Manfredonia v. American Airlines, Inc.

• Decision Date: 14 May 1979
• Citation: 68 A.D.2d 131,416 N.Y.S.2d 286
• Parties: Linda MANFREDONIA et al., Respondents, v. AMERICAN AIRLINES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 286

416 N.Y.S.2d 286

68 A.D.2d 131

Linda MANFREDONIA et al., Respondents, v. AMERICAN AIRLINES, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

May 14, 1979.

John M. Downing, New York City (Leonard M. McEvoy, New York City, of counsel), for appellant.

Baron & Vesel, Forest Hills (Martin L. Baron, Forest Hills, of counsel), for respondents.

Before MOLLEN, P. J., and HOPKINS, RABIN and MARTUSCELLO, JJ.

HOPKINS, Justice.

This appeal comes to us from a judgment following a trial on liability only, and submits questions of law both intricate and significant. The plaintiffs' judgment follows the plaintiffs' action based on a breach by the defendant of the State "dram shop act" (General Obligations Law, § 11-101), alleging that the plaintiff Linda Manfredonia was assaulted by an intoxicated fellow passenger while in flight in the defendant's air transport from New York to Los Angeles, with a stopover at Dallas.

The jury determined that the defendant was not guilty of common law negligence in serving alcoholic beverages to the assaultive passenger or in failing to exercise proper care toward Linda to protect her from injury and humiliation. The jury's verdict in favor of the plaintiffs ensued after a charge by the Trial Judge that a breach by the defendant of the provisions of section 11-101 of the General Obligations Law would render the defendant liable for the damages caused by the assault on Linda, if the jury found that the defendant had sold intoxicating beverages to the offending passenger when the passenger was intoxicated and that his intoxication had contributed to Linda's injury.

The defendant urges reversal on the ground that the dram shop act cannot have extraterritorial effect and that, in any event, the plaintiffs only interjected the statute as a ground for liability at the time the case was about to go to the jury and therefore waived the provisions of the statute.

We reverse and grant a new trial. We agree with the defendant's contention that the statute cannot be applied to interstate flights, and that, consequently, the judgment cannot rest on the theory that the defendant was liable for a violation of the statute. However, we grant a new trial because the complaint states a cause of action for recovery based on an alleged violation by the defendant of the regulations of the Federal Aviation Administration (FAA) forbidding the service of alcoholic beverages to an intoxicated passenger aboard an aircraft.

I

On May 2, 1975 Linda Manfredonia was a passenger on the defendant's flight from New York to Los Angeles, with an intermediate stopover at Dallas. On the flight from New York to Dallas she was seated across the aisle from a young man. She testified that the man was served several drinks of alcoholic beverages by the defendant's attendants, and that he became increasingly intoxicated and abusive, made sexual advances to her, and when she did not respond, suddenly punched her in the eye. Although the defendant produced witnesses who denied that she had complained to the defendant's employees about the man's behavior, ¹ the testimony at the trial reflected a fair factual question, and the determination by the jury of the dispute cannot be assailed for lack of a substantial factual foundation. Rather, the questions before us are matters of law.

The plaintiff's complaint alleged three causes of action: (1) that the defendant was guilty of common-law negligence when, as a common carrier, it failed to exercise due care to protect Linda's safety as a passenger; (2) that the defendant was guilty of the violation "of the applicable laws that prohibit the sale of alcoholic beverages to a person in a state of intoxication"; ² (3) a derivative cause of action by John Manfredonia, Linda's husband, for loss of services. In response to a demand for a bill of particulars, the plaintiffs amplified the second cause of action to claim that they were depending, as a source of liability, on the "(r)egulations of the Federal Aviation Administration of the United States Government." No specific mention of the dram shop act was made in plaintiffs' bill.

At the trial, nevertheless, in spite of the defendant's objection, the plaintiffs claimed a violation of the dram shop act as the ground of liability under the second cause of action, and the case was submitted by the Trial Judge to the jury under that theory. The Trial Judge also submitted to the jury the theory of recovery under common-law negligence as alleged in the first cause of action.

The jury found in favor of the defendant on the first cause of action and in favor of the plaintiffs on the second and third causes of action. The questions of law, as we see them, are: (1) whether the dram shop act truly can apply to an air carrier in interstate flight, either as an exercise of extraterritorial jurisdiction or in the face of Federal preemption; (2) whether a cause of action can be based on a violation of Federal regulations akin to the provisions of the dram shop act; and (3) whether a State court can enforce the regulations through a common law action.

