... As [our Supreme Court] observed . . . [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .

“The second component of legal cause is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm .... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] mies which are feasible to administer, and yield a workable degree of certainty. . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. ... In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. . . .

“[Our Supreme Court] has often stated that the test of proximate cause is whether the defendant’s conduct is a substantial factor in producing the plaintiffs injury. . . . That negligent conduct is a cause in fact, however, obviously does not mean that it is also a substantial factor for the purposes of a proximate cause inquiry. The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. ... In applying this test, we look from the injury to the negligent act complained of for the necessary causal connection. . . .

“The scope of the risk analysis of proximate cause similarly applies where, as here, the risk of harm created by the defendant’s negligence allegedly extends to an intervening criminal act by a third party. . . . [Our Supreme Court has] consistently adhered to the standard of 2 Restatement (Second), Torts § 442B (1965) that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant’s conduct. . . . The reason [for the general rule precluding liability where the intervening act is intentional or criminal] is that in such a case the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him. . . . Such tortious or criminal acts may in themselves be foreseeable, [however,] and so within the scope of the created risk . . . .” (Citations omitted; internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757-59, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).

We reject the defendants’ argument that providing alcoholic beverages to an already intoxicated person or a person known to them to be an alcoholic cannot be the proximate cause of subsequent injuries caused by the drunken person. The argument is illogical in view of the Dram Shop Act, General Statutes § 30-102, and those instances in which our Supreme Court has created exceptions to the common-law rule that denies a tort cause of action against purveyors of intoxicating liquor. See Bohan v. Last, 236 Conn. 670, 681, 674 A.2d 839 (1996); Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988); Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). Case law epitomizes the judicial recognition of the substantial causal relationship between the negligent service of alcoholic beverages and the injuries that occur as the result of drunkenness.

C

Until recently in Connecticut, no common-law action sounding in tort lay against a purveyor of intoxicating liquor to a person who voluntarily became intoxicated and, as a consequence of his or her intoxication, caused injury to the person or property of another. In certain instances, our Supreme Court has created exceptions to the common law. See Bohan v. Last, supra, 236 Conn. 670; Ely v. Murphy, supra, 207 Conn. 88; Kowal v. Hofher, supra, 181 Conn. 355. By the allegations of their complaint, the plaintiffs seek to state a cause of action for bystanders who are closely related to those harmed by drunken drivers against the purveyors of alcohol who serve adults whom they know to be alcoholics. A purveyor of alcohol to a minor may be liable for negligently serving a minor. The initial question is whether a known alcoholic should have the same status as a minor.

In Ely, our Supreme Court concluded that “[i]n view of the legislative determination 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 liability for ensuing injury.” Ely v. Murphy, supra, 207 Conn. 95.

In Bohan, our Supreme Court permitted the defendant purveyors of alcohol to seek apportionment of the tortfeasor liability to innocent third party victims of intoxicated minors. Bohan v. Last, supra, 236 Conn. 681. In that case, the defendant tavern impleaded adult patrons who supplied liquor to a minor in the bar in the case brought by the plaintiff against the tavern. The intoxicated minor operated his motor vehicle, causing a one car collision that resulted in the death of the plaintiffs decedent, who was a passenger in the vehicle. “In appropriate circumstances, a purveyor of alcohol to a minor is liable not because he has custodial control over, or a special relationship with, the minor, but because he has negligently plied the minor with alcohol.” Id., 679.

In recognizing a common-law tort action against individuals who negligently furnish alcoholic beverages to individuals they knew or should have known were minors, the court in Ely held that “[t]his is not to say, however, that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect.” Ely v. Murphy, supra, 207 Conn. 97. Bohan also did not “engraft strict liability on this common law duty.” Bohan v. Last, supra, 236 Conn. 681.

The defendants argue that Connecticut does not recognize a common-law negligence action against a purveyor of alcoholic beverages to an intoxicated adult and point to our Supreme Court’s holding in Quinnett v. Newman, supra, 213 Conn. 347, where the court concluded that in the case of a “tavern seller-adult patron situation,” the victim’s remedy does not include a cause of action in negligence or public nuisance because of the enactment of the Dram Shop Act.

The plaintiffs seek to carve out another exception to the common law similar to the one that now exists for negligent service of alcohol to minors. The plaintiffs argue that alcoholics, common drunkards or individuals who are unable to control their consumption of alcoholic beverages are a separate and distinct class because, like minors, they are not able to deal responsibly with the effects of alcohol. The plaintiffs’ claim is compelling in the face of their allegations that the defendants knew or should have known of Driscoll’s inability to control his consumption of alcohol. The notion that alcoholics are a special class is not unique. At least one jurisdiction that does not have an applicable dram shop act has recognized a cause of action for the sale of liquor to an intoxicated alcoholic sounding in intentional or reckless misconduct. See Grasser v. Fleming, 74 Mich. App. 338, 253 N.W.2d 757 (1977).

We, however, need not go beyond the jurisdictional boundaries of Connecticut to find authority that, in a criminal setting, purveyors of intoxicating beverages defy the law by serving liquor to alcoholics or habitual drunkards. General Statutes § 30-86 provides in relevant part: “Any permittee or any servant or agent of a permit-tee who sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing the person to be such an habitual drunkard, shall be subject to the penalties of section 30-113. . . .” (Emphasis added.) We think it is significant that our legislature identified a class of persons to whom purveyors of alcohol are prohibited from selling intoxicating liquor that includes habitual drunkards, as well as minors and intoxicated persons. The victims who are injured as a result of the sale of alcoholic beverages to intoxicated persons may bring a statutory action against a purveyor of intoxicating liquor pursuant to the Dram Shop Act. Those who are injured as the result of providing alcohol to a minor have a cause of action under an exception to the common law pursuant to Ely and Bohan. Public policy, as evidenced in our criminal penalties, prohibits the sale of alcoholic beverages to known alcoholics. A bystander has a cause of action for the negligent infliction of emotional distress against a tortfeasor who proximately caused the injury. Clohessy v. Bachelor, supra, 237 Conn. 31. We, therefore, determine that it is logical to meld the holdings of those cases so that bystander victims who are closely related to the victims of drunken drivers and who are injured as the result of a purveyor’s having provided liquor to known alcoholics should have a legal remedy.

Violation of a statute often forms the legal basis of an action sounding in negligence per se. See Gore v. People’s Savings Bank, 235 Conn. 360, 368, 665 A.2d 1341 (1995). The two-pronged test of negligence per se is (1) whether the plaintiffs are within the class of persons protected by the statute and (2) whether the injury suffered is of the type that the statute is intended to prevent. Id., 368-69. “While in general the violation of a statute is negligence per se, there are limitations to this rule. In order to base a recovery upon negligence in violation of a statute, it must appear that the injury suffered was of a nature which the statute was intended to guard against. ... It is extremely doubtful if these provisions in our Liquor Control Act were intended to guard an intoxicated person from personal injury. Rather, they were passed in pursuance of a broader public policy for the protection of the public at large.” (Citation omitted.) Noonan v. Galick, 19 Conn. Sup. 308, 310, 112 A.2d 892 (1955).

Our common law has a long history forbidding the sale of intoxicating liquor to those individuals who, as the result of illness, disability or predisposition, are unable to control their consumption of alcohol. Cases exist from the mid-nineteenth century concerning the prohibition against selling liquor to habitual drunkards. See, e.g., Barnes v. State, 20 Conn. 232, 237 (1850) (“legislature, for the purpose of protecting, in some measure, the community from the many crimes committed by common drunkards, while under the maddening influence of ardent spirits, may have made it the duty of the rum-seller to see to it, at his peril, that he does not sell to such persons”).

We conclude, therefore, that the allegations of a complaint against purveyors of alcohol who serve liquor to alcoholics or habitual drunkards who are intoxicated when the purveyor knew or should have known that the alcoholic would operate a motor vehicle are sufficient to state a negligence cause of action and, therefore, to survive a motion to strike. Counts three and five of the plaintiffs’ complaint, to the extent that they allege the foregoing, should not have been stricken.

II

The plaintiffs’ second claim is that the court improperly granted the defendants’ motion to strike counts four and six by concluding that they failed to state a cause of action, specifically, reckless infliction of emotional distress. We agree.

The allegations of paragraph twelve of counts four and six are as follows: “The collision, the injuries to Sarah Craig, and the severe emotional injury sustained by [the plaintiffs], were caused by the willful, wanton and/or reckless actions of the [defendants] in one or more of the following ways: (a) in that the Defendant, David L. Davis, instituted a policy in which he required one or more of his employees or the employees of The Pub or Hawk’s Nest, Inc. to continue to serve alcohol to patrons who were intoxicated and instructed them not to refuse service to such patrons, said policy resulting in the service of alcohol to Steven Driscoll on May 21, 1996 while he was in an intoxicated state . . . (b) in that the Defendant, David L. Davis, instituted a policy with regard to Steven Driscoll in particular in which he required one or more of his employees, or the employees of The Pub or Hawk’s Nest, Inc. to continue to serve alcohol to Driscoll even if intoxicated and not to refuse service to Driscoll, said policy resulting in the service of alcohol to Steven Driscoll on May 21, 1996 while he was in an intoxicated state . . . (c) in that [the defendants] served alcoholic beverages to Steven Driscoll when [they] knew that Steven Driscoll was intoxicated and that he would be operating a motor vehicle subsequent to consuming said liquor ...(d) in that [they] were in particular aware of the excessive drinking habits of Steven Driscoll and the fact that Steven Driscoll had driven while intoxicated in the past, yet they continued to serve alcohol to him on May 21, 1996 while in an intoxicated state [and] (e) in that [they] provided liquor to Steven Driscoll when he was visibly intoxicated, and knowing that by doing so, Steven Driscoll would be placing others, such as the [plaintiffs’] decedent, at risk.”

The defendants argue that counts four and six are merely a repetition or rewording of the negligence allegations contained in the third and fifth counts of the plaintiffs’ amended complaint, but realleged as wilful, wanton or reckless misconduct. We conclude, however, that the allegations of counts four and six are not as broad as the allegations of negligence in counts three and five. Counts three and five contain ten subparagraphs of alleged negligence. Counts four and six contain only five subparagraphs and focus on the policy instituted by Davis to serve alcohol to intoxicated patrons of The Pub, Driscoll in particular.

To determine whether the plaintiffs’ amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. “Recklessness is a state of consciousness with reference to the consequences of one’s acts. Commonwealth v. Pierce, 138 Mass. 165, 175 [1884], . . . It is more than negligence, more than gross negligence. Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 [1929]. The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. Bordonaro v. Senk, [supra, 431]. Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985); see also Brown v. Branford, 12 Conn. App. 106, 108, 529 A.2d 743 (1987). . . .

“While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that ‘willful,’ ‘wanton,’ or ‘reckless’ conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . . W. Prosser & W. Keeton, Torts (5th Ed.) § 34, p. 214.” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988).

“The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.” Practice Book § 10-25. See Marrin v. Spearow, 35 Conn. App. 398, 401, 646 A.2d 254 (1994) (party may plead alternative and even inconsistent theories in same action). “There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.” Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940). “One is guilty of reckless misconduct when ‘knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.’ Restatement, 2 Torts, § 500.” Brock v. Waldron, supra, 84. “Whether defendant’s conduct constituted heedless and reckless disregard of the plaintiffs’ rights was a question of fact for the jury whose verdict, based upon conflicting evidence, will not be disturbed unless reasoning minds could not reasonably have reached such conclusion.” (Internal quotation marks omitted.) Id., 83.

Furthermore, our Supreme Court has recognized that although there is no common-law action sounding in negligence against purveyors of alcohol, the Dram Shop Act is not an injured plaintiffs exclusive remedy. Kowal v. Hofher, supra, 181 Conn. 358. The Kowal court held that the policy considerations that protect vendors of alcohol from the consequences of their negligent conduct in the sale of liquor do not apply when the conduct constitutes wanton and reckless misconduct. Id., 360-61.

The allegations of counts four and six of the plaintiffs’ amended complaint allege that Davis instituted a policy, an intentional act. We conclude that the allegations of counts four and six go beyond the allegations of carelessness and negligence alleged in counts three and five. Counts four and six, therefore, allege a separate cause of action. Whether the evidence will support a reckless cause of action is not to be decided here. See DeVita v. Esposito, 13 Conn. App. 101, 105, 535 A.2d 364 (1987) (alternative pleading justified when pleader does not know all facts necessary to make election), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988). The question is whether the complaint states a cause of action. We conclude that counts four and six state a cause of action, that a jury should determine whether the defendants proximately caused the plaintiffs’ injuries and, if so, whether their acts were reckless or merely negligent. The court therefore improperly granted the defendants’ motion to strike counts four and six.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The original plaintiffs were Valerie P. Craig, John S. Craig and Samuel Craig, respectively the parents and brother of the deceased victim, Sarah Craig. John S. Craig withdrew the action in the trial court. In this opinion, we refer to Valerie P. Craig and Samuel Craig as the plaintiffs unless otherwise noted.

       The plaintiffs commenced the action against Steven Driscoll, David L. Davis, Hawk’s Nest, Inc., and Allstate Insurance Company. Davis and Hawk’s Nest, Inc., filed the motion to strike that is at issue in this appeal. In this opinion, we refer to Davis and Hawk’s Nest, Inc., as the defendants.

