Edgar v. Kajet

Decision Date18 November 1975
Citation375 N.Y.S.2d 548,84 Misc.2d 100
PartiesPatricia EDGAR, et al., Plaintiffs v. Hugo KAJET et. al., Defendants.
CourtNew York Supreme Court

William A. Scorzari, Huntington, for plaintiffs Marsden & edgar.

Meyer, English & Cianciulli, P.C., Mineola, for defendant Avis, Inc.

Pizzitola & DiBlasi, Brooklyn, for defendants Harris.


The novel question presented herein is the liability for negligence of a non-seller of intoxicating beverages for the injurious acts of the distributee to a third party after the distributee leaves the non-seller's premises. Defendant Avis, Inc. moves for an order pursuant to CPLR 3211, subd. (a)(7) dismissing the complaint and all cross-claims for failure to state a cause of action against defendant Avis, Inc.

For the purposes of this motion, each allegation of the pleadings referring to Avis must be deemed to be true (St. Regis Tribe of Mohawk Indians v. State of New York, 5 N.Y.2d 24, 36, 177 N.Y.S.2d 289, 297, 152 N.E.2d 411, 417; County of Orange v. Metropolitan Transp. Auth., 71 Misc.2d 691, 696, 337 N.Y.S.2d 178, 187, affd. 39 A.D.2d 839, 332 N.Y.S.2d 420). Essentially, the allegations of the pleadings with respect to defendant Avis, Inc. may be summarized as follows: defendant Hugo Kajet was employed by Avis; plaintiffs were injured in an accident caused solely by defendants' negligence; that prior to the accident, Avis conducted a party attended by Kajet 'at which liquor and other intoxicating beverages were served freely and dispensed without charge' and allowed Kajet to become intoxicated; that Avis served Kajet more liquor while intoxicated and permitted Kajet to leave the party and to operate a motor vehicle.

The general rule at common law was that it was not a tort to either sell or give intoxicating liquors to ordinary able-bodied persons. The reason being that the drinking of the liquor, not the furnishing of it, was considered to be the proximate cause of any injury (45 Am.Jur.2d, Intoxicating Liquors, § 553; see, e.g., Hall v. Budagher, 76 N.M. 591, 417 P.2d 71, 73 (and cases cited therein)). To alleviate the obstacles posed by the common law, the Dram Shop Act was enacted to provide a remedy where none had previously existed (see generally Note, Liability Under the New York Dram Shop Act, 8 Syr.L.Rev. 252).

The New York version of the Dram Shop Act is now found in General Obligations Law, § 11--101, which provides in pertinent part that:

'1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.'

This statute is to be read in connection with section 65 of the Alcoholic Beverage Control Law (see Mitchell v. The Sholas, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21; Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212) which provides as follows:

'Prohibited Sales. No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to

1. Any minor, actually or apparently, under the age of eighteen years;

2. Any intoxicated person or to any person, actually or apparently, under the influence of liquor.'

The Court construes the words 'give away' as being applicable only to one engaged in the liquor business.

It is plaintiffs' basic contention that it is the public policy of this State to protect members of the general public from injuries resulting from the excessive use of intoxicating beverages. Plaintiffs cogently argue that the above quoted statutes, when read in conjunction, impose liability on the non-seller of alcohol to any third person who shall be injured by reason of the acts of an intoxicated person when that non-seller has contributed to such intoxication. It is quite correctly pointed out, however, that there have been no reported cases wherein liability has been imposed against a non-seller of intoxicating liquors in New York and the out-of-state authorities which plaintiffs rely upon can be distinguished.

Plaintiffs place principal reliance upon Brockett v. Kitchen Boyd Motor Co., 24 Cal.App.3d 87, 100 Cal.Rptr. 752, wherein an intoxicated minor was served alcoholic beverages by his employer at a Christmas party. In addition to the fact of the intoxicated person being a minor, the defendant employer's direction and instruction to the minor to drive the car home was found to be a crucial consideration to imposing liability by the Brockett court. Thus, under circumstances indicating a wanton diregard for the safety of third persons, the California court held that the...

To continue reading

Request your trial
27 cases
  • Kelly v. Gwinnell
    • United States
    • New Jersey Supreme Court
    • June 27, 1984
    ...Spring Lake Park, 314 N.W.2d 836 (Minn.1982); Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 (App.Div.1977); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (Sup.Ct.1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 Whether mentioned or not in these opinions, the very existence of a Dram Sho......
  • Otis Engineering Corp. v. Clark
    • United States
    • Texas Supreme Court
    • November 30, 1983
    ...no duty on behalf of the employer because of his obvious lack of control. Judgment was rendered for defendant. In Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976), Kajet, an employee of Avis, attended a company party "at which liquor and......
  • Olsen v. Copeland, 77-626
    • United States
    • Wisconsin Supreme Court
    • June 29, 1979
    ...v. Steffens, 170 Conn. 356, 365 A.2d 1174 (1976); Keaton v. Kroger Co., 143 Ga.App. 23, 237 S.E.2d 443 (1977); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (1975); Griffin v. Sebek, 245 N.W.2d 481 (S.D.1976); Parsons v. Jow, 480 P.2d 396 (Wyo.1971). Of the states recognizing a common-la......
  • Burkhart v. Harrod
    • United States
    • Washington Supreme Court
    • May 5, 1988
    ...guest up for the night? As one court has noted, the implications of social host liability are "almost limitless". Edgar v. Kajet, 84 Misc.2d 100, 103, 375 N.Y.S.2d 548 (1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 The nature of the judicial role prevents us from capably deciding the relati......
  • Request a trial to view additional results
1 books & journal articles
  • Social Host Immunity: A New Paradigm to Foster Responsibility
    • United States
    • Capital University Law Review No. 38-1, September 2009
    • September 1, 2009
    ...a tortfeasor by reason of intoxication, but such a policy decision should be made by the legislature . . . .”). 99 Edgar v. Kajet, 375 N.Y.S.2d 548, 552 (N.Y. Spec. Term 1975), aff'd , 389 N.Y.S.2d 631 (N.Y. App. Div. 1976), superceded by N.Y. GEN. OBLIG. LAW § 11-101 (2009) as recognized i......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT