New York Law Review

Tag: Dram Shop Act

  • Adamy v. Ziriakus, 92 N.Y.2d 396 (1998): Establishing Visible Intoxication Through Circumstantial Evidence in Dram Shop Cases

    Adamy v. Ziriakus, 92 N.Y.2d 396 (1998)

    In Dram Shop Act cases, visible intoxication can be established through circumstantial evidence, including expert testimony and observations of the individual’s behavior shortly after being served alcohol.

    Summary

    This case concerns a Dram Shop Act claim against T.G.I. Friday’s following a fatal car accident involving Mark Ziriakus, who had been drinking at Friday’s. The plaintiff, the widow of the deceased police officer, alleged that Friday’s served Ziriakus alcohol while he was visibly intoxicated. The Court of Appeals held that the jury’s verdict in favor of the plaintiff was supported by sufficient evidence, including expert testimony estimating Ziriakus’s blood alcohol content and police officers’ observations of Ziriakus’s intoxicated state shortly after he left the bar. The court emphasized that visible intoxication could be proven through circumstantial evidence.

    Facts

    Mark Ziriakus consumed alcoholic beverages at T.G.I. Friday’s. Shortly after leaving the bar, Ziriakus was involved in a car accident with Lieutenant Joseph Adamy, who died as a result. Ziriakus failed field sobriety tests at the scene and was later convicted of driving while intoxicated. Plaintiff presented evidence Ziriakus had a BAC of 0.17 at 3:00 AM shortly after the accident.

    Procedural History

    Plaintiff sued Ziriakus and Friday’s, alleging a violation of the Dram Shop Act. A jury found in favor of the plaintiff, apportioning liability among Ziriakus, Friday’s, and the decedent. Friday’s post-trial motions were denied by the Supreme Court. The Appellate Division modified the judgment, holding that the trial court erroneously awarded multiple lump-sum payments and improperly failed to reduce the verdict by the decedent’s comparative fault. Both Friday’s and the plaintiff appealed to the Court of Appeals.

    Issue(s)

    1. Whether there was sufficient evidence to support the jury’s verdict that Friday’s served alcohol to Ziriakus while he was visibly intoxicated.

    2. Whether the Appellate Division erred in holding that only one lump-sum payment could be made from the future damages award pursuant to CPLR 5041(b).

    3. Whether the verdict should have been reduced by the decedent’s 30% share of comparative fault.

    Holding

    1. Yes, because the circumstantial evidence, including expert testimony, police officer observations, and a missing witness inference, provided a basis for the jury to conclude that Ziriakus was visibly intoxicated when served at Friday’s.

    2. No, because the children were merely distributees and not themselves plaintiffs; only the administratrix was the plaintiff.

    3. Yes, because the decedent’s fault was independent of the purposes of the Dram Shop Act and flowed from evidence that he was speeding at the time of the accident.

    Court’s Reasoning

    The Court of Appeals reasoned that visible intoxication can be established through circumstantial evidence. Plaintiff’s expert, Dr. Baden, testified that Ziriakus’s BAC at 3:00 a.m. indicated he would have been visibly intoxicated when last served at Friday’s. While Friday’s challenged Dr. Baden’s testimony, the court noted that these challenges went to the weight of the evidence, not its admissibility, as Friday’s made no initial objection to his qualification as an expert.

    Additionally, police officers observed Ziriakus’s intoxicated behavior at the accident scene shortly after he left Friday’s. The court found it was reasonable for the jury to infer, based on everyday experience, that Ziriakus displayed signs of intoxication while at Friday’s.

    The court also noted that a missing witness instruction was given because Friday’s failed to call a bartender who had served Ziriakus that night. This allowed the jury to draw the strongest inferences against Friday’s. The court stated the jury could “draw the strongest inferences against T.G.I. Friday’s, Inc. that the opposing evidence permits.”

    Regarding the lump-sum payment issue, the court held that because the children of the deceased did not bring separate actions, only one lump-sum payment was warranted. Regarding the comparative fault issue, the court held that reduction of the verdict in these circumstances thus promotes the purposes and policies behind the comparative fault statute and in no way contravenes those of the Dram Shop Act.

