Dynarski v. U-Crest Fire Dist.

• Decision Date: 12 March 1981
• Docket Number: U-C,U-CREST
• Citation: 447 N.Y.S.2d 86,112 Misc.2d 344
• Parties: Muriel DYNARSKI, as Administratrix of the Goods, Chattels and Credits of Dianne M. Schauger, Deceased, and Muriel Dynarski, Individually, Plaintiff, v.FIRE DISTRICT,rest Volunteer Fire Dept., Inc., Ray Kaiser, Earl Newton and Eleanor Newton, and Richard Lee and Helen Lee, Defendants.
• Court: New York Supreme Court

Page 86

447 N.Y.S.2d 86

112 Misc.2d 344

Muriel DYNARSKI, as Administratrix of the Goods, Chattels and Credits of Dianne M. Schauger, Deceased, and Muriel Dynarski, Individually, Plaintiff, v. U-CREST FIRE DISTRICT, U-Crest Volunteer Fire Dept., Inc. Ray Kaiser, Earl Newton and Eleanor Newton, and Richard Lee and Helen Lee, Defendants.

Supreme Court, Erie County.

March 12, 1981.

Barlow, Rosenthal, Siegel, Muenkel & Wolf, Buffalo, for plaintiff; Jay N. Rosenthal, Buffalo, of counsel.

Mark G. Farrell, Buffalo, for defendant, U-Crest Fire Dist.

Brown, Maloney, Gallup, Roach & Busteed, P. C., Buffalo, for defendant, U-Crest Volunteer Fire Dept., Inc.; James E. Morris, Buffalo, of counsel.

Watson, McGarvey, Hetzelt & Bennet, Buffalo, for defendant, Ray Kaiser; Joseph L. Watson, Buffalo, of counsel.

Koren, Bertell & Hoey, Buffalo, for defendants, Earl and Eleanor Newton; Benjamin J. Hoey, Buffalo, of counsel.

Norman B. Lewis, P. C., Buffalo, for defendants, Richard and Helen Lee.

MEMORANDUM

THOMAS F. McGOWAN, Justice.

Defendants Earl and Eleanor Newton and Ray Kaiser move for summary judgment dismissing the complaint. The facts construed most favorably to plaintiff are that on July 9, 1976, Dianne Schauger, then fourteen (14) years old, worked at a wedding reception held by the Newtons and Richard and Helen Lee at the U-Crest Volunteer Fire Department Hall. Defendant Ray Kaiser tended bar at the reception. Dianne was served alcoholic beverages on that date by defendants or their agents and became visibly intoxicated. Despite this, she was permitted to continue drinking. As a result of her drinking, she became sick and died soon after from complications brought on by acute ethonal intoxication. At the time of her death, Dianne Schauger had just turned fifteen (15) years old.

Plaintiff claims, generally, that defendants Newton, as co-hosts, were negligent in that they illegally permitted Dianne Schauger to be served alcohol in spite of the fact that she was under eighteen and that they continued to allow her to be served after they observed or should have observed that she was visibly intoxicated. Plaintiff also contends that defendant Kaiser was negligent in that he did in fact serve alcoholic beverages to Dianne and continued to serve her even after he observed or should have observed that she was intoxicated.

I.

There is no cause of action on behalf of plaintiff under either section 65 of the Alcoholic Beverage Control Law or section 11-101 of the General Obligations Law (commonly known as the Dram Shop Act). The Act runs in favor of third parties injured by an intoxicated person and against a person who unlawfully sells or procures alcohol for such intoxicated person. No cause of action is created on behalf of the intoxicated person or his estate, although a spouse, child or parent may sue individually as parties injured by the death of the intoxicated person (3 Warren's Negligence, § 3.06, p. 341). The Dram Shop Act does not apply, however, to drinking at social occasions (see Lauer v. Slobbe, 65 A.D.2d 938, 411 N.Y.S.2d 551; Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548, affd. 55 A.D.2d 597, 389 N.Y.S.2d 631; Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655). Hence, in the instant case, where drinks were served at such an occasion, plaintiff has no claim under the Dram Shop Act.

II.

The remaining issue is whether plaintiff has a cause of action based on negligence. Plaintiff argues that defendants had both a statutory and a common law duty of care toward the infant decedent.

Penal Law § 260.20 reads in pertinent part as follows:

"A person is guilty of unlawfully dealing with a child when:

* * *

4. He gives or sells or causes to be given or sold any alcoholic beverage ... to a child less than eighteen years old; except that this subdivision does not apply to the parent or guardian of such child ...."

This section differs in title, structure and language from its predecessor, Penal Law § 484 subd. 3, which was held not to prohibit the giving of liquor to minors except as to certain resorts and persons in certain types of business (see People v. Martell, 16 N.Y.2d 245, 264 N.Y.S.2d 913, 212 N.E.2d 433). Nothing in the present statute, however, indicates that such a limited application is intended. The only express exception is for the parent or guardian of the child. The statute, like similar statutes in other jurisdictions, is intended to protect children from their own misconduct (see Restatement 2d of Torts, section 483; Vance v. United States, 355 F.Supp. 756). It protects the physical health and well being of children as well as their morals (see Penal Law § 260.20 subds. 2, 3 and 5; but see Pelkey v. Brennan, 12 A.D.2d 215, 209 N.Y.S.2d 961).

Despite the statute and its purpose, however, New York courts have declined to...