Kohler v. Wray

• Decision Date: 14 July 1982
• Citation: 452 N.Y.S.2d 831,114 Misc.2d 856
• Parties: Donald B. KOHLER, Jr., Plaintiff, v. Jack WRAY, Defendant. Donald B. KOHLER, Jr., Plaintiff, v. Vicki WRAY, Defendant.
• Court: New York Supreme Court

Page 831

452 N.Y.S.2d 831

114 Misc.2d 856

Donald B. KOHLER, Jr., Plaintiff, v. Jack WRAY, Defendant.

Donald B. KOHLER, Jr., Plaintiff, v. Vicki WRAY, Defendant.

Supreme Court, Steuben County.

July 14, 1982.

Ziff, Weiermiller, Learned & Hayden, Elmira (Philip C. Learned, Elmira, of counsel), for plaintiff.

Buck, Gleckner, Danaher & Harpending, Elmira (Arlington Gleckner, Elmira, of counsel), for defendants.

DECISION

DAVID O. BOEHM, Justice.

This is a motion to dismiss the complaint of plaintiff, Donald Kohler, Jr., or, in the alternative, for summary judgment. Plaintiff's claim against defendants Jack and Vicki Wray is grounded upon common law negligence and violation of the Dram Shop Act (General Obligations Law § 11-101).

It appears that on February 21, 1981, the defendants invited several friends to their home for a housewarming party which featured a band and several kegs of beer. After the party had been in progress for some time the plaintiff arrived and was told by Jack Wray to help himself to the beer that was downstairs in the cellar. Plaintiff claims that at this time he was also encouraged by Wray to contribute some money so that more beer could be purchased.

Not long after his arrival at the party, plaintiff approached Kelly Piersons who, unbeknown to plaintiff, was married and in the company of her husband, and asked her to dance. There is some dispute as to the intervening details, but within a short time plaintiff and Mr. Pierson exchanged blows, with the result that plaintiff's jaw was broken.

Thereafter, the plaintiff commenced these lawsuits against the Wrays, alleging that they negligently caused or permitted Mr. Piersons to become intoxicated and that, knowing he was intoxicated, they negligently permitted him to assault and injure the plaintiff. In his bill of particulars, plaintiff also raises a violation of the General Obligations Law (GOL), presumably referring to § 11-101, New York's "Dram Shop Act."

Defendants now seek either dismissal of the complaint for failure to state a cause of action or, alternatively, summary judgment.

GOL § 11-101 authorizes recovery for injuries caused by an intoxicated person from "any person" who unlawfully contributes to his intoxication. It is settled, however, that liability under the statute does not flow from the mere service of alcohol to an intoxicated person, but instead requires a "prohibited sale" as that term is defined by Alcoholic Beverage Control Law (ABCL) § 65 (Gabrielle v. Craft, 75 A.D.2d 939, 428 N.Y.S.2d 84; Huyler v. Rose, 88 A.D.2d 755, 451 N.Y.S.2d 478; Paul v. Hogan, 56 A.D.2d 723, 392 N.Y.S.2d 766). No such sale has been alleged or shown to have occurred here.

Although ABCL § 65 provides that "no person shall sell, deliver or give away" alcohol to certain persons, the courts of this state have uniformly held that the law has no application to a social host in a non-commercial setting (see, Huyler v. Rose, supra; Gabrielle v. Craft, supra; Paul v. Hogan, supra; 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, mot. for lv. to app. dsmd. 41 N.Y.2d 802, 393 N.Y.S.2d 1026, 362 N.E.2d 626). Although the words "give away" are included, the plain purpose of this statutory language was to include within the ambit of the sanctions "those instances where the proprietor of a licensed establishment ... provides the customer with the traditional 'drink on the house.' The statute's title and its terms manifest the obvious intent to exclude from its coverage the social host who gratuitously provides his guest with an alcoholic beverage" (Gabrielle v. Craft, supra, at 940, 428 N.Y.S.2d 84).

Plaintiff's suggestion that defendant forsook the protection of the "social host" exception to ABCL § 65 when they asked their guests to "chip in" for the beer served is unpersuasive. In the circumstances of this case such conduct alone, unaccompanied by any expectation of pecuniary gain, falls far short of the type of commercial activity that ABCL § 65 was intended to prohibit (see, Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548, supra, at 103-104; Miller v. Owens-Illinois Glass Company, 48 Ill.App.2d 412, 199 N.E.2d 300; compare Bartkowiak v. St. Adalbert's Church, 40 A.D.2d 306, 340 N.Y.S.2d 137 with annotation, "Dramshop Act--Nonbusiness Seller," 8 A.L.R.3d 1412 and cases cited therein). Accordingly, plaintiff's actions based upon a violation of GOL § 11-101 are dismissed.

Nor does the common law recognize a right of action against a host based upon his serving alcohol to one who later injures another (Paul v. Hogan, supra ) and, insofar as plaintiff's second cause of action asserts such a claim, it, too, is dismissed.

The common law recognizes a landowner's duty to take reasonable precautions to supervise a guest to prevent him from harming others, provided that the host "knows that he can and has the opportunity to control the third party's conduct and is reasonably aware of the necessity of such control" (id., at 724, 392 N.Y.S.2d 766; Huyler v. Rose, supra; Mangione v. Dimino, 39 A.D.2d 128, 332 N.Y.S.2d 683). In addition, a landowner is under a duty to act in a reasonable manner to prevent harm to those on his property, and the standard of care must be determined in view of all the circumstances of the case (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Scurti v. City of New York, 40 N.Y.2d 433, 437, 387 N.Y.S.2d 55, 354 N.E.2d 794; unreported decision, Treat v. Ponderosa Systems, Index No. 81-2682, Special Term of Supreme Court, Sixth Judicial District, Broome County, April 27, 1982). Sympathetically read, the complaint adequately states a claim against defendants based upon breach of this duty (see Huyler v. Rose, supra).

However, defendants also seek summary judgment. Although they have submitted nothing to relieve defendant, Vicki Wray, of liability, they have offered proof that Jack Wray had neither reason to anticipate nor opportunity to prevent Piersons from assaulting plaintiff.

A reading of the transcript of Jack Wray's examination before trial indicates that Piersons had arrived at the party shortly before the plaintiff and that, as far as Wray knew, Piersons had not had much to drink prior to his altercation with plaintiff (p. 60). Jack Wray testified that he heard neither argument nor shouting prior to the altercation (pp. 61-62) and that until then Piersons had been acting "formal" (p. 65). He further stated that he had never before seen Piersons fight with anyone, whether over his wife or for any other cause (pp. 65-68). Finally, Wray testified that although he saw most of the fight, it had occurred and ended so quickly that he did not have time to intervene (pp. 63-64).

Although plaintiff urges that the transcript of his own EBT raises factual issues as to defendant Jack Wray's liability, no such issues are in fact made to appear. As plaintiff describes the incident, he was asking Kelly Piersons to dance when her husband, whom he had not previously noticed, "pulled her arm away, and kind of shoved me aside, and there was arguing between him and her, and I was trying to apologize, saying I only asked her to dance and I didn't know she was your wife, and he still had fire in his eye, and I couldn't talk him out of it. I turned around to set my drink down, and before I even got turned back around, he let me have it right there" (pp. 21-22). By plaintiff's own account, neither defendant appeared to be nearby at the time of his confrontation with Piersons (p. 28) and "things happened pretty quick" (p. 55).

While plaintiff alleged that Piersons' attack was preceded by a brief argument with his wife, plaintiff admitted he could not make out what Piersons was saying...