author: BORDEN, J. PALMER, J.,

text:
    THE STAMFORD HOSPITAL v. NELLY E. VEGA
    (15162)
    Peters, C. X, and Borden, Berdon, Katz and Palmer, Js.

      Argued October 24, 1995
    officially released April 16, 1996

      Donald T. Ridley, pro hac vice, with whom was Ikechukwu Umeugo, for the appellant (defendant).

      Paul E. Knag, with whom were Martin A. Clarke and, on the brief, William H. Narwold and Charles D. Ray, for the appellee (plaintiff).

      Susan Snook filed a brief for the Watchtower Bible and Tract Society of New York, Inc., as amicus curiae.
   BORDEN, J.

The dispositive issues in this certified appeal are whether: (1) the Appellate Court improperly dismissed the defendant’s appeal as moot; and (2) the trial court improperly granted the plaintiffs request for an injunction permitting it to administer blood transfusions to the defendant against her wishes. The defendant, Nelly E. Vega, a patient under the care of the plaintiff, Stamford Hospital (hospital), appeals, following our grant of certification, from the judgment of the Appellate Court dismissing as moot Vega’s appeal from the judgment of the trial court, which had granted the hospital’s request for an injunction permitting it to administer blood transfusions to Vega. We conclude that: (1) the appeal falls within the exception to the mootness doctrine for cases that are capable of repetition, yet evading review; and (2) under the circumstances of this case, the trial court’s order permitting the hospital to transfuse Vega against her will violated her common law right of bodily self-determination. Accordingly, we reverse the judgment of the Appellate Court.

The facts and procedural history are undisputed. On Friday, August 26,1994, Vega was admitted as a patient to the hospital to deliver her first child. That evening, Vega, a Jehovah’s Witness, executed a release requesting that no blood or its derivatives be administered to her during her hospitalization, and relieving the hospital and its personnel of liability for any adverse effects that might result from her refusal to permit the use of blood in her treatment. Vega’s husband also signed the release.

According to the amicus curiae, which is the Watchtower Bible and Tract Society of New York, Inc., the parent organization of the Jehovah’s Witnesses, the Jehovah’s Witnesses comprise a Christian religious faith whose adherents devote themselves to the study of God’s word and strive to apply its counsel in all aspects of their lives. Jehovah’s Witnesses believe that the scripture directs them to abstain from receiving blood, and that an individual who receives blood will be denied resurrection and eternal salvation. They also consider a nonconsensual blood transfusion to be a gross physical violation as well as a violation of the individual’s values. Accordingly, when Jehovah’s Witnesses seek medical care, they regularly refuse blood transfusions.

On August 27, 1994, Vega delivered a healthy baby. Following the delivery, Vega bled heavily as a result of a retained piece of the placenta. Her obstetrician, Savita Sood, recommended a dilation and curettage in order to stop the bleeding. Although Vega agreed to permit Sood to perform the dilation and curettage, she refused to allow a blood transfusion. Prior to undergoing the procedure, she had signed another release requesting that she be given no transfusions and releasing the hospital from liability. Despite the dilation and curettage, Vega continued to hemorrhage.

Vega’s physicians tried a number of alternatives to the use of blood, but her condition continued to worsen. Eventually, when she was having difficulty breathing, her physicians placed her on a respirator in the intensive care unit. Vega and her husband maintained throughout these events that, although she might die without blood transfusions, it was against their religious beliefs to allow the use of blood. Because Sood and the other physicians involved in Vega’s care believed that it was essential that she receive blood in order to survive, the hospital, at 2 a.m. on August 28, 1994, filed a complaint against Vega, requesting that the court issue an injunction that would permit the hospital to administer blood transfusions to her.

The trial court convened an emergency hearing at the hospital at 3:25 a.m. on August 28. Although Vega’s attorney, who was en route to the hospital, had not yet arrived, the court appointed Vega’s husband as her guardian ad litem and began hearing testimony. Vega’s doctors testified that they had exhausted all nonblood alternatives and that, with reasonable medical certainty, she would die without blood transfusions. Her husband testified that, on the basis of his religious beliefs as a Jehovah’s Witness, he continued to support his wife’s decision to refuse transfusions and believed that she would take the same position if she were able to participate in the hearing.

The court, relying on the state’s interests in preserving life and protecting innocent third parties, and noting that Vega’s life could be saved by a blood transfusion, granted the hospital’s request for an injunction permitting it to administer blood transfusions to her. The court then stayed the order until Vega’s attorney had arrived and had been given an opportunity to present argument and additional evidence. At 6:20 a.m. on August 28, the court reinstated its judgment permitting the hospital to administer blood transfusions to Vega and terminated the stay incident to any appeal taken by Vega. Vega was then given blood transfusions, recovered, and was discharged from the hospital.

Vega appealed to the Appellate Court from the trial court’s judgment. The hospital moved to dismiss the appeal on the ground of mootness, and the Appellate Court granted the hospital’s motion. This certified appeal followed.

I

We first consider the issue of mootness. The Appellate Court granted the hospital’s motion to dismiss the appeal as moot, rejecting Vega’s arguments that (1) there were collateral consequences flowing from the trial court’s order, and (2) the appeal fell within the exception to the mootness doctrine for issues of public importance that are capable of repetition, yet evading review.

Subsequent to the Appellate Court’s ruling, we decided Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995), in which we clarified the standards for determining whether an otherwise moot case is nonetheless justiciable because it is capable of repetition, yet likely to evade review. We, therefore, requested that the parties to this appeal address the question of what impact, if any, Loisel has on this case. The hospital no longer contends that the case is moot because it concedes that, under the criteria we set forth in Loisel, this case is capable of repetition, yet is likely to evade review. Notwithstanding the hospital’s concession, and the resulting lack of dispute between the parties, because the question of mootness implicates our subject matter jurisdiction; Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992); we consider the issue of mootness.

“[F]or an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance.” Loisel v. Rowe, supra, 233 Conn. 382. All three requirements must be met in order for this exception to the mootness doctrine to apply. Id., 382-83. We conclude that this case satisfies all three requirements.

A challenge to the issuance of an injunction permitting the administration of nonconsensual blood transfusions will virtually always become moot long before appellate litigation can be concluded or even, as in this case, initiated. Of necessity, a medically necessary blood transfusion must be accomplished, if at all, as soon as reasonably possible after its need becomes apparent to the patient’s health care provider. Once a court order is issued permitting such a transfusion against the patient’s will, and the court lifts any stay of that order, as it will inevitably do, we cannot expect the health provider that sought the order to await the outcome of an appeal before complying with the order. Thus, any order that is challenged on appeal is, by its very nature, of such limited duration that it is virtually certain that it will become moot before appellate litigation can be concluded.

Furthermore, although Vega herself may not again be subjected to nonconsensual blood transfusions, she is nonetheless a suitable party to bring this appeal. It is reasonably likely that the issues raised in this appeal will arise in the future when other Jehovah’s Witnesses experience medical conditions that require blood transfusions. The amicus informs us that, in the six years preceding this appeal, it received reports of, or was directly involved with, fifteen instances in Connecticut in which Jehovah’s Witnesses encountered problems related to their refusal of transfusions. The hospital certainly expects the issue to recur, as is indicated by the fact that it has a release form specifically directed to the refusal of transfusions. Thus, as a member of an identifiable group for whom the issue of nonconsensual blood transfusions can reasonably be expected to recur, Vega is an appropriate surrogate for others who will be confronted with the issue.

Finally, the issues presented in this appeal are of public importance. This case requires us to resolve a tension between, on the one hand, a hospital’s understandable desire to administer a recognized form of treatment in order to save its patient’s life and, on the other hand, the patient’s right of bodily self-determination. This case may impact any person in this state who enters a hospital and, having chosen nonblood treatment, is then confronted with circumstances in which the hospital insists that blood transfusions are necessary. At the very least, this case is likely to have a significant impact on the Jehovah’s Witnesses residing in this state, who, according to the amicus, number more than 23,000. Moreover, the twenty-four general medical and surgical hospitals in this state that are likely to be called upon to treat patients who wish not to be transfused rightfully need reasonable guidance regarding their obligations when confronted with a request by a patient not to administer a blood transfusion.

II

We next turn to the issues that Vega had raised before the Appellate Court, but which that court did not reach. We begin by stressing that this case comes to us with an extraordinary procedural history. The hearing before the trial court took place in the middle of the night, under extreme emergency conditions that were not conducive to the ability of either party to develop fully its arguments. Moreover, Vega was not represented by counsel at the outset of the hearing and, of that portion of the hearing in which her attorney was present, most was not recorded. As a result, the record is sparse. The Appellate Court, moreover, dismissed the appeal without opinion. In granting Vega’s petition for certification to appeal, therefore, we simply adopted the questions that she had sought to present to the Appellate Court. After hearing the parties, however, and considering the case more fully, we conclude that the certified questions do not properly frame the issues that must be resolved. We therefore rephrase the certified questions as required. We recognize that the parties framed their arguments to conform to the certified questions. We must endeavor, therefore, to glean from the arguments presented the information needed to decide the certified questions as we have rephrased them.

A

We first address the issue of standing. Although the question of standing was not raised before the trial court, we nonetheless address it on appeal because standing, like mootness, implicates a court’s subject matter jurisdiction, which may be raised at any point in judicial proceedings. DiBerardino v. DiBerardino, 213 Conn. 373, 377, 568 A.2d 431 (1990).

Vega claims that this entire case turns on the hospital’s assertion of the state’s alleged parens patriae interest in protecting her infant. Vega argues that if her refusal of blood transfusions interfered with certain state interests, it should be the state itself, not a private hospital, that asserts the state’s interests. The hospital responds that, because it was charged with Vega’s care, and because it was required to choose between disregarding either Vega’s wishes or her physicians’ recommendations that she receive the transfusions, it had a direct stake in the outcome of the controversy and was a proper party to bring this action. We therefore rephrase the relevant question as follows: “Did the hospital have standing to challenge Vega’s refusal of lifesaving blood transfusions?” Insofar as the hospital’s claims are founded on its own interests, rather than those of the state, we agree with the hospital that it has standing to bring those claims, and we answer the rephrased certified question in the affirmative.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983).” (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993). Standing focuses on whether the party initiating the action is the proper party to request adjudication of the issues. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985). In general, a party does not have standing to raise rights belonging to another. Third Taxing District v. Lyons, 35 Conn. App. 795, 798, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994). “[T]he concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order.” Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).

It is true, as Vega argues, that the state has never been a party to this action and that any assertion by the hospital of an interest belonging solely to the state raises a question of the hospital’s standing to assert that interest. The Florida Supreme Court, when faced with this precise issue, determined that the hospital’s interests might not mirror the state’s interests and that “a health care provider must not be forced into the awkward position of having to argue zealously against the wishes of its own patient. . . .” In re Dubreuil, 629 So. 2d 819, 823 (Fla. 1993). That court concluded, therefore, that “a health care provider wishing to override a patient’s decision to refuse medical treatment must immediately provide notice to the [state].”Id., 824.

We conclude that a private health care facility may not assert the state’s interests in opposing a patient’s refusal of medical treatment, because to permit such a facility to do so would: (1) contravene the usual rule against vicarious third party standing; see Third Taxing District v. Lyons, supra, 35 Conn. App. 798; and (2) place the facility in an inherently conflicted position of opposing its patient’s competently expressed desires. Nonetheless, three considerations lead us to conclude that the hospital has standing in its own right to invoke the judicial process in order to seek determinative guidance regarding its obligations in this difficult position.

First, as a provider of health care to the residents of Stamford and its surrounding communities, the hospital has an interest in ensuring that the integrity and ethical standards of the medical profession be maintained. Often, a decision such as Vega’s “to refrain from treatment runs contrary to the training and beliefs of health professionals. Doctors, nurses, health technicians, and others are imbued with the idea of effecting cures — not of allowing a curable or arrestable disease to run its course. When confronted by a patient who opts out of all care or some form of treatment (e.g., blood transfusions), the health professional often reacts by dismissing the decision as unwise. Sometimes the doctor decides the judgment was reached during an emotionally overwrought state. Sometimes the doctor rejects the decision made by a patient who is so ill that, if not legally incompetent, he is incapable of making a determination.” F. Rozovsky, Consent to Treatment (2d Ed. 1990) § 7.0, p. 438.

In this case, Vega had submitted herself to the care of the hospital, which was charged with providing the appropriate medical care for her and her baby. Although Vega’s physicians did not question her competence to make a decision to refuse treatment, they firmly believed that Vega’s refusal of blood transfusions imperiled her life. The hospital, in recommending blood transfusions for Vega, was attempting to save her life by employing a long-standing, fairly routine medical treatment, and was acting in accordance with the training of medical professionals and the expectations of the medical profession held by the citizenry in general.

