Law Offices of Jan Meyer and Associates, P.C.
New York Dram Shop and Social Host Liability Law
By: Noah Gradofsky, Esq.
Edited by: Jan Meyer, Esq.
(201) 862-9500
(201) 862-9400 (Fax)
dramshop@janmeyerlaw.com

For information on New Jersey dram shop and social host liability, please click here. Please also visit our Guide to Recovery of PIP in New York and Guide to Recovery of PIP in New Jersey which also feature other selected laws related to subrogation.

Please note that this document is provided as a reference guide only and is provided subject to this disclaimer.

Originally, common law did not recognize a cause of action by an injured person against anyone who provided alcohol to the person who eventually caused an injury (e.g. through driving while intoxicated, committing an assault, etc.). Sherman v. Robinson, 80 N.Y.2d 483, 486 (1992). However, starting in 1873, the New York legislature created a private cause of action against one who sold alcohol to a person whose intoxication later caused an injury. Id. Later, in 1983, the legislature added a section providing a basis for liability for anyone who furnishes alcohol to a minor whose intoxication later caused an injury. Id. at 486-487. Importantly, since these laws reverse common law, they are construed narrowly by the New York courts. Id. at 487. Additionally, violation of any other statute related to providing alcohol will generally not give rise to a civil claim. See e.g. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 633-636 (1989)

Besides the liability provided for in these statutes, as discussed further below, under New York common law, owners of property may be liable for injuries occurring on premises related to alcohol consumption and one may be liable for failure to supervise minors under one's care and control.

This web page discusses some of the basics of liquor liability in New York. Additional resources available on the internet in this regard include a Touro Law Review article, "Are New York's Social Host Liability Laws Too Strict, Too Lenient, or Just Right," available here and a New York State Bar Association Torts, Insurance and Compensation Law Section Journal article, "A Refresher on New York Dram Shop Liability" available here.

CONTENTS:

 

GENERAL OBLIGATIONS LAW 11-101: LIABILITY FOR UNLAWFUL SALE OF ALCOHOL

Under Gen. Obl. L. 11-101 (text available from Findlaw here - opens in new tab) a person who is injured (personal injury, property damage, etc.) "by an intoxicated person, or by reason of the intoxication of any person" has a right to recover damages from anyone who, "by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication[.]" Both actual damages and exemplary (i.e. punitive) damages may be recovered.

Although 11-101 does not require the seller's conduct be "knowing," Sherman v. Robinson, 80 N.Y.2d 483, 488 (1992) reads this requirement into the statute based on analogy from Gen. Obl. L. 11-100 (discussed below) which does refer to one who "knowingly causes such intoxication . . . by unlawfully furnishing . . . [alcohol] . . . "

Thus, in order to establish liability, there must be "(1) an injury caused by an intoxicated person, (2) a knowingly unlawful sale of alcohol by the defendant to the intoxicated person, and (3) that the alcohol sold by the defendant caused or contributed to the person's intoxication at the time the injury occurred[.]" Johnson v. Verona Oil, Inc., 36 A.D.3d 991, 993 (3d Dep't 2007)(citations omitted).

The term "unlawful selling/assisting in procuring" is understood to refer to a violation of N.Y. Alco. Bev. Cont. L. 65 discussed below. See Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992).

Where the conditions of Gen. Obl. L.11-101 are not met but injury occurs on the property of the seller of alcohol, premises liability may apply.

 

There must be a sale of alcohol (furnishing alcohol to minors without a sale is covered by 11-100). Importantly, Gen. Obl. L. 11-101 applies only to commercial sale of alcohol and not, for instance, alcohol provided to employees at a company picnic. D'Amico v. Christie, 71 N.Y.2d 76, 83-84 (1987).

As such, a bar could not be held liable for alcohol consumed by its bartender because the bartender did not pay for the alcohol and thus the bar had not engaged in a sale of alcohol. Carr v. Kaifler 195 A.D.2d 584 (2d Dept. 1993), Custen v. Salty Dog, Inc.4445, 170 A.D.2d 572 (2nd Dept. 1991) Similarly, in Stevens v. Spec, Inc., 224 A.D.2d 811, 813 (3rd Dept. 1996), where an independent contractor was "free to drink if he wished and, if he did so, he would be furnished with free drinks," there was no sale of alcohol implicated Gen. Obl. L. 11-101. The three-judge majority rejected the two dissenting judges' argument that the free alcohol was part of the considerations of the contract and thus did implicate the Dram Shop Act. Id. at 813-814 (Yesawich Jr., J, concurring in part and dissenting in part). Note that the dissent disagreed with Carr and Custen to the extent that those cases would disagree with the dissent's conclusion.

In Wright v. Sunset Recreation, Inc., 91 A.D.2d 701 (3rd Dept. 1982) cited with approval in D'Amico v. Christie, 71 N.Y.2d 76, 83 (1987), a bowling alley was landlord to a tavern, and tavern waitresses would solicit and fill orders for drinks from bowling alley patrons. Noting that the Dram Shop Act must be construed narrowly, the court said that "[t]he convenience that may have existed by reason of the closeness of the bowling alley to the tavern cannot cause a sale by the tavern on the bowling alley premises to rise to the level of a sale by [the bowling alley] so as to impose liability." Similarly, in Haskell v. Chautauqua County Fireman's Fraternity, Inc., 184 A.D.2d 12, 17 (4th Dept. 1992) organizers of a charity event, including the owner of the grounds on which the event took place, could not be held liable for sale of alcohol where such concessions were handled by particular organizations.

Note that, as discussed below, the sale of alcohol has to be a fairly direct sale from the seller to the intoxicated person.

Also note that where there is no witness to the actual sale of alcohol, circumstantial evidence may be sufficient. See e.g. McGovern v. 4299 Katonah Inc., 5 A.D.3d 239, 240 (1st Dept. 2004), Jarzabek v. Tucci, 155 A.D.2d 908 (4th Dept. 1989).

Where there is no commercial sale of alcohol, Gen. Obl. L. 11-100 (discussed below) provides a potential for liability where alcohol was furnished to a person under 21. However, despite the enactment of 11-100, 11-101 (and, for instance, the availability of punitive damages under this statute) remains available in situations where alcohol is sold to a minor. McCauley v. Carmel Lanes, Inc., 178 A.D.2d 835, 836 (3rd. Dept. 1991).

 

Punitive damages are available for willful and wanton conduct. As noted above, punitive damages are permitted by the statute. In order to receive punitive damages, the plaintiff must prove willful and wanton conduct. See Samela v Post Rd. Entertainment Corp., 100 A.D.3d 857, 859 (2d Dept. 2012), McCauley v. Carmel Lanes, Inc., 178 A.D.2d 835, 836 (3d Dept. 1991).


GENERAL OBLIGATIONS LAW 11-100: LIABILITY FOR UNLAWFULLY FURNISHING ALCOHOL TO A MINOR OR ASSISTING A MINOR IN PROCURING ALCOHOL

Gen. Obl. L. 11-100 (text available from Findlaw here - opens in new tab) "intended to parallel those [provisions] contained in New York's Dram Shop Statute" (discussed above) without the requirement of a commercial sale. Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992)(citations omitted).

Under 11-100, a person who is injured (personal injury, property damage, etc.) "by reason of the intoxication or impairment of ability of any person under the age of twenty-one years" has a right to recover damages from anyone who, "knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years."

Unlike 11-101, there is no reference to exemplary (i.e. punitive) damages and therefore punitive damages are not available under this statute. Lee v. Holloway, 146 Misc. 2d 455, 460 (Sup. Ct. Wayne Cty. 1989).

The term "unlawful furnishing/assisting in procuring" is understood to refer to a violation of N.Y. Alco. Bev. Cont. L. 65 discussed below. See Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992). For the most part, as long as alcohol is provided to a person under 21, the action will be unlawful.

 