       We have consolidated the plaintiffs’ claims from the statement of the issues in their brief, specifically, “1. [w]hether the facts [pleaded] by the plaintiffs support a claim for bystander emotional distress against the defendant purveyors of alcohol under the doctrine of Clohessy v. Bachelor, 237 Conn. 31 [675 A.2d 852] (1996) [en banc] . . . 2. [w]hether the plaintiffs’ allegations of negligent service of alcohol can form the basis for a bystander emotional distress claim ... 3. [w]hether the plaintiffs’ allegations of negligence against the defendant purveyors of alcohol, other than those premised upon negligent service of alcohol, can form the basis for a bystander emotional distress claim ... 4. [w]hether the plaintiffs’ allegations of negligent service of alcohol to a known alcoholic, who lacked the capacity to fully understand the risks associated with intoxication, can support a claim of negligently inflicted bystander emotional distress against the defendants as an extension of the doctrines of Ely v. Murphy, 207 Conn. 88 [540 A.2d 54] (1988), and Bohan v. Last, 236 Conn. 670 [674 A.2d 839] (1996); [and] 5. [w]hether the plaintiffs’ allegations of recklessness against the defendant purveyors of alcohol form the basis for a bystander emotional distress claim . . . .”

         At the time the plaintiffs brought this appeal, their claims against Driscoll, who is not a party to the appeal, were still pending. The judgment rendered in favor of Davis and Hawk’s Nest, Inc., however, is a final judgment for purposes of appeal pursuant to Practice Book § 61-3 because it disposed of all causes of action against the defendants. See Turner v. Croman, 52 Conn. App. 445, 446, 726 A.2d 1168 (1999).

       The appellate courts of this state have addressed claims for negligent infliction of emotional distress in the context of various factual scenarios. See, e.g., Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978) (release of address for unlisted telephone number); Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952) (removal of hot water heater from home on false charge that it was not paid for); Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 746 A.2d 184 (prosecuting claim for breach of contract), cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000); Pavliscak v. Bridgeport Hospital, 48 Conn. App. 580, 711 A.2d 747 (termination of employment), cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).

       See, e.g., 2 Restatement (Second), Torts §§ 313, 436 (1965).

       See, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989) (en banc).

       “In 1989, the state department of transportation released ‘Connecticut Traffic Accident Facts’ indicating that, in 22 percent of fatal accidents on Connecticut highways, the driver was influenced by alcohol or drugs. The National Safety Council’s Accident Facts, 1989 Edition, reports that each year, nationwide at least 24,000 people are killed and about 534,000 people are injured by alcohol-related motor vehicle accidents.” Quinnett v. Newman, supra, 213 Conn. 350 n.1 (Peters, C. J., dissenting).

       See Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967).

       General Statutes § 30-102 provides: “If any person, by himself or his 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, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section. In computing such sixty-day period, the time between the death or incapacity of any aggrieved person and the appointment of an executor, administrator, conservator or guardian of his estate shall be excluded, except that the time so excluded shall not exceed one hundred twenty days. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of.”

       The legislature also recognized the relationship between the service of alcohol and injuries that are the result of drunkenness by enacting the Dram Shop Act, General Statutes § 30-102. See footnote 10.

       Throughout this opinion, the terms alcoholic, habitual drunkard and one who tends to drink excessively are used interchangeably. We intend no distinction between the terms.

       The tragic facts of Ely concerned the negligent service of alcohol to minors at a high school graduation party. The defendant was the host father who collected $3 from each of the 400 teenagers who attended the party. An eighteen year old guest became drunk, and as he left the party in his mother’s station wagon, he struck and killed another minor guest. Ely v. Murphy, supra, 207 Conn. 89-90.

         Kowal v. Hofher, supra, 181 Conn. 358-59, however, establishes that § 30-102 is not an exclusive remedy. “There is absolutely no indication, however, that where causation is adequately traced back to the barkeeper who served an intoxicated person an alcoholic beverage the legislature, nevertheless, intended the dram shop act to be the injured plaintiffs exclusive remedy. . . . If the plaintiff has no cause of action against the bartender for negligence, it is not the statute but rather the common law which denies the plaintiff a right of reeoveiy.” (Citations omitted.) Id. Kowal recognized an action for wanton and reckless misconduct.

       General Statutes § 30-113 provides: “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.”

       In paragraph twelve of counts three through six of their amended complaint, the plaintiffs alleged, alternatively, that the defendants were negligent or reckless in serving alcohol to Driscoll, an alcoholic, and in other ways. Paragraph twelve contains numerous subparagraphs alleging that, in addition to serving alcohol to Driscoll, the defendants negligently or recklessly maintained a certain policy with respect to the service of alcohol, failed to warn patrons of the dangers of drinking and driving, failed to implement a designated driver program and failed to have a Breathalyzer within The Pub. Our holding today is limited to the allegations of negligent and reckless service of alcohol to an alcoholic and does not reach the other allegations of tortious conduct.
      In their motion to strike, the defendants did not distinguish the various allegations of tortious conduct in the subparagraphs of paragraph twelve. On appeal, the defendants contend that all of the subparagraphs relate to the service of alcohol. The plaintiffs argue that the defendants’ policy regarding alcohol service, and their failure to warn, to implement a designated driver program or to have a Breathalyzer within The Pub are separate and distinct allegations of negligence or recklessness. We agree with the plaintiffs.
      We do not reach the issue of whether those additional allegations of tortious conduct state a claim because they were not addressed adequately in the trial court or on appeal. The trial court did not distinguish among the allegations of the subparagraphs of paragraph twelve in its memorandum of decision. The plaintiffs argued in the trial court and on appeal, citing several trial court decisions, that those additional allegations raise questions of causation for the jury to determine. That argument puts the cart far in front of the horse; a duty must exist before the question of causation can be reached. The question of duty with regard to the additional allegations was not addressed in the trial court or on appeal. We, therefore, decline to address it.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    BENVENUTI OIL COMPANY, INC. v. FOSS CONSULTANTS, INC.
    (AC 19605)
    Schaller, Spear and Hennessy, Js.
    Argued February 14 —
    officially released August 7, 2001

      Peter J. Bartinik, Jr., for the appellant (plaintiff).

      Patrick F. Lennon, for the appellee (defendant).
   Opinion

SCHALLER, J.

In this action for damages for breach of contract and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., the plaintiff, Benvenuti Oil Company, Inc., appeals from the summary judgment rendered in favor of the defendant, Foss Consultants, Inc. The plaintiffs sole claim on appeal is that the trial court improperly granted the defendant’s motion for summary judgment on the ground that the parties’ January 13, 1996 written agreement that contained a merger clause represented a completely integrated contract, thereby precluding the plaintiff from introducing parol evidence to vary or contradict its terms. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff corporation is a home heating oil business located in Waterford. The defendant corporation sells marketing plans to businesses, including home heating oil businesses. Between December, 1995, and January, 1996, the parties entered into a contract whereby the plaintiff agreed to purchase a marketing plan from the defendant for $25,500. The parties agree that they generated three documents relating to the contract but disagree as to which of those documents constitute the contract. Those documents are (1) a December 8, 1995 invoice provided by the defendant (invoice), (2) a December 9,1995 letter of confirmation signed by the defendant’s president, John Spinogatti (confirmation letter), and (3) a January 13, 1996 document drafted by the defendant and titled “Agreement between Foss Consultants, Inc. [and] Benvenuti Oil Company” (January agreement).

