In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss potential causes of action which may lead to recovery against a negligent innkeeper.
Thanksgiving ushers in what should be a joyous holiday season filled with parties and good cheer—and sometimes too much good cheer. It is timely, if perhaps a bit Scrooge-like, to examine the dangers lurking in excessive alcohol consumption which is certainly heightened at this time of year. Festivities taking place in pubs and bars may result in inebriated patrons becoming rambunctious or combative and causing injury. In this column, we will discuss potential causes of action which may lead to recovery against a negligent innkeeper.
Many of us may think first of the Dram Shop Act as the predicate for imposing liability on establishments where alcoholic beverages are served to an already visibly intoxicated patron, who may be slurring his words and subsequently throws punches. However, any claim against a commercial purveyor of alcohol, such as a bar, pub, restaurant, liquor store, or other seller, for the on-premises violent acts of an unruly patron, should likely also include a cause of action for common law negligence. Recent case law has shown the importance of considering both of these causes of action. The legal criteria to establish liability under each of these theories are different, but one or both may be supported by the facts in a particular case.
General Obligations Law §11-101
At common law, one who provided intoxicating liquor was not legally responsible for the tortious acts of an intoxicated person, who alone could be held responsible for his or her conduct arising out of excessive alcohol consumption. The Dram Shop Act (General Obligation Law §11-101) was enacted to remedy this situation, by providing for the imposition of liability against a commercial establishment, for “unlawfully selling or unlawfully assisting in procuring” the sale of liquor to or for an already intoxicated person. General Obligations Law §11-101 provides in pertinent part:
1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, 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 such action such person shall have a right to recover actual and exemplary damages.
This statute must be read in conjunction with the Alcoholic Beverage Control Law §65 which prohibits the sale of alcoholic beverages to “any visibly intoxicated persons.” G.O.L. §11-101 (Dram Shop Act) is applicable to commercial liquor purveyors, which would include bars and restaurants. A tort arising out of the violation of this statute may occur on the premises where the alcohol was purchased or consumed or elsewhere, after the inebriated individual departs the premises.
Proving dram shop liability is fact intensive. Plaintiff must show that the intoxicated consumer “appeared intoxicated” at the time that he or she was sold additional alcoholic beverages in order for liability to be imposed upon the bar or other selling agent. Extensive investigation is essential to find witnesses and gather other evidence which will establish that a person who was visibly intoxicated was served additional alcoholic beverages and thereafter committed a tortious act as a result of the intoxication.
In addressing the issue of proof of visible intoxication, the courts have found that proof of a high blood alcohol content by itself will not provide a sound basis for drawing inferences as to visible intoxication. However, as the court recently stated in Trigoso v. Correa, 150 A.D.3d 1041, 1044 (2d Dept. 2017):
Proof of a high blood alcohol content does not, in and of itself, “provide a sound basis for drawing inferences about a person’s appearance or demeanor” … Nonetheless, “[p]roof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony …”
See also Poppke v. Portugese Am. Club of Mineola, 85 A.D.3d 751 (2d Dept. 2011); Conklin v. Travers, 129 A.D.3d 765 (2d Dept. 2015) (proof of visible intoxication may be established by circumstantial evidence, including expert and eyewitness testimony). In Romano v. Stanley, 90 N.Y.2d 444, 452 (1997), the Court of Appeals held that circumstantial evidence may be used to establish the visible intoxication of the customer but cautioned that “an expert’s affidavit proffered as the sole evidence to defeat summary judgment 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.” See further discussion in Adamy v. Ziriakus, 92 N.Y.2d 396 (1998).
In Sullivan v. Mulinos of Westchester, 114 A.D.3d 844 (2d Dept. 2014), plaintiff’s decedent was intoxicated when he lost control of his vehicle and was killed. The issue under the dram shop cause of action was whether the two bars he patronized prior to the accident served him alcohol when he was already visibly intoxicated. At trial, the plaintiff presented testimony from witnesses at the bars and the testimony of the Rockland County Medical Examiner. Although the trial court granted defendants’ motion to dismiss the action as a matter of law, on appeal, the appellate court reversed this decision. It held that the evidence presented by the plaintiff, when accepted as true and afforded every favorable inference, was sufficient to establish, prima facie, that decedent was served alcohol at each establishment while he was visibly intoxicated and the issue should have been submitted to the jury.
Common Law Negligence
A cause of action for common law negligence is rooted in a landowner’s duty to act in a reasonable manner to prevent harm to those on their property. Basso v. Miller, 40 N.Y.2d 233 (1976). In the seminal case of D’Amico v. Christie, 71 N.Y.2d 76 (1987), the Court of Appeals observed that landowners “have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control … . Applying this rationale, lower courts have recognized that a landowner may have responsibility for injuries caused by an intoxicated guest …” Id. at 85.
The court in D’Amico determined that common law liability could be imposed only for injuries that occurred on defendant’s property, or in an area under defendant’s control, such that defendant had the opportunity to supervise the intoxicated guest. In this respect, the common law cause of action differs from the dram shop liability where the tortious act may occur off the premises. This common law duty arises from a landowner’s obligation to keep its premises free of known dangerous conditions, which may include intoxicated guests.