What constitutes furnishing alcohol? The Court of Appeals in Rust v. Reyer, 91 N.Y.2d 355, 359 (1998) recognized that the term "furnishing" is not defined in the statute, and noted that the term "is ordinarily understood to mean 'to provide in any way,' 'to supply' or 'to give[.]'" (citations omitted). The Court found that where a host allegedly "gave permission for the alcohol at the party . . . provided storage for the kegs of beer both before and after the party, negotiated a share of the proceeds from cup sales for herself and at least attempted to arrange for her friends to drink the beer without charge . . . if proven at trial, these facts could bring Reyer's acts within the meaning of 'furnishing' as used in the statute." Id. at 359-360. Rust comments that "Reyer's role could well be viewed as part of a deliberate plan to provide . . . alcohol," id. at 360 and that Reyer, "played an indispensable role in the scheme to make the alcohol available." Id. at 361. Although the Court did not say that such a role is necessary to constitute "furnishing," a number of Appellate Division cases have recited this language as the standard for liability for "furnishing" alcohol. See e.g. Cannon v Giordano, 93 A.D.3d 1329, 1330 (4th Dept.) app. denied 19 N.Y.3d 805 (2012)(dismissing on summary judgment a Gen. Obl. L. 11-100 claim against parents who purchased pitchers of beer at child's 21st birthday and a underage person helped herself to contents thereof), O'Neill v. Ithaca College, 56 A.D.3d 869, 870 (3rd Dept. 2008), McGlynn v. St. Andrew the Apostle Church, 304 A.D.2d 372, 373 (1st Dept.) app. denied, 100 N.Y.2d 508 (2003). In O'Neil 56 A.D.3d at 871, where Defendant drove another individual to buy beer for a party and admitted to having a shot (Defendant was under age), the court found "a question of fact as to whether [Defendant] assisted in furnishing alcohol to plaintiff."

As discussed below, mere ownership of premises on which alcohol is furnished is not sufficient for liability although in certain situations owners of property may be liable for injuries occurring on premises related to alcohol consumption (see below on premises liability). and one may be liable for failure to supervise minors under one's care and control. Note that these forms of liability can be established even in circumstances where the requirements of Gen. Obl. L. 11-100 or 11-101 are not met.

 

What constitutes assisting in procuring alcohol? "The term 'assisting in procuring' alcohol includes 'using one's own money to purchase alcohol for another', and 'contributing money to the purchase of alcohol'." Bregartner v. Southland Corp., 257 A.D.2d 554, 555-556 (2nd Dept. 1999)(citations omitted).

 

Mere participation in a party with underage drinking (even by an adult) does not give rise to liability unless the person actively encourages such drinking. McGlynn v. St. Andrew the Apostle Church, 304 A.D.2d 372, 373 (1st Dept. 2003) app. denied, 100 N.Y.2d 508 (2003). See related discussions on ownership of premises as it relates to Gen. Obl. L. 11-100 and 11-101, premises liability, and liability for failure to supervise minors under one's care and control

 

A minor may be held liable under 11-100 for furnishing alcohol to another minor. Schrader v. Carney, 180 A.D.2d 200, 205 (4th Dept. 1992).

 


ALCOHOLIC BEVERAGE CONTROL LAW 65: DEFINITION OF "UNLAWFUL SELLING/FURNISHING" OF ALCOHOL

Both Gen. Obl. L. 11-101 and Gen. Obl. L. 11-100 require a person to unlawfully sell/provide alcohol in order for there to be liability. As noted, the unlawful behavior referred to in these statutes is understood to refer to a violation of N.Y. Alco. Bev. Cont. L. 65. See Sherman v. Robinson, 80 N.Y.2d 483, 487 (1992). Section 65 (text available from Findlaw here - opens in new tab) forbids selling (with some other terms included such as "giving away") alcohol to a person "actually or apparently, under the age of twenty-one years;" "visibly intoxicated;" or a "habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages."

Note that although N.Y. Alco. Bev. Cont. L. 65 can be violated even where the person acquiring the alcohol appears to be of age, see e.g. Barnett v. O'Connell, 279 A.D. 449, 450 (3rd Dept. 1952), as discussed below liability under Gen. Obl. L. 11-100 and 11-101 requires some showing that the person selling/providing alcohol to a minor knew or should have known that the minor was under age.

Proving visible intoxication. A major challenge in many liquor liability cases is proving that alcohol was provided to a person while that person was visibly intoxicated. Note that, as discussed below, where a minor is involved, the minor need not be intoxicated when the alcohol was sold/furnished. Also note that this is a slightly different question from whether the person in question was intoxicated/impaired at the time of the incident, although that case law may be informative in this context as well.

Romano v. Stanley, 90 N.Y.2d 444, 450 (1997). Although blood alcohol level can be a strong piece of evidence, "high blood alcohol count alone, however, generally does not establish the 'visible' intoxication," both because allowing it to be sufficient proof "would run counter to the legislative goal of requiring an innkeeper's actual knowledge or notice of the customer's condition as a predicate for an 'unlawful' sale" and because, "it is well known that the effects of alcohol consumption 'may differ greatly from person to person[.]'" Id. (citations omitted) Hence, an expert's opinion that, based solely on a later blood alcohol test and the person's physical characteristics, the intoxicated person would have exhibited signs of visible intoxication when provided alcohol is likely insufficient to survive summary judgment. Id. at 451-452.

Id. at 452.

In Romano, the intoxicated person in question (Stanley) consumed alcohol at three establishments. According to evidence submitted on a motion for summary judgment, she arrived at "Jack's" around 6:45 PM and consumed one beer. Three co-workers and a Jack's bartender (who knew Stanley) testified that she did not appear intoxicated at this establishment. Id. at 447-448. Stanley then went to "Martel's" where she was served two more drinks. No witnesses saw her exhibit any signs of intoxication at Martel's. Id. at 448. Stanley then proceeded to "Dee's", arriving around 9:15 or 9:30 (the Court does not recite what quantity of alcohol she consumed at Dee's). One of her acquaintances indicated that Stanley appeared intoxicated when she left Dee's. Id. at 448. The traffic accident occurred at 10:30 PM. Id. at 447.

Martel's and Jacks's moved for summary judgment on the grounds that there was no sufficient proof that Stanley was visibly intoxicated at either establishment. Plaintiffs relied on a lab report indicating that Stanley had a blood alcohol level of .26% and a .33% level in her urine when she died, id. at 448, and Plaintiff's expert's conclusion based on this fact and Stanley's physical characteristics that Stanley must have exhibited signs of intoxication at least four hours prior to the accident at the times that Stanley was at Jack's and Martel's. Id.

The Court of Appeals found that the expert's report was "speculative and conclusory" and "unencumbered by any trace of facts or data." Id. at 451 (citations omitted). Although, as quoted in greater length above, the Court recognized that "[i]n some situations, the nature of the subject matter or the expert's area of special skill" or reference to outside material "of a kind accepted in the profession as reliable," can be sufficient, Plaintiff's expert's expertise was not found to be "sufficient to lend credence to his opinions," and his report "was devoid of any reference to a foundational scientific basis for its conclusions." Id. at 452. The Court concluded that the expert's affidavit, "had no probative force and was not by itself sufficient to defeat these defendants' motions for summary judgment" and granted summary judgment to Martel's and Jack's. Id. at 452.

Adamy v. Ziriakus, 92 N.Y.2d 396 (1998) came to a different result on somewhat similar facts. There, Plaintiff's expert opined that, based on the Ziriaku's (intoxicated person's) .17 blood alcohol content at 3:00AM, he had consumed 12 drinks at T.G.I. Friday's, that his blood alcohol level would have been .20 when he left the bar and would have been visibly intoxicated when last served. Id. at 401.

In Adamy, the Court of Appeals affirmed judgment against Friday's. The Court distinguished this case from Romano on procedural and factual grounds. At issue in Romano was the use of an expert's affidavit to defeat summary judgment, in which case the affidavit "must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor[.]" Id. at 402 quoting Romano 90 N.Y.2d at 452. In Adamy the question was whether the expert's testimony was sufficient to support a jury's conclusions, in which case "it falls to the opponent of the testimony to bring out weaknesses in the expert's qualifications and foundational support on cross-examination--which is, of course, unavailable to a party seeking summary judgment, as in Romano." Id. The Court also noted that, unlike Romano, where the Plaintiff relied only on the expert's opinion, the Plaintiff in Adamy also relied on testimony of a police officer who observed Ziriaku's behavior at the scene of the accident, noting that, "[g]iven that these observations occurred a short time after Ziriakus left Friday's, it was not irrational for the jury, based on everyday experience and common knowledge, to find that Ziriakus was visibly intoxicated when served at Friday's." Id. at 402-403. Finally, the jury was properly allowed to consider the failure of Friday's bartender to testify as possibly indicating that his testimony would have been against Friday's position. Id.