The plaintiff alleges in its complaint that the invoice and confirmation letter are the only documents that constitute the parties’ contract. The invoice contains a twenty-five mile exclusive radius clause, which the plaintiff contends evidences the defendant’s promise not to sell its marketing plan for one year to any competitors within a twenty-five mile radius of the plaintiffs office. According to the plaintiff, the defendant breached that clause by selling the identical marketing plan to one of the plaintiffs nearby competitors, Deep River Oil Company.

The defendant, on the other hand, contends that the January agreement alone constitutes the parties’ contract. The January agreement, according to the defendant, is a final and complete integration of the parties’ contract as indicated by the merger clause contained in paragraph four. The January agreement also contains a twenty-five mile radius clause in paragraph two, which the defendant argues guarantees only that the plaintiff would obtain 250 new customers within a twenty-five mile radius of the plaintiffs office.

On December 9,1998, the defendant filed a motion for summary judgment. After examining all of the extrinsic evidence, the trial court determined that the January agreement was a complete integration of the parties’ contract, and, as such, the plaintiff could not introduce parol evidence, including the invoice, to vary or contradict the terms of the parties’ contract. The court therefore granted the defendant’s motion for summary judgment. This appeal followed.

The plaintiff claims that the trial court improperly determined on a motion for summary judgment that the January agreement was a complete integration of the parties’ contract. Such a determination, the plaintiff argues, involves a factual matter that was in dispute. Accordingly, it argues that the court improperly granted the motion for summary judgment. We are not persuaded.

We begin by setting forth our standard of review applicable to a trial court’s decision regarding a motion for summary judgment. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999) [appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000)].

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear- in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000). Mindful of these principles, we now determine whether the court’s application of the parol evidence rule was legally correct.

“The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract.” (Internal quotation marks omitted.) Scinto v. Sosin, 51 Conn. App. 222, 242, 721 A.2d 552 (1998) , cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999) . “The parol evidence rule does not apply, however, if the written contract is not completely integrated.” Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 65, 605 A.2d 550 (1992). As a threshold matter, therefore, a trial court must determine whether the written contract is a complete integration for purposes of the parol evidence rule.

Such a determination, according to the plaintiff, is a question of fact. We disagree. The characterization of a trial court’s determination regarding the question of whether a contract is integrated will differ depending on whether a merger clause exists in the contract. If the contract does not contain a merger clause, such a determination is primarily a question of fact because the court is allowed to examine the extrinsic evidence. See id. (where no merger clause, question of whether written contract is integrated is preliminary question of fact to be determined by trial court). On the other hand, if the contract contains an unambiguous merger clause, we view such a determination as a question of law in light of Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000).

Recently, our Supreme Court in Tallmadge Bros., Inc., created a novel rule with respect to the effect of the insertion of a merger clause into a contract. The rule, in essence, provides that a merger clause inserted into an agreement establishes conclusive proof of the parties’ intent to create a completely integrated contract, and the court is forbidden from considering extrinsic evidence on the matter unless there was unequal bargaining power between the parties. Id., 504-505. In Tallmadge Bros., Inc., the parties inserted merger clauses into their settlement agreements, which the defendant contended precluded the plaintiff from introducing parol evidence. At a hearing, the trial court examined extrinsic evidence to determine whether the agreements were complete integrations. Because the parties had positions of relatively equal bargaining power, our Supreme Court held that “the parties’ insertion of the merger clauses into the settlement agreements is conclusive evidence of their intent to create fully integrated contracts, and that the trial court’s subsequent consideration of extrinsic evidence was improper.” Id.

Similarly, in this case, the parties’ insertion of the merger clause in the January agreement is conclusive evidence of their intent to create a completely integrated contract. We note that nowhere in its complaint did the plaintiff allege that it held a position of unequal bargaining power when the parties entered into the contract. The trial court thus improperly examined extrinsic evidence to determine whether the January agreement was a completely integrated contract. Although the court did so, it nevertheless arrived at the correct conclusion. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144 (2000). We conclude, therefore, that the trial court’s determination that the January agreement was a complete integration of the parties’ agreement was legally correct. Accordingly, the trial court properly granted the motion for summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its brief, the plaintiff claimed that the trial court improperly failed to consider extrinsic evidence in making its initial determination of whether the January 13,1996 written agreement was a completely integrated contract. An issue arose at oral argument to this court concerning whether the trial court actually considered extrinsic evidence on the matter. As a result, the plaintiff modified his claim at oral argument.

       Both parties signed the January agreement, which consists of only four paragraphs that provide as follows:
      “1. Benvenuti Oil Company affirms that the training which took place on January 12th & 13th, 1996, for the Foss Marketing Program has been satisfactory.
      “2. Foss Consultants, Inc., guarantees that the New Customers obtained from the Foss Marketing Program will be within a 25 mile radius of Benvenuti Oil Company.
      “3. In the event that there is a dispute which results in litigation by either party, then the losing litigant agrees to pay all reasonable attorney fees and expenses incurred by the winning party.
      “4. On Behalf of Benvenuti Oil Company, the buyers representative (the undersigned) has read and reviewed this letter and agrees to the stated terms. This agreement contains a complete and final understanding between both buyer and seller. All promises made by Foss Consultants, Inc., the seller, are in this agreement: there are no others.”

       We note that the Supreme Court created this as a hybrid rule. The court examined the rule adopted in other jurisdictions concerning a merger clause. It recognized that some jurisdictions have held that a merger clause constitutes conclusive proof that the parties intended their agreement to be completely integrated, while other jurisdictions have held that a merger clause merely creates a rebuttable presumption on the matter. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 504 & n.15. After noting these approaches, our Supreme Court rejected both and, instead, created this novel approach.

       Our Supreme Court also noted other circumstances under which the rule would not apply. They are circumstances involving fraud, duress or contracts that contravene public policy. Tallmadge Bros., Inc. v. Iroquois

        Gas Transmission System, L.P., supra, 252 Conn. 504. None of those concerns, however, is implicated in the present case.


author: DUPONT, J.

text:
    STEVEN R. POULIN v. ROBERT S. YASNER
    (AC 19671)
    Landau, Pellegrino and Dupont, Js.
    Argued December 6, 2000 —
    officially released August 7, 2001

      Eddi Z. Zyko, for the appellant (plaintiff).

      James J. Noonan, with whom, on the brief, was James Rosenblum, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Steven R. Poulin, appeals from the judgment for the defendant, Robert S. Yasner, in this medical malpractice cause of action. The judgment followed the granting of a directed verdict in favor of the defendant and the denial of the plaintiffs motion to set aside the directed verdict. The issues are (1) whether the trial court improperly precluded the plaintiffs expert; from testifying as to the proximate cause of the plaintiffs injuries and damages, and (2) whether without such expert testimony, the jury would have had enough other evidence to conclude that more probably than not the defendant’s breach of the standard of care was the proximate cause of the plaintiffs injuries. We reverse the judgment in part and affirm it in part.

