Berkeley v. Park

• Decision Date: 13 August 1965
• Parties: Harriet BERKELEY, as Administratrix of the Estate of Russell J. Berkeley, deceased, et al., Plaintiffs, v. Arthur PARK, d/b/a Central Hotel, Defendant.
• Court: New York Supreme Court

Page 290

262 N.Y.S.2d 290

47 Misc.2d 381

Harriet BERKELEY, as Administratrix of the Estate of Russell J. Berkeley, deceased, et al., Plaintiffs, v. Arthur PARK, d/b/a Central Hotel, Defendant.

Supreme Court, Otsego County.

Aug. 13, 1965.

Latham & Mogavero, Unadilla (Livingston S. Latham, Unadilla, of counsel), for plaintiffs.

Willard E. Pierce, Jr., Binghamton (William L. Ransom, Jr., Binghamton, of counsel), for defendant.

ROBERT O. BRINK, Justice.

The defendant in the above-entitled action has moved under CPLR § 3211(a) 7 to dismiss from the complaint five causes of action based on allegations of common law negligence. The causes of action involved have been designated in the complaint as the Second, Fourth, Sixth, Seventh and Eighth causes of action. Two of the causes involve damages for wrongful death of two persons. The other three involve personal injuries of a mother and her two children.

All of the persons killed and injured were occupants of the same car involved in a head-on collision with another motor vehicle. The occupants of the second automobile were two young men, one a passenger and the other the operator, who had left the defendant's tavern shortly before the accident.

It is the contention of the plaintiffs that the proximate cause of the accident was the negligence of the defendant, his servants and employees in selling the young men alcoholic beverages while they were intoxicated, thereby contributing to their intoxication. It is also alleged that the defendant, his servants and employees knew that the two young men had an automobile as their only means of transportation from defendant's premises.

The causes of action for negligence are joined in the complaint with causes of action under the so called Dram Shop Act (General Obligations Law, § 11-101, formerly § 16 of the Civil Rights Law.)

The question presented is the liability for negligence of a vendor of intoxicating beverages for the injurious acts of the vendee after he leaves the premises.

At common law, before the passage of the Dram Shop Act (L.1873, ch. 646), an action against the tavern owner was generally defeated on the grounds that the serving of the alcohol was not the proximate cause of intoxication; Hayes v. Phelan, 4 Hun 733 (1875); see also Healey v. Cady, 104 Vt. 463, 161 A. 151 (1932); Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530 (1949) (consumption was the proximate cause of intoxication) or that the consequences were not foreseeable; Coy v. Cutting, 138 Kan. 109, 23 P.2d 458 (1933); Seibel v. Leach, 233 Wis. 66, 288 N.W. 744 (1939).

The Dram Shop Act removed these obstacles by imposing a strict liability upon the server of intoxicating beverages. Bertholf v. O'Reilly, 74 N.Y. 509, 513 (1878) ('the element of care or diligence on the part of the seller * * * does not enter into the question of liability'); Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277 (1963) (action not based upon negligence) aff'd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212 (1964). Such strict liability gave a remedy where none had existed. Volans v. Owen, 74 N.Y. 526 (1878); Quinlan v. Welch, 141 N.Y. 158, 36 N.E. 12 (1894); Jackson v. Brookins, 5 Hun 530 (1875) (main purpose of the statute was to provide a remedy for cases before remediless). However, the legislature went much further than to merely cancel the common law defenses. It provided a cause of action for injury occasioned by the loss of 'means of support' for dependant relatives. It was this aspect of the new law which went far beyond anything known to common law. Volans v. Owen, supra; Mead v. Stratton, 87 N.Y. 493 (1882); Westbrook v. Miller, 98 App.Div. 590, 90 N.Y.S. 558 (1904).

Since the passage of the Dram Shop Act, no case in New York has decided the question of whether the common law restrictions of the mid 19th Century are applicable today. Many cases have discussed the question of the 'means of support provision'. Where the question has arisen concerning the liability of physical injury to a third party off the premises, the question has limited itself to recovery under the statute. Bator v. Barry, 282 App.Div. 324, 122 N.Y.S.2d 604 (1953); Playford v. Perich, 2 Misc.2d 170, p. 174, 152 N.Y.S.2d 201, p. 204.

The question arises as to whether the statute, by imposing such strict liability excludes the possibility of an action under common law negligence. Nothing in the statute purports to do so. Generally the 'existence of a statute does not prevent an action for common law negligence' Prosser, 'Law of Torts' (2nd Ed. 1953). Nothing in the case law contradicts this. Dowling v. Stephan, 206 Misc. 518, 133 N.Y.S.2d 667 (1954), merely states that recovery under the statute is exclusively defined by the statute. See also Playford v. Perich, supra.

While the cause of action against an innkeeper for common law negligence is not precluded by statute, no New York case has abrogated the doctrines of remoteness and foreseeability. Development has been arrested in New York since 1873.

Recent cases from other states have declared that modern conditions dictate the adaptation of the common law. Waynick v. Chicago's Last Dept. Store, 7 Cir., 269 F.2d 322, 77 A.L.R.2d 1260 (1959); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959). This attitude has received favorable comment from law review articles. See 60 Colum. L.Rev. 554 (1960), 8 Syr.L.Rev. 252 (1957). These cases rejected as simply unreal the distinction that the selling of alcohol is only a remote cause of resulting intoxication while the consumption is the proximate cause. On the question of foreseeability, the cases, citing reports of the National Safety Council, modern conditions, drunkenness and driving, and the almost universal use of automobiles, stated that the consequences of serving an intoxicated person who drives an automobile more alcohol, were easily foreseeable to the reasonable person.

At the time of the original enactment of the Dram Shop Act of 1873, the automobile had not been invented and modern highway traffic was a figment of the imagination. The rural Inn and small town Tavern were patronized by the local citizenry or by travelers in horse-drawn vehicles....