Note that both Romano 90 N.Y.2d at 450 and Adamay 92 N.Y.2d at 401 note in footnotes that they were not deciding whether "relation-back" (extrapolating blood alcohol level at an earlier point based on a later blood test) was valid, though they reference People v. MacDonald, 227 A.D.2d 672, 674-675 (3d Dept.) affd. on other grounds 89 N.Y.2d 908 (1996) where the Third Department did find such extrapolation acceptable. Although we are not aware of any Court of Appeals case passing on this question, this form of extrapolation has continued to be accepted in the New York Appellate Division and the Court of Appeals has declined to review a number of these cases. See e.g. People v Menegan, 107 A.D.3d 1166, 1168-1169 (3rd Dept. 2013), People v. Stiffler, 237 A.D.2d 753, 754 (3rd Dept.) app. denied 90 N.Y.2d 864 (1997), People v. O'Connor, 290 A.D.2d 519, 520 (2d Dept.) app. denied 97 N.Y.2d 758 (2002), People v. Dombrowski-Bove, 300 A.D.2d 1122, 1123 (4th Dept. 2002).

Some additional case notes on visible intoxication:

 


IMPORTANT CASE LAW POINTS RELATED TO GENERAL OBLIGATIONS LAW 11-100 AND 11-101

The sale of alcohol under Gen. Obl. L. 11-101 or furnishing of alcohol to a minor under Gen. Obl. L. 11-100 must be a relatively direct sale/furnishing to the intoxicated person. Thus, in Sherman v. Robinson, 80 N.Y.2d 483 (1992) where Reif purchased alcohol while Robinson, the eventual intoxicated driver, waited in the car, the Court of Appeals found that there was no potential liability under Gen. Obl. L. 11-100 or 11-101 because liability is limited to selling/furnishing alcohol to the particular intoxicated person who got into the accident, even though it was sold to another underage person (note both 11-100 and 11-101 refer to liability for selling/furnishing/assisting in procuring alcohol for "such intoxicated person"). Id. at 487. The fact that a large quantity of alcohol was sold to a single individual did not impose any duty on the seller to investigate "possible ultimate consumers in the parking lot beyond its doors[,]" though the Court did suggest that in certain instances liability may be found where the intoxicated person was present at the time of the sale, either giving money to the purchaser or taking the alcohol from the purchaser. Id. at 488.

The Sherman decision does acknowledge that there can be certain facts on which it can be "reasonably inferred" that the seller knew that it was selling the alcohol to another person, for example if more than one person shows up at the checkout counter with one handing money to the other or taking the alcohol out of the hands of the "purchaser." Id. at 488. Sherman references certain cases (4373 Tavern Corp. v. New York State Liquor Authority, 50 A.D.2d 855 (2nd Dept. 1975), Beverly Lanes, Inc. v. Rohan, 12 A.D.2d 156 (4th Dept. 1961) revd. on dissenting opn. 11 N.Y.2d 909 (1962), Sheibar v. New York State Liquor Authority, 4 A.D.2d 442 (1st Dept. 1957) affd. 4 N.Y.2d 984 (1958)) addressing violations of N.Y. Alco. Bev. Cont. L. 65 and suggests that if alcohol is sold to one person who brings the alcohol to other person(s) within the premises (e.g. a person purchasing a pitcher of beer at the bar and taking it back to a table with friends), "where conduct constituting the alleged delivery of alcohol . . . was 'open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented.'" there may be grounds for liability. Id. (citations omitted).

In Kindzierski v. Foster, 217 A.D.2d 998, 999 (4th Dept. 1995) the court found a question of fact as to whether the seller knew that the beer was being sold to the underage driver where the buyer made two separate purchases of 12-packs, during the second transaction the buyer did not have enough money and therefore went out to the car to get more money which was given to him by the driver, and the seller looked over to the car and a driver waved to him. See further Krampen v. Foster, 242 A.D.2d 913 (4th Dept. 1997) In Ahigian v. Davis, 6 A.D.3d 956, 957 (3rd Dept.) app. denied 3 N.Y.3d 608 (2004), where an adult purchased alcohol with driver and another minor in a car that could be seen through the store window, and the buyer went out to consult with the driver during the purchase, the court commented that, "[w]hile there may be circumstances where a minor tortfeasor's participation in the purchase is so immediate and apparent to the seller that an exception to this rule [requiring direct sale] could be found . . . such circumstances are not present here," (citations omitted) and the court affirmed summary judgment in favor of the defendants. In Remillard v. Louis Williams, Inc., 59 A.D.3d 764, 765 (3rd Dept. 2009) where the intoxicated person's wife and friends purchased beer for the intoxicated person at a party the court did not "find any compelling facts or circumstances 'from which the requisite knowledge [of defendant] could reasonably be inferred' that the alcoholic beverages were actually being purchased for [the intoxicated person]." The court upheld the jury's verdict in favor of Defendants. Id. at 766.