Second, the hospital had a legitimate interest in receiving official guidance in resolving the wrenching ethical dilemma it faced: whether to practice medicine by trying to save a patient’s life despite that patient’s refusal to consent to treatment, or to practice medicine in accordance with the patient’s wishes and likely watch the patient die, knowing nonetheless that it had the power to save her life. Thus, the hospital had conflicting interests, and in that respect was in the role, not of opposing its patient, but of a party seeking the court’s guidance in determining its obligations under the circumstances. Hospitals have been advised that “[m]embers of sects that reject certain kinds of medical procedures consider refusal of consent issues to be of substantial importance and can be expected to undertake litigation to obtain court vindication of their rights. In light of the sensitivity of this issue, it is advisable that hospitals and physicians seek the advice of legal counsel and/or instruction of the court when faced with a patient’s refusal of treatment in a case where there is a serious threat to health.” Hospital Law Manual, Attorney’s Vol. II, Consent to Medical and Surgical Procedures § 9-1, p. 119 (1994). The hospital appropriately sought the guidance of the trial court in resolving the dilemma that it faced.

Third, the hospital also had a practical claim to standing in this case. Cases from other jurisdictions have recognized that a slate may assert interests in opposition to those of a patient who is refusing medical treatment, or of a party who is refusing medical treatment on behalf of a patient. See, e.g., In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984); In re Karwath, 199 N.W.2d 147 (Iowa 1972); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Gardner, 534 A.2d 947 (Me. 1987); In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976); State Dept. of Human Services v. Northern, 563 S.W.2d 197 (Tenn. App. 1978). Those cases, however, did not involve decisions of an emergency nature. It was practical in those cases, therefore, for the state to become involved under those circumstances.

Conferring standing only on the state and denying it to the hospital, in this case, however, would have had the practical effect of requiring the hospital to abandon its own legitimate interests identified previously. Furthermore, such action would have effectively insulated the patient’s choice from any official scrutiny because, as the facts indicate here, it would have been extremely difficult for the state to initiate judicial proceedings in time to do any good, and even if the state could have done so, it would likely have been unfamiliar both with the medical options available and with the facts and circumstances surrounding the patient’s desires. The hospital was, as a practical matter, the best informed and most feasible candidate, under these circumstances, to set the judicial machinery in motion. For these reasons, we conclude that the hospital had standing to challenge Vega’s refusal of blood transfusions.

B

We now turn to the substantive issues raised in this appeal. Vega claims that the state’s interest in the welfare of her child is not sufficiently compelling as to outweigh her interest in refusing blood transfusions. Accordingly, she maintains that the trial court’s injunction, issued at the behest of the hospital, violated her common law right of self-determination, her federal constitutional right to bodily self-determination, her federal constitutional right to free exercise of religion, and her state constitutional right of religious liberty. Having determined that the hospital has standing to assert its own interests, rather than those of the state, we view Vega’s claim as having four distinct aspects, and we therefore rephrase the relevant certified question as follows: “Did the trial court’s issuance of an injunction permitting the hospital to perform blood transfusions on Vega violate her: (1) common law right of bodily self-determination; (2) federal constitutional right of bodily self-determination; (3) federal constitutional right of religious free exercise; and (4) state constitutional right of religious liberty?” We conclude that, under the circumstances of this case, the issuance of the injunction, followed by the administration of the blood transfusions, violated Vega’s common law right of bodily self-determination. Following the principle that we “eschew unnecessary determinations of constitutional questions”; (internal quotation marks omitted) DeBeradinis v. Zoning Commission, 228 Conn. 187, 195, 635 A.2d 1220 (1994); we need not, therefore, consider Vega’s constitutional claims.

In this connection, we first consider one aspect of the hospital’s claim that arises out of the issues as phrased by Vega in the Appellate Court and as originally certified by us. That is, if Vega were to have died as a result of the hospital’s acquiescence in her refusal to consent to a blood transfusion, she would have been abandoning her baby and, therefore, the hospital had a legitimate interest in protecting the welfare of an innocent third party who was also its patient — the baby — that outweighed Vega’s interest in bodily self-determination. We conclude that, under the circumstances of this case, the hospital’s legitimate interest in protecting its patients does not stretch that far.

Admittedly, the hospital was charged with the medical care of both Vega and her baby. Once the baby was born, however, Vega’s decision to refuse a blood transfusion posed no risk to the baby’s physical health. Although the hospital’s concern for the long-term welfare of the baby is certainly commendable, and although there may be some medical decisions that a hospital makes regarding newborn babies that are based upon its perception of the long-term health of the baby, whether Vega’s child grows up with one, rather than two, parents, or, for that matter, with no parent at all, was simply not an issue sufficiently within the scope of the hospital’s legitimate interest in providing medical care to the baby to justify disregarding Vega’s clearly expressed proscription against administering blood transfusions to her.

The conclusion that the hospital had no legitimate interest in disregarding Vega’s wishes in order to protect the upbringing of her baby does not, however, end our inquiry. We must still decide between the competing claims of Vega and the hospital.

Vega’s claim centers on her common law right of bodily self-determination. “The right to refuse medical treatment is a right rooted in this nation’s fundamental legal tradition of self-determination.” McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 701, 553 A.2d 596 (1989). That common law right and its roots in our legal tradition have a long and impressive pedigree. More than one century ago, the United States Supreme Court recognized that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.” Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734 (1891). In the context of a medical malpractice action based on the doctrine of informed consent, we stated: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is hable in damages.” (Internal quotation marks omitted.) Schmeltz v. Tracy, 119 Conn. 492, 495, 177 A. 520 (1935); see also Logan v. Greenwich Hospital Assn., 191 Conn. 282, 288-89, 465 A.2d 294 (1983). In yet another closely related context, the United States Supreme Court has recently reiterated that the “notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment”; Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 269, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990); and that “[t]he logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.” Id., 270; see also id., 277 (“the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment”).

Vega’s refusal of blood transfusions was clearly in keeping with the deeply rooted common law right of bodily self-determination. The only question, therefore, is whether the hospital and the trial court were obliged to respect Vega’s decision to refuse blood transfusions, even though her decision would likely have led to her death.

