DRAM SHOP CIVIL LIABILITY
Americans love their alcohol in all its destructive glory. The United States Center for Disease Control reports that 50% of American adults consider themselves regular drinkers. In 2012 alone, there were over 10,000 alcohol-related traffic deaths in the United States. New York has responded by passing legislation targeting alcohol sellers who provide alcohol to visibly intoxicated adults and social hosts who knowingly permit minors to drink. This article reprises civil liability in New York for wrongfully supplying alcohol to the intoxicant and the underage drinker. New York’s first Dram Shop Act was enacted in 1873 and the Dram Shop statutes have been amended and supplemented multiple times since then.
New York is one of 30 states which have enacted Dram Shop Laws which impose civil liability on third parties for aiding and abetting the intoxication of an individual who causes injury by virtue of his or her intoxication. In the common law, there was generally no liability on the tavern owner who plied the intoxicant with liquor. See, e.g. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 543 N.Y.S.2d 18 (1989) aff’d. 73 N.Y.2d 629, 543 N.Y.S.2d 18 (1989). The drunkard was deemed to be the proximate cause of his own inebriation and the havoc and harm he caused was deemed to be “unforeseeable,” at least to the tavern keeper. See D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1 (1987); Berkeley v. Arthur Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (Sup. Ct. Otsego County 1965).
- General Obligations Law Section 11-101 (Unlawful Sale of Alcohol)
Today, General Obligations Law Section 11-101 provides that a plaintiff injured by an intoxicated tortfeasor has a right of action against the party who sold the alcohol to the intoxicated tortfeasor. The three elements of the claim are:
- The seller unlawfully sold or procured alcohol for the intoxicant; and
- The seller sold the alcohol to the intoxicant when the intoxicant was visibly intoxicated; and
- There exists a “reasonable connection” between the intoxication and the Plaintiff’s injury.
General Obligations Law 11-101 additionally creates a right of action for the unlawful sale of alcohol to persons under the age of 21, as well as the sale of alcohol to an “habitual” drunkard.
GOL 11-101 must be read in conjunction with Alcohol Beverage & Control Law Section 65, which defines an “unlawful sale” of alcohol. ABC Law Section 65 generously defines unlawful selling to include selling, giving away, procuring or delivering any alcoholic beverage to a visibly intoxicated person. Despite this expansive definition, New York decisional law has consistently held that GOL 11-101 is only applicable to commercial sales of alcohol for profit. See Sherman v. Robinson, 80 N.Y.2d 483, 591 N.Y.S.2d 974 (1992); D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1 (1987); Conigliaro v. Franco, 122 A.D.2d 15, 504 N.Y.S.2d 186 (2d Dep’t 1986); Gabrielle v. Craft, 75 A.D.2d 939, 428 N.Y.S.2d 84 (3d Dep’t 1980); Terrigino v. Zaleski, 144 Misc.2d 474, 544 N.Y.S.2d 283 (Sup. Ct. Monroe Cty 1989).
If the GOL 11-101 requirements are met, the seller of the alcohol is strictly liable to the injured party for the harm caused by the intoxicated person. See Berkeley v. Arthur Park, 47 Misc.2d 381, 262 N.Y.S.2d 290 (Sup. Ct. Otsego County 1965); Anderson v. Comardo, 107 Misc.2d 821, 436 N.Y.S.2d 669 (Sup. Ct. Livingston County 1981). See also Bertholf v. O’Reilly, 74 N.Y. 509 (1878). Note, however, that the Dram Shop laws are to be narrowly construed, as they are a departure from the common law. See, e.g., Conigliaro v. Franco, 122 A.D.2d 15, 504 N.Y.S.2d 186 (2d Dep’t 1986); Gabrielle v. Craft, 75 A.D.2d 939, 940, 428 N.Y.S.2d 84 (3d Dep’t 1980).
- WHEN IS A SALE A “SALE”
Although GOL 11-101 actions are usually brought against restaurants, tavern owners and convenience stores which directly sell liquor to consumers, the statute makes any formal or informal seller of alcohol responsible irrespective of whether the seller is legally licensed to sell alcohol to the public. See D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1(1987) (Dram Shop laws not restricted to dram shops or taverns). The myriad circumstances under which alcohol can be supplied for an economic benefit, however, make the precise definition of a “sale” for Dram Shop liability somewhat elusive. For example, is there a “commercial sale” of alcohol in the context of a catered event like a wedding with an open or complimentary bar, where the intoxicant does not directly pay for the alcohol, although the host who arranged for the party does? And, what of employee-sponsored events such as a Christmas parties or outings where the employer pays for the liquor, but no money changes hands between the intoxicated employee and the caterer who dispenses the liquor? What if the liquor is purchased by a spouse or companion, who then supplies it to the intoxicant, so that there is no direct sale to the intoxicant? The case law suggests answers to some of these questions, but the parameters of a sale for Dram Shop purposes are still evolving. A brief tour of some of the relevant case law on “sale” in the setting of a Dram Shop claim follows below.
