Delamater v. Kimmerle
| Decision Date | 20 December 1984 |
| Citation | 104 A.D.2d 242,484 N.Y.S.2d 213 |
| Parties | Eleanor F. DELAMATER, as Administratrix of the Estate of James William Delamater, Deceased, Respondent, v. Edward F. KIMMERLE et al., Defendants, and Elm Tree Restaurant, Inc., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Connor, Curran & Schram, Hudson (Marlene O. Tuczinski, Hudson, of counsel), for appellant Elm Tree Restaurant, Inc.
Ainsworth, Sullivan, Tracy & Knauf, Albany (Margaret Comard Lynch, Albany, of counsel), for appellant Four Brothers J.S. MacLoed Restaurant, Inc.
Gilbert & Walker, Hillsdale, (Edgar G. Walker, Hillsdale, of counsel), for respondent.
Levinson, Jenkins & Karger, Newburgh (Sheila Callahan O'Donnell, Newburgh, of counsel), for appellant Gerald A. MacDonald.
Before MAIN, J.P., and CASEY, MIKOLL, YESAWICH and HARVEY, JJ.
In the early morning hours of July 4, 1983, plaintiff's decedent, her son, was a passenger in a convertible automobile owned and operated by defendant Edward F. Kimmerle. Both men allegedly were intoxicated. Plaintiff's decedent suffered fatal injuries when thrown from the hood of Kimmerle's car, where he had climbed while the vehicle was in motion. The instant action was commenced against defendant Kimmerle and four different tavern owners.
Plaintiff's original complaint set forth two causes of action against each tavern owner for violation of section 11-101 of the General Obligations Law (Dram Shop Act) by illegally causing Kimmerle's intoxication which, in turn, contributed to decedent's personal injuries and death. Two additional Dram Shop Act causes of action were asserted against each tavern owner involving the intoxication of decedent as a contributing cause of decedent's personal injuries and death.
Plaintiff moved to amend her complaint by adding two common-law negligence causes of action against each tavern owner, asserting that their service of intoxicants to decedent and Kimmerle when the men were already in an intoxicated condition constituted a breach of the duty to use reasonable care. Defendants Elm Tree Restaurant, Inc., Four Brothers J.S. MacLoed Restaurant, Inc. and Gerald A. MacDonald opposed plaintiff's motion to amend. Defendant MacDonald also cross-moved seeking dismissal of those Dram Shop Act causes of action set forth in plaintiff's original complaint for failure to state a cause of action (CPLR 3211, subd. par. 7).
Special Term granted plaintiff's motion to amend her complaint by adding the common-law negligence causes of action. Special Term granted only so much of defendant MacDonald's cross motion as sought the dismissal of one of plaintiff's causes of action against MacDonald, since the manner in which it was pleaded made it duplicitous. This appeal ensued upon the tavern owners' contention that Special Term erred by permitting plaintiff to plead causes of action for common-law negligence. Defendant MacDonald appeals from the denial of his motion to dismiss the death and personal injury causes of action based upon decedent's own intoxication.
Section 11-101 of the General Obligations Law is the statutory embodiment of public policy that a tavern owner who continues to sell alcoholic beverages to an intoxicated patron, or one who is apparently under the influence of alcohol (see Alcoholic Beverage Control Law, § 65), is engaging in tortious conduct for which an injured third party may hold him strictly liable (Weinheimer v. Hoffman, 97 A.D.2d 314, 317, 470 N.Y.S.2d 804; Anderson v. Comardo, 107 Misc.2d 821, 822, 825, 436 N.Y.S.2d 669). However, the statute does not create a cause of action in favor of a person...
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O'Dell v. Kozee
...intoxication similarly characterize their acts as a statutory species of strict liability. See, e.g., Delamater v. Kimmerle, 104 App.Div.2d 242, 243–44, 484 N.Y.S.2d 213 (1984); Chartrand v. Coos Bay Tavern, Inc., 298 Or. 689, 695 n. 4, 696 n. 5, 696 P.2d 513 (1985); Horton v. Royal Order o......
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O'Dell v. Kozee
...intoxication similarly characterize their acts as a statutory species of strict liability. See, e.g., Delamater v. Kimmerle, 104 App. Div. 2d 242, 243-44,484 N.Y.S.2d 213 (1984); Chartrand v. Coos Bay Tavern, Inc., 298 Or. 689, 695 n.4, 696 n.5, 696 P.2d 513 (1985); Horton v. Royal Order of......
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Bongiorno v. D.I.G.I., Inc.
...870, supra; Mead v. Stratton, 87 N.Y. 493, supra; Lyons v. Tiedemann, 135 A.D.2d 509, 522 N.Y.S.2d 159, supra; Delamater v. Kimmerle, 104 A.D.2d 242, 484 N.Y.S.2d 213, supra; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103, supra; Fox v. Mercer, 109 A.D.2d 59, 489 N.Y.S.2d 792, supra; ......
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McGirr v. Zurbrick
... ... common law, the statute must ... be construed narrowly" ... (D'Amico, 71 N.Y.2d at 83; see Delamater v ... Kimmerle, 104 A.D.2d 242, 244 [3d Dept 1984]). Had the ... legislature intended that a sale of alcohol is not required ... under section ... ...