The hospital’s interests are in preserving the life of its patient and protecting the ethical integrity of the medical profession. Those interests are intertwined. Hospitals exist, and doctors are trained, in order to provide care and treatment for sick and dying patients. “The preservation of life is not only a laudable goal for . . . the physicians and for the health care facilities to aspire to, it is a compelling one.” St. Mary’s Hospital v. Ramsey, 465 So. 2d 666, 668 (Fla. App. 1985). Vega’s life could be saved by the administration of treatment that most people would consider routine. The hospital and its doctors quite understandably did not wish to stand by and see a healthy young woman die.

Although the hospital’s interests are sufficient to confer standing on it in this case, they are not sufficient to take priority over Vega’s common law right to bodily integrity, even when the assertion of that right threatens her own life. “The choice between life and death is a deeply personal decision of obvious and overwhelming finality.” Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. 281. The refusal to subject oneself to certain forms of medical treatment, or to any treatment whatsoever, may often lead to more serious health consequences and, ultimately, to death. If the common law right to refuse medical treatment, based on the doctrine of informed consent, is entitled to respect, that respect must be accorded when the consequences are likely to be the most serious — in matters of life and death.

The hospital, however, had no common law right or obligation to thrust unwanted medical care on a patient who, having been sufficiently informed of the consequences, competently and clearly declined that care. As long as Vega was sufficiently informed of the consequences of her decision, was competent to make such a decision, and freely chose to refuse the transfusion — none of which is disputed in this record — both the hospital and the trial court were required to respect her choice. The hospital’s interests were sufficiently protected by Vega’s informed choice, and neither it nor the trial court was entitled to override that choice.

Thus, raider the facts of this case, Vega’s common law right of bodily self-determination was entitled to respect and protection. The trial court, therefore, improperly issued an injunction that permitted the hospital to administer blood transfusions to Vega.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to render judgment for Vega.

In this opinion PETERS, C. J., and BERDON and KATZ, Js., concurred.

PALMER, J.,

concurring. I agree with the majority opinion, as far as it goes. In my view, however, we should take the opportunity presented by this case to address two impoitant issues not reached by the majority, namely, whether the state has a legally cognizable interest in preserving the life of a patient who rejects routine, lifesaving medical treatment and, if so, whether the patient’s right of bodily self-determination nevertheless outweighs the state’s interest in saving the patient’s life.

I agree with the majority that although the hospital has standing in its own right to invoke the court’s jurisdiction, the hospital cannot properly raise whatever interest the state itself may have in seeking to compel an unwilling patient to undergo a routine, lifesaving medical procedure. It seems to me, however, that the state’s interest in preserving the life of an otheiwise healthy patient who refuses to submit to a lifesaving procedure may well be greater than a health care provider’s interest in administering such treatment; indeed, the trial court relied solely on the state’s interest in granting the hospital’s request for an injunction authorizing it to administer a blood transfusion to Vega. In view of the state’s apparent interest, I would ask the attorney general to appear and to participate in this appeal as an amicus curiae on behalf of the state of Connecticut.

Because nothing that we decide in this case can change the fact that Vega has already undergone an involuntary blood transfusion, the case is technically moot; we have jurisdiction over this appeal only because the issues presented herein are both “capable of repetition, yet evading review” and of public importance. Thus, we granted Vega’s petition for certification to provide guidance to health care providers, trial judges and others who may be required to decide, invariably in urgent circumstances, whether routine, lifesaving medical treatment may be administered to a patient who does not want it. By declining the opportunity to address the issue of the state’s interest in such a case, we leave unanswered — without good cause, in my judgment — a question that is central to the fundamental issue presented by this appeal and one that was raised both in the trial court and on appeal.

Practical considerations militate strongly in favor of addressing the issue of the state’s interest that the majority chooses to reserve for another day. In light of today’s decision, health care providers are entitled to presume that they are obligated to honor the wishes of a competent, adult patient who, with a full understanding of the consequences, chooses to reject a routine, lifesaving medical procedure. In such circumstances, if the hospital is not apt to perceive a need for court authorization or intervention before assenting to the patient’s wishes, the state is unlikely to have the opportunity to assert its interest in saving the patient’s life before it is too late for the state to do so. Moreover, if the Superior Court were to be called upon to consider the matter, there is no reason to assume that the state would be afforded timely notice of a hearing, especially if, as here, emergency circumstances necessitate an immediate decision before all interested parties are available. And if the state were to receive timely notice and promptly sought to intervene, the trial court would be required to decide, under severe time constraints and without any guidance from this court, first, whether the state should be granted party status, and second, whether the state’s interest in preserving the patient’s life may be found to outweigh the patient’s interest in bodily self-determination.

Because there is strong reason to address the issue of the state’s interest and no sound contrary reason, I would do so after consideration of the state’s position and any response thereto by the parties to this case. Such a course would enable us to provide much greater guidance to those who may be called upon in the future to decide the extraordinary, and wrenching, questions raised by this case.

       We granted Vega’s petition for certification to appeal, in order to consider the following issue: “Was the Appellate Court correct in dismissing the defendant’s appeal for mootness in view of the defendant’s claim that it was ‘capable of repetition, yet evading review?’ ”
      We also ordered, sua sponte, that the parties address the issues that Vega had raised in her appeal to the Appellate Court, but which that court did not reach, namely: (1) “Does a hospital have standing to assert the state’s parens patriae interest in the welfare of a minor child whose adult parent is hospitalized and is refusing allegedly lifesaving medical treatment?” (2) “Is the state’s alleged parens patriae interest in the welfare of a minor child whose parent is refusing allegedly lifesaving treatment for religious and medical reasons a compelling state interest that overrides the parent’s common law right of bodily self-determination, federal constitutional rights of bodily self-determination and religious free exercise, and state constitutional right of religious liberty?” and (3) “Is the forcible administration of unwanted medical treatment to a competent adult the least restrictive, least intrusive means of protecting the state’s alleged parens patriae interest in the welfare of that adult’s minor child?” Stamford Hospital v. Vega, 231 Conn. 944, 653 A.2d 827 (1994).
      As we explain in the text of this opinion, because of the extraordinary procedural posture of this case we have rephrased some of the certified questions in order to render them more accurate in framing the issues that this case presents. Thus, as rephrased, the questions in this case are as follows:
      (1) Was the Appellate Court correct in dismissing Vega’s appeal for mootness in view of her claim that it was capable of repetition, yet evading review?
      (2) Did the hospital have standing to challenge Vega’s refusal of lifesaving blood transfusions?
      (3) Did the trial court’s issuance of an injunction permitting the hospital to perform blood transfusions on Vega violate her: (a) common law right of bodily self-determination; (b) federal constitutional right of bodily self-determination; (c) federal constitutional right of religious free exercise; and (d) state constitutional right of religious liberty?

