New York's Dram Shop Act: Motorist Who Injures Intoxicated Pedestrian Can Seek Contribution From Bar
November, 2009
In a matter of first impression, the Appellate Division, Second Department held that a motorist can seek contribution from a bar based on the claim that the pedestrian left the bar in an alcohol-induced stupor and then tried to cross a highway when she was struck by a car. O'Gara v. Alacci, 2009 WL 3047886, 2009 N.Y. Slip Op. 06668 (2d Dep't Sept. 22, 2009). Under New York's current Dram Shop Act, General Obligations Law § 11-101(1), a bar owes a duty to the public not to sell alcohol to a person who is visibly intoxicated. Here, the Court found that a motorist is a member of the public that the Act is designed to protect, and, therefore, if the bar breached its duty when it sold alcohol to the pedestrian, the motorist can seek contribution from the bar.
The driver of the automobile was seeking contribution from the bar based upon the alleged violation of the Dram Shop Act, which makes it illegal for sellers of alcohol to sell alcohol to a visibly intoxicated person. Under New York's Civil Practice Law and Rules ("CPLR") § 1401, a joint tortfeasor who has paid more than his or her equitable share of damages to a plaintiff may recover the excess from the other tortfeasor. Ordinarily, liability for contribution flows from a breach of duty owed to the Plaintiff. See CPLR §1401. The Court in O'Gara found that Plaintiff's alleged injuries were caused in part by the bar's violation of the Dram Shop Act. However, the O'Gara Court noted that the bar could not be considered to have violated a duty owed to Plaintiff, the driver of the automobile. O'Gara at *3. The O'Gara Court reasoned that a seller of alcohol owes no duty to the consumer to protect the consumer from the results of his or her involuntary intoxication. O'Gara at *2. The Dram Shop Act does not give the consumer a cause of action against the seller to recover damages for injuries the consumer suffered as a result of the Dram Shop Act violation. O'Gara at *3.
The O'Gara Court found that the Dram Shop Act intended to, among other things, protect the community from the dangers intoxicated persons pose, and imposes a duty upon sellers of alcohol to protect the public from such dangers. O'Gara at *3. Therefore, the O'Gara Court decided that where an intoxicated plaintiff is injured by a either an automobile or another person, and the circumstances support a finding that an accident was caused, in part, by selling or providing of alcohol to the plaintiff in violation of the Dram Shop Act, the driver of an automobile may properly seek contribution from a bar based upon this violation. O'Gara at *3.
Learning Point: Permitting contribution in such cases where a violation of New York's Dram Shop Act is alleged, could result in the provider of alcoholic beverages being held answerable in damages to the alleged tortfeasor as opposed to the intoxicated person. Therefore, sellers of alcoholic beverages must exercise greater care because they may now be exposed to liability, not only for the actions of their direct customers, but for legal actions which their direct customers are made a party.
Back to New York CM Report of Recent Decisions (2009v3) 2009 Volume 3 Table of Contents