II

The dram shop act was first enacted in 1873 (L.1873, ch. 646), although an earlier act (L.1857, ch. 628) provided its genesis (Bertholf v. O'Reilly, 74 N.Y. 509, 518). In substance, the dram shop act, now section 11-101 of the General Obligations Law, after several revisions (see Quinlan v. Welch, 141 N.Y. 158, 36 N.E. 12; Westbrook v. Miller, 98 App.Div. 590, 90 N.Y.S. 558; Wilcox v. Conti, 174 Misc. 230, 20 N.Y.S.2d 106), last embodied in section 16 of the Civil Rights Law, attaches liability to a person who sells intoxicating beverages to another who is intoxicated and inflicts personal injury. ³ The statute creates a right of action unknown at common law in that it permits a new kind of damages to be recovered (Bertholf v. O'Reilly, 74 N.Y. 509, 524, Supra; Volans v. Owen, 74 N.Y. 526), and the contributory negligence of the injured person is no defense (Mitchell v. The Shoals, 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21). The statute should be read and considered with section 65 of the Alcoholic Beverage Control Law, as carrying out the State public policy to protect the community by discouraging the sale of intoxicating beverages to one already intoxicated (cf. Playford v. Perich, 2 Misc.2d 170, 173, 152 N.Y.S.2d 201, 204; 2 N.Y.Jur., Alcoholic Beverages, § 116, p. 615).

It therefore follows that the adverse verdict of the jury on the first cause of action sounding in common-law negligence does not in itself conclude the plaintiffs' second causes of action, for the causes of action are diverse. The first cause of action rests on the defendant's common-law duty as a common carrier to shield its passengers from harm arising from foreseeable risks (see Koch v. Brooklyn Heights R. R. Co., 75 App.Div. 282, 283, 78 N.Y.S. 99, 100; 7 N.Y.Jur., Carriers, §§ 393, 394). The second cause of action, in contrast, is derived, as the complaint alleges, from the sale of alcoholic beverages in violation of the "applicable laws". The dram shop act is not based on common-law negligence (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; 2 N.Y.Jur., Alcoholic Beverages, § 116, p. 614).

The question then arises whether the statute applies extraterritorially.

III

In 1884 some 11 years after the original passage of the dram shop act it was held that the statute had no extraterritorial effect (Goodwin v. Young, 34 Hun. 252, 254). In Goodwin (supra), a New York tavern owner illegally sold liquor to a patron who crossed into Vermont and there caused damage. On the principles of Lex loci then prevailing, the court held that no cause of action lay under the statute.

The plaintiffs argue in answer that the principles of Lex loci no longer are the criteria for the ascertainment of tort liability; that indeed the courts now look to a test based on the significant contacts of the parties to the forum what in truth is the center of gravity of the dispute (see, e. g., Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279; Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454; Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877). They point out that in Miller v. Miller (supra), the court refused to apply Maine law, limiting wrongful death damages to $20,000, and applied New York law, without limitation of amount of recovery, in the case of a New York resident killed in an automobile accident in Maine. But the parallel sought to be drawn by the plaintiffs is not complete. In those cases the negligence of the defendants turned on common law doctrine, whereas here the plaintiffs' second cause of action is grounded purely on statute.

The true inquiries must be whether New York intended that its statute should operate beyond its limits, and then, whether as a matter of Federal control, the statute can operate beyond the New York boundaries, even assuming that the statute may have been intended to have that effect. Goodwin v. Young, 34 Hun. 252, Supra is authority of an earlier period, closer to the time of the passage of the statute, that the statute was not intended to operate outside New York. In other jurisdictions where the question has been considered the construction of the statute has varied.

In Illinois, for example, the courts have steadfastly refused to give extraterritorial effect to the dram shop act (Eldridge v. Don Beachcomber, Inc., 342 Ill.App. 151, 95 N.E.2d 512; Butler v. Wittland, 18 Ill.App.2d 578, 153 N.E.2d 106; Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292; Liff v. Haezbroeck, 51 Ill.App.2d 70, 200 N.E.2d 525; Graham v. General U. S. Grant Post No. 2665, V. F. W., 43 Ill.2d 1, 248 N.E.2d 657; Waynick v. Chicago's Last Dept. Store, 7 Cir., 269 F.2d 322, cert. den. 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554). Eldridge, the first case to consider the issue in...