The following facts and procedural history are necessary to our resolution of the plaintiffs appeal. The plaintiff initially sought medical treatment from the defendant in September, 1986. From that time until October, 1992, the defendant was the plaintiffs primary care physician. During those six years, the plaintiff saw the defendant numerous times for varying reasons.

On September 4, 1992, the plaintiff made an appointment with the defendant because he was experiencing abdominal pains and nausea. After seeing the defendant that day, a member of the defendant’s staff transported the plaintiff from the defendant’s office to Norwalk Hospital, where he remained for seven weeks. He was diagnosed as suffering from alcoholism and acute pancreatitis.

In August, 1994, the plaintiff commenced an action against the defendant in two counts alleging (1) a failure to prevent, diagnose, treat or refer him for prevention, diagnosis and treatment of alcoholism and acute pancreatitis, and (2) a breach of a contractual obligation. At the close of the plaintiffs case, the court directed a verdict for the defendant pursuant to the defendant’s motion, which the court thereafter refused to set aside. The court then rendered judgment for the defendant. This appeal followed.

I

The plaintiff sought damages in a two count complaint, one count in negligence and the other in contract. During oral argument to this court, we questioned whether the directed verdict for the defendant applied to count two of his complaint as well as to count one. Because a final judgment on both counts is a necessary predicate to our jurisdiction; see Practice Book §§61-1, 61-2, 61-3; we address that issue first.

We requested the submission of simultaneous supplemental briefs by February 14, 2001, limited to the issue of whether there was a final judgment as to count two of the plaintiffs complaint, the alleged breach of contract cause of action.

The parties’ arguments on the defendant’s oral motion for a directed verdict, which the defendant made after the plaintiff had rested his case, related solely to count one. The court’s oral rationale for the judgment as rendered does not explicitly mention either count. Our review of the transcript leads us to conclude, however, that the court intended to render judgment for the defendant on both counts. In the court’s remarks to the jury explaining the direction of the verdict, the court stated that the case was both a breach of contract case and a medical negligence case.

In his brief to this court, the plaintiff does not argue that the trial court improperly rendered judgment for the defendant as to the contract claim alleged in count two. Furthermore, we find nothing in the transcript showing that the plaintiff produced any evidence regarding the existence of a contract between him and the defendant concerning a specific result, i.e., guaranteeing that the plaintiff would not suffer from alcoholism or acute pancreatitis. Also, the plaintiff did not produce any evidence as to the care the defendant should have provided pursuant to that contract or as to the breach of any contract.

The trial court was aware of both counts, and we conclude that there was a final judgment as to both. We, therefore, affirm the judgment of the court for the defendant as to count two and conclude that the judgment as to count one is ripe for appellate review.

II

The plaintiff maintains that the court improperly precluded his expert from testifying as to the proximate cause of the plaintiffs injuries and damages. The plaintiffs compliant alleges that as a proximate result of the defendant’s negligence he almost died, that he suffered a lengthy hospitalization and that he underwent multiple surgical procedures. He alleges that he had spent $200,000 to the date of the complaint for hospitalization and medical care, and that he had suffered and will continue to suffer physical and emotional pain, loss of earning capacity and impairment of the ability to carry on life’s activities.

According to the plaintiff, the court’s ruling to preclude the expert’s testimony concerning proximate cause led to the improper granting of the defendant’s motion for a directed verdict. The plaintiff also argued to the court that even without expert testimony as to proximate cause, the jury’s general knowledge of alcoholism and the plaintiffs testimony were sufficient to allow the jury to consider whether the defendant’s conduct proximately caused the plaintiffs injuries. The plaintiff claims, and the court recognized, that there are instances in which the failure to diagnose and to treat can result in a lost opportunity that can form the basis for proximate cause in a medical malpractice case. The defendant argued to the court that the plaintiff had not produced any evidence as to the proximate cause of the plaintiffs injuries, either by an expert witness or through any other evidence.

We begin with a brief discussion of the well settled legal principles applicable to this case. A court should direct a verdict if, on the evidence, the jury reasonably and legally could not have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). A directed verdict is justified if the plaintiff fails to present any evidence as to a necessary element of his or her cause of action. See Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 264, 688 A.2d 352 (1997).

It is also instructive to discuss the issue of proximate cause because it was the lack of evidence as to that element that was, according to the court, fatal to the plaintiffs case. “To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct ‘legally caused’ the injuries. . . . The first component of ‘legal cause’ is ‘causation in fact’ . . . [which] is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct.” (Citations omitted; internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).

Legal cause also includes proximate cause. Our Supreme Court “has often stated that the ‘test’ of proximate cause is whether the defendant’s conduct is a ‘substantial factor’ in producing the plaintiffs injury. . . . The ‘substantial factor’ test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. ... In applying this test, we look from the injury to the negligent act complained of for the necessary causal connection.” (Citations omitted; internal quotation marks omitted.) Id., 759.

The following additional facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff alleged in his complaint that he engaged the services of the defendant to be his primary treating physician in September, 1986, and that the defendant had a duty to ensure that the plaintiff received good quality medical care and to do him no harm. The complaint alleged that the defendant breached that duty in that the defendant was negligent and careless in twenty-seven different ways, and that such negligence and carelessness proximately caused the plaintiffs injuries and damages. The complaint further alleges that the defendant failed to diagnose acute pancreatitis and the underlying alcoholism, and failed either to treat or to refer the plaintiff to others for such treatment.

At trial, the plaintiff offered expert testimony from Robert H. Resnick, a board certified physician in internal medicine, who testified that the prevention, treatment and diagnosis of acute pancreatitis and alcoholism or alcohol abuse are within the purview of the internal medical specialty. Both Resnick and the defendant specialize in internal medicine. The court accepted Resnick’s qualifications as an expert in internal medicine and allowed him to testify about the standard of care owed to the plaintiff and about the breach by the defendant of that standard in thirteen discrete ways. The plaintiff then attempted to elicit from Resnick his opinion concerning the proximate cause of the plaintiffs injuries. The defendant objected to the question on several grounds, namely, that it was a leading question, that its form was improper and that it lacked a foundation. The court sustained the objection as to the lack of a foundation.

The plaintiff then attempted to establish a foundation and asked Resnick to identify the standard of care. Resnick did so and then also testified about, in his opinion, the defendant’s thirteen deviations from that standard. After lengthy testimony about those areas, the plaintiff again asked Resnick’s opinion regarding the proximate cause of the plaintiffs injuries. The defendant again objected to the question on the grounds that the witness was not competent to offer an opinion, that the question lacked a proper foundation and that it was not in proper form. The court sustained the objection on the grounds that there was an insufficient foundation for an opinion as to proximate cause and that the court had insufficient information to conclude that Resnick was competent to offer an opinion as to the proximate cause of the plaintiffs injuries.

In an attempt to cure the competency issue, the plaintiff then made an offer of proof and examined Resnick outside the presence of the jury regarding his professional background. Following the offer of proof, the court stated that it saw “no reason to change its ruling. The objection is sustained on the remaining grounds except as to form.”