PRIVATE PARTIES WITH NO ECONOMIC MOTIVE: There is no Section 11-101 liability for true private social events where there is no classic sale and the alcohol is dispensed without any monetary charge or exchange of economic benefit. See, e.g., Martino v. Stolzman, 18 N.Y.3d 905, 941 N.Y.S.2d 28 (2012) (No GOL 11-101 claim against social host of New Year’s Eve party where there was no sale of alcohol); McGlynn v. St. Andrew v. Apostle Church, 304 A.D.2d 372, 761 N.Y.S.2d 151 (1st Dep’t 2003) lv. to app. den. 100 N.Y.2d 508, 764 N.Y.S.2d 385 (2003) (claims against parishioners who personally hosted a party at their local church dismissed because alcohol was dispensed free of charge and not “sold” at the party).
EMPLOYEE SPONSORED EVENTS: Likewise, there is no Dram Shop liability on the employer or employee association which dispenses liquor on a complimentary basis at employee social events. D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1 (1987) (employee association which provided alcoholic beverages in plastic lined trash cans for members at company picnic was not engaged in a commercial sale of alcohol for Dram Shop purposes where association members hosted and ran the event and funded the purchases of food and beer from monthly dues and ticket sales); Joly v. Northway Motor Car Corporation, 132 A.D.2d 790, 517 N.Y.S.2d 595 (3d Dep’t 1987) (employer which gratuitously provided beer and wine at Christmas party not responsible for sale of liquor under Dram Shop laws); Casselberry v. Dominick, 143 A.D.2d 528 (4th Dep’t 1988) lv. to appeal den. 73 N.Y.2d 706, 539 N.Y.S.2d 299 (1989) (local union which provided free beer to union members at “sports night” at union hall was not engaged in the sale of alcohol for Dram Shop purposes).
SHIFT DRINKS TO BAR EMPLOYEES: There is also no liability on the tavern or restaurant owner when a bartender or waiter-employee becomes intoxicated from free “shift drinks” supplied as a perquisite of the job. Custen v. Salty Dog, Inc., 170 A.D.2d 572, 566, N.Y.S.2d 348 (2d Dep’t 1991) (plaintiff’s Dram Shop claims dismissed because there was no “sale” of alcohol when tavern employee who became intoxicated from complimentary shift drinks caused motor vehicle accident); Carr v. Kaifler, 195 A.D.2d 584, 601 N.Y.S.2d 8 (2d Dep’t 1993) (Dram Shop claim dismissed because there was no “sale” of alcoholic beverages where intoxicated bartender who caused motor vehicle accident testified he did not pay for any of the drinks he consumed); Stevens v. Spec, Inc., 224 A.D.2d 811, 637 N.Y.S.2d 979 (3d Dep’t 1996) (Dram Shop Act allegations dismissed for lack of a “sale” where independent contractor sound technician for band at night club became intoxicated after drinking 3 free drinks); Parker v. Dunn, 43 Misc.3d 377, 978 N.Y.S.2d 827 (Supreme Court Wayne County 2014) (act of vineyard-employer providing employees a “shift change drink” at the end of each shift was not an economic event causing vineyard to be responsible under the Dram Shop Law).
WEDDING RECEPTIONS/CATERED EVENTS: A number of cases have treated Dram Shop liability claims against caterers in the setting of catered weddings and other catered social events. See Martinez v. Camardella, 161 A.D.2d 1107, 558 N.Y.S.2d 211 (3d Dep’t 1990) (Dram Shop liability upheld against country club which served alcoholic beverages to intoxicant at wedding reception who then caused motor vehicle accident); Montgomery v. Orr, 130 Misc.2d 807, 498 N.Y.S.2d 968 (Sup. Ct. Oneida County 1986) (Summary judgment denied to Veteran’s Club which acted as caterer at private graduation party and provided kegs of beer, and charged for same by the number of kegs which were consumed, because those facts constituted prima facie evidence of a sale for Dram Shop purposes); Haskell v. Chautaqua County Fireman’s Fraternity, 184 A.D.2d 12, 590 N.Y.S.2d 637 (2d Dep’t 1992) lv. to app. dism., 81 N.Y.2d 954, 597 N.Y.S.2d 939 (1993) (question of fact as to Dram Shop liability raised where alcohol was sold at concessions at fireman’s fundraiser by various fire company concessionaires, but summary judgment granted to fireman’s groups that only organized the event because they did not sell alcohol). But see, Dynarski v U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86 (Sup. Ct. Erie Cty. 1981) (no Section 11-101 liability for death of 15-year-old from acute alcohol poisoning at firehouse wedding reception because the Dram Shop act does not apply to social occasions). (NB: This case pre-dated GOL 11-100 prohibiting service, irrespective of sale, to underage individuals. Today, this case would certainly have survived under the companion statute to GOL 11-101, GOL 11-100, because it involved provision of alcohol to an underage drinker).
