Hazlitt 1852 Vineyards & Winery in Hector was found not liable for a fatal collision caused by a former employee. (Hazlitt)
ALBANY – A Finger Lakes vineyard is not liable for a deadly crash in which a tasting-room employee, intoxicated on the winery’s free beverages, struck and killed one motorcyclist and severely injured another just after leaving work, a judge ruled.
Acting Wayne County Supreme Court Justice Dennis Kehoe (See Profile) rejected arguments seeking to hold Hazlitt’s 1852 Vineyards & Winery responsible for the fatal collision under various theories, including common law negligence and a violation of the state Dram Shop Law.
Kehoe said lawyers for the relatives of the dead motorcyclist, Gary Parker, and the injured motorcyclist Timothy Herkimer made a “strong plea that business should take responsibility for the actions of their employees if they subject the public to dangerous situations as a result of their actions at work.”
But the judge in Parker v. Dunn, 71325, noted, “While the Court acknowledges that there may well be a moral imperative, a defendant has no legal duty to third parties in these circumstances.”
A vehicle owned by the vineyard’s employee, Jamie Dunn, struck the motorcyclists soon after he left work at the Hector, N.Y. winery on May 31, 2009. Authorities said he was trying to pass another car in a no-passing zone when he hit the motorcycles head-on.
A Breathalyzer test administered about two hours after the crash placed Dunn’s blood alcohol content at 0.17 percent, more than twice the minimum level for driving while intoxicated.
The judge said, “It is conceded by all parties that whatever alcohol Dunn consumed on the day in question, he received free of charge from Hazlitt.”
Dunn, now 27, pleaded guilty to second-degree manslaughter, second-degree vehicular assault and driving while intoxicated. He is serving a two-to-seven-year sentence in state prison.
Kehoe said he “carefully” reviewed theories of common-law negligence when preparing his decision but could find none that provided an “arguable basis” for holding the winery liable.
Dunn was not on vineyard property when the accident occurred and was not carrying out job responsibilities—circumstances that would have triggered vicarious liability on the vineyard’s part, the judge said. He also rejected liability under the doctrine of respondeat superior.
“There is no evidence that Dunn was acting within the scope of his employment at the time he left the Winery,” Kehoe wrote from Lyons. “He was returning home; he was not operating a company vehicle; and his actions were neither controlled by his employer, nor performed in furtherance of his employer’s business.”
Nor does the state Dram Shop Law offer an avenue of relief against the vineyard for Parker’s survivors or for Herkimer.
The statute, General Obligations Law §11-101, gives a right of action to those injured by an intoxicated person who was unlawfully sold or otherwise illegally provided with alcohol.
Hazlitt argued that since there was no sale of any alcoholic beverage, the winery was not liable under Dram Shop Law.
The plaintiffs countered that the winery provided wine to Dunn and that he other employees in the winery’s tasting room were expected “to demonstrate that they enjoyed drinking the wine themselves, even to join in a toast with the customers when a particular wine was sampled, all in order to encourage sales.”
Such expectations created an “economic benefit” to the winery equivalent to the sale of alcohol to Dunn and should bring its actions under the ambit of the Dram Shop Law, the plaintiffs’ attorney argued.
But Kehoe noted that a copy of an employee manual the winery produced in its defense said workers were expected to limit their intake of alcohol to amounts required by their job duties and that intoxication would subject workers to discipline or dismissal.
“The testimony presented indicates that no one on the staff had ever had any reason to believe that Dunn had ever consumed impermissible amounts of alcohol,” Kehoe wrote. “The deposition testimony of the staff is generally consistent in indicating that Hazlitt’s management staff did not encourage their employees in the tasting room to drink.”
Kehoe also rejected §65.2 of the Alcholic Beverages Law as a basis of a claim. It prohibits selling or supplying alcohol to a visibly intoxicated person.
The judge said testimony by winery employees indicated that Dunn did not appear to be intoxicated prior to the accident and §65 does not give rise to a private right of action.
Richard DeValk of DeValk, Power, Lair & Warner of Sodus represented the Parker estate and Herkimer.
Donald O’Brien Jr. of Wood Oviatt Gilman in Rochester defended the winery.
Dunn and a co-defendant, Shirley Woughter, the owner of the vehicle Dunn was driving, filed cross-claims also seeking to hold the vineyard liable. They were dismissed in Kehoe’s ruling. Michael Reddy of Burke Albright Harter & Reddy of Rochester represented Dunn and Woughter.
Among the wines produced by the 1852 Vineyards & Winery are those sold under the “Red Cat,” “White Cat” and “Cabin Fever” labels.
@|Joel Stashenko can be reached at email@example.com.