        Although these questions are somewhat different from the original certified questions, the issues raised by the questions as we have rephrased them were fully explored at oral argument. Moreover, to the extent that the questions as rephrased differ from or are broader than the original questions, neither party has cause for complaint. Vega has prevailed in this appeal on the basis of the rephrased questions. Although the hospital has not prevailed, the rephrased questions and our resolution of them adequately encapsulate the essence of the parties’ arguments presented in the original questions.

       The release signed by Vega was a standardized form given to her by the hospital. The form provided: “Patient’s release form for refusal of blood. I request that no blood or blood derivatives be administered to [name] during this hospitalization. I hereby release The Stamford Hospital, its personnel, the responsible physicians and any other person participating in my case from any liability for any unfavorable reactions or any untoward results due to refusal to permit the use of blood and its derivatives. The risks attendant to my refusal have been explained to me, and I understand that if I should need a blood transfusion and, that if the same is not done, my chances for regaining normal health are seriously reduced, and that, in all probability, my refusal of such treatment or procedure will seriously imperil my life and may result in my death.”

       The complaint characterized Vega as “a pregnant woman who is severely hemorrhaging.” At the time the complaint was filed, however, Vega was no longer pregnant. This case, therefore, does not involve the issue of whether Vega’s refusal of blood transfusions endangered the health of an unborn child. It is unclear whether Vega was still bleeding when the complaint was filed, but at the time of the hearing, the bleeding had ceased.

       In reaching its decision to grant the injunction requested by the hospital, the trial court concluded that these state interests outweighed Vega’s interest in refusing the blood transfusions. Vega and the hospital agree that a state may have interests that override a patient’s decision to forego certain forms of medical treatment. We have never expressly adopted such a position, although the concurring opinion in McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 716, 775 A.2d 596 (1989), identified four such state interests, as did the trial court in Foody v. Manchester Memorial Hospital, 40 Conn. Sup. 127, 133, 483 A.2d 713 (1984). The four interests are: (1) the preservation of life; (2) the protection of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession. Because we are concerned here with a conflict between Vega’s rights and the hospital’s interests, rather than between Vega’s rights and the interests of the state, we need not decide in this case whether these four interests, or any other interests for that matter, may be asserted by the state in an attempt to override a patient’s decision to refuse medical treatment. Because, however, many of the arguments advanced by the parties assume, and the trial court relied on, these state interests, and in light of the fact that the interests of the state are not dispositive here, we shall, for purposes of this appeal, also assume, without so deciding, that the state may have interests it wishes to assert in a case such as this.

       The bulk of the proceedings involving Vega’s attorney is not contained in the transcript. The hearing was tape recorded, but the tape ran out shortly after Vega’s attorney had begun his argument. The parties stipulated to the substance of the testimony that was not recorded.

       In response to the hospital’s motion to dismiss the appeal, Vega argued that, although the appeal appeared to be moot because she had been given the transfusions and had recovered, appellate review of the trial court’s order was necessary in order to determine certain collateral rights and liabilities of the parties. Specifically, she contended that it might be determined that: (1) the bleeding she experienced in the hospital was the result of malpractice; (2) the hospital’s repudiation of the releases signed by Vega constituted a breach of the hospital’s contractual or fiduciary duty to her; or (3) the administration of the transfusions was not in conformity with the trial court’s order. Should any of these conditions exist, Vega argued, an improper ruling by the trial court should not be permitted to stand and possibly shield the hospital or its doctors from liability.

       Although we conclude, for purposes of mootness analysis, that Vega’s religious affiliation satisfies the second requirement of Loisel, by establishing her as a member of an identifiable group for whom the issue of nonconsensual blood transfusions is likely to recur, her religious affiliation does not, as our discussion of the merits of the case in part II B of this opinion indicates, enter into our decision regarding whether the hospital’s interests were sufficient to override Vega’s decision to refuse blood transfusions. Furthermore, our conclusion that, in this case, Vega’s religious affiliation satisfies the second requirement of Loisel does not preclude a determination, in a future case, that a patient who refuses blood transfusions but who is not a Jehovah’s Witness also meets that requirement of Loisel. Because we are not faced with that factual situation here, we need not resolve that issue now.

       We take judicial notice of the records of the American Hospital Association that indicate that there are currently twenty-four general medical and surgical hospitals in this state. American Hospital Association, Guide to the Health Care Field (1995-96).

       See footnote 1 of this opinion.

       We reject the suggestion in the concurring opinion that we invite the attorney general to participate in this appeal as an amicus curiae in order to decide the contours and weight of the state’s interest in this dispute. We know of no precedent in our jurisprudence for determining the merits of a nonparty’s interests based solely on that person’s or entity’s participation as an amicus curiae, particularly where that entity did not participate either in the trial court or in the appellate proceedings to date. The case that most closely approximates such a determination of a nonparty’s interests based on that party’s participation as amicus curiae is Hilton v. New Haven, 233 Conn. 701, 661 A.2d 973 (1995). In Hilton, we determined that the state does not have an obligation under the Connecticut constitution to provide shelter for its homeless citizens. We reached that conclusion, which had “significant ramifications for the state”; id., 723; despite the state’s participation as amicus curiae rather than as a defendant, because the state had “fully participated in briefing the issues and at oral arguments . . . [and] the state was a party in the companion case of Moore v. Ganim, [233 Conn. 557, 660 A.2d 742 (1995)], which we determine[d] to be dispositive of the plaintiffs’ constitutional claims in [Hilton].” Hilton v. New Haven, supra, 723-24. In effect, therefore, the state was aparty inHilton via its participation in Moore. Thus, the situation in Hilton is distinguishable from that proposed by the concurring opinion, namely, that we determine the state’s interests in this case based solely on its participation as amicus curiae. Compare also Singh v. Singh, 213 Conn. 637, 641, 569 A.2d 1112 (1990) (where original parties to action assumed same position on appeal, state invited to appear as amicus curiae in order to present adversarial position); In re Appeal of Dattilo, 135 Conn. 512, 514, 66 A.2d 596 (1949) (attorney general, as amicus curiae, may not move to erase appeal).
      Moreover, although the state had no notice of the trial court proceedings, the same cannot be said of the appellate proceedings. The fact that this court would be considering this case, and the issues arguably implicating a state’s interest, were publicized in the Connecticut Law Journal on January 17, 1995, and have been public knowledge since then. See Stamford Hospital v. Vega, 231 Conn. 944, 653 A.2d 827 (1994). Nonetheless, the state took no steps, either to intervene as a party in order to assert its interest, or to participate as an amicus. Under these circumstances, we believe the more prudent policy to be to refrain from considering the state’s interest, and to decide the dispute between the parties who are before us.
      Furthermore, the state is not left without mechanisms, in future cases, to assert its interest if it wishes to do so. For example, it could notify all general hospitals in the state that it is prepared to participate, on short notice, in any future determinations similar to those in this case, and could request that, before any hospital adheres to the patient’s wishes it notify the state in order to give the state an opportunity to instigate judicial proceedings at which the state will assert its interest. If that were done, we doubt that any such hospital, after appropriate legal advice, would simply ignore the state’s request. We are not to be understood as encouraging any such action by the state. We note this possibility, without ruling out others, only to underscore the prudence of the course that we have taken in deciding this case between the parties.

