McNally v. Addis

Decision Date03 December 1970
PartiesJohn McNALLY, Plaintiff, v. Harry F. ADDIS, Jr., and Pasquale Trama, Jr., Defendants.
CourtNew York Supreme Court

Clarence A. Smith, Ossining, for plaintiff; Thomas G. De Caro, White Plains, of counsel.

Raymond J. MacDonnell, New York City, for defendants; Arthur Calger, Hartsdale, of counsel.

JOSEPH F. GAGLIARDI, Justice.

This is an action brought by decedent's father pursuant to section 11--101 of the General Obligations Law, commonly referred to as the Civil Damage or Dram Shop Act. The statute provides (General Obligations Law § 11--101, subd. 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 * * * liquor (to) such intoxicated person, have caused or contributed to such intoxication; * * *'.

The statute, as its predecessors, further provides for compensatory and punitive damages and authorizes a parent to maintain an action.

The matter was tried without a jury and the testimony elicited is as follows: plaintiff's decedent, Thomas McNally, was seventeen years and seven months old on October 24, 1964, when he met his death in an automobile accident. Decedent was a senior in high school, was six feet two inches in height, weighed 225 pounds and earned approximately $40. a week as a part-time employee, of which sum $10. per week was contributed to his parents' household expenses. Decedent resided at home and had a driver's license which permitted him to operate a motor vehicle during evening hours. On October 23, 1964, he borrowed the family automobile, with his parents' consent, purportedly to attend a church social. Decedent picked up a friend, one Douglas Lyman, and drove to the social but left shortly thereafter to go to several bars. Lyman was twenty years old and on his last day of leave from military service. He testified that his intention for that evening was to celebrate his imminent departure. At nine pM. the young men arrived at their first destination, a bar, where they remained for about forty-five minutes. During this sojourn Lyman consumed three or four whiskeys and decedent had at least one beer. Thereafter, the young men attempted to gain access to a second bar in the immediate vicinity but were refused service because decedent failed to produce identification on request. Undaunted the young men returned to the automobile and proceeded to defendants' bar in Bedford Hills. Lyman testified that decedent appeared normal, sobar and operated the vehicle without incident. They arrived at defendants' bar at approximately eleven or eleven-thirty p.m. and Lyman personally observed decedent buy and consume one beer there. Lyman became intoxicated at defendants' bar and could not recall how many beers decedent consumed although he speculated that approximately ten beers were served decedent. Similarly, Lyman could not remember whether decedent drank bottled or tap beer but surmised that it was Schaefer bottled beer. Lyman believed that he and decedent remained on the premises for at least one hour.

At 12:55 a.m. decedent and Lyman were involved in a motor vehicle accident when their car which was being driven by the decedent struck two parked vehicles on Church Street in Bedford Hills. Lyman could not recall having left defendants' bar and has no recollection of the accident. Decedent was pronounced dead on arrival at the Northern Westchester Hospital. An autopsy performed on October 24, 1964, the day of the accident, at 11:30 a.m. found 0.28% 'ethanol' in decedent's blood.

Defendants, the owners and operators of the bar, testified in substance that they asked the young men to leave the premises and did not serve them. However, searching cross-examination established various inconsistencies in their respective testimony. For example, defendant Trama testified that decedent exhibited a draft card but plaintiff stated that the contents of decedent's wallet as returned from the hospital did not contain any such identification. Addis testified that he worked at a bar located on the second floor of defendants' premises and that no employee ever tended bar there. However, on the night in question he came downstairs, while decedent was on the premises, to obtain some ice. Addis was asked by Trama to inform decedent and Lyman that they should leave and Addis did as directed. During this period of seeking ice the cash box upstairs was left unguarded and a busy bar remained unattended. Additionally, Trama stated that decedent and Lyman were on the premises for only ten minutes but had previously conceded at an examination before trial that they might have remained for one-half hour.

Under the foregoing circumstances the Court finds the disinterested witness' testimony of Douglas Lyman credible to the extent that a beer was sold by defendants to decedent and consumed by him.