The court stated that the issue was not whether the expert could testify competently that alcoholism is a producing cause of acute pancreatitis, but whether the expert could testify that the defendant’s breach of the standard of care owed to the plaintiff resulted in a lost opportunity for the plaintiff to cease his consumption of alcohol. The court correctly analyzed the breach of the standard of care in this case as being a failure to diagnose the plaintiff as suffering from alcoholism because the defendant allegedly failed to order appropriate blood tests and failed to ask the plaintiff about his alcohol consumption or his family’s consumption, and as being a failure of treatment because the defendant did not refer the plaintiff to appropriate physicians, persons or agencies.

Neither party disputes that the jury was entitled to hear Kesnick’s testimony concerning the plaintiffs injuries, damages, the standard of care owed by the defendant to the plaintiff, and the defendant’s breaches of that standard. The question is whether the court should have allowed the plaintiff to elicit Resnick’s opinion regarding proximate cause or, if not, whether the plaintiff was entitled to have the jury decide if proximate cause existed on the basis of other evidence, even without any expert testimony.

All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiffs injury. “Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” Shegog v. Zabrecky, 36 Conn. App. 737, 745-46, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).

A

We first discuss whether the opinion asked of Resnick as to proximate cause had a foundation. The question of foundation for an expert’s opinion has recently been explored by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). In State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), Connecticut adopted the Dauberl rationale. Daubert interprets rule 702 of the Federal Rules of Evidence. In this case, we also consider §§ 7-2 and 7-4 of the Connecticut Code of Evidence, General Statutes § 52-184c (c) and (d), and George v. Ericson, 250 Conn. 312, 736 A.2d 889 (1999) (en banc), to determine whether the court properly precluded Resnick from giving his opinion as to proximate cause.

Daubert held that the standard for admitting expert scientific testimony in a federal trial does not necessarily include general acceptance by the scientific community of the particular opinion. Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 590. That case interprets rule 702 of the Federal Rules of Evidence as allowing the introduction of such expert testimony as long as the trial court has ensured that the opinion of the expert is relevant and reliable. Id., 589. Daubert, thus, relied on the concept of a “gatekeeper” function for a trial court. In Porter, our Supreme Court adopted the principles of Daubert; State v. Porter, supra, 241 Conn. 68; as does § 7-2 of the Connecticut Code of Evidence. Whether to admit such testimony is within the court’s discretion. General Electric Co. v. Joiner, 522 U.S. 136, 139, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). Kumho enlarged the scope of Daubert to determine that rule 702 of the Federal Rules of Evidence applied not only to scientific testimony, but to other areas of expertise, including technical and other specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, supra, 526 U.S. 147.

In the present case, the court, after noting that Daubert’s rationale is not limited to scientific testimony, determined that the court had a gatekeeper function. The question seeking to elicit Resnick’s opinion as to the cause of the plaintiffs injury on the basis of reasonable medical probability rested on his examination of the plaintiff, his review of the plaintiffs files, the defendant’s chart and the records from Norwalk Hospital, and the depositions of the defendant and the plaintiff. The court concluded that Resnick’s opinion lacked a foundation as to proximate cause.

Section 7-4 of the Connecticut Code of Evidence allows an expert to offer an opinion and his reasons for that opinion provided sufficient facts are shown as the foundation for the expert’s opinion. See footnote 10. General Statutes § 52-184c (c) and (d) allow a health care provider trained and experienced in a medical specialty similar to that of the defendant health care provider to testify in a medical malpractice case. See footnotes 12 and 13. The court concluded that Resnick’s specialty was similar to the defendant’s specialty and that Resnick was a similar health care provider.

In George, our Supreme Court established that a non-treating physician’s opinion may be admissible even if it is based on what would otherwise be inadmissible hearsay as long as the opinion is based on trustworthy information and the expert has had sufficient experience to evaluate it, including tests, medical records, statements by a party, laboratory reports and X rays. George v. Ericson, supra, 250 Conn. 321-24. The sources of information are not limited and include “many types of information.” Id., 323. It is not uncommon for an expert to rely on the depositions of the parties. Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). The sources that Resnick had reviewed, upon which the question in this case rested, could form a reliable basis for an expert opinion. Those sources were the plaintiffs files, charts and records from the hospital, as well as the depositions of the plaintiff and the defendant. Nothing in George indicates that the expert may rely only on in-court live testimony.

In this case, we conclude that Resnick could evaluate the information available on the basis of his experience and was competent to do so. Resnick is a board certified internist and had specific experience relating to diagnosing and treating alcoholic pancreatitis at various hospitals. He had treated a significant number of patients who had pancreatic disease attributable to alcoholism and, at the time of trial, taught at Harvard Medical School and had been elected to the American College of Physicians. The defendant himself testified that physicians who specialize in internal medicine are trained to diagnose alcoholism as a disease as well as its impact on other diseases.

In this case, to war'd off a directed verdict on the ground that proximate cause was lacking, the plaintiff needed to present some evidence from which a jury reasonably and legally could conclude that it was more probable than not that the plaintiff was an alcoholic; that alcoholism can cause acute pancreatitis; that the plaintiff had acute pancreatitis; that alcohol caused the plaintiffs acute pancreatitis; that the plaintiff would have stopped drinking if so advised by the defendant and that if the plaintiff had stopped drinking, the plaintiff would not have suffered acute pancreatitis.

Resnick was sufficiently qualified to express an opinion on the basis of all the data available to him, including the plaintiffs statements to him, as to whether it was more probable than not that an alcoholic such as the plaintiff would stop drinking if informed of the consequences if he did not. He was also competent to express an opinion that if the plaintiff had stopped drinking, it was more probable than not that he would not have suffered from acute pancreatitis. We conclude that Resnick was competent to testily as to the proximate cause of the plaintiffs injury, that there was a foundation for him to do so and that it was harmful to the plaintiff to exclude the testimony. See Borkowski v. Sacheti, 43 Conn. App. 294, 315, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996).

B

The court not only precluded Resnick from testifying concerning proximate cause, but also concluded that expert testimony was necessary for proof of proximate cause. The court characterized the medical malpractice claim as a “lost chance” or a “loss of chance” claim and extensively reviewed various Connecticut cases to determine if it fell within any of the exceptions in such cases that would obviate the plaintiffs need to prove proximate cause by expert testimony.

We agree with the court that the plaintiff’s complaint reasonably can be read as stating a cause of action for a lost chance because it alleges the defendant’s failure to diagnose promptly or to refer the plaintiff to a specialist in treating alcoholics, or to warn the plaintiff of the necessity of not drinking alcoholic beverages. All of the plaintiffs allegations relate to acts of omission rather than commission, and relate to the harm caused by the inaction of the defendant in that the plaintiff lost an opportunity to be treated more promptly for alcoholism and lost an opportunity to cease drinking, which led to the resultant complication, acute pancreatitis.