  • Sherman v. Robinson, 80 N.Y.2d 483 (1992): Limits on Liability for Indirect Alcohol Sales to Minors

    Sherman v. Robinson, 80 N.Y.2d 483 (1992)

    A convenience store is not liable under New York’s Dram Shop Law or common-law negligence for injuries caused by an intoxicated minor when the store’s unlawful sale of alcohol was to a different minor who then shared the alcohol with the intoxicated minor.

    Summary

    This case addresses the scope of liability for businesses that sell alcohol to minors when the alcohol is then shared with other minors, one of whom causes injury due to intoxication. The New York Court of Appeals held that a convenience store was not liable for injuries caused by an intoxicated minor when the store’s unlawful alcohol sale was to a different minor who subsequently shared the alcohol. The court reasoned that the Dram Shop Act and related statutes create a narrow exception to the common-law rule of individual responsibility for alcohol consumption, and this exception does not extend to indirect sales where the alcohol is furnished to someone other than the intoxicated person.

    Facts

    A minor, Relf, used a found driver’s license to purchase beer and wine coolers from a convenience store operated by AOK. Relf used money pooled from a group of teenagers, including Robinson and Sherman, who waited outside in a car. The group consumed the alcohol, and later, Robinson, while intoxicated, drove a car in which Sherman was a passenger. The car was involved in an accident, severely injuring Sherman.

    Procedural History

    Sherman sued Robinson and AOK, the convenience store. The motion court dismissed the complaint against AOK on summary judgment. The Appellate Division affirmed this dismissal. Sherman appealed to the New York Court of Appeals.

    Issue(s)

    Whether a convenience store that unlawfully sells alcohol to a minor is liable, under General Obligations Law §§ 11-100 and 11-101 or common-law negligence, for injuries caused by a different intoxicated minor who consumed the alcohol after it was shared with them.

    Holding

    No, because the Dram Shop Act and related statutes create a narrow exception to the common-law rule of individual responsibility, and this exception does not extend to indirect sales where the alcohol is furnished to someone other than the intoxicated person.

    Court’s Reasoning

    The Court of Appeals affirmed the dismissal of the claim against AOK, reasoning that General Obligations Law §§ 11-100 and 11-101, which provide a cause of action for injuries caused by an intoxicated person against someone who unlawfully sells alcohol to them, must be narrowly construed. The court emphasized that the statutes explicitly limit liability to situations where the unlawful sale is made to the intoxicated person who causes the injury. The court distinguished cases seeking administrative sanctions under the Alcoholic Beverage Control Law § 65 for on-premises activity, noting that those cases involved open and observable conduct. The court stated that “the General Obligations Law – unlike the regulatory provision – is explicit in limiting liability for injuries caused by an intoxicated minor to the unlawful supply of alcoholic beverages to that person.”

    The court rejected the argument that the sale to Relf was effectively a sale to Robinson, stating that no duty was imposed on the defendant to investigate potential consumers in the parking lot. Referencing D’Amico v. Christie, 71 N.Y.2d 76 (1987), the court reiterated that ” ‘[t]n order for plaintiffs to prevail on [a] claim of common-law negligence, there must first be a legal duty owed by defendant to them. Foreseeability of harm is alone not enough.’ ” The court also relied on the principle that “ ‘the very existence of a Dram Shop Act constitutes a substantial argument against expansion of the legislatively-mandated liability.’ ” The court declined to expand the common law to impose liability for indirect sales, given the Legislature’s choice not to provide for it in the statute.

  • Valicenti v. Valicenti, 59 N.Y.2d 78 (1983): Scope of Damages Recoverable Under the Dram Shop Act

    Valicenti v. Valicenti, 59 N.Y.2d 78 (1983)

    The Dram Shop Act permits recovery for loss of support due to the death of an intoxicated person, but does not extend to damages for loss of consortium, whether economic or noneconomic.

    Summary

    This case concerns the scope of damages recoverable under New York’s Dram Shop Act (General Obligations Law § 11-101). Plaintiff sought damages for the death of his wife, who died in an accident after being allegedly served alcohol to intoxication at the defendant’s bar. The Court of Appeals held that while the Dram Shop Act allows recovery for loss of support, it does not permit recovery for loss of consortium. The Court reasoned that loss of consortium is a common-law concept, and the Dram Shop Act does not explicitly provide for such damages.

    Facts

    Judy Valicenti died in a car accident after leaving the defendant’s bar. The plaintiff, her husband, filed suit on behalf of himself and their children, alleging that the bar negligently served Mrs. Valicenti alcohol while she was visibly intoxicated, leading to her death. The complaint sought damages under both a negligence theory and the Dram Shop Act, claiming loss of support, maintenance, care, nurture, love, guidance, training, and education. Evidence presented indicated the couple was separated before her death, with the husband partly supporting her.

    Procedural History

    The Special Term denied the defendant’s motion for summary judgment. The Appellate Division modified the order, dismissing the negligence cause of action and dismissing the claim for noneconomic loss of consortium under the Dram Shop Act. The Court of Appeals reviewed the decision regarding the economic loss of consortium.

    Issue(s)

    Whether the phrase “or otherwise” in the Dram Shop Act includes damages resulting from loss of consortium, either economic or noneconomic.

    Holding

    No, because the Dram Shop Act does not provide a basis for recovery for loss of consortium, as such damages are not permitted under common law and the Legislature has not explicitly included them in the statute.

    Court’s Reasoning

    The Court of Appeals acknowledged the legislative history of the Dram Shop Act, noting its original purpose of suppressing intemperance and the subsequent shift toward compensation for injury caused by the illegal sale of alcohol. The court emphasized that while the statute creates a new cause of action, it does not alter existing rules concerning recovery and damages. The Court referenced Reid v. Terwilliger, 116 N.Y. 530, 533-534, stating that the Legislature left recovery “subject to the existing rules of damages, and to the facts established upon the trial.” The Court found that the husband and children were entitled to have a jury weigh evidence relating to their loss of support, considering both the support provided before the death and the support they could have reasonably expected but for the death. However, the court drew a line at loss of consortium, citing De Angelis v. Lutheran Med. Center, 58 NY2d 1053 and Liff v. Schildkrout, 49 NY2d 622, 634 to support the principle that loss of consortium is not allowed under common law and any change to that rule is the province of the Legislature, not the courts. The court stated, “[i]f a change should be made, it is for the Legislature, and not the courts, to make.” Therefore, the court concluded that the Appellate Division erred by not dismissing the claim for economic loss of consortium damages under the Dram Shop Act.

  • Zona v. Oatka Restaurant and Lounge, Inc., 68 N.Y.2d 824 (1986): Contribution Allowed Under Dram Shop Act for Pain and Suffering

    Zona v. Oatka Restaurant and Lounge, Inc., 68 N.Y.2d 824 (1986)

    Contribution is permissible under New York’s Dram Shop Act for claims related to pain and suffering and loss of support, even when the intoxicated individual who caused the harm is deceased and the claimant is a relative, as long as allowing contribution does not directly frustrate the Act’s policy.

    Summary

    This case concerns whether contribution is allowed under New York’s Dram Shop Act when the intoxicated person who caused the injury is deceased and related to the plaintiff. The Court of Appeals held that contribution is permissible for claims of pain and suffering and loss of support. Even though allowing contribution might reduce the total recovery for the plaintiff, the court reasoned that because the reduction stems from the deceased’s death and is an indirect consequence, it does not violate the policy of the Dram Shop Act. The court emphasized the legislative intent to allow contribution unless it clearly frustrates the statute’s underlying policy.

    Facts

    An intoxicated individual (the vendee) caused injury and death. The vendee subsequently died after the accident. The injured party and the vendee were married, and the plaintiff seeking loss of support was their daughter. The plaintiff brought suit against the bar that served the vendee (Oatka Restaurant and Lounge, Inc.) under the Dram Shop Act. The defendant bar then sought contribution from the estate of the deceased vendee.

    Procedural History

    The lower court initially dismissed the third-party complaint seeking contribution from the vendee’s estate. The Appellate Division affirmed the dismissal. The New York Court of Appeals reversed the Appellate Division’s order, thereby allowing the third-party claim for contribution to proceed.

    Issue(s)

    Whether contribution from the estate of a deceased intoxicated person is permissible under the Dram Shop Act for claims related to the pain and suffering of a deceased injured person and the loss of means of support of her daughter, when the deceased intoxicated person was the husband of the deceased injured person and the father of the plaintiff seeking loss of support.

    Holding

    Yes, because allowing contribution in this instance does not directly violate the policy of the Dram Shop Act, as the reduction in potential recovery stems from the fortuitous circumstance of the tortfeasor’s death and is an indirect consequence of allowing contribution.

    Court’s Reasoning

    The Court of Appeals focused on the legislative intent behind CPLR 1401, which favors allowing contribution unless it directly frustrates the policy of the statute violated. The court stated, “The policy of the law, as declared by the Legislature in CPLR 1401, is to allow contribution ‘unless it is clear that the legislative policy which led to the passage of the statute would be frustrated by the granting of contribution in favor of the person who violated the statute’.” The court determined that allowing contribution from the vendee’s estate, even though it might reduce the total amount available to the daughter, did not directly contravene the Dram Shop Act’s goals. The court emphasized that the reduction was an indirect result of the vendee’s death, a “fortuitous circumstance.” The court distinguished this situation from one where contribution would directly undermine the Act’s purpose of protecting innocent third parties from alcohol-related harm. The court cited previous cases (Herrick v Second Outhouse, Smith v Guli, Weinheimer v Hoffman) that established contribution between a vendor and vendee doesn’t violate the Dram Shop Act.

  • Mitchell v. The Shoals, Inc., 19 N.Y.2d 338 (1967): Limits on Bar Liability to Intoxicated Patrons

    Mitchell v. The Shoals, Inc., 19 N.Y.2d 338 (1967)

    Under New York’s Dram Shop Act, an injured person can recover damages from a bar that unlawfully served alcohol to an intoxicated person who caused the injury, unless the injured person actively participated in causing the intoxication.

    Summary

    Yvonne Mitchell sued The Shoals, Inc. under New York’s Dram Shop Act for injuries sustained when a car driven by an intoxicated Robert Taylor crashed. Mitchell and Taylor had been drinking together at The Shoals, where Taylor was visibly drunk and continued to be served alcohol. Mitchell passed out due to her own intoxication. The court held that Mitchell could recover damages because, although she was intoxicated, she did not actively cause or encourage Taylor’s intoxication. The court clarified that merely being a drinking companion is insufficient to bar recovery; the injured party must have a more affirmative role in causing the intoxication of the person who caused the injury.

    Facts

    Yvonne Mitchell, Robert Taylor, and another couple went to The Shoals for drinks and dancing. Mitchell consumed several drinks and passed out. Taylor became drunk and noisy. Despite Taylor’s visible intoxication, the bartender continued to serve him drinks, ignoring instructions to stop. The two couples left, with Taylor driving. Taylor lost control of the car, crashing it and causing serious injuries to Mitchell and killing himself. Mitchell sued The Shoals, Inc. under the Dram Shop Act.

    Procedural History

    The trial court rendered a verdict in favor of Mitchell. The Appellate Division affirmed the judgment. The Shoals, Inc. appealed to the New York Court of Appeals.

    Issue(s)

    Whether an individual who is injured as a result of the intoxication of another person has a cause of action against the establishment that unlawfully served alcohol to the intoxicated person, under the Dram Shop Act, if the injured individual was also intoxicated but did not actively contribute to the other person’s intoxication.

    Holding

    Yes, because the Dram Shop Act allows an injured party to recover damages from the establishment that unlawfully served alcohol to the intoxicated person who caused the injury, provided the injured party did not actively cause or procure the other’s intoxication. The plaintiff’s mere consumption of alcohol alongside the intoxicated individual is insufficient to bar recovery.

    Court’s Reasoning

    The Court of Appeals relied on the language and purpose of the Dram Shop Act, which provides a right of action to those injured “by reason of the intoxication” of another against the person who unlawfully sold or assisted in procuring liquor for the intoxicated individual. The court emphasized that the statute doesn’t prevent an intoxicated person from recovery unless they caused the intoxication of the other party. The court found no basis in the law for denying recovery simply because the injured party was also served alcohol and became intoxicated, as long as they did not affirmatively contribute to the intoxication of the person who caused the injury.

    The court distinguished between merely being a drinking companion and actively causing another person’s intoxication. The court reasoned that to deny recovery based solely on limited alcohol capacity would impair the statute’s purpose. Citing precedents from other states, the court acknowledged varying interpretations of Dram Shop Acts, some of which bar recovery for mere participation in drinking with the intoxicated person. However, the court explicitly rejected this broader interpretation, stating, “It is our view that the injured person must play a much more affirmative role than that of drinking companion to the one who injures him before he may be denied recovery against the bartender or tavern keeper who served them.”

    The court noted that the trial court’s charge regarding contributory negligence was erroneous but deemed it harmless error.