Andrea M. Alonso and Kevin G. Faley ()
In New York, claims are regularly brought by injured third parties when alcohol is consumed in homes or public taverns. New York’s Dram Shop Act affords a person, who is injured as a result of another’s intoxication, a cause of action against the party that unlawfully sold, provided or assisted in providing the alcohol to the intoxicated person.1 Recently, courts in New York have been limiting the extent of personal liability for such injuries, but upholding stricter rules on the public taverns and commercial establishments that serve alcohol.
At the Tavern
It is illegal for businesses to sell alcohol to visibly intoxicated persons. Ultimately, whether such person is “visibly intoxicated” is a question of fact. Expert and eyewitness testimony can be offered to prove visible intoxication.2 But proof of intoxication by high blood-alcohol content alone is insufficient to draw inferences as to a person’s demeanor at the time the person was served alcohol.
In Carver v. P.J. Carney’s,3 the Appellate Division, First Department, denied the tavern’s motion for summary judgment after the plaintiff was struck in the face by an intoxicated patron on the sidewalk outside the premises. Though the tavern’s bartender stated that the patron did not appear intoxicated, two witnesses said the patron was served alcohol prior to the assault when he was unsteady, aggressive and boisterous.
In Coffey v. Esparra,4 the plaintiff alleged that he was struck by the defendant driver’s vehicle after the driver left the defendant restaurant. However, the driver testified that she had nothing to drink in the six hours before she went to the restaurant and had just one alcoholic beverage during her time there. Because the plaintiff was unable to submit evidence of the driver’s “visible intoxication” while at the restaurant, the First Department granted the motion for summary judgment.
In addition to proving that the defendant made an illegal sale of alcohol, a plaintiff must also prove that the sale of that alcohol bore some reasonable connection to the resulting injuries.
In Kaufman v. Quickway,5 just seven minutes after purchasing beer from the defendant convenience store, a motorist struck a vehicle driven by the plaintiff’s son, killing both the motorist and the son. The plaintiffs commenced an action under the Dram Shop Act alleging that the convenience store sold alcohol to the motorist when he was visibly intoxicated.
The New York Court of Appeals held that although there was evidence that the motorist was visibly intoxicated at the time of purchase, the plaintiffs failed to demonstrate that there was a reasonable or practical connection between the alleged unlawful sale of alcohol and the resulting accident.6
In Sullivan v. Mulinos of Westchester,7 the plaintiff’s decedent lost control of his vehicle while driving over the Tappan Zee Bridge and his vehicle was propelled into the Hudson River. The plaintiff filed an action on behalf of herself, her children and the estate of her deceased husband against both the restaurant and the tavern that her deceased husband had patronized earlier in the night.
The court found issues of fact as to whether the husband had been served alcohol while visibly intoxicated at both establishments; however, the court dismissed the claims for loss of services and loss of consortium as they are not recoverable under the “strictly construed” Dram Shop Act.8 The court also denied recovery on behalf of the decedent’s estate because a consumer of alcohol has no cause of action against the seller for the consumer’s injuries resulting from his own voluntary intoxication.9
The Second Department has held that a driver who strikes an intoxicated pedestrian can seek contribution from the public establishment under the Dram Shop Act. In O’Gara v. Alacci,10 the intoxicated plaintiff was struck by a car driven by the defendant/third-party plaintiff. When the plaintiff commenced a negligence action against the driver, the driver then commenced a third-party action against the bar seeking contribution alleging the bar unlawfully served alcohol to the plaintiff when she was visibly intoxicated. The Second Department held that though sellers of alcohol owe no duty to protect consumers from the result of their voluntary intoxication, the sellers do have a duty to the public not to sell liquor to visibly intoxicated people. As the driver is a member of the “public,” he could seek contribution from the bar for breaching its duty.
“Guilty participation” on the part of another patron may preclude the liability of a tavern to an injured third party. It occurs when a person causes or procures the intoxication of another which results in the injuries of a third party. But the mere act of purchasing drinks for a companion prior to his or her visible intoxication is insufficient to constitute guilty participation as a matter of law.
In Oursler v. Brennan,11 the plaintiff and his decedent wife attended a Halloween party at a bowling alley, where the decedent became intoxicated. The plaintiff purchased his wife’s first beer when they arrived and a second beer later that night. The court held that the plaintiff’s conduct did not constitute “guilty participation” because the decedent had also purchased her own drinks, had friends buy her drinks and had been provided by the bar with free “Jell-O shots.”
