Tuesday, October 14, 2008

Drunk Driving Accidents And Similar Alcohol-Related Injuries Can Result In Liability For Drinking Establishments

New York's "Dram Shop Act" makes bars, restaurants, and other providers of alcohol liable for injuries caused by its intoxicated patrons. This can include car accidents that occur after the drunken patron leaves (motor vehicle accidents are by far the most common of these claims), and assaults that occur in the bar or that can be reasonably connected with the assailant's drinking at the bar. 

Each state's Dram Shop Act is phrased a little differently, but they are all very similar.  New York's Dram Shop Act creates a cause of action against establishments that provide alcohol to persons who are “visibly intoxicated” or “habitual drunkards.” Under N.Y. General Obligations Law § 11-101,

Any person who shall be injured… by any intoxicated person… shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.
“Unlawful selling” is defined in Alcoholic Beverage Law § 65, which states:
No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to… any visibly intoxicated person [or] … any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.
What constitutes being "visibly intoxicated," is dictated by common sense, and will depend on factors such as “unsteady gait, slurred speech, glazed and bloodshot eyes, and smell.” Marconi v. Reilly, 254 A.D.2d 463, 678 N.Y.S.2d 785, 786 (N.Y. App. Div. 2d Dep't 1998).  Courts will allow a case to go to a jury where ther is evidence that the person had a "good buzz" or was "a little drunk." See Ryan v. Big Z Corp., 210 A.D.2d 649, 651, 619 N.Y.S.2d 838, 839 (3d Dep't 1994)(finding a question of fact as to whether assailant was visibly intoxicated where witness described assailant as having “a very good buzz” based on “general rowdiness, glassy eyes… and sudden display of anger”).

Blood Alcohol Content tests may be enough to show that a person was visibly intoxicated in the establishment where they were imm immediately prior to the accident, but -- without more -- is not sufficient to prove liability against establishments they may have visited earlier in the night.  See Romano v. Stanley90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997). 

 “There must be ‘some reasonable or practical connection’ between the sale of alcohol and the resulting injuries," but “proximate cause, as must be established in a conventional negligence case, is not required." Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 477, 731 N.Y.S.2d 207, 208 (2d Dept. 2001).  But see Sherman v. Robinson80 N.Y.2d 483, 591 N.Y.S.2d 974 (1992)(finding that a liquor store was not liable where it sold alcohol to a minor, who gave that alcohol to other minors, who were then in a car accident).

In some states, such as New Jersey, an intoxicated person who injures themselves has a cause of action against the establishment that allowed them to become intoxicated (subject to an assessment of their own comparative fault). See NJSA  2A:22A-5 (New Jersey's Dram Shop Act);  Lee v. Kiku Rest., 127 N.J. 170, 603 A.2d 503 (1992).  

New York does not allow a dram shop cause of action in favor a person who become intoxicated and injures themselves, but will allow the children of such a person to sue for the loss of a parent.  Matalavage v. Sadler, 77 A.D.2d 39 (2d Dept. 1980).


* Bar Fight Injury Triggers Dram Shop Claim Where Assailant's "Speech Was Slurred and His Eyes Were Red and Watery."

Drunk Driving Dunce Hat (Long Island Legal News)

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