 

Apparent age of person sold/furnished with alcohol (includes discussion of fake IDs). As discussed above, liability under Gen. Obl. L. 11-100 requires that one "knowingly causes such intoxication . . . by unlawfully furnishing . . . [alcohol] . . . with knowledge or reasonable cause to believe that such person was under the age of twenty-one years" and the courts have applied the "knowledge" requirement of Gen. Obl. L. 11-100 to claims under Gen. Obl. L. 101. Where the seller of alcohol does not adequately inspect identification, a question of fact may arise as to whether the person should have know that the buyer was under 21, thus subjecting the seller to liability under Gen. Obl. L. 11-100 and 101. Johnson v. Verona Oil, Inc., 36 A.D.3d 991, 993-994 (3d Dept. 2007).

Note also that N.Y. Alco. Bev. Cont. L. 65(6)(a) specifies that in a proceeding to revoke or suspend a liquor license for serving underage persons, it is an affirmative defense to prove that the person in question "produced a photographic identification card apparently issued by a governmental entity and that the alcoholic beverage had been sold, delivered or given to such person in reasonable reliance upon such identification." One might argue that this statute implies that such proof should be a defense against dram shop claims, or one might argue that since the statute specifies this only as a defense to suspension of a liquor license, the implication is that it should not be a defense in civil claims. We are not aware of any cases on point.

 

A minor need not be intoxicated/impaired when sold/furnished with alcohol. Alco. Bev. Cont. L. 65 (the violation of which is required for liability under Gen. Obl. L. 11-101) refers separately to selling alcohol to a visibly intoxicated person or a person under 21. Similarly, Gen. Obl. L. 11-100 refers to liability for furnishing alcohol to a minor without reference to that minor being intoxicated at the time. Therefore, the minor need not be intoxicated at the time that the minor was sold/furnished with alcohol. Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 40 (3rd Dept. 1987), Johnson v. Plotkin, 172 A.D.2d 88, 90-91 (3rd Dept. 1991) app. dismissed, 79 N.Y.2d 977 (1992). Note, however, that as discussed below, the person in question must be intoxicated at the time of the incident (e.g. the car accident).

 

The person sold/furnished alcohol must be intoxicated/impaired at the time of the incident. Gen. Obl. L. 11-101 requires that injuries be caused "by an intoxicated person, or by reason of the intoxication of any person," and Gen. Obl. L. 11-100 requires that the injury be "by reason of the intoxication or impairment of ability of any person under the age of twenty-one years." Therefore, even though, as discussed above, a person sold or furnished alcohol when under the age of 21 need not be intoxicated when sold/furnished alcohol, both adults and minors must be intoxicated/impaired at the time of the incident (e.g. the car accident) in order for the person(s) who sold/furnished alcohol to be liable. Johnson 172 A.D.2d at 91, Basile v. Francino, 253 A.D.2d 779 (2nd Dept. 1998) app. dismissed, 93 N.Y.2d 958 (1999).

Note that the question of whether a person was intoxicated at the time of the accident is different than the question discussed above of whether a person was visibly intoxicated when sold alcohol, although that case law may be informative in this context as well. Here are some case notes on the requirement of intoxication at the time of the accident:

 

Intoxication/impairment must play a part in causing the accident. As noted above, Gen. Obl. L. 11-101 requires that injuries be caused "by an intoxicated person, or by reason of the intoxication of any person," and Gen. Obl. L. 11-100 requires that the injury be "by reason of the intoxication or impairment of ability of any person under the age of twenty-one years."

Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 477 (2nd Dept. 2001) App. denied 97 N.Y.2d 699 (2002)(citations omitted). Some examples of cases applying this standard are:

 