CORPORATE PROMOTIONAL PARTIES: Whether Dram Shop liability attaches to caterers who dispense liquor at “complimentary bars” set up at corporate promotional parties has received little attention or discussion in the case law. Clearly, even if the intoxicant is not paying for the liquor, the caterer has been paid by the corporate host, and the entire event is, essentially, an economic exchange to promote business interests. One lower court case, in an unreported decision, held that the Dram Shop law should not apply in such situations. See LeConte v. LVMH Moet Hennessy Louis Vuitton, Inc., 2009 WL 1568087 (New York Supreme Ct 2009). In LeConte, Dram Shop claims were dismissed for lack of a “sale,” where the Plaintiff- guest who was present at a promotional party with a complimentary bar, was assaulted by an intoxicated party guest. The Court rejected the Plaintiff’s argument that because the event was part of the company’s marketing plan, there was a profit motive, and therefore, a “sale” within the meaning of the Dram Shop Act. This decision appears to run counter to, and is inconsistent with, the cases cited above where Dram Shop liability was upheld against caterers who served complimentary liquor at open bars at social events.
COMPANIONS WHO PURCHASE THE LIQUOR FOR THE INTOXICANT: The Dram Shop laws will not impose liability on a seller who sells alcohol to companions of the intoxicant when the companions thereafter, unbeknownst to the seller, supply the liquor to a visibly intoxicated person or underage drinker. See, e.g, Sherman v. Robinson, 80 N.Y. 2d 483, 591, N.Y.S. 2d 974 (1992) (convenience store owner who sold liquor to companions of intoxicant had no duty to investigate the potential or possible consumers of the alcohol); Remillard v. Louis Williams, 59 A.D.3d 764, 872 N.Y.S.2d 256 (3d Dep’t 2009) (Hotel owner was not liable under the Dram Shop Act for injuries to motorist caused by hotel guest at Christmas party where evidence indicated that intoxicant never went to the bar to purchase the alcohol, which was purchased by companions for the intoxicant); Bregartemer v. Southland, 257 A.D.2d 554, 683 N.Y.S.2d 286 (2d Dep’t 1999) (GOL 11-100 claim dismissed against convenience store because Plaintiffs were unable to present any evidence of a direct sale of alcohol by the store to the minor who was driving at the time of the accident).
- ESTABLISHING PROOF OF VISIBLE INTOXICATION
Under GOL 11-100, Plaintiff is not only required to prove there was a commercial sale of alcohol, but that the commercial sale was made to a person “visibly intoxicated.” The 1986 amendment to GOL 11-101 inserting the “visibly intoxicated” language was meant to require that the seller have “sufficient notice” of the customer’s condition to have an opportunity to stop alcohol service. Therefore, the Courts have repeatedly recognized that it is incumbent upon a Plaintiff who claims Dram Shop violations to offer evidence that the party to whom the liquor was sold acted or appeared to be intoxicated at the time of the sale. See Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997).
Visible intoxication can be proved by circumstantial evidence and expert testimony. Adamy v. Ziriakus, 92 N.Y.2d 396, 681 N.Y.S.2d 463 (1998) (jury verdict for Plaintiff upheld where Dram Shop expert’s testimony was buttressed by police officer’s testimony of visible intoxication observed at scene of accident shortly after the intoxicant left the restaurant); Marconi v. Reilly, 254 A.D.2d 463, 678 N.Y.S.2d 785 (2d Dep’t 1998) (experts affidavit, together with eyewitness testimony, was sufficient to raise a triable issue of fact as to whether there was “visible intoxication” at the time the Defendant was served alcohol). It is important to note that the testimony of a toxicologist with regard to the visible effects caused by high blood alcohol content, without other circumstantial evidence or direct testimony in support, will not make out a prima facie case of “visible intoxication.” See Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997) (motorist’s submissions were not deficient merely because there was no eyewitness proof that driver had exhibited signs of intoxication, but affidavit of motorist’s expert asserting that she must have exhibited symptoms of intoxication in light of blood alcohol level had no probative force); Sullivan v. Mulinos of Westchester, Inc., 73 A.D.3d 1018, 901 N.Y.S.2d 663 (2d Dep’t 2010) (although proof of a high blood alcohol content does not, without more, provide a sound basis for drawing inferences about a person’s appearance or demeanor, an expert’s opinion concerning visible intoxication coupled with supportive deposition testimony was sufficient to defeat defendant’s application for summary judgment).
