Sunday, February 7, 2010

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

The Appellate Division, Second Department, recently released its decision in Morris v. Bianna. The case involved a bar assault, and the Appellate Division found that there was a question of fact as to whether the assailant had been sold alcohol in a "visibly intoxicated" state, thereby making the bar liable under the Dram Shop Act.  The strongest evidence in the plaintiff's favor was testimony from "the manager of the bar on the night of the occurrence ... that, when he observed [the assailant] shortly after he had stabbed the plaintiff, Penzo's speech was slurred and his eyes were red and watery." 

As many of you may be aware, courts tend to take the path of least resistance.  They won't, for example, address a Constitutional claim if they don't have to.  Similarly, where there are multiple legal issues, appellate courts will often decide the case based upon the simplest, most straight-forward, argument.  

In this case, there was another issue that the Appellate Division didn't comment on and, instead, left for the trial court.  The Dram Shop Act, N.Y. General Obligations Law § 11-101, creates a private right of action against a drinking establishment for injuries caused by the unlawful sale of alcohol.  Under Alcoholic Beverage Law § 65, unlawful selling includes sale to minors, to "any visibly intoxicated person," or to "any habitual drunkard known to be such."  

This case had a solid "visibly intoxicated person" argument, but I also threw in an argument that the assailant was a habitual drunkard.  There was plenty of evidence to support this but, to my knowledge, the particular issue had never been addressed in New York case law.  

Every State has a Dram Shop act, and many of them are similarly phrased.  They derive from an old English law.  A "dram" is a British word for a shot.  So, when the defendant made an issue of the fact that New York courts hadn't defined "habitual drunkard," I found a few courts that did.  

Colorado and Florida's highest courts have squarely addressed the issue.  The Colorado court found that "'known habitual drunkard' is a term of ordinary and common usage, and fact finders may apply its plain and ordinary meaning.... Whether a person is a habitual drunkard and whether the vendor of alcohol knew the patron was a habitual drunkard when served alcohol are factual inquiries based on the circumstances of each case.” K & S Corp. v. Greeley Liquor Licensing Auth., 183 P.3d 710, 713-714 (Colo. 2008).  Similarly, Florida's court found that knowledge of whether a person is a habitual drunkard “can properly be established by circumstantial evidence,” and “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Ellis v. N.G.N. of Tampa, 586 So. 2d 1042, 1049 (Fla. 1991)

There were also a few old cases that defined the term in contexts other than the Dram Shop Act.   See  Kendall v. Ewert, 259 U.S. 139, 42 S. Ct. 444 (1922)(a “known drunkard” is someone who is “generally recognized in a community as a common drunkard,” having “sacrificed themselves, to the craving for strong drink”); Sawyer v. Sauer, 10 Kan. 466, 471 (Kan. 1872)(“Proof of drunkenness so habitual as to be generally known in the community is sufficient to raise a presumption of knowledge.” )

Needless to say, the Appellate Division declined my invitation to decide a question of first impression in a relatively straight-forward Dram Shop case.  


Establishments Serving Alcohol Can Be Held Liable For Injuries Caused By Intoxicated Patrons

* Drunk Driving Dunce Hat (Long Island Legal News)

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