Adamy v. Ziriakus

• Decision Date: 18 November 1998
• Citation: 704 N.E.2d 216,92 N.Y.2d 396,681 N.Y.S.2d 463
• Parties: , 704 N.E.2d 216, 1998 N.Y. Slip Op. 10,094 Candice G. ADAMY, Individually and as Administratrix of the Estate of Joseph P. Adamy, Deceased, Respondent-Appellant, v. Mark T. ZIRIAKUS, Defendant, and T.G.I. Friday's, Inc., Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 463

681 N.Y.S.2d 463

92 N.Y.2d 396, 704 N.E.2d 216, 1998

N.Y. Slip Op. 10,094

Candice G. ADAMY, Individually and as Administratrix of the Estate of Joseph P. Adamy, Deceased, Respondent-Appellant, v. Mark T. ZIRIAKUS, Defendant and T.G.I. Friday's, Inc., Appellant-Respondent.

Court of Appeals of New York.

Nov. 18, 1998.

Edward C. Cosgrove, Buffalo, for appellant-respondent.

Eugene C. Tenney, Buffalo, for respondent-appellant.

OPINION OF THE COURT

KAYE, Chief Judge.

Central to these cross-appeals is the question whether there was evidence to support the jury's verdict that defendant T.G.I. Friday's served alcohol to a customer while he was "visibly intoxicated" (General Obligations Law § 11-101; Alcoholic Beverage Control Law § 65[2] ) and was therefore liable for fatal injuries suffered by plaintiff's decedent in a car accident. Concluding that the verdict cannot as a matter of law be disturbed, and that there is no reversible error in any of the other issues raised by the parties, we affirm the Appellate Division order.

I.

Lieutenant Joseph Adamy, a member of the Town of Amherst Police Department, was killed in the early morning hours of January 27, 1990, when his police cruiser collided with a pickup truck driven by Mark Ziriakus. The accident occurred only a short time after Ziriakus had left Friday's, a nearby bar-restaurant. In the hours preceding the incident, Ziriakus was in the company of friends at Friday's, where he consumed a number of alcoholic beverages. In the aftermath of the accident, Ziriakus failed field sobriety tests administered by police officers at the scene and was arrested. He was ultimately convicted of driving while intoxicated and failure to yield (Vehicle and Traffic Law §§ 1141, 1192[2], [3] ).

Decedent's widow, plaintiff Candice Adamy, individually and on behalf of decedent's estate, sued both Ziriakus and Friday's. Plaintiff claimed that Friday's had violated the Dram Shop Act by serving Ziriakus alcoholic beverages while he was visibly intoxicated. A jury trial resulted in a plaintiff's verdict of $5,505,474.96. The jury further determined that Ziriakus was 40% liable, Friday's 30% liable and decedent 30% liable.

Friday's made several post-trial motions: for judgment notwithstanding the verdict or a new trial (CPLR 4404[a] ); to reduce the verdict to reflect decedent's comparative negligence (CPLR 1411) and several collateral source payments made to plaintiff (CPLR 4545); and to structure the judgment to require only one lump sum payment of $250,000 out of the future damages award (CPLR 5041[b] ). After Supreme Court denied these motions Friday's appealed to the Appellate Division, which modified the judgment (231 A.D.2d 80, 659 N.Y.S.2d 623). The Appellate Division denied Friday's challenges to the verdict, but held that the trial court had erroneously awarded multiple $250,000 lump sums to plaintiff and each of decedent's minor children, and that it had improperly failed to reduce the verdict by decedent's own comparative fault as determined by the jury. We granted leave to both Friday's and plaintiff, and now affirm.

II.

Defendant's primary challenge to the jury verdict is that there was insufficient evidence that Ziriakus was served by its employees while he was visibly intoxicated. In seeking this relief, defendant faces the lofty hurdle of showing that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).