Connecticut recognizes a cause of action for lost chance. A plaintiff must prove his entitlement to recover in a medical malpractice case based upon lost chance by providing evidence that would lead a jury to the reasonable conclusion that, more probably than not, the defendant’s negligence was the direct and proximate cause of a decrease in the chance of successful treatment of the plaintiffs injury. Id., 310; LaBieniec v. Baker, 11 Conn. App. 199, 207, 526 A.2d 1341 (1987); see also Law v. Camp, 116 F. Sup. 2d 295, 305 (D. Conn. 2000). In Connecticut, such cases follow a traditional approach in the determination of proximate cause. Borkowski v. Sacheti, supra, 43 Conn. App. 311; see also Wallace v. St. Francis Hospital & Medical Center, supra, 44 Conn. App. 262; LaBieniec v. Baker, supra, 207; Law v. Camp, supra, 305.

There are a number of Connecticut cases that are lost chance cases, and in at least two of them the court allowed an expert to testily as to proximate cause. Grody v. Tulin, 170 Conn. 443, 365 A.2d 1076 (1976), is a wrongful death action, in which the plaintiff alleged a failure to diagnose a fatal spinal cancer. A directed verdict for the defendants was appropriate in that case because the expert witness testified that it was not reasonably probable that the plaintiffs life would have been prolonged if she had had the proper tests to diagnose the cancer earlier. Id., 450 & n.3. Without such testimony, the jury could not speculate as to whether an earlier diagnosis and treatment might have prolonged the decedent’s life. Id., 450-51. To prevent a directed verdict, the plaintiff had to show more than that earlier treatment might have been beneficial. It is noteworthy that in Grody, the court allowed a plaintiff s expert to testify as to the proximate cause of the plaintiffs injuries. Id., 449-50.

In LaBieniec, the complaint alleged a failure to detect lung cancer in X rays, which led to a spread of the cancer and a metastasizing to the plaintiffs brain. The plaintiff claimed that the delay in learning of the cancer caused him emotional distress and a decreased chance of survival. This court noted that if a delay in a definitive diagnosis proximately harmed a plaintiff, a physician could be held liable, but that, although there was malpractice, i.e., negligence, in the misreading of the X rays, the malpractice was not shown to be the proximate cause of the injury. LaBieniec v. Baker, supra, 11 Conn. App. 207. The plaintiff did not show that he was in fact deprived of a chance for successful treatment and did not show that the decreased chance for successful treatment more probably than not resulted from the defendant’s negligence. Id., 207-208. In LaBieniec, the court allowed an expert witness to testify as to proximate cause, but that testimony did not establish a causal connection between the negligence of the defendant and the plaintiffs injury. Id., 207.

In Borkowski, the trial court refused to charge the jury on the lost chance count of the plaintiffs complaint because it determined that such a cause of action did not exist in Connecticut. Borkowski v. Sacheti, supra, 43 Conn. App. 296. Because the jury was not allowed to determine the issue, which was tantamount to a directed verdict for the defendant, this court ordered a new trial. Id., 315. In that case, the court allowed the defendant to admit evidence to show that the plaintiffs decedent was a noncompliant patient who did not attend to his own medical needs and caused his own death. Id.

In the present case, the defendant’s special defense was that the plaintiff failed to follow the defendant’s advice and instructions, and that any injuries were caused by the plaintiff himself and not by the defendant. There was some evidence admitted at trial to show that the defendant had given the plaintiff some advice to stop drinking and that the plaintiff had failed to follow that advice. Even without an allegation of contributory negligence, such evidence was proper. See id., 325.

In Wallace, another lost chance case, the rapid death of the plaintiffs decedent in the defendant’s emergency room was held not to be causally related to the failure of the hospital to perform surgery where the decedent died from a massive recent intraperitoneai hemorrhage, which bleeding was unexplained. On the basis of the defendant’s objection as to competence, the court precluded an expert witness from testifying as to proximate cause because he was not a surgeon and, therefore, was not qualified to render an opinion as to a surgical outcome had surgery been performed. Wallace v. St. Francis Hospital & Medical Center, supra, 44 Conn. App. 260. This court determined that the trial court had properly precluded the testimony.

There are three exceptions to the necessity of obtaining expert testimony to prove a plaintiffs case in a medical malpractice action. Those exceptions are when the negligence is gross, when the medical condition is obvious and when the plaintiffs evidence of injury creates a probability so strong that a lay juror can form a reasonable belief. Shegog v. Zabrecky, supra, 36 Conn. App. 746-47. The court in this case concluded that none of the three exceptions for expert opinion cases obviated the necessity for an expert opinion. The court was correct in that conclusion.

Other cases discuss the exceptions as identified in Shegog that make it unnecessary to provide expert testimony to prove proximate cause or negligence; see Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982); Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 314-17, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996); to prove medical damages for future pain and suffering; see Boland v. Vanderbilt, 140 Conn. 520, 523, 102 A.2d 362 (1953); Parker v. Supermarkets General Corp., 36 Conn. App. 647, 650-51, 652 A.2d 1047 (1995); or to establish permanency of an injury; see Trani v. Anchor Hocking Glass Corp., 142 Conn. 541, 544, 116 A.2d 167 (1955); Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

Puro concludes that negligence in malpractice cases ordinarily requires expert testimony unless the facts show such a gross lack of care that warrants an almost conclusive inference of negligence. Puro v. Henry, supra, 188 Conn. 305. Circumstantial evidence was sufficient in Puro to conclude that the defendants left a needle in the plaintiffs abdominal wall during surgery, and that the needle caused the plaintiff pain and suffering that necessitated further surgery. Id., 308. Thus, both negligence and proximate cause can be inferred without expert testimony if the facts show a gross lack of care. The facts of the present case do not allow a conclusion of gross lack of care.

The second exception to the necessity for expert testimony occurs in the situation in which the medical condition is obvious. The plaintiff testified that until September, 1992, when he was admitted to the hospital, he did not know that he had a problem with alcohol. The plaintiff testified that he did not exhibit any of the classic symptoms of alcoholism, such as loss of jobs, arrests or inability to refrain from drinking during the day. On the basis of those facts, the medical condition of alcoholism was not obvious and, therefore, the plaintiff does not fall within the exception to the requirement of expert testimony.

The third exception to a need for expert testimony in lost chance cases revolves around whether lay jurors can resolve the issue by use of their common knowledge. If the fact finders can answer the question at issue without expert opinion because it is within their common experience and need not be resolved by the use of peculiar or specialized knowledge, no expert testimony is required. Id., 309. Bourquin establishes that negligence in a medical malpractice case may consist of a failure to investigate the source of human tissue material used in an operation when the box in which it was contained had warnings on it and that expert testimony is not necessary to show that negligence. Bourquin v. B. Braun Melsungen, supra, 40 Conn. App. 316. That is so because the warnings do not present a uniquely medical issue. Similarly, the requisite causal relationship between the hospital’s alleged negligence and the decedent’s death in that case needed no expert testimony other than the cause of death. Id., 317. A failure to heed the warnings on the box could allow a jury to conclude that the failure was the proximate cause of the injury.