HABITUAL DRUNKS AND MINORS UNDER GOL 11-101
GOL Section 11-101 not only creates a cause of action against those who sell liquor to a visibly intoxicated person, but, when read in conjunction with Section 65 of the ABC Law, provides a cause of action for sales to an “habitual drunkard” or any minor actually or apparently under the age of 21 years. See GOL 11-101; ABC Law Section 65; Matalavage v Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103 (2d Dep’t 2009). GOL 11-101 requires a sale of alcohol. In contradistinction, GOL 11-100 (furnishing alcohol to minors) does not require a sale. In addition, it has been specifically held that GOL 11-101 (the “sale” statute) supports a cause of action against the vendor for injuries resulting from the sale of liquor to an underage person, even when the intoxicated minor is concededly sober at the time of sale. See Powers v. Niagara Mohawk Power. Corp., 129 A.D.2d 37, 516 N.Y.S.2d 811 (3d Dep’t 1987). By analogy, therefore, sales of liquor to an habitual drunkard would not require visible intoxication at the time of the sale.
III. PROVING CAUSATION IN DRAM SHOP CASES
After establishing a SALE, and proving the intoxicant was VISIBLY INTOXICATED, the Dram Shop plaintiff must establish a causal connection between the intoxication and the injury. In order to show that the damages suffered by the Plaintiff arose out of the intoxication of a person to whom alcohol was illegally sold, however, there need be only some “reasonable or practical connection” between the sale of alcohol and the resulting injuries. Proximate cause, as must be established in conventional negligence cases, is not required. See, e.g., samelaeill v Rugby Joe’s, Inc., 298 A.D.2d 369, 751 N.Y.S.2d 241 (2d Dep’t 2002); Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 731 N.Y.S.2d 207 (2d Dep’t 2001) lv. to appeal dism. 97 N.Y.2d 699, 739 N.Y.S.2d 99 (2002).
Proof of a high blood alcohol content does not provide a sound basis for drawing inferences about a person’s appearance or demeanor but can be used in conjunction with other evidence such as expert testimony and eyewitness testimony to establish liability. Trigoso v Correa 150 A.D.3d 1041 (2d Dep’t 2017).
NO CAUSE OF ACTION IN FAVOR OF INTOXICATED PERSON
The Dram Shop Act, GOL 11-100 and 11-101 do not create a cause of action in favor of one injured as a result of his or her own intoxication and there is no common-law cause of action either. There is no exception because of age and persons under 21 years of age are not exempt from this rule. Kudish v Grumpy Jack’s Inc., 112 A.D.2nd 788(2d Dep’t 2012). However, in this case the court did allow a claim by the parents to proceed on a cause of action seeking medical and funeral expenses since the parents had an obligation to support their minor child.
SOCIAL HOST LAWS: FURNISHING ALCOHOL TO A MINOR
In 1983, the New York legislature enacted GOL 11-100 as a sister statute to GOL 11-101. GOL 11-100 imposes civil liability upon any person who unlawfully “furnishes” or “assists in procuring” alcoholic beverages to a person under the age of 21. GOL 11-100; (see L 1983, Chapter 641, effective October 23, 1983.) Significantly, GOL 11-101 does not require a sale of liquor, thereby opening the door to liability for social hosts who cause or permit underage drinking on their watch at social occasions where no money changes hands. See McCauley v. Carmel Lanes, Inc., 178 A.D.2d 835, 577 N.Y.S.2d 546 (3d Dep’t 1991).