General Obligations Law § 11-101(1), known as the Dram Shop Act, makes a party who "unlawfully" sells alcohol to another person liable for injuries caused by reason of that person's intoxication. Under Alcoholic Beverage Control Law § 65(2), it is unlawful to furnish an alcoholic beverage to any "visibly intoxicated person." There was evidence at trial that Ziriakus arrived at Friday's at 10:30 p.m. on the night of the accident, had not had anything to drink earlier in the evening, imbibed a number of drinks at Friday's in approximately a 2 1/2 hour period, left the bar shortly before the accident, and had a blood alcohol content (BAC) of 0.17 at 3:00 a.m. Noticeably absent was any eyewitness testimony that Ziriakus showed signs of intoxication that could have alerted Friday's.

As we noted in Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589, 684 N.E.2d 19, the failure to provide direct proof of visible intoxication in Dram Shop Act cases is not itself dispositive:

"The Legislature's use of the term 'visible,' however, does not create a rigid requirement that that essential element of the claim be established by direct proof in the form of testimonial evidence from someone who actually observed the allegedly intoxicated person's demeanor at the time and place that the alcohol was served. To the contrary, as was recognized at the time section 65(2) was amended, the statutory language '[does] not preclude the introduction of circumstantial evidence to establish the visible intoxication of the customer' " (id., at 450, 661 N.Y.S.2d 589, 684 N.E.2d 19, quoting Governor's Approval Mem., 1986 McKinney's Session Laws of N.Y., at 3194).

In this case, plaintiff presented several categories of circumstantial evidence. First, there was the testimony of plaintiff's expert, Dr. Michael Baden, a forensic pathologist. Dr. Baden opined, based on Ziriakus's 0.17 blood alcohol content at 3:00 a.m., that he consumed 12 drinks at Friday's, and his BAC would have been at 0.20 at the time he left the bar. He further testified that if Ziriakus' BAC was 0.20 when he left Friday's, he would have been visibly intoxicated when last served. ¹

Likening Dr. Baden's proffered testimony to that of the plaintiff's expert in Romano, Friday's urges that there was an insufficient foundation for Dr. Baden's testimony, rendering his opinion purely speculative and conclusory. To be sure, in Romano, we noted that "the personal professional background of plaintiffs' expert--a clinical forensic pathologist whose specialty was the performance of autopsies--is not alone sufficient to lend credence to his opinions, since individuals in his field are not ordinarily called upon to make judgments about the manifestations of intoxication in live individuals" (90 N.Y.2d, at 452, 661 N.Y.S.2d 589, 684 N.E.2d 19). Likewise, we recognized that the expert's affidavit in Romano "was devoid of any reference to a foundational scientific basis for its conclusions. No reference was made either to [the expert's] own personal knowledge acquired through his practice or to studies or to other literature that might have provided the technical support for the opinion he expressed" (id., at 452, 661 N.Y.S.2d 589, 684 N.E.2d 19).

Friday's reliance on Romano is misplaced. In that case, an expert's affidavit was the only evidence offered to defeat the summary judgment motion of the vendor-defendants. In that context, we noted 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" (id., at 451-452, 661 N.Y.S.2d 589, 684 N.E.2d 19). By contrast, when expert testimony is offered at trial, "the technical or scientific basis for a testifying expert's conclusions ordinarily need not be adduced as part of the proponent's direct case" (id., at 451, 661 N.Y.S.2d 589, 684 N.E.2d 19; see, Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 414, 322 N.Y.S.2d 665, 271 N.E.2d 515). Rather, it falls to the opponent of the testimony to bring out weaknesses in the expert's qualifications and foundational support on cross-examination--which is, of course, unavailable to a party seeking summary judgment, as in Romano.

In this case, Dr. Baden outlined his teaching career at several educational institutions, articles he had written germane to his understanding of alcohol and its effects and his experience as a medical examiner, and Friday's made no objection to his qualifications to testify as an expert witness. Thus, Friday's cannot now argue that Dr. Baden's testimony was inadmissible as a matter of law. While Friday's did challenge Dr. Baden's testimony and qualifications in cross-examination and again during summation, these contentions affect the weight to be accorded his views, not their admissibility. Thus,...