The defendant’s file on the plaintiff indicates that the plaintiff told the defendant in 1986 that he drank six beers per day, that the defendant’s plan for the plaintiff was that he discontinue alcohol for two weeks before repeating a liver function test, and that in June, 1991, the plan was to reduce alcohol and beer consumption. The plaintiffs testimony implies that the defendant did not tell him about the consequences of drinking. There was also evidence that the plaintiff said he would tiy to stop drinking on his own and that he did not accept a referral to a rehabilitation program after he was discharged from the hospital.

The plaintiff could testify as to whether he would have followed the defendant’s advice, if given, to stop drinking, and the jury, without expert opinion, could decide, on the basis of the plaintiffs credibility, whether that was so. It was not within the jury’s common knowledge, however, to determine whether, if the plaintiff had ceased drinking, acute pancreatitis would not have resulted. For that aspect of proximate cause, an expert opinion was necessary. The plaintiff therefore fails to come within the third exception to the requirement of expert testimony.

The plaintiff should have had an opportunity to allow a jury to decide, on the basis of the offered expert opinion if, more probably than not, a causal connection existed between the failure of the defendant to diagnose the plaintiffs alcoholism and the plaintiffs contraction of acute pancreatitis. A new trial is necessary. See Borkowski v. Sacheti, supra, 43 Conn. App. 315.

The judgment as to count two is affirmed; the judgment as to count one is reversed and the case is remanded for a new trial as to count one.

In this opinion the other judges concurred.

       The parties’ briefs concentrate on the first issue. The trial court, however, considered the second issue in depth.

       The plaintiff originally named Merck Pharmaceuticals as a codefendant, but withdrew that claim prior to trial.

       We note that the plaintiff did not attempt to obtain, pursuant to Practice Book § 61-4 (a), “a written determination that the issues resolved by the judgment [on count one] are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified . . . If such determination is obtained from the trial court and the chief judge of this court concurs, an immediate appeal may be taken even in the absence of a judgment disposing of the entire complaint.

       After submission of the supplemental briefs, the plaintiff filed a motion to strike the defendant’s supplemental brief. The defendant objected to that motion, and on March 8, 2001, this court denied the motion to strike.

       The court stated in relevant part: “In a medical negligence case, even though this is a breach of contract and a medical negligence case, it all comes down to the same ... a medical negligence case.” The two causes of action are distinct. See Rumbin v. Baez, 52 Conn. App. 487, 491, 727 A.2d 744 (1999). Because a contract claim involves a situation where the physician and patient contract for a specific result; id.; proof of a contract claim does not usually require expert medical testimony.

       The colloquy with respect to the question as to proximate cause on direct examination is as follows:
      “[Plaintiffs Counsel]: Doctor, based upon the examination which you did and your review of the files, [the plaintiffs] chart and the records from Norwalk Hospital as well as the depositions of [the defendant] and of [the plaintiff], do you have an opinion based upon reasonable medical probability as to the cause of the [plaintiffs] injury?
      “[Witness]: Yes.
      “[Plaintiffs Counsel]: Okay; what is your opinion doctor?
      “[Witness]: I believe that the injury to which you refer, I assume the hospital injury, was clearly an instance of alcoholic hepatitis — excuse me, alcoholic pancreatitis in association with, which there was some alcoholic hepatitis as well and also clearly evidence of alcohol abuse at that point in time.

        “[Plaintiffs Counsel]: Now, is it reasonably probable that [the plaintiffs] injuries occurred as a result of the failure to detect alcoholism and acute pancreatitis?
      “[Defense Counsel]: Objection.”

       The plaintiffs counsel asked the following question: “Now, doctor, do you have an opinion with any reasonable degree of medical certainty as to whether these thirteen departures which you just mentioned from the standard of care were a substantial factor in causing the plaintiffs injuries?”

       The defense counsel originally stated that he objected to the question based on speculation, but he then couched the objection in terms of lack of foundation.

       Rule 702 of the Federal Rules of Evidence provides in relevant, part,: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise . . .

       Connecticut Code of Evidence § 7-2 is virtually identical to rule 702 of the Federal Rules of Evidence and provides as follows: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

       Section 7-4 of the Connecticut Code of Evidence provides in relevant part: “(a) ... An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts axe shown as the foundation for the expert’s opinion.
      “(b) . . . The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert, at, or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence.”

       General Statutes § 52-184c (c) provides: “If the defendant, health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not, within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.”

       General Statutes § 52-184c (d) provides in relevant part: “Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section . . .

       The present case is not one in which a trial court is asked to act as the oft-described “gatekeeper” to determine whether an expert may opine as to an unsettled or controversial matter based on legitimate scientific methodology that is relevant and reliable.

       The court stated in relevant part: “So, the full range of my gatekeeper function allows me to entertain the question concerning Dr. Resnick’s ability to testify as to proximate cause. Under the statute [§ 52-184c (c) and (d)], Dr. Resnick is a similar health care provider. He is board certified in internal medicine, and, therefore, is competent to testify as to the standard of care applicable to the treatment and claims of nontreatment or nonreferral by [the defendant]. He is equally competent to testify concerning the violations of those standards of care and has itemized thirteen of them. . . .
      “But, the question is whether or not under the circumstances and the testimony and the facts of this case he is competent to testify as to the element of proximate cause, which is a different issue entirely. . . .
      “The court believes that there is insufficient foundation to take this issue beyond the area of speculation. The court believes that there are insufficient facts that have been adduced in this case and in the question for that question to be asked. And, therefore, the court is going to sustain the dual objection as to speculation, which has been recouched in the language of foundation.
      “Furthermore, the court believes under its gatekeeper function and under the general rules of evidence, that the court is equally going to sustain the objection as to the competency of Dr. Resnick to opine as to proximate cause, there being insufficient information in the record for me to make such a determination.”

       The court stated: “The fact that depositions were offered has nothing to do with anything because that is not evidence in this case. [The plaintiffs] deposition is not evidence in this case. [The defendant’s] deposition is not evidence in this case. What is evidence in this case is what went before the jury, which was the live testimony. [Resnick] was not here during the live testimony. He has indicated that he reviewed it. Normally you would not do so, but you have to establish the foundation of that before you go through it.
      “I am going to sustain the objection, and you are going to wind up having virtually every other question in this regard sustained by me unless there is appropriate foundation being installed in evidence in this case.

        “That’s my ruling. I have sustained the objection on the basis of foundation. Yes, it is leading, too. I am not concerned so much about that.”

       The interpretation of pleadings is a question of law and requires an interpretation by the court. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996). The plaintiff did not use the words “lost chance” or “loss of a chance” in his complaint.

         Borkowski v. Sacheti, supra, 43 Conn. App. 302-307, discusses three possible routes in effectuating the lost chance doctrine, the relaxed causation approach, the proportional approach and the traditional approach, and concludes that Connecticut follows the traditional approach.