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

       The constitution of Connecticut, article first, § 3, provides in relevant part: “The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state . . . .”

       Thus, we are not faced with, and do not decide, the question of whether, if Vega had begun to hemorrhage prior to the birth and a blood transfusion were necessary to safeguard the health or life of the baby, the hospital would have been justified in administering blood transfusions to Vega.

       As the majority notes, the questions that we originally certified would have required us to reach these issues; see footnote 1 of the majority opinion; which have never been resolved by this court. See footnote 4 of the majority opinion.

       '‘Four compelling state interests appear to have been commonly identified by courts and commentators in such decisions: (1) the preservation of life; (2) the prevention of suicide; (3) the protection of innocent third parlies; and (4) the maintenance of the ethical integrity of the medical profession.” McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 716, 553 A.2d 596 (1989) (Healey, J., concurring). The trial court concluded that the state’s interests in preserving life and protecting innocent third parties outweighed Vega’s interest in refusing the blood transfusions.

       It is not uncommon for this court to request the submission of amicus briefs, and we have previously asked the state to do so. See, e.g., Associated

        Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 151 n.2, 645 A.2d 505 (1994).

       The majority’s assertion to the contrary notwithstanding, jurisprudential considerations counsel our consideration of the issue of the state’s interest in preserving the life of a person who rejects routine, lifesaving medical treatment. In concluding that we should not invite the state to appear as amicus curiae, the majority relies exclusively on the fact that we have not previously adjudicated “the merits of a nonparty’s interests based solely on that person’s or entity’s participation as an amicus curiae.” See footnote 10 of the majority opinion. The majority’s position elevates form over substance. Although I can conceive of no reason why either the hospital, Vega or the state would object to the state’s participation in this appeal as amicus curiae — and the majority has identified none — the parties and the state would be free to raise any such objection for our consideration. Moreover, the facts are not in dispute, the question of the state’s interest is an important one, and the public interest would be better served by deciding the issue. I see no reason why we should not seek to do so.
      Finally, there is no merit to postponing consideration of the question until the state is able to participate as aparty in a similar future case. As previously indicated, the question of the state’s interest is likely to arise in emergency circumstances not conducive to deliberative decision-making. In my judgment, therefore, it would be far wiser for us to address the issue now so that we may provide guidance to those who, in the future, will be confronted with a case like this one.


source: Caselaw Access Project

author: PETERS, C. J.

license: Public Domain

text:
    MARY F. BOHAN, ADMINISTRATRIX (ESTATE OF THOMAS F. BOHAN) v. JOHN J. LAST ET AL.
    (15232)
    Peters, C. J., and Callahan, Borden, Berdon and Palmer, Js.
    Argued February 15
    officially released April 23, 1996

      Ira B. Grudberg, with whom was David A. Leff for the appellants (defendants).

      Mark R. Kravitz, with whom was Kevin M. Kennedy, for the appellee (plaintiff).
   PETERS, C. J.

The dispositive issue in this civil action lies at the intersection of two lines of authority, one that, as a matter of common law duty, requires adults to exercise caution in supplying alcoholic beverages to intoxicated minors, and the other that, as a matter of statutory law, permits tortfeasors to diminish their liability for their own tortious conduct by requiring the apportionment of liability among all tortfeasors. The issue arises out of a motor vehicle accident in which an intoxicated minor caused a one car crash that led to the death of a passenger in the car that the minor was operating. In this wrongful death action, the operative question before us is whether there are circumstances under which a bar, the place where the intoxicated minor was served alcohol, may limit its potential liability by joining as defendants those patrons of the bar who, as social hosts or as purveyors of alcohol, furnished alcoholic beverages to the minor. Contrary to the ruling of the trial court, we conclude that a third party complaint joining such patrons states a cognizable cause of action.

The plaintiff, Mary F. Bohan, administratrix of the estate of Thomas F. Bohan (Bohan), filed a three count complaint against the defendants John J. Last and Randall’s, Inc., in which she alleged that the defendants had intentionally, negligently and in violation of the Connecticut Dram Shop Act, General Statutes § 30-102, served or permitted the service of alcoholic beverages to Anthony W. Ferro, a minor, and that Ferro, when driving a car while intoxicated, had caused Bohan’s death. Pursuant to General Statutes §§ 52-102 and 52-572h (c) and (d) and Practice Book § 103, the defendants moved to cite in four additional defendants in order to permit a determination of the proportionate share of damages for which each defendant might be liable. The additional defendants sought to be joined were Ferro and three patrons of Randall’s Restaurant, namely, Michael Piroli, Michael Simeone and Michael Lombardi, each of whom allegedly had provided alcohol to Ferro. The trial court, Fracasse, J., permitted the joinder of the additional defendants but expressly declined to rule on the substantive merits of the defendants’ third party complaint.

The plaintiff moved to strike those portions of the defendants’ third party complaint that alleged tortious liability on the part of Piroli, Simeone and Lombardi. The defendants’ complaint alleged that these three individuals were social acquaintances of Ferro who had engaged in tortious conduct by intentionally or negligently causing alcohol to be furnished to him at Randall’s Restaurant. The trial court, Hodgson, J., granted the plaintiffs motion to strike those counts of the defendants’ complaint that were directed toward Piroli, Simeone and Lombardi.

