New York Dram Shop Liability and the “Sale Statute”

Written by Michael Glass

bar-neon-sign-11291208084Hn6

Americans love their alcohol in all its destructive glory.  The United States Center for Disease Control reports that 50% of American adults consider themselves regular drinkers.  In 2012 alone, there were over 10,000 alcohol-related traffic deaths in the United States.

New York is one of 30 states that have responded by passing “Dram Shop” laws, which impose civil liability on third parties for aiding and abetting the intoxication of an individual who causes injury by virtue of his or her intoxication.  New York’s first Dram Shop Act was enacted in 1873 and the Dram Shop statutes have been amended and supplemented multiple times since then.

GENERAL OBLIGATION LAW 11-101 (Unlawful Sale of Alcohol)

Today, New York’s General Obligations Law Section 11-101 provides that a plaintiff injured by an intoxicated person has a right of action against the party who sold the alcohol to the intoxicated person.  The three elements of the claim are:

1. The sellerunlawfully sold or procured alcohol for the intoxicant; and

2. The seller sold the alcohol to the intoxicant when the intoxicant was visibly intoxicated; and

3. There exists a “reasonable connection” between the intoxication and the Plaintiff’s injury.

General Obligations Law 11-101 additionally creates a right of action for the unlawful sale of alcohol to persons under the age of 21, as well as the sale of alcohol to an “habitual” drunkard.

Although GOL 11-101 actions are usually brought against restaurants, tavern owners and convenience stores, which directly sell liquor to consumers, the statute makes any formal or informal seller of alcohol responsible irrespective of whether the seller is legally licensed to sell alcohol to the public.  The key to such cases, however, is the presence of a SALE of alcohol to the intoxicated person.  Without a sale, this section of the law will not apply. In addition, the sale must be made to the intoxicant when the intoxicant is “visibly intoxicated.”  Visible intoxication can be proved through the testimony of witnesses and the observation of police officers who arrested the individual after he or she left the tavern or restaurant, buttressed by expert testimony from an expert witness like a toxicologist.

GOL Section 11-101 not only creates a cause of action against those who sell liquor to a visibly intoxicated person, but provides a cause of action for sales to an “habitual drunkard” or any minor actually or apparently under the age of 21 years.   It has been specifically held that GOL 11-101 (the “sale” statute) supports a cause of action against the vendor for injuries resulting from the sale of liquor to an underage person, even when the intoxicated minor is concededly sober at the time of sale.

SOCIAL HOST LAWS:  FURNISHING ALCOHOL TO A MINOR

In 1983, the New York legislature enacted GOL 11-100 as a sister statute to GOL 11-101.   GOL 11-100 imposes civil liability upon any person who unlawfully “furnishes” or “assists in procuring” alcoholic beverages to a person under the age of 21.  Significantly, GOL 11-101 does not require a sale of liquor,thereby opening the door to liability for social hosts who cause or permit underage drinking on their watch at social occasions where no money changes hands.

The elements of the claim are straightforward.  The statutes speaks in terms of “furnishing” or “assisting in procuring” the alcohol for the minor.  “Assisting in procuring” has been interpreted to include using one’s own money, or even contributing money with others to the purchase of alcohol for the minor.  No liability attaches, however, if the adult is a mere passive participant at a party where minors happen to be drinking.  In addition, the Defendant must know, or have reasonable cause to believe, the persons receiving the alcohol are under the age of 21.  If the defendant is reasonably unaware of the alcoholic consumption by the minor, or did not authorize its consumption on his premises, no liability will attach.  So, for example, it has been held that no liability exists where the parents whose minor held a party with underage drinking did not procure or furnish the alcohol that was consumed at the party, nor did they provide funds for that purpose.  Likewise, there is no liability if the Defendant was a passive participant who merely knew of the underage drinking, but did nothing to encourage it.  It has also been held that the parents of an underage drinker were not liable under GOL 11-100 where their underage child arranged the party while the parents were out of town and the parents neither furnished nor procured the alcoholic beverages for anyone at the party.    Interestingly, however, claims against an underage child can be brought if the underage child procured the alcohol served at the party to underage guests.

GOL 11-103: INJURIES CAUSEDBY THE ILLEGAL SALE OF CONTROLLED SUBSTANCES

GOL 11-103 provides, in essence, a Dram Shop Claim against any person who caused or contributed to another’s impairment by unlawfully selling or assisting in procuring a controlled substance for that person. In this context, “assisting in procuring” means that no sale is necessary.  Merely furnishing the controlled substance is sufficient for liability.  Actual and punitive damages are recoverable under the statute.

COMMON LAW DUTY TO PROTECT/SUPERVISE PERSONS ON PROPERTY

Dram Shop liability is statutory.  Alcohol providers are not responsible in the common law for furnishing alcohol to intoxicated persons who then go on to cause injuries.  That is not to say, however, that there are no common law theories of liability applicable to landowners when an injury is caused by an intoxicated person. The common law does generally impose a duty on landowners, including bar and restaurant owners, to protect third persons from dangerous conditions on their property, which includes the duty to protect third persons from injuries caused by an intoxicated person.  In addition, in appropriate circumstances, adults have a common law duty to supervise minors and protect them from guests who become intoxicated at the adult’s home.  Therefore, in appropriate cases a lawsuit against the provider of alcohol may raise both statutory and common law claims.

CONCLUSION

When an accident occurs and alcohol is involved, consideration must be given to whether there are parties other than the drunk who may also be legally accountable.  Bars and taverns have a responsibility in the law to dispense the alcohol they sell responsibly, and even social hosts must take reasonable steps to ensure that minors are not being supplied alcohol under their watch.  When due care is not taken, liability on these third party providers of alcohol can follow.