An attack must be foreseeable. The basic principles were clearly articulated in Walfall v. Bartini’s Pierre, 128 A.D.3d 685 (2d Dept. 2015), where plaintiff’s decedent was assaulted by other patrons of defendants’ lounge as he was being escorted out of the premises. He subsequently died. The court determined that there were issues of facts as to whether the attack was foreseeable. In denying defendants’ motion for summary judgment, the court held that the evidence failed to make a prima facie showing that (1) the attack upon the decedent was not foreseeable, (2) that the appellants lacked the opportunity to prevent the attack, or (3) that any negligence on the appellants’ part was not a proximate cause of the incident. They also failed to make a prima facie showing that they took reasonable security measures against foreseeable criminal acts of third parties.
Pursuit of Both Causes of Action
Liability under both the Dram Shop Act and for common law negligence has been the subject of recent cases which show the importance of examining both theories of liability in bar room assaults. For example, in Zamore v. Bar None Holding Co., 73 A.D.3d 601 (1st Dept. 2010), plaintiff was struck by a glass thrown unexpectedly by a disorderly patron in defendants’ bar as the patron was being escorted from the premises by defendants’ security personnel. Although the court rejected both causes of action and dismissed the action, this decision is notable for the concise explanation of the relevant proof required to prove each of the two causes of action. The court reiterated that, other than a specific violation of the Dram Shop Act, the standard of care for a nightclub operator is no different from the standard of care for any premises operator. The court found that the incident was sudden and unforeseeable, and thus its prevention was beyond defendant’s duty of care under principles of common law negligence.
So too, liability under the Dram Shop Act was also rejected in Zamore. There was no evidence that the assailant was served by an employee of the bar, rather than another patron, that the assailant was visibly intoxicated at the time of the sale, or that the consumption of alcohol was the proximate cause of the assault.
The imposition of liability for an assault in a public establishment under the Dram Shop Act and common law negligence was addressed only a few weeks ago in Hirsch v. Solares, 2018 NY Slip Op 07828 (1st Dept. Nov. 15, 2018), where there was an altercation between an unruly patron and plaintiff. Plaintiff was attacked by the individual defendant at the restaurant owned by the corporate defendant. The initial attack was apparently unexpected. However, plaintiff tried to run away and the assailant followed him and attacked him again, causing injury. There were issues of fact as to the length of time over which the altercation took place and whether the restaurant could have interceded in time to prevent plaintiff’s injuries.
The court in Hirsch found there were issues of fact as to “whether defendants breached a duty to maintain safe premises and protect their patrons from assaultive conduct by third parties and whether reasonable security measures could have thwarted or minimized the injury plaintiff suffered at the hands of defendant Solares.” Plaintiff’s expert opined as to the appropriate security measures which should have been in place at this type of establishment. However, the record showed that there were no security measures in place and that the restaurant manager had initially observed the escalating incident without responding. There were issues of fact for trial as to whether the restaurant breached its duty to maintain safe premises and protect their patrons from assault. A further issue was whether reasonable security measures could have prevented or minimized the injuries that plaintiff suffered. However, the Dram Shop cause of action was dismissed for lack of evidence that the establishment served the assailant liquor when he was visibly intoxicated or if indeed he was served any alcoholic beverages at defendants’ premises.
In another very recent case, Ricaurte v. Inwood Beer Garden & Bistro, 165 A.D.3d 586 (1st Dept. 2018), defendant’s motion to dismiss the common law negligence claim was denied where there were two assaults by the assailant. The court found that the first assault was sudden and unforeseeable, and therefore not actionable. However, defendant failed to demonstrate as a matter of law that it took reasonable actions to protect plaintiff from the assailant prior to the second assault. There was conflicting witness testimony as to the events prior to the second assault, whether it was foreseeable, and whether defendant took reasonable precautions to prevent the second assault.
However, the court in Ricaurte dismissed the cause of action under the Dram Shop Act, as witness testified that the assailant did not appear visibly intoxicated at the time he was served two drinks by defendant. This evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol. The record showed that he was not served from that point in time until he attacked plaintiff. In opposition, plaintiff failed to raise a triable issue of fact.
Tansey v. Coscia, 159 A.D.3d 850 (2d Dept. 2018) is a good example of how claims under the Dram Shop Act and common law negligence may both be found to be meritorious in the same action. Plaintiff was seriously injured when he was struck in the head by the individual defendant Coscia at a bar owned by the defendant SNMT Corp. Plaintiff commenced an action against both, asserting inter alia that SNMT was liable for both common law negligence and a violation of General Obligations Law §11-101. The court denied SNMT ‘s motion to dismiss both causes of action. The submissions of both parties revealed the existence of triable issues of fact as to whether the bar served alcoholic beverages to Coscia while he was visibly intoxicated or with knowledge or reasonable cause to believe that he was under 21 years of age, and whether there was some reasonable connection between the service of alcohol to Coscia and the plaintiff’s injuries. It further denied that branch of SNMT’s motion which was for summary judgment dismissing the negligence cause of action. The court observed: “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.” Here, SNMT failed to establish, prima facie, that the attack on the plaintiff was not foreseeable.
In conclusion, it is important to explore all possible theories of liability when the cup runneth over.
Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm.