It is common legal knowledge that individuals who knowingly and intentionally consume alcohol in excess are solely liable for injuries to others under New York law. The Dram Shop Law was legislated to provide an exception to that rule; opening the doors to a cause of action against private establishments that unlawfully sell alcohol to minors or visibly intoxicated persons, who then cause injury to another person or persons. A cause of action for selling alcohol to anyone under 21 years of age is set forth in Section 11-100, whereas a cause of action for selling alcohol to a visibly intoxicated individual is set forth under Section 11-101.
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If you were injured or you lost a loved one due to the intoxication of another person, reach out to the law offices of Tanya Gendelman and speak with an experienced personal injury attorney for a free evaluation of your case. If the party responsible was served while obviously impaired you may have a case under the Dram Shop Act.
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The Origins of New Yorks Dram Shop Act
Dram Shop Act is an important and well-known New York State doctrine with its odd name extracted from the depths of legal history. The term Dram Shop to the average individual may sound like an apothecary in Charles Dickens England or a place to purchase herbal remedies. The term was actually was coined in England and refers to shops that once sold liquor to patrons by the dram, a liquid measure. Dram Shop Law refers to New Yorks body of laws that pertains to the liability of bars, liquor stores, restaurants and any other commercial establishments which serve alcohol to minors, or the visibly intoxicated, whose actions conclude in the injury or death of an unrelated third party. Dram Shop Laws, in one form or another, have been enacted by practically every state in the Union with a common goal of protecting the public from the dangers of underage drinking and over-served adults.
How Are the Dram Shop Act Laws Applied?
New York courts have defined Section 11-101 as applying strictly to the commercial sale of alcohol for profit. In other words, the portion of the New Yorks Dram Shop Law, regarding the serving of alcohol to an intoxicated person, applies only to commercial businesses and not private individuals. For example, if a homeowner was hosting a pool party and one of the guests consumed too much alcohol, followed by an injury to another person, the Dram Shop Act would not apply. One determining question, whether or not the provider of alcohol was acting within the commercial context, can usually be determined by whether the alcohol was sold to the consumer or provided without charge.
The New York State law is also clear that the sale of the alcohol must be directly to the customer. For example, lets imagine that several patrons of an establishment are seated at a common table and one of those persons keeps ordering at the bar and bringing the drinks back. Because the bartender is not directly serving the impaired person at that table, the establishment would not be liable under the Dram Shop Law. Another scenario is bottle service, which is popular in clubs in NYC. When the entire bottle is placed on a table there is no way for the server to know who is drinking how much.
Whether a patron is visibly intoxicated is a factual question that differs with each scenario and determined by the facts present in each situation. It can include obvious signs as the patron having a noticeably impaired demeanor. Was the customer slumped and slurring their words when ordering a drink or were they poised and upright, speaking clearly? Did they smell of alcohol when they first sat down or were their eyes bloodshot? Did they become increasingly boisterous after a short while? These are signs that servers and bartenders should be trained to spot. Some drinkers are better than others at concealing their level of intoxication. If the bartender knows a frequent customer he or she may see slight changes in behavior – a red flag never noticed by one unfamiliar with the customer.
If the patron showed no signs of impairment and left the establishment, was involved in an accident and they tested with an elevated blood alcohol level, there would probably be no cause for a Dram Shop Law case as the server had no idea that the patron was impaired.
A more rigid guideline for determining liability is established in General Obligations Law Section 11-100 that concerns serving alcohol to minors. Anyone who engages in providing alcohol to, or assists in procuring alcohol for, a person under the age of 21, can be found liable. To clarify, if a person is unaware of alcohol consumption by a minor, did not authorize the consumption of alcohol by a minor on his premises, or he did not actually provide the alcohol to the minor, he cannot be found liable under Section 11-100.
How Can an Establishment Minimize the Possibility of a New York Dram Shop Act Lawsuit?
Serving alcohol in New York, or anywhere else for that matter, brings with it inherent risks. Employee training is paramount in avoiding over serving guests. Everyone, including the owners, managers, bartenders, servers and even the back of house staff should be trained to recognize the signs of impairment. Create open lines of communication between all personnel. If a busser should see a patron throwing cold water in his face in the restroom or a server sees a person becoming bellicose, they should be encouraged to report the incidence to the manager or bartender. The parking attendant may see a patron vomiting between cars and returning to the bar. That employee should feel it is his duty to inform the manager who can instruct the bartender or server as to the proper handling of the situation.
Employees that are permitted and also encouraged to report intoxicated patrons will aid greatly in mitigating the risks of a New York Dram Shop Act case in the future. The likelihood of injuries to patrons and employees will be greatly reduced and the business will have lessened it legal exposure. Most importantly it may save an innocent driver or pedestrian from being killed or severely injured.
How Do I Bring a Dram Shop Law Action?
This is a prime question — when can you bring a Dram Shop Act action in New York? As discussed, persons who consume alcohol of their own free will are not permitted under New York law to bring lawsuits for injuries to themselves, even if the alcohol was provided by another. In addition, the courts will not allow a plaintiff to bring a claim against another individual where it was the plaintiff himself who provided or procured the alcohol to the intoxicated individual who caused his injuries.
Basically, the Dram Shop Laws are in place to protect the interests of innocent people who are injured or killed by reason of a violation of said laws. Another point has been one of contention. Although New Yorks public policy will not allow a persons estate to sue an establishment for wrongful death, New York does recognize the rights of children to maintain a cause of action against an establishment for the loss of parental consortium, when it can be established that the parental fatality was the result of the bar serving an intoxicated person.
As in all liability cases, each needs to be evaluated on its own merits. To be successful in maintaining a cause of action under Section 11-100, it must be proven that the defendant knowingly furnished or assisted a minor in procuring alcohol, which ultimately caused the impairment or intoxication of the minor. To impose an order for liability under Section 11-101, a plaintiff must show that the defendant sold alcohol commercially to a visibly intoxicated person who concludes in causing injury or death to another.
Most injuries caused by an intoxicated individual are from motor vehicle accidents. For example if you are struck by another vehicle and the driver was over served in a bar, that establishment may be held liable. If the driver lacks insurance or enough to cover your medical bills, lost income, pain and suffering, you may collect from the establishments liquor liability insurance. If they do not have insurance, you may be able to collect from their assets.
Aside from auto accidents another example of a possible Dram Shop Act lawsuit would be in the case of an assault. Inhibitions become lowered in some individuals who are intoxicated and they can become aggressive in some cases. If you are assaulted by an over served individual, both the individual and the establishment that served him or her can be held legally accountable and must compensate you for your injuries.
The standards for each cause of action seem pretty cut and dried, but in the world of tort litigation nothing should be taken at face value. It is imperative to consult with an attorney who has experience with cases regarding the Dram Shop Laws in New York. Your legal counsel can determine whether your specific assemblage of facts has the merit to warrant a New York Dram Shop Act case. If there is not enough ground to pursue a Dram Shop case, there may be a potential for the imposition of common law liability. Do not make any determination on your own – leave that to your attorney.
Do not hesitate to contact an attorney, as the statute of limitations to file your case under the New York Dram Shop Act is three years.