The defendants then filed a substitute third party complaint with respect to the relevant counts, in which they alleged that Simeone and Lombardi had acted tortiously in their capacities as social hosts and as purveyors of alcohol to Ferro. In response, the plaintiff first filed a request to revise, alleging that the substitute complaint did not differ substantially from the previously filed complaint. After the trial court, Fracasse, J., sustained the defendants’ objection to the request to revise, the plaintiff moved to strike the relevant counts of the defendants’ substitute complaint. The trial court, Hodgson, J., granted the plaintiffs motion and thereafter rendered judgment against the defendants. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

In an appeal from a judgment granting a motion to strike, we operate in accordance with well established principles. We take the facts to be those alleged in the complaint that has been stricken and we 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).

In this case, the facts alleged are notable for their sparsity. For the purposes of our ruling, we assume that the defendants will be able to establish that, on August 11, 1991, Ferro was a minor who had been permitted entry into Randall’s Restaurant, a bar where alcoholic beverages were being served. The defendants do not allege, however, that Ferro’s presence at Randall’s Restaurant resulted from the conduct of Simeone or Lombardi, singly or jointly, in inviting Ferro to accompany them there or to meet them there. At oral argument in this court, counsel for the defendants expressly disavowed any claim that Simeone and Lombardi had acted as “social hosts” in that sense.

The crucial factual allegations in the defendants’ substitute complaint are, therefore, the allegations that Simeone and Lombardi acted as purveyors of alcoholic beverages to Ferro. The complaint alleges only that each of these men tortiously “procured alcoholic beverages and gave and purveyed them” to Ferro. The complaint’s only other relevant allegations state nothing more than that, “by procuring and purveying alcoholic beverages to Anthony Ferro, a minor,” Simeone and Lombardi “contributed to and helped cause the behavior of Anthony Ferro, and further contributed to the injuries and death of Thomas F. Bohan.” In counts three and five, Simeone and Lombardi are alleged to have engaged in negligent misconduct, and in counts four and six, each is alleged to have engaged in intentional tortious misconduct.

For their claim that their substitute complaint states a cognizable cause of action, the defendants rely on the following allegations of fact and law. Ferro was the driver of a car that was involved in a one car collision that resulted in the death of the passenger in the car, Bohan. At the time of the accident, Ferro was a minor and was intoxicated. On the night of the accident, Simeone and Lombardi purveyed alcoholic beverages to Ferro at Randall’s Restaurant. The alcohol that Simeone and Lombardi purveyed to Ferro caused Ferro to become intoxicated. Ferro’s intoxication was the cause of the one car collision. According to the defendants, these allegations are sufficient to allow them to pursue the claim that Simeone and Lombardi bear some legal responsibility for Bohan’s death.

For many years, the law of this state provided broad immunity from legal liability for those who contribute to the carnage that drunk drivers inflict on innocent users of our highways and byways. Although we have never held that purveyors of alcohol have no common law duty to exercise due care to protect the foreseeable victims of those who drink and drive, we have, nonetheless, declined to recognize a claim in negligence. Such a claim “ ‘has uniformly failed for the reason that the subsequent injury has been held to have been proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about intoxication and the subsequent injury.’ ” Quinnett v. Newman, 213 Conn. 343, 345-46, 568 A.2d 786 (1990); Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980); Slicer v. Quigley, 180 Conn. 252, 255-56, 429 A.2d 855 (1980); Nelson v. Steffens, 170 Conn. 356, 358, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 436-37, 226 A.2d 383 (1967). Until recently, the only derogation of this rule of common law immunity was the limited statutory remedy provided by the Dram Shop Act, presently codified at § 30-102. See footnote 2.

In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), we reexamined the logic of our common law decisions in the context of the liability of social hosts who allegedly had provided alcohol to underage guests at a graduation “keg” party. For two interrelated reasons, we concluded that the hosts were liable in tort because one of the minor guests, who was intoxicated, drove his car and killed another guest as both he and the victim were leaving the party. First, we questioned whether, in the case of a minor, there was logic to the common law presumption that intoxication results from the voluntary conduct of a person who has exercised a knowing and intelligent choice to consume intoxicating liquor. Id., 93-94. We noted that, in other areas of the law, minors have been held not to have assumed the same degree of responsibility as we assign to adults. Id., 97; see, e.g., Blancato v. Feldspar Corp., 203 Conn. 34, 40-41, 522 A.2d 1235 (1987) (minor exempted from exclusive operation of workers’ compensation law because of youth and immaturity in context of illegal and hazardous employment). Second, we found it persuasive that our state’s public policy, as manifested in numerous relevant civil and criminal statutes, “reflect[s] a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.” Ely v. Murphy, supra, 94. With respect to minors, therefore, we concluded that a social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured, if a court or a juiy finds, as a matter of fact, a proximate cause relationship between the service of alcohol and the damages ensuing from the minor’s consumption of the alcohol. Id., 97.

Applying the principles of Ely v. Murphy, supra, 207 Conn. 88, to the circumstances of this case, we conclude that the defendants’ substitute complaint against Simeone and Lombardi states a cause of action. Simeone and Lombardi are alleged to have acted as purveyors of alcohol to Ferro. We disagree with the plaintiffs contention that the term “purveyor” is inherently limited, as a matter of law, to those who prearrange to provide goods and services, but we agree that merely socializing at a bar does not suffice. At this juncture, it is premature to speculate about the manner in which Simeone and Lombardi acted as purveyors, about their negligence or intentional misconduct, or about the causal connection between their misconduct and the accident that took Bohan’s life. As in Ely, the only issue now before us is whether the plaintiffs motion to strike was properly granted.

It is no great extension of Ely v. Murphy, supra, 207 Conn. 97, to hold that, under some circumstances, purveyors of alcohol to minors at a bar may be hable to such minors, or to innocent third parties, even if the purveyors do not act as social hosts. Wherever minors become intoxicated, whether in a bar or in a private residence, they are unlikely to appreciate fully the consequences of their intoxication. Wherever minors become intoxicated, their subsequent intoxicated misconduct creates a risk of personal injury and death not only to themselves, but also, as in Ely and as in this case, to innocent third parties. In light of Ely, we disagree, therefore, with the conclusion of the trial court that only a permittee bears legal responsibility for the service of alcohol to minors in a bar.

The reasoning of Ely v. Murphy, supra, 207 Conn. 93-95, equally refutes the plaintiffs contention that holding a purveyor of alcohol liable for injury to innocent third parties would be inconsistent with the general rule of law that, “absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 18.7; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56.” Kaminski v. Fairfield, 216 Conn. 29, 33-34, 578 A.2d 1048 (1990). The fact that the common law imposes no duty to act as a good Samaritan does not confer immunity on those who negligently choose to act. If the conduct of a negligent actor “creates the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973); 2 Restatement (Second), supra, § 442 B; see also 2 Restatement (Second), supra, § 435 (1) and cases cited infootnote 10 of this opinion. We reaffirmed this principle in Ely v. Murphy, supra, 97, and reaffirm it again today. 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.

We are persuaded, however, that the common law liability of purveyors at a bar differs from that of social hosts in one significant respect. In Ely v. Murphy, supra, 207 Conn. 89, in which the adult hosts knowingly served beer at a high school graduation open house, it was reasonable to presume that they knew or had reason to know that a significant number of their guests were minors. Such a presumption is not equally plausible when social acquaintances gather casually at a bar. We conclude, therefore, that the defendants’ substitute third party complaint is cognizable only if we construe it to allege that, in purveying alcohol to Ferro, Simeone and Lombardi knew, or had reason to know, that Ferro was not old enough to drink alcoholic beverages legally at the time when they purveyed alcohol to him at Randall’s Restaurant.

We recognize that, in Ely v. Murphy, supra, 207 Conn. 93, we relied on statutory embodiments of public policy that impose criminal liability without regard to scienter. General Statutes § 30-86, for example, subjects “[a]ny person who delivers or gives [alcoholic] liquors” to a minor to a fine of “not more than one thousand five hundred dollars or [imprisonment of] not more than eighteen months, or both.” We nonetheless hold that it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor. On numerous occasions, we have reexamined and readjusted our common law principles to assure a proper and harmonious accommodation between judge made law and statutory law. See, e.g., Fahy v. Fahy, 227 Conn. 505, 513-16, 630 A.2d 1328 (1993) (statutory rules governing support orders as source of common law rules governing alimony orders); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980) (statutory rules governing commercial transactions as source of common law rules governing real property transactions). We have never held, however, that such a realignment of common law principles requires the common law to mirror every aspect of the comparable statutoiy law, and we decline so to hold today.

We conclude, therefore, that the substitute third party complaint filed by the defendants against Simeone and Lombardi states a cognizable cause of action. In appropriate circumstances, adults have a duty to refrain from negligently or intentionally supplying alcohol to minors, whether such adults act as social hosts in their homes or as purveyors in a bar, because minors are presumed not to have the capacity to understand fully the risks associated with intoxication. In accordance with well established principles of proximate cause, this common law duty encompasses responsibility to innocent third party victims of intoxicated minors, such as Ferro’s unfortunate passenger in this case. We are not, however, prepared to engraft strict liability on this common law duty. Accordingly, we hold further that, unless the purveyors of alcohol knew or had reason to know that the person to whom they supplied alcohol was a minor, they have no common law duty to third party victims of the minor’s intoxication.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       Randall’s, Inc., is a Connecticut corporation that operates a West Haven bar called Randall’s Restaurant. John J. Last is the permittee of the bar.

       General Statutes § 30-102 provides in relevant part: “Dram Shop Act; liquor seller liable for damage by intoxicated person. 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 . . . .”

       General Statutes § 52-102 provides: “Joinder of persons with interest adverse to plaintiff and of necessary persons. Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy.”
      General Statutes § 52-572h provides in relevant part: “Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages. . . .
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is hable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. . . .
      “(h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party’s proportionate share of such judgment.
      “(2) An action for contribution shall be brought within two years after the party seeking contribution has made the final payment in excess of his proportionate share of the claim.”
      The current provisions of § 52-572h were enacted as part of the tort reform acts of 1986; Public Acts 1986, No. 86-338, § 3; and of 1987. Public Acts 1987, No. 87-227, § 3.

       Practice Book § 103 provides: “ — Motion To Cite in New Parties
      “Any motion to cite in or admit new parties must comply with Sec. 196 and state briefly the grounds upon which it is made.”

       See footnote 1.

       The plaintiff did not contest the propriety of the defendants’ claims with respect to Ferro. The plaintiff has settled with Ferro and has released him from further liability. The plaintiff does not dispute that, in the apportionment of liability among the defendants, a finder of fact may nonetheless consider Ferro’s relative responsibility for the death of Bohan. See General Statutes § 52-572h (n).

       In a letter dated December 6,1993, the plaintiff informed the defendants that she “will not pursue any claims arising out of the facts alleged in this case against [Piroli, Simeone or Lombardi].”

       The record does not disclose why Piroli was not named as a defendant in the substitute complaint.

       For example, with limited exceptions, General Statutes § 30-86 imposes criminal liability upon “[a]ny person who delivers or gives [alcoholic] liquors” to a minor. General Statutes § 30-89 imposes criminal liability upon a minor who purchases alcoholic liquor or even possesses alcoholic liquor in a public place. The legislature has repeatedly raised the minimum drinking age, which is now twenty-one. See General Statutes § 30-1 (12).

      For the issue of proximate cause, we relied on the standard of 2 Restatement (Second), Torts § 442 B (1965), which we first adopted in Merhi
        v. Becker, 164 Conn. 516, 521-22, 325 A.2d 270 (1973), and have reiterated on numerous occasions thereafter. See, e.g., Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 607-608, 662 A.2d 753 (1995); Doe v. Manheimer, 212 Conn. 748, 759, 563 A.2d 699 (1989); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383-84, 441 A.2d 620 (1982).

       Cases such as McGee v. Chalfant, 248 Kan. 434, 442, 806 P.2d 980 (1991), and Stepnes v. Adams, 452 N.W.2d 256, 258-59 (Minn. App. 1990), which the plaintiff cited to the trial court, do not address the issue before us because they involve defendants who allegedly permitted a tortfeasor to drive while drunk rather than defendants who supplied alcohol to a drunk driver. It is telling that the plaintiff has cited no cases to this court in support of the proposition that, as a matter of law, a negligent purveyor of alcohol to a minor bears no responsibility for the consequences of the minor’s drunken driving.