Magee v. Landers
| Decision Date | 24 January 1984 |
| Docket Number | WAQX-95 |
| Citation | 471 N.Y.S.2d 799,122 Misc.2d 736 |
| Parties | Robert Paul MAGEE, Jr., Plaintiff, v. Joseph E. LANDERS, Allen Young, and George L. Riva, Jr., Jointly and Severally, Defendants. Joseph E. LANDERS and Allen Young, Third-Party Plaintiffs, v. AGK COMMUNICATIONS, INC., d/b/a3 FM Stereo, Third-Party Defendants. |
| Court | New York Supreme Court |
MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse, for defendants and third-party plaintiffs Landers and Young.
Jeffrey B. Davis, Syracuse, for defendant Riva.
Edward W. Dietrich, P.C., Syracuse, for third-party defendants.
Third-party defendants AGK Communications, Inc., d/b/a WAQX-95.3 Stereo (hereinafter "95X") move to dismiss the third-party complaint for failure to state a cause of action. The issue to be decided is whether 95X, a radio station that, together with defendant Riva, the owner and operator of a tavern, co-sponsored and promoted a "bar party" at which alcoholic beverages were dispensed without charge, may be held liable under the Dram Shop Act (General Obligations Law § 11-101).
On September 30, 1980, from 8 PM to 9:35 PM, the Main Street Mill, together with 95X, presented a "95X Bar Party" at which mixed drinks and draft beer were served at no charge. In exchange for providing the free drinks, the tavern was to receive radio advertising spots on 95X. The agreement of the co-sponsors provided, among other things, that "WAQX is not responsible for the actions of any person in attendance at the party". The radio station provided a disc jockey to play records during the party, and a representative of the station was apparently present, pursuant to the agreement, to be apprised of the total for drinks consumed. All drinks were dispensed or served by employees of the tavern.
Plaintiff and defendants Landers and Young, together with three others, left the tavern at about 11:30 PM and drove about three-quarters of a mile to the home of a friend, where they spent the next one-half hour awaiting his arrival. Upon leaving to return to the tavern, plaintiff was injured when he fell to the highway from the back of the pick-up truck owned by the defendant Young and operated by the defendant Landers.
The plaintiff's complaint alleges negligence on the part of defendant Landers in the operation of the truck while in an intoxicated condition, and further alleges a violation of the Dram Shop Act by defendant Riva by the unlawful sale of liquor to Landers. Defendants Landers and Young instituted a third-party action against 95X for indemnification or contribution on the theory that the bar party was a promotional event devised and conducted as a joint venture by 95X and the Main Street Mill Tavern.
General Obligations Law § 11-101 provides in pertinent part as follows:
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. 1
It is generally acknowledged that the statute was enacted for the dual purposes of suppressing the sale and use of intoxicating liquor, and of protecting and providing a remedy for dependents and persons injured by the unlawful sale of liquor. Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103; Mead v. Stratton, 87 N.Y. 493; Anderson v. Comardo, 107 Misc.2d 821, 436 N.Y.S.2d 669. The statute is remedial in nature (see Wilcox v. Conti, 174 Misc. 230, 20 N.Y.S.2d 106) and creates an expansive cause of action completely unknown at common law (see Volans v. Owen, 74 N.Y. 526; Mead v. Stratton, supra.) 2
The question here presented is whether strict liability under the Dram Shop Law may be extended to 95X as a non-seller of alcoholic beverages under the circumstances of this case.
It is well established that on a motion pursuant to CPLR 3211(a)(7), the question presented is whether a cause of action has been stated, not whether the cause of action can be proved. Paul v. Hogan, 56 A.D.2d 723, 392 N.Y.S.2d 766. Accordingly, all of the factual allegations in the complaint (or cross-claim) must be assumed to be true and the pleadings as a whole are deemed to allege whatever cause of action that can be implied from its statement by fair and reasonable intendment....
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O'Sullivan v. Hemisphere Broadcasting Corp.
...the distribution of beer and hence neither WBCN nor Miller had the right to control its distribution. See Magee v. Landers, 122 Misc.2d 736, 471 N.Y.S.2d 799 (N.Y.Sup.Ct.1984). Therefore, neither WBCN nor Miller can be held liable in negligence or for violation of c. Judgments affirmed. 1 M......