Purchasing or contributing money to the purchase of an alcoholic drink for a minor is sufficient to constitute being a guilty participant.12 Moreover, a minor need not be visibly intoxicated at the time of purchase for the sale of alcohol to be unlawful. The defense in Oursler argued that the plaintiff’s purchase of just one drink for his decedent wife constituted guilty participation and barred him from recovery against the bowling alley; however, as the decedent was above the legal drinking age, the plaintiff was not held to such a strict standard.
Consistent with the Oursler decision, liability was not extended to two patrons who purchased shots for their “designated driver.” In Luciere v. Rahner,13 the plaintiff brought an action for damages against an intoxicated driver and the tavern that provided the driver with alcohol after the plaintiff was injured as a result of the defendant’s alleged drunken driving. The tavern filed a third-party complaint against the defendant’s two drinking companions.
Before the three patrons left for the tavern, the defendant agreed to be the “designated driver” for the evening. Regardless, the defendant’s two companions purchased shots of alcohol for him at the tavern. The tavern’s third-party complaint was dismissed because purchasing an alcoholic drink for an adult is not, in and of itself, illegal. Furthermore, the Supreme Court, Nassau County, held that the two companions did not have a legal duty to refrain from purchasing drinks for their “designated driver,” a term that is, according to the court, legally unknown and undefined. The court also noted that the defendant was not forced against his will or compelled to drink the shots that were purchased for him.
On the other hand, when it is the plaintiff who purchases alcohol for his designated driver, liability will not extend to the tavern or drinking establishment. In Pineda v. Javar Corp.,14 the plaintiff, who was the passenger in his drinking companion’s vehicle, was injured in a car accident that occurred after the two had left the defendant night club. The plaintiff’s complaint stated that the night club served alcohol to his drinking companion while he was visibly intoxicated. However, the night club established that the plaintiff purchased and provided the alcohol to his companion, thus precluding the plaintiff from recovering against the night club.
In the Home
New York common law provides that social hosts or homeowners generally have a duty to act in a reasonable manner to prevent harm to guests on their property. Specifically, their duty is to control the conduct of guests on their property when they reasonably believe that such control is necessary and when they have the opportunity to do so.15 However, once a guest leaves their property, the host’s duty to that guest generally ends. Furthermore, the host does not have a duty to prevent an intoxicated guest from leaving his or her premises. Thus, social hosts generally are not liable for injuries to third parties that are caused by the voluntary intoxication of a guest, even when the social host provides the alcohol.
In Martino v. Stolzman,16 the plaintiffs sued the hosts of a New Year’s Eve party after suffering injuries as a result of an intoxicated guest backing out of the hosts’ driveway and into an oncoming vehicle. The New York Court of Appeals dismissed both the Dram Shop and negligence claims asserted against the defendant hosts, declining to extend the social hosts’ liability beyond their premises and stating that the hosts were no longer in a position to control the intoxicated guest when he got in his vehicle. The court agreed with the dissenting justices at the Appellate Division that “requiring social hosts to prevent intoxicated guests from leaving their property would inappropriately expand the concept of duty.”17
With regard to minors being served alcohol on a host’s private property, a violation of New York’s Dram Shop Act can occur when a person simply provides or assists in providing alcohol to a minor. Providing just a single alcoholic drink to a minor, with the knowledge or reasonable cause to believe that such minor was under the age of 21, can make the provider liable for third-party injuries that result.
In Murphy v. Cominsky,18 the plaintiff brought a Dram Shop suit against the defendants who provided alcohol to minors at a house party, resulting in their intoxication. The party was hosted by a minor while his parents were out of town. The plaintiff alleged that the minors got “rowdy” and agitated the host’s dog, causing it to bite the plaintiff in the face. The Fourth Department held that the plaintiff had stated a legally cognizable claim for the defendants’ violation of the Dram Shop Act because the statute requires only “some reasonable or practical connection between the [providing] of alcohol and the resulting injuries.”19 Proximate cause, which must be established in a conventional negligence case, is not required. The court dismissed the plaintiff’s negligence claim against the defendants, however, because, as stated above, there is no common law cause of action for the negligent provision of alcohol in New York.
In Barry v. Gorecki,20 a party guest’s mother, individually and on behalf of her son, brought a personal injury action against homeowners, the homeowners’ underage son who hosted a party and the liquor store that sold beer to the underage host prior to the party. During the party, a fight occurred causing the host to move everyone outside. A neighbor called police, and when they arrived, many of the partygoers scattered. The plaintiff’s son ran through the host’s backyard, with which he was unfamiliar, and fell off a cliff resulting in his injuries.