The elements of the claim are straightforward. The statutes speaks in terms of “furnishing” or “assisting in procuring” the alcohol for the minor. “Assisting in procuring” has been interpreted to include using one’s own money, or even contributing money with others to the purchase of alcohol for the minor. See Bregartemer v. Southland, 257 A.D.2d 554, 683 N.Y.S.2d 286 (2d Dep’t 1999). No liability attaches, however, if the adult is a mere passive participant at a party where minors happen to be drinking. In addition, the Defendant must know, or have reasonable cause to believe, the persons receiving the alcohol are under the age of 21. See Sherman v. Robinson 80 N.Y.2d 483, 591, N.Y.S.2d 974 (1992) (A convenience store operated by defendant which sells alcoholic beverages may not be held liable under General Obligations Law §§11-100 or 11-101 for personal injuries resulting from an indirect sale of alcohol to a minor). If the defendant is reasonably unaware of the alcoholic consumption by the minor, or did not authorize its consumption on his premises, no liability will attach. See Lane v Barker, 241 A.D.2d 739, 660 N.Y.S.2d 194 (3d Dep’t 1997) (GOL 11-100 claims dismissed where the parents whose minor held a party with underage drinking did not procure or furnish the alcohol that was consumed at the party, nor did they provide funds for that purpose); Guercia v Carter, 274 A.D.2d 553, 712 N.Y.S.2d 143 (2d Dep’t 2000) (summary judgment to parents granted where they neither knew of underage drinking on their premises when daughter hosted party, nor furnished alcohol to any minors); Lombart v. Chambery, 19 A.D.3d 1110, 797 N.Y.S.2d 216 (4th Dep’t 2005) (GOL 11-100 claim dismissed where Defendant was a passive participant who merely knew of the underage drinking, but did nothing to encourage it); McGlynn v. St. Andrew v. Apostle Church, 304 A.D.2d 372, 761 N.Y.S.2d 151 (1st Dep’t 2003) lv. to appeal den. 100 N.Y.2d 508, 764 N.Y.S.2d 385 (2003) (party at Church hosted by parishioner where underage drinking occurred; Church not responsible under 11-100 because it did not play an indispensable role in making the alcohol available to underage persons; claims against adults at the party dismissed because they were “passive participants,” who merely knew of the underage drinking and did nothing to encourage it; claims against Defendant who procured and furnished the beer, however, survived summary judgment); Fantuzzo v Attridge, 291 A.D.2d 871, 737 N.Y.S.2d 192 (4th Dep’t 2002) (parents not liable under GOL 11-100 where party was arranged by underage child while parents were out of town and parents neither furnished nor procured the alcoholic beverages for anyone at the party, nor was there evidence that they were aware of, or had given permission for, the consumption of alcoholic beverages on their premises by minors. Claims against underage daughter survived, however, because she admitted aiding the procurement of the alcohol served at the party to the underage guests.)
Under both GOL 11-100 and 11-101, the alcohol must be directly furnished to the underage drinker, not provided to surrogates or companions who then provide the alcohol to the minor. See Sherman v. Robinson, 80 N.Y.2d 483, 591, N.Y.S.2d 974 (1992) (the General Obligations Law is explicit in limiting liability for injuries caused by an intoxicated minor to the unlawful supply of alcoholic beverages to that person); Fox v. Clare Rose Beverage, Inc., 262 A.D.2d 526, 692, N.Y.S.2d 658 (2d Dep’t 1999) lv. to appeal den. 94 N.Y.2d 755, 701 N.Y.S.2d 711 (1999) (claims against beverage distributor under GOL 11-101 dismissed because distributor did not directly sell beer to the intoxicant, but did sell to his companions); Ahigian v. Davis, 6 A.D.3d 956, 774 N.Y.S.2d 845 (3d Dep’t 2004) lv. to appeal den. 3 N.Y.3d 608, 786 N.Y.S.2d 811 (2004); (GOL 11-100 and 11-101 claims dismissed against convenience store which sold alcohol to adult who then provided same to underage driver who was in the car and not visible to the convenience store counterman through the store’s window); Dalrymple v Southland Corp., 202 A.D.2d 548, 609 N.Y.S.2d 284 (2d Dep’t 1994) (convenience store owner not responsible for personal injuries resulting from an indirect sale of alcoholic beverages to a minor absent any knowledge that the alcoholic beverages would be consumed by the particular minor.)
DRAM SHOP LIABILITY FOR SELLERS OF FAKE OR SIMULATED LICENSES
A seller of a simulated or fake license to an underage individual is not legally responsible under the Dram Shop Act Section 11-100 for furnishing or assisting in procuring alcoholic beverages. Etu v. Cumberland Farms, Inc., 148 A.D.2d 821, 538 N.Y.S.2d 657 (3d Dep’t 1989). (Note, however, that there is a proposed law which was introduced to the New York State Legislature in 2013 to extend Dram Shop liabilities to purveyors of fake licenses. See NY Legislature Bill s2334-2013, which was referred to the Judiciary Committee in January 2014 for further consideration). Bill still in committee as of 9/15/2017.
SUFFOLK COUNTY SOCIAL HOST LAWS
Suffolk County Code Sections 294-6, 294-7 and 294-8 represent the Suffolk County Legislature’s attempt to rein in underage drinking and driving. Section 294-8 makes it unlawful for any person over the age of 18 who owns or rents a private residence to knowingly allow alcoholic consumption by a minor. The Code mandates that the adult take reasonable corrective action if it becomes apparent to the adult that underage drinking is taking place on his or her property. “Reasonable corrective action” is defined to include demanding that the underage drinker refrain from further drinking, and contacting the police or the minor’s parents. Exceptions to the no drinking rule include the consumption of alcohol for religious purposes or the consumption of alcohol when the minor’s parents are present and expressly consent to the drinking. Violators are subject to fines up to $500.00. See Alotta v Diaz, 2014 WL 2106254 (Supreme Court Suffolk County 2014) (claims under Dram Shop Law 11-100, 11-101 and Suffolk County Dram Shop laws dismissed against mother whose 14-year-old daughter and friend surreptitiously left the house and consumed alcohol, ultimately resulting in an accident; plaintiffs failed to demonstrate a lack of supervision in caring for the children entrusted to the mother).
