Allen v. Westchester County

Decision Date12 August 1985
Citation109 A.D.2d 475,492 N.Y.S.2d 772
Parties, 27 Ed. Law Rep. 281 Francine M. ALLEN, individually, etc., Respondent, v. COUNTY OF WESTCHESTER, Appellant, et al., Defendant.
CourtNew York Supreme Court — Appellate Division

A. Paul Goldblum, Brooklyn (Debra B. DiCicco, New York City, of counsel), for appellant.

O'Keeffe & Moloney, White Plains (Robert James Friedman, Alfred F. Dugan and Kevin D. Moloney, White Plains, of counsel), for respondent.



This appeal concerns a claim for damages for conscious pain and suffering of plaintiff's deceased husband who became intoxicated, fell and sustained fatal injuries at "The Pub", a bar dispensing beer and wine on the campus of Westchester Community College. Plaintiff originally served a notice of claim and commenced an action, in her individual capacity, against the County of Westchester, Westchester Community College and the Faculty-Student Association of Westchester Community College, Inc. In addition to the claim in issue here, the complaint also contained a claim for damages for wrongful death and loss of services. Among the specific acts of negligence charged was defendants' failure to provide "adequate and trained personnel" to properly monitor, supervise, police and control the premises and guests. After having been appointed administratrix of decedent's estate, plaintiff served a second notice of claim, this time in her capacity as administratrix, and served a second summons and complaint.

Plaintiff thereafter moved, inter alia, to amend her first notice of claim, which had been served in her individual capacity, to include her as claimant in her representative capacity. The motion was denied (Buell, J.) on the ground that "action based upon the unlawful sale and use of intoxicating beverages creates a cause of action in favor of a person injured by reason of the intoxication but does not create a cause of action in favor of the individual whose intoxication resulted from the unlawful sale of intoxicating beverages or in favor of his estate". However, the court noted that plaintiff did not need permission to serve her second notice of claim inasmuch as said notice had already been timely served.

The defendant county then moved, on behalf of itself and codefendant Westchester Community College, for an order dismissing the second complaint as against them. Plaintiff consented to the granting of those branches of the motion which sought to strike the demand for punitive damages and to dismiss the action as to defendant Westchester Community College. Plaintiff maintained that the suit was otherwise proper as it was based upon a theory of common-law negligence. She claimed that the county had breached a duty to prevent the decedent from harming himself while on the premises in an obviously intoxicated condition.

Special Term, inter alia, upheld plaintiff's three remaining causes of action as against the county, which were predicated upon a theory of common-law negligence. The county appeals from so much of the order as denied the branch of its motion seeking dismissal of the first cause of action which sought damages for the conscious pain and suffering of decedent prior to his death, insofar as said cause of action is asserted against it.

The issue presented for our resolution is whether the estate of an individual, who died as a result of injuries sustained while he was intoxicated, can maintain a cause of action based upon principles of common-law negligence to recover damages for the decedent's conscious pain and suffering against the dispenser of the alcoholic beverages which caused him to become intoxicated and on whose premises the injuries occurred. We conclude that no such cause of action exists under the laws of this State.

At common law, selling or giving intoxicating liquors to an ordinary, able-bodied person was never designated a tort (see, e.g., Megge v. United States, 344 F.2d 31, 32 (6th Cir.), cert. denied 382 U.S. 831, 86 S.Ct. 69, 15 L.Ed.2d 74; Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383, 386; Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755, 757; Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566, 567). The rationale underlying this principle was that the act of imbibing the liquor, as opposed to the mere furnishing of it, is the proximate cause of the resulting injuries (see, 45 Am.Jur.2d, Intoxicating Liquors § 553). Generally, a person cannot become intoxicated by reason of his having been furnished with intoxicating liquor if he does not in fact drink it (Nolan v. Morelli, supra ).

Similarly, there was no special duty at common law incumbent upon an owner of premises to protect a party thereon from the results of his voluntary intoxication (see, 3 Warren, Negligence, Intoxicated Persons, § 1.01). "The prevailing view appears to be that whatever wrong may have been committed by the person supplying the intoxicant, its effect as causative of the ultimate injury was terminated by the voluntary act of the consumer in actually drinking the liquor" (45 Am.Jur.2d, Intoxicating Liquors § 559).

New York courts have likewise refused to recognize a cause of action, based on principles of common-law negligence, against dispensers of alcoholic beverages for injuries to intoxicated customers on the ground that the dispenser owes no duty to protect the consumer from the results of the latter's voluntary intoxication (see, Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 524, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; Gabrielle v. Craft, 75 A.D.2d 939, 940, 428 N.Y.S.2d 84; Paul v. Hogan, 56 A.D.2d 723, 392 N.Y.S.2d 766; Vadasy v. Bill Feigel's Tavern, 88 Misc.2d 614, 391 N.Y.S.2d 32, affd. 55 A.D.2d 1011, 391 N.Y.S.2d 999, lv. denied 42 N.Y.2d 805, 398 N.Y.S.2d 1026, 367 N.E.2d 659; Bizzell v. N.E.F.S. Rest., 27 A.D.2d 554, 275 N.Y.S.2d 858). Certain specific and circumscribed inroads into the general common-law rule have been recognized. By way of illustration, there may be liability at common law where the subject injury is to an innocent third party and where the property owner knows that he can and has the opportunity to control the wrongdoer's conduct and where he is reasonably aware of the necessity of such control (see, Huyler v. Rose, 88 A.D.2d 755, 451 N.Y.S.2d 478, appeal dismissed 57 N.Y.2d 777; Paul v. Hogan, supra; Kohler v. Wray, 114 Misc.2d 856, 858, 452 N.Y.S.2d 831; see also, Figuly v. Knoll, 185 N.J.Super. 477, 449 A.2d 564). Such duty does not, however, extend beyond the area where supervision and control may reasonably be exercised (Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606; Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655; Paul v. Hogan, supra ). These situations are clearly distinguishable from the instant case where no injuries to any third parties were involved.

In O'Leary v. American Airlines, 100 A.D.2d 959, 960, 475 N.Y.S.2d 285, a case involving the liability of a common carrier to a passenger suffering from a disability such as intoxication, a majority of this court held that there is a common-law duty incumbent upon the carrier to exercise such additional care as is reasonably required by the passenger's disability and the existing circumstances. Inasmuch as the County of Westchester is not a common carrier, said exception is inapplicable here.

While there exists authority to the effect that the advent of the comparative negligence statute (CPLR 1411) renders certain negligence actions viable inasmuch as any negligence on the part of the decedent in consuming alcohol in fatal excess would diminish but not totally preclude recovery (Dynarski v. U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86), we decline to apply that reasoning in the instant case. Dynarski involved a negligence action commenced against the hosts of a wedding reception at which a 14-year-old child was served alcoholic beverages to such an extent as to result in her death from acute ethanol intoxication. Unlike the situation in that case, there was here no cause for the invocation of Penal Law § 260.20 regarding the offense of unlawfully providing alcoholic...

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    ...'would savor too much of allowing ... [the] person to benefit by his or her own wrongful act.' " [Allen v. County of Westchester, 109 A.D.2d 475, 492 N.Y.S.2d 772, 776 (N.Y.1985) ] ... We cannot allow such a result. Id. If this Court were to create a cause of action against the tavern owner......
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1 books & journal articles
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    ...notes 27-28 and accompanying text. (175) Shultes v. Carr, 512 N.Y.S.2d 276, 277 (App. Div. 1987) (citing Allen v. County of Westchester, 492 N.Y.S.2d 772, 776 (App. Div. 1985)). (176) See e.g., Soto v. Montanez, 608 N.Y.S.2d 36, 37 (App. Div. 1994). "General Obligations Law [section] 11-101......

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