Harris v. Hurlburt
| Decision Date | 30 September 1975 |
| Citation | 373 N.Y.S.2d 480,83 Misc.2d 626 |
| Parties | William C. HARRIS and Betty Harris, Plaintiffs, v. Lyman C. HURLBURT, Defendant. |
| Court | New York Supreme Court |
This action was brought to recover damages for grievous injuries suffered by William C. Harris in a one-car accident which occurred about 1:20 A.M., April 8, 1972, on Route 14 in Ontario County. The car in which he was riding as a passenger went off the right shoulder of the road and, according to the police investigation, travelled 360 feet, spun around and skidded 275 feet backwards across both lanes, struck a tree on the left side of the road, rupturing the gas tank and burst into flames. The owner and operator of the car, Martin Arndt, a friend of the plaintiff's, and another passenger, Allen Chilson, Jr., suffered multiple burns.
William C. Harris, in addition to burns, also fractured his back and neck and is now virtually a paraplegic. He is the sole plaintiff as the action of the co-plaintiff, Betty Harris, was discontinued at trial.
The case was tried without a jury and the proof was principally submitted on the depositions of both parties. The facts are not disputed. The only one to give evidence regarding the happening of the accident and the events preceding it was the plaintiff.
Plaintiff and his two companions, Arndt and Chilson, by previous arrangement met at a tavern in Waterloo in Seneca County at approximately 7:30 P.M. on April 7, 1972. When plaintiff arrived at the tavern, called 'Charlie's', Arndt and Chilson were already there and told the plaintiff that they had previously been at another tavern where they had consumed alcoholic beverages. They remained at Charlie's for approximately one and a half hours, leaving shortly after 9 P.M., and while there both plaintiff and Arndt consumed approximately five beers, the three taking turns buying for each other.
Shortly after 9 P.M. they left Charlie's and Arndt drove Chilson and the plaintiff in Arndt's automobile to the Grist Mill in Alloway, Wayne County. They arrived there at approximately 9:30 P.M. and remained until 1 A.M., April 8, 1972. The three men continued buying drinks for each other, with Arndt and plaintiff each having maxed drinks or highballs, about one every half hour.
That evening, being a Friday, there was a band playing and a rather large crowd in attendance. In addition to the defendant, then the owner of the Grist Mill, there were other employees present, a man working at the door, a waitress and a bartender.
Although neither plaintiff nor the defendant recall seeing each other at the Grist Mill that evening, this is immaterial for the purposes of the lawsuit because defendant's responsibility could also be based upon vicarious liability.
The complaint alleges negligence of the defendant but also makes out a cause of action under the General Obligations Law § 11--101, subdiv. 1, which provides:
'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.'
As the plaintiff correctly points out, reference must also be made to subd. 2, § 65 of the Alcoholic Beverage Control Law to determine what unlawful selling is. This section prohibits the sale of alcoholic beverages to, among others, 'any intoxicated person or to any person, actually or apparently, under the influence of liquor.'
It is not necessary for the plaintiff to show that Arndt's intoxication was due solely to the alcoholic drinks consumed at the Grist Mill, the cases holding that it is enough if the liquor sold or furnished contributed in any degree to the intoxication (Lawson v. Eggleston, 28 App.Div. 52, 52 N.Y.S. 181, aff'd without opinion, 164 N.Y. 600, 59 N.E. 1124).
A harder question is whether or not the plaintiff must also prove that the defendant knew that Arndt, as the person who caused the injury, was intoxicated at the time of the sale. Intoxication at that time need not be shown directly but may be proven circumstantially. Thus, if an accident occurs quite soon after one is drinking and he is shown to be intoxicated at the time of the accident, this would be sufficient to give rise to a reasonable inference that he was also intoxicated at the time of drinking (Lawson v. Eggleston, supra; McNally v. Addis, 65 Misc.2d 204, 317 N.Y.S.2d 157).
But is it necessary to prove that the defendant or his employees had knowledge or notice of Arndt's intoxication at the time of the sale, assuming he...
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