GOL 11-103 : INJURIES CAUSED
BY THE ILLEGAL SALE OF CONTROLLED SUBSTANCES
GOL 11-103 provides, in essence, a Dram Shop Claim against any person who caused or contributed to another’s impairment by unlawfully selling or assisting in procuring a controlled substance for that person. In this context, “assisting in procuring” means that no sale is necessary. Merely furnishing the controlled substance is sufficient for liability. See Terriginov. Zaleski, 144 Misc.2d 474, 544 N.Y.S.2d 283 (Sup. Ct. Monroe Cty. 1989) (GOL 11-103 is not limited to commercial sales of drugs, and any transfer of a controlled substance, such as marijuana, without remuneration or receiving something of value in return, is sufficient to subject person to liability.) Actual and punitive damages are recoverable under the statute.
COMMON LAW DUTY TO PROTECT/
SUPERVISE PERSONS ON PROPERTY
Dram Shop liability is statutory. Alcohol providers are not responsible in the common law for furnishing alcohol to intoxicated persons who then go on to cause injuries. That is not to say, however, that there are no common law theories of liability applicable to landowners when an injury is caused by an intoxicated person. The common law does generally impose a duty on landowners, including bar and restaurant owners, to protect third persons from dangerous conditions on their property, which includes the duty to protect third persons from injuries caused by an intoxicated person. In addition, in appropriate circumstances, adults have a common law duty to supervise minors and protect them from guests who become intoxicated at the adult’s home.
A landowner is only responsible for injuries caused by an intoxicated guest if the injuries occurred on the landowner’s property, or in an area under the landowner’s control, and even then, only when the landowner had the opportunity to supervise the intoxicated guest. See D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S. 2d 1 (1987) (landowners have a common law duty to control the conduct of third persons, including intoxicated guests, on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control); Panzera v. Johnny’s II, 253 A.D.2d 864, 678 N.Y.S.2d 336 (2d Dep’t 1998) (question of fact whether bar was responsible in the common law to protect patron from shooting by intoxicated fellow patron); Huyler v. Rose, 88 A.D.2d 755, 451 N.Y.S.2d 478 (4th Dep’t 1982) appl. Dism., 57 N.Y.2d 777, 1982 WL 195047 (1982) (a property owner has the common law duty to control the conduct of persons present on his property when he knows that he can and has the opportunity to control the third parties’ conduct and is reasonably aware of the necessity for such control).
No common law claim lies, however, after the intoxicant leaves the premises of the landowner. See Martino v. Stolzman, 18 N.Y.3d 905, 941 N.Y.S.2d 28 (2012) (no common law liability when intoxicated guest backed his car out of landowner’s driveway and into traffic causing motor vehicle accident); Lombart v Chambery, 19 A.D.3d 1110, 797 N.Y.S.2d 216 (4th Dep’t 2005) (no common law liability for vehicular accident which occurred miles away from landowner’s home); Sheehy v Big Flats Community Day, Inc., 137 A.D.2d 160, 528 N.Y.S.2d 213 (3d Dep’t 1988) aff’d. 73 N.Y.2d 629, 543 N.Y.S.2d 18 (1989) (no landowner liability where accident occurred 200 yards from landowner’s premises); See generally, Milosevic v. O’Donnell, 89 A.D.3d 628 934 N.Y.S.2d 375 (1st Dep’t 2011) (employer won dismissal of claim arising out of employee’s intoxicated assault because there was no evidence the employer controlled the premises such that it could be held responsible for the injuries).
Similarly, adults who are entrusted with the care of minor children have a duty to adequately supervise those children, and the duty to supervise can arise in the context of injuries caused by alcohol intoxication. See Parslow v. Leake, 117 A.D.3d 55, 984 N.Y.S.2d 493 (4th Dep’t 2014) (Hosts of parties where alcohol is consumed on premises they own or occupy risk exposure to liability under two separate and distinct theories of negligence: the duty to control the conduct of third persons for the protection of others on the premises; and the duty imposed on adults to adequately supervise intoxicated minors); Aquino v. Higgins, 15 N.Y.3d 903, 912 N.Y.S.2d 571 (2010) (question of fact whether parents appropriately supervised intoxicated minors).
For example, In Aquino, supra, numerous 13 and 14 year-old children were at a party hosted by a parent. No alcohol was to be permitted but, unbeknownst to the parent-defendants, the children consumed alcohol in the basement and several became intoxicated. The parent-defendants learned of the consumption of alcohol and intoxication when they went into the basement at the end of the party and observed beer cans. The parent-defendants then attempted to ensure that all of the minor guests had a safe ride home. The minor plaintiff was injured in a car accident after leaving the parent-defendants’ home. The Court of Appeals denied the parents’ motion for summary judgment concluding that there was a triable issue of fact whether the parent-defendants “properly supervised [the minor guests’] departure from the premises.”
PARTIES WHO MAY SUE
The Dram Shop statute runs in favor of those persons injured in “person, property, means of support, or otherwise.” The statute does not create a cause of action for the party whose intoxication caused the injury. That is, the drunken party cannot sue for his own injuries. Similarly, if the intoxicant dies, the estate of the deceased intoxicant cannot sue for the intoxicant’s death. Interestingly, however, the dependents of the intoxicated person may sue the supplier of the alcohol for their own “loss in support” occasioned by the death of the intoxicant. See, e.g. Powers v Niagara Mohawk Power Corp. 129 A.D.2d 37, 516 N.Y.S.2d 811 (3d Dep’t 1987); Sheehy v Big Flats Community Day, Inc., 137 A.D.2d 160, 528 N.Y.S.2d 213 (3d Dep’t 1988) aff’d. 73 N.Y.2d 629, 543 N.Y.S.2d 18 (1989); Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103 (2d Dep’t 1980). Note, however, that the potential plaintiffs who can recover for “loss of support” by virtue of the death of the intoxicant are NOT limited to the decedent’s statutory wrongful death distributees, or only those he had a legal duty to support. Instead, the right to recover extends to any person who lost the decedent’s support. See Rutledge v. Rockwells of Bedford, 200 A.D.2d 36, 613 N.Y.S.2d 179 (2d Dep’t 1994) (stepchild who had been receiving support from decedent not barred from recovery under Dram Shop law).
THE GUILTY PARTICIPANT DEFENSE
The Dram Shop laws do not permit recovery for one who actively causes or procures the intoxication of the person responsible for the accident. That is the “guilty participant” who affirmatively causes the intoxication of the tortfeasor cannot then profit from his wrongdoing when he is injured by the intoxicated tortfeasor. See Powers v Niagara Mohawk Power Corp., 129 A.D.2d 37, 516 N.Y.S.2d 811 (3d Dep’t 1987) (friends who contributed to the purchase of beer precluded from suing for injuries sustained when intoxicated driver involved in accident); Pineda v. Javar Corp., 96 A.D.3d 731, 945 N.Y.S.2d 763 (2d Dep’t 2012) lv. to appl. Denied 19 N.Y.3d 813, 954 N.Y.S.2d 8 (2012) (where the plaintiff procured the alcohol for the intoxicant, the plaintiff is precluded from recovering against the tavern owner under the Dram Shop Act).
To be a guilty participant, however, requires more than just being a mere drinking companion. See Mitchell v. Taylor, 19 N.Y.2d 338, 280 N.Y.S.2d 113 (1967) (drinking companion not precluded from suit because she neither purchased the drinks nor encouraged intoxicant to drink more than he could tolerate).
An interesting question is whether the tavern owner can implead the drinking companions as third party defendants when the tavern owner is sued under the Dram Shop because the companions assisted in procuring the alcohol for the intoxicant. The tavern owner cannot. See Luciere v Rahner, 29 Misc.3d 963, 909 N.Y.S.2d 329 (Supreme Court Nassau County 2010) (Plaintiff sued intoxicant and tavern under Dram Shop theory. Tavern brought third party claim against companions of the intoxicant who purchased alcohol for him despite the fact that he was to be the designated driver for the group. The third party complaint against the companions was dismissed because the companions did not have a legal duty to refrain from purchasing drinks for their designated driver.)
LOSS OF SERVICES AND LOSS OF CONSORTIUM CLAIMS
Because the Dram Shop is a statutory cause of action and has no common law complement, claims for loss of services and loss of consortium are not recognized. See Sullivan v Mulinos of Westchester, 73 A.D.2d 318, 901 N.Y.S.2d 663 (2d Dep’t 2010).
ARTICLE 16, CONTRIBUTION AND COMPARATIVE NEGLIGENCE
In a Dram Shop Act case, the seller of the alcohol and the intoxicated tortfeasor may claim contribution between themselves as to compensatory damages awarded to the injured party. See CPLR 1401, Zona v. Oatka Restaurant & Lounge, Inc., 68 N.Y.2d 824, 507 N.Y.S.2d 615 (1986); Smith v. Guli, 106 A.D.2d 120, 484 N.Y.S.2d 740 (4th Dep’t 1985); Herrick v Second Cuthouse, Ltd., 100 A.D.2d 952, 475 N.Y.S.2d 91, aff’d, 64 N.Y.2d 692, 485 N.Y.S.2d 518 (1984). In addition, the alcohol seller can seek contribution from a third party (aside from the drunk) who was negligent in causing the accident. Weinheimer v. Hoffman, 97 A.D.2d 314, 470 N.Y.S.2d 804 (3d Dep’t 1983). If the injured party sues the intoxicated person, the intoxicated person can seek contribution from the seller of the alcohol. Cresswell v. Warden, 164 A.D.2d 120, 484 N.Y.S.2d 740 (2d Dep’t 1990).
Exemplary damages are specifically provided for in GOL 11-101. Any exemplary damages awarded, however, are not subject to contribution. See Smith v. Guli, 106 A.D.2d 120, 484 N.Y.S.2d 740 (4th Dep’t 1985).
Under Article 16 of the CPLR, defendants will be liable for their specific percentage of fault for non-economic damages, unless a particular defendant’s liability exceeds 50% of the fault. Article 16 applies in Dram Shop cases, except if the case falls into one of Article 16’s broad exceptions. See Spatz v Riverdale Greentree Rest., 256 A.D.2d 207, 682 N.Y.S.2d 370 (1st Dep’t 1998); Van Vlack v. Baker, 242 A.D.2d 704, 663 N.Y.S.2d 49 (2d Dep’t 1997); Robinson v. June, 167 Misc.2d 483 (N.Y. Sup. Ct. 1996). As between plaintiff and defendants, plaintiff can always attempt to prove an exception to apportionment, such as “reckless conduct” on the part of the bar. See Spatz v. Riverdale Greentree Rest., 256 A.D.2d 207, 682 N.Y.S.2d 370 (1st Dep’t 1998) (court should have given the charge relating to plaintiff’s “reckless disregard” theory of liability, to which the parties had consented, because a jury verdict for plaintiff on this theory would have held the bar defendants fully liable for any judgment per CPLR 1602 ).
It has been held that plaintiff’s own percentage of comparative negligence will not be deducted from the liability of the joint defendants to calculate whether a particular defendant is more than 50% at fault. See Smith v. Guli, 106 A.D.2d 120, 484 N.Y.S.2d 740 (4th Dep’t 1985).
The rule permitting contribution among defendants in a Dram Shop act case is different, however, when the survivors of a deceased intoxicant sue the tavern or bar for “loss of support.” Remember that one of the purposes of the statute is to protect the spouse and children of the intoxicated person when they were deprived of the means of support as a result of his intoxication. Where individuals unlawfully served alcohol are themselves injured or killed as a result of the intoxication, the defendant-vendor (the bar) cannot obtain contribution from the estate or the decedent’s survivors for the negligence of the intoxicant. See, e.g., Coughlin v. Barker Ave. Assocs., 202 A.D.2d 622, 609 N.Y.S.2d 646 (2d Dep’t 1994); Bartlett v Grande, 103 A.D.2d 671, 481 N.Y.S.2d 566 (4th Dep’t 1984); compare Zona v Oatka Rest. & Lounge, 68 N.Y.2d 824, 507 N.Y.S.2d 615 (1986) (restaurant can obtain contribution from estate of drunk driver, when his death was unrelated to the accident and was not the subject matter of the lawsuit). The rationale for these holdings is that when the person served alcohol and the decedent are one and the same, allowing contribution would enable the vendor to reduce its liability for conduct that essentially amounts to its own wrongdoing–unlawfully providing the alcohol.
Where, however, decedent driver and the intoxicant are not the same person, decedent’s fault is independent for the purposes of the Dram Shop Act. In that particular circumstance, the verdict can be reduced by the non-drunk driver’s comparative fault in causing the accident with the intoxicant. See Adamy v Ziriakus, 92 N.Y.2d 396, 681 N.Y.S.2d 483 (1998) (contribution between defendants and plaintiff’s estate permitted in lawsuit brought by the estate where deceased driver was not the intoxicant, but the driver of a second vehicle involved in the accident who was allegedly a cause of the accident also).
STATUTE OF LIMITATIONS
Dram Shop cases under the GOL 11-101 are subject to the three year statute of limitations period prescribed by CPLR 214(2). See Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 529 N.Y.S.2d 804 (2d Dep’t 1988). Even where the plaintiff dies as a result of a car accident caused by an intoxicant, the heirs complaining of loss of support have three years to assert their claim, and are not bound by the two year wrongful death statute of limitations. Id.
Michael G. Glass
Rappaport, Glass, Levine & Zullo, LLP
1355 Motor Parkway
Islandia, NY 11749