Prior to discussing the elements of proof in Dram Act cases it is necessary to determine precisely what plaintiff's contentions are. At the trial plaintiff's counsel stated, as is alleged in the complaint, that part of the cause of action is predicated upon the unlawful sale of liquor to a minor. The Court will discuss the various ramifications the issue appears to raise. The point is relevant in two respects: to establish an 'unlawful' sale as required by statute and to bring such sales within the meaning of the Dram Shop Act whereby the burden of proof upon plaintiff to establish a sale to an 'intoxicated person' is considerably lessened, if not entirely removed. The importance of the latter question shall be fully developed as no reported case in this State has passed upon the proposition under the present version of the Dram Shop Act. Other serious questions have arisen concerning the application of the statute to the facts of this case. Consequently, the Court will fully discuss the elements of proximate cause, unlawful sale, whether the Dram Shop Act covers sales of unidentified beers, and the legal damages recoverable, if any. Additionally, for the purpose of completeness the Court will also discuss plaintiff's potential common-law negligence cause of action.

In 1873, New York enacted its first Dram Shop Act (L.1873, C. 646), entitled 'an act to suppress temperance, pauperism and crime'. The statute provided that designated persons, including a spouse, parent and child:

'injured in person, property, or means of support, by any intoxicated person, or in consequence of the intoxication, * * * of any person, shall have a right of action * * * against any person who shall, by selling * * * intoxicating liquor, caused the intoxication, in whole or in part'.

Nineteen years later the statute was amended to include a notice requirement, conditioning recovery upon proof that written notice had been given the vendor converning sales to the intoxicated person (L.1892, C. 401 § 40; Quinlan v. Welch, 141 N.Y. 158, 36 N.E. 12; Snyder v. Launt, 1 App.Div. 142, 37 N.Y.S.2d 408; see L.1892, C. 403 § 2). In 1896 the diverse legislation regarding liquor regulation was repealed and replaced by the Liquor Tax Law which carried forward a form of the original Dram Shop Act in combination with the liberal recovery provisions of the Laws of 1857 (L.1896, C. 112 § 39; Westbrook v. Miller, 98 App.Div. 509, 90 N.Y.S. 558; see L.1857, C. 628 §§ 20, 28). The Liquor Tax Law was thereafter transferred to the Consolidated Laws (L.1909, C. 39), but was largely nullified by the ratification of the Eighteenth Amendment to the Federal Constitution in 1919 and was repealed two years later (L.1921, C. 155 § 2). However, the Legislature deemed it important to retain a Dram Shop Act and concomitant with its repeal of the Liquor Tax Law enacted section 16 of the Civil Rights Law (L.1921, C. 157), which apparently was taken In haec verba from a provision contained in the National Prohibition Act of 1919 (41 Stat. 305, 27 U.S.C. § 32, repealed 49 Stat. 872, C. 740, Tit. I § 1, see Wilcox v. Conti, 174 Misc. 230, 20 N.Y.S.2d 106). In 1964, section 16 was transferred without change in language to the General Obligations Law (L.1963, C. 576).

The gravamen of plaintiff's claim is the right to recover damages under the Dram Shop or Civil Damage Act (General Obligations Law § 11--101). The common law generally did not recognize a cause of action against the vendor of alcoholic beverages where his intoxicated patron caused an injury (Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450; 130 A.L.R. 352, Ann. 'Sale of Liquor or Drugs--Seller's Liability'). While there is a trend rejecting the common law rule (Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 6; Waynick v. Chicago's Last Dept. Store, 269 F.2d 322 (7th Cir.), cert. den. 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (applying Mich, law); Pike v. George, 434 S.W.2d 626 (Ky.); Prevatt v. McClennan, 201 So.2d 780 (Fla.App.); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847), a majority of jurisdictions favor nonliability in the absence of a Dram Shop Act (Hamm v. Carson City Neggett, Inc., 450 P.2d 358 (Nev.); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656; see 75 A.L.R.2d 833, Ann. Intoxicants or Drugs--Injury'). Whether New York may have been considered among the majority jurisdictions is debatable. Our Court of Appeals in sustaining the constitutionality of this State's first Dram Shop Act observed that it creates 'a right of action and imposes a liability unknown at common law' (Bertholf v. O'Reilly, 74 N.Y. 509, 524), but in a companion case it noted that the unknown cause of action was the new type of damages permitted to be recovered by one injured in 'means of support' (Volans v. Owen, 74 N.Y. 526; Quinlan v. Welch, 141 N.Y. 158, 36 N.E. 12). Furthermore, a recent New York case has permitted an action in common law negligence...

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