Liability of property owners for alcohol provided on their property. An owner of property may not be held liable under Gen. Obl. L. 11-100 or 11-101 absent taking part in the activity described in those sections. Guercia v. Carter, 274 A.D.2d 553, 554 (2nd Dept. 2000)(parents whose children threw a party while they are away without the parents' permission to serve alcohol), Lane v. Barker, 241 A.D.2d 739, 739-740 (3rd dept. Dep't 1997)(parents whose adult child hosted a part with alcohol with their permission but without parents' participation in providing the alcohol), Lombart v. Chambery, 19 A.D.3d 1110, 1111 (4th Dept. 2005)(similar to Lane), McGlynn v. St. Andrew the Apostle Church, 373 (1st Dept. 2003) app. denied, 100 N.Y.2d 508, (2003)(church renting space to a 20 year old to host a party even if the church knew that alcohol would be served), Wright v. Sunset Recreation, Inc., 91 A.D.2d 701 (3rd Dept. 1982) cited with approval in D'Amico v. Christie, 71 N.Y.2d 76, 83 (1987)(Bowling alley not liable where it was landlord to a tavern, and tavern waitresses would solicit and fill orders for drinks from bowling alley patrons).

Note that in certain situations owners of property may be liable for injuries occurring on premises related to alcohol consumption (see below on premises liability), and one may be liable for failure to supervise minors under one's care and control. Note that these forms of liability can be established even in circumstances where the requirements of Gen. Obl. L. 11-100 or 11-101 are not met.

 

Claims by the intoxicated person are not permitted. "It is well settled that an intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person's own intoxication[.]" Oursler v. Brennan, 67 A.D.3d 36, 40 (4th Dept. 2009)(citations omitted). This rule pertains both to claims under Gen. Obl. L. 11-101 and under Gen. Obl. L. 11-100. Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629 (1989). However, persons who suffer losses due to the injury or death of the intoxicated person (e.g. loss of support) can make a claim and likely are not subject to any reduction for the comparative negligence of the intoxicated person. Similarly, parents may recover for medical and funeral expenses incurred on behalf of their minor children, see e.g. Kudisch v Grumpy Jack's, Inc., 112 A.D.3d 788, 791-792 (2nd Dept. 2013), McArdle v. 123 Jackpot, Inc., 51 A.D.3d 743, 746 (2nd Dept. 2008) and cases cited therein. Additionally, in situations where premises liability applies, it is not entirely clear whether a claim by the injured intoxicated person will lie. Finally, note that where the injured intoxicated party is a minor, in certain situations, a claim for negligent supervision may lie.

 

Types of damages recoverable under Gen. Obl. L. 11-101 and Gen. Obl. L. 11-100:


Comparative negligence defenses. Comparative negligence defenses may lie, where, for instance, the injured party got into a car with an intoxicated person, Schrader v. Carney, 180 A.D.2d 200, 208-209 (4th Dept. 1992), Ciserano v. Sforza, 130 A.D.2d 618, 620 (2nd Dept. 1987) or where the injured person's conduct unrelated to the consumption of alcohol contributed to the loss (for example where the intoxicated person is in a car accident with another driver who also drove negligently), Adamy v. Ziriakus, 92 N.Y.2d 396, 404-405 (1998). As noted above the intoxicated person may not make a claim under 11-101. However, as noted above, persons who suffer losses due to the injury or death of the intoxicated person (e.g. loss of support) can make a claim, Oursler v. Brennan, 67 A.D.3d 36, 40 (4th Dept. 2009), Coughlin v. Barker Ave. Assocs., 202 A.D.2d 622, 623 (2nd Dept. 1994), and likely are not subject to any reduction for the comparative negligence of the intoxicated person (including by way of a claim made against he decedent's estate). Coughlin, 202 A.D.2d at 623 (2nd Dept. 1994), Bartlett v. Grande, 103 A.D.2d 671 (4th Dept. 1984), compare Zona v. Oatka Restaurant & Lounge, Inc., 68 N.Y.2d 824 (1986)(permitting a claim for contribution against a deceased intoxicated person other than the injured person in question, even where the two were husband and wife).

 

Claims for contribution. Generally, claims for contribution are permitted within the context of claims involving liquor liability. Some case references:

 

New York's statutory modifications to joint and several liability may apply to claims under Gen. Obl. L. 11-100 and 11-101. For background, see our discussion of joint and several liability and New York's limited exception to joint and several liability on our web page discussing New York PIP recovery and other laws related to subrogation in New York (the discussion will appear in the bottom frame of the screen). Van Vlack v. Baker, 242 A.D.2d 704, 704-705 (2nd Dept. 1997) found that a claim under Gen. Obl. L. 11-100 did not fall within any of the exceptions to New York's modifications of joint and several liability law and further stated that "it was improper . . . to determine that CPLR 1601 did not apply . . . on the ground that the policies underlying the enactment of General Obligations Law 11-100 outweighed the policies underlying the subsequent enactment of CPLR article 16." (citations omitted). However, note that, pursuant to Gen. Obl. L. 1602(7), conduct giving rise to liability under Gen. Obl. L. 11-100 and 11-101 will override New York's modifications to joint and several liability where such conduct demonstrates "reckless disregard for the safety of others." Spatz v. Riverdale Greentree Restaurant, Inc., 256 A.D.2d 207, 208 (1st Dept. 1998).

 

The statute of limitations for 11-100 and 11-101 claims is 3 years even for wrongful death. Actions pursuant to Gen. Obl L. 11-100 and 11-101 are actions "to recover upon a liability . . . created or imposed by statute" and hence are subject to the three-year statute of limitations in N.Y.C.P.L.R. 214(2). This remains true even where the claim is made for wrongful death by the decedent's estate, despite the two-year limitation on wrongful death actions pursuant to N.Y.E.P.T.L. 5-4.1. Bongiorno v. D.I.G.I., 138 A.D.2d 120 (2nd Dept. 1988).

 

A no-fault (PIP) carrier is entitled to a lien on recoveries for liquor liability pursuant to N.Y. Ins. L. 5104(b). Dymond v. Dunn, 148 A.D.2d 56, 58 (3rd Dept. 1989). See our discussion of this point on our web page discussing New York PIP recovery and other laws related to subrogation in New York (the discussion will appear in the bottom frame of the screen).

 

Insurance cases related to liquor liability. Many liability policies will contain exclusions of coverage for claims related to service of alcohol (separate insurance can be acquired for these types of claims) and these exclusions generally will apply to dram shop claims. See e.g. New York Mut. Underwriters v. Burdick, 196 A.D.2d 668, 669 (3rd Dept. 1993). However, these exclusions will generally be narrowly construed, and will be even more narrowly construed when dealing with the liability insurer's obligation to defend its insured. Thus, in Dryden Mut. Ins. Co. v. Harr, 247 A.D.2d 684 (3rd Dept. 1998), an exclusion relating to service of alcohol did not apply to claims based on premises liability because those claims were "at least facially distinct from those relating to the service of alcoholic beverages." Id. at 686. Similarly, in County of Schenectady v. Travelers Ins. Co., 48 A.D.2d 299, 301 (3rd Dept. 1975), an exclusion for "damage for which the insured . . . may be held liable, as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages or as an owner or lessor of premises used for such purposes . . ." was read to apply only to an ongoing venture of manufacturing or selling alcohol, and not to the sale of alcohol by an organization pursuant to a temporary license for a party. In Cooperative Fire Ins. Co. v. Vondrak, 74 Misc. 2d 916, 918 (Sup. Ct. Warren Cty. 1973) the court ruled that a homeowner's policy's exclusion of coverage for losses resulting from use of an automobile did not apply to a dram shop liability where the intoxication led to a car accident.

 


PREMISES LIABILITY

As discussed above, an owner of property may not be held liable under Gen. Obl. L. 11-100 or 11-101 absent taking part in the activity described in those sections. In certain situations owners of property may be liable for injuries occurring on premises related to alcohol consumption even in certain circumstances where the requirements of Gen. Obl. L. 11-100 or 11-101 are not met.

D'Amico v. Christie, 71 N.Y.2d 76, 85 (1987)(citations omitted). Some case notes on premises liability:

 


DUTY TO SUPERVISE A MINOR UNDER ONE'S CARE AND CONTROL

Important note: In this section, we are talking about the failure to supervise a minor, i.e. one who is under 18, which is different from much of the rest of the discussion on this web page, which involves furnishing alcohol to a person under the legal drinking age.

"A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control." Appell v. Mandel, 296 A.D.2d 514 (2nd Dept.. 2002) citing Zalak v. Carroll, 15 N.Y.2d 753 (1965). A homeowner may in certain circumstances breach this duty by allowing minors to consume alcohol in the home. Aquino v. Higgins, 15 N.Y.3d 903, 905 (2010)(for more information on the facts of the case, see the Appellate Division's opinion at 68 A.D.3d 1650). Compare Moreno v. Weiner, 39 A.D.3d 830 (2nd Dept.) app. dismissed, 9 N.Y.3d 807 (2007)(finding adequate supervision as a matter of law). Some case notes:

 

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