The Fourth Department granted the absent homeowners’ motion for summary judgment, holding as a matter of law that the homeowners did not have a legal duty to the guest because they were not present on the property nor did they consent to their son hosting a party. 21
The court also granted the liquor store’s motion for summary judgment concluding there was “no reasonable or practical connection” between the alleged unlawful sale of alcohol to the underage host and the guest’s resulting injuries.22
Concerning the underage host, the court held that because of the extensive chain of events, there was no proximate cause between the host’s alleged failure to supervise and control the other guests and the plaintiff’s son’s injuries.23 The court did, however, reinstate the plaintiff’s failure to warn claim against the underage host because the host failed to establish that the cliff was an open and obvious geographic feature, which would have precluded his duty to warn.
Looking to the Future
The National Transportation Safety Board has issued a series of recommendations in an effort to reduce alcohol-related injuries and deaths. Notably, the board is urging states to reduce the threshold for drunken driving from the current .08 blood alcohol content (BAC) to .05.24 According to the board, more than 100 countries have adopted a .05 BAC standard or lower. In Europe, highway deaths attributable to drunken driving were reduced by more than half within the 10 years after the limit was dropped.
In the United States, this tactic has worked before. Dramatic progress has been made since the 1980s after the minimum drinking age was raised to 21 and the standard for drunken driving was lowered to .08 BAC. Today, drunken driving claims about 10,000 lives per year, down from over 18,000 in 1982. The Insurance Institute for Highway Safety estimates that lowering the blood alcohol limit below .08 could save over 7,000 more lives per year.25
National Transportation Safety Board Chairwoman Deborah Hersman said, “[a]lcohol-impaired deaths are not accidents, they are crimes. They can and should be prevented. The tools exist. What is needed is the will.”26 Because they are preventable, Hersman’s goal is to get to zero alcohol-related deaths. Reducing the threshold for drunken driving can help attain that goal.
Kevin G. Faley and Andrea M. Alonso are partners of Morris Duffy Alonso & Faley. Andrew Yacyshyn, a paralegal, assisted in the preparation of this article.
1. See Murphy v. Cominsky, 100 A.D.3d 1493, 954 N.Y.S.2d 343 (4th Dept. 2012).
2. See Adamy v. Ziriakus, 92 N.Y.2d 396, 681 N.Y.S.2d 463 (1998).
3. 103 A.D.3d 447, 962 N.Y.S.2d 3 (1st Dept. 2013).
4. 88 A.D.3d 621, 931 N.Y.S.2d 600 (1st Dept. 2011).
5. 64 A.D.3d 978, 882 N.Y.S.2d 554 (3d Dept. 2009) aff’d, 14 N.Y.3d 907, 905 N.Y.S.2D 532 (2010).
6. Kaufman v. Quickway, 14 N.Y.3d 907, 905 N.Y.S.2d 532 (2010).
7. 73 A.D.3d 1018, 901 N.Y.S.2d 663 (2d Dept. 2010).
8. Id. at 1020-21 (citing Valicenti v. Valenze, 68 N.Y.2d 826, 507 N.Y.S.2d 616 (1986)).
9. Id. (citing Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 543 N.Y.S.2d 18 (1989)).
10. 67 A.D.3d 54, 887 N.Y.S.2d 106 (2d Dept. 2009).
11. 67 A.D. 3d 36, 884 N.Y.S.2d 534 (4th Dept. 2009).
12. Id. at 41.
13. 29 Misc.3d 963, 909 N.Y.S.2d 329 (Sup. Ct. Nassau Co. 2010).
14. 96 A.D.3d 731, 945 N.Y.S.2d 763 (2d Dept. 2012).
15. See D’Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1 (1987).
16. 18 N.Y.3d 905, 964 N.E.2d 399 (2012).
17. Id. at 908.
18. 100 A.D.3d at 1494.
19. Id. at 1494-95; see Oursler v. Brennan, 67 A.D.3d at 43.
20. 38 A.D.3d 1213, 833 N.Y.S.2d 329 (4th Dept. 2007).
21. Id. at 1215.
24. Joan Lowy, “Tougher drunken driving threshold urged,” May 14, 2013, http://www.heraldtribune.com/article